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"THE INTERNATIONAL COMMUNITY
AND THE SECESSIONIST PHENOMENON"
NOTES FOR AN ADDRESS TO
THE 1998 BANFF DIPLOMATIC FORUM
BANFF, ALBERTA
OCTOBER 30, 1998
Canadian unity, and the efforts made in recent
years by the Government of Canada to strengthen it, are a topic of interest to
other countries from a number of aspects. One aspect is the flexible type of
federalism we have developed. An audience of foreign observers would surely be
interested by the initiatives taken by the Canadian government to make our
federation even more flexible and better able to address the varied needs of our
populations, including the needs of Quebec society with its unique character.
Incidentally, the Government of Canada recently
proposed the creation of a forum on federations, so that countries that have
adopted this form of government can benefit from their respective experiences.
But today I am going to speak to you about
another aspect of the Canadian unity issue, an aspect which I feel also has
obvious international resonance. I am referring to the opinion rendered by the
Supreme Court of Canada on August 20, 1998, on unilateral secession.
That opinion is a turning point in the history of
the Canadian federation. It highlights, better than ever before, the
difficulties that would be entailed in breaking the ties uniting Quebec and the
rest of Canada. It helps all of us to gauge just how sensitive and difficult an
undertaking it is to reconcile secession and democracy while respecting the rule
of law. This legal clarification will strengthen Canadian unity, not because it
would place new obstacles in the path of Quebec's independence, but because it
reveals those obstacles that would inevitably arise in the event of an attempted
secession.
Perhaps other countries whose national unity is
challenged might draw inspiration from the approach indicated by the Supreme
Court of Canada. That, at least, is the opinion of a number of observers outside
Canada, including the Secretary-General of the United Nations. Indeed, Mr. Kofi
Annan told Le Devoir recently, after referring to the Supreme Court's opinion, "You're
talking to each other, not taking shots at each other. Recently, other regions
experiencing similar conflicts have turned to guns rather than discussions. I
think you provide a lesson for the whole world." (Le Devoir,
October 5, 1998)
As well, the newly elected president of the
European Court of Human Rights, Mr. Luzius Wildhaber, one of two experts who
submitted opinions to the Court at the request of the Government of Canada, has
said: "That's really ideally what a court should be able to bring
about, to bring rationality into a complicated discussion and to set up rules
that hopefully will be acceptable to all sides." (Ottawa Citizen,
October 11, 1998).
The Spanish newspaper El Pais, in an
editorial last August 23, agreed with the Supreme Court of Canada's opinion that
the separation of states in a democratic world must be settled by all the
parties concerned, rather than unilaterally. The Boston Globe
(September 21, 1998) has stated that the Supreme Court of Canada clarifies
"what is obvious to the rest of the world -- that independence is not there
just for asking. Nor should it be." And the Financial Times
(August 22, 1998), has noted: "If part of a country is determined to
leave, [...] there are only two routes: violence or negotiation. Canada's
Supreme Court has laid out a road map for the latter."
I believe these foreign observers are right: the
Supreme Court of Canada's opinion could provide a positive example for
international state practice. Before looking at how, I would like to review the
way the international community has reacted so far to the secessionist
phenomenon, a phenomenon that risks multiplying future catastrophes if the world
does not improve its capacity for dealing with it.
1. The international community's aversion
to unilateral secession
Let us imagine a democratic country–a
federation, perhaps, though not necessarily–where an election in one of its
regions is won by a separatist party. Let us suppose that the separatist party
believes it has the right to proclaim the region's independence unilaterally on
the basis of that single election win, but adds that it will hold a referendum
among the voters in the region so as to acquire additional democratic
legitimacy.
The party announces that if it won the referendum
by a simple majority, it would negotiate with the rest of the country to
facilitate the transition and to conclude what it calls a "political and
economic partnership" agreement. It stipulates, however, that at any point
in those negotiations, it could move to proclaim itself, unilaterally, a
government of an independent state. It also says that following that unilateral
proclamation, all citizens, both in the region concerned and in the country as a
whole, and all governments, both at home and abroad, would be legally bound to
consider it as the government of an independent state. The negotiations could
continue, but they would be between two independent states.
The question I want to put to you, who have a
good knowledge of international state practice, is how the government of that
country ought to react to such a claim to unilateral secession by the government
of one of its regions. My own assessment of the situation is that no country in
the world would agree to be bound by such a process of unilateral secession.
Among the most democratic countries in the world,
there are many who prohibit secession in their constitution, either explicitly
or implicitly. They believe that every portion of national territory belongs to
all the country's citizens, and that it could therefore not be divided.
The international community, for its part, has
shown itself to be extremely reluctant to recognize unilateral secession outside
the colonial context. If the complex phenomenon of international recognition
could be demonstrated by a single indicator, it would be UN membership. This is
due to the fact that under article 4 of the UN Charter only states may be
admitted as a member of the UN.
On October 24, 1945, the United Nations
Organization officially came into existence with 51 original members. It now has
185, thus 134 more. Most of these new members are former colonies, while others
came into being with the disintegration of their predecessor state, which was no
longer there to oppose international recognition of the secessionist entity.
As Professor James Crawford of Oxford University
remarked in his expert report submitted to the Supreme Court of Canada: "Since
1945 (outside the colonial context) no state which has been created by
unilateral secession has been admitted to the United Nations against the wishes
of the government of the predecessor state. [...] Where the government of the
state in question has maintained its opposition to the secession, such attempts
have gained virtually no international support or recognition, and this has been
true even when other humanitarian aspects of the situations have triggered
widespread concern and action."
If the international community is so clearly
opposed to the recognition of unilateral secession as an automatic right outside
the colonial context, it is undoubtedly because it would be so difficult to
determine on whom that right would be conferred, because such an automatic right
to secession would have drastic consequences for the international community–with
more than 3,000 human groups in the world conscious of a collective identity–and
because the creation of each new state would risk creating minorities within
that state that would claim their own independence.
More fundamentally, a philosophy of democracy
based on the logic of secession would incite groups to separate, rather than to
try to come closer together or reach agreement. In the words of former UN
Secretary-General Boutros Boutros-Ghali: "It remains that if every
ethnic, religious or linguistic group claimed statehood, there would be no limit
to fragmentation, and peace, security and economic well-being for all would
become ever more difficult to achieve."
These are valid principles and considerations.
Yet at the same time, we must ask ourselves whether a democratic state could
retain against its will a population concentrated in one portion of its
territory that very clearly wanted to leave. We need to find some good answers
to that question, because it is asserting itself, as we approach the new
millennium, as one of the most crucial issues for humanity.
In fact, since the end of the Cold War, according
to the Carnegie Commission on the Prevention of Deadly Conflict, the
number of conflicts within states has greatly exceeded the number of conflicts
between states, with no fewer than 233 ethnic or religious minorities calling
for improvements to their legal or political rights.
2. The Canadian approach to the
secessionist phenomenon
Between an outright ban on secession and its
acceptance as an automatic right, there exists a reasonable position: the
Canadian approach.
I expressed that position when I entered politics
in January 1996: "In the unfortunate eventuality that a strong majority
in Quebec were to vote on a clear question in favour of secession, I believe
that the rest of Canada would have a moral obligation to negotiate the division
of the territory." (Le Soleil, January 27, 1996)
That moral obligation, to which the Supreme
Court's opinion has given legal significance, stems from the fact that a
democracy such as Canada could not be what it is if it were not based on the
voluntary adherence of all its components. As the Honourable Allan Rock, then
Attorney General, so eloquently explained to the House of Commons on September
26, 1996, when he outlined the reasons for the Supreme Court reference:
"The leading political figures of all our
provinces and the Canadian public have long agreed that the country will not be
held together against the clear will of Quebecers. This government agrees with
that statement. This view has arisen partly out of our traditions of tolerance
and mutual respect, but also because we instinctively know that the quality and
functioning of our democracy requires the broad consent of all Canadians."
The obligation to begin negotiations on secession
exists only if a population has clearly given its support to secession through a
referendum. The referendum question must have been clearly about secession and
the majority must be a clear one, so that the population's belonging to the
country as a whole cannot be put at risk unless that population has clearly
renounced it.
It is best not to hold a referendum on secession
unless it is merely to officially confirm an observable consensus for this
radical political change. Such was the case, incidentally, in the 13 instances
of secession, outside the colonial context, in which a referendum has been held
since 1945: the average majority obtained was 92%.
Naturally, I am not proposing such a majority
threshold for Quebec. But, in Quebec as elsewhere, it is utterly irresponsible
to contemplate negotiating secession on the basis of a slim majority, of a
population split in two.
The majority would need to be sufficiently clear
to avoid any possibility of its collapsing under the pressure of the economic,
social and other difficulties that a secessionist initiative, even when
undertaken under ideal conditions, would undoubtedly cause. In addition, the
size of the majority must be sufficient to legitimize such a radical change that
would commit future generations. We must be wary of circumstantial majorities.
Negotiations on secession must be conducted in
accordance with the principles of democracy, the rule of law, protection of
minorities, and federalism (in the case of a federation). These principles must
be respected, so that secession is effected in the least unfavourable
circumstances possible, with a sincere concern for justice for all.
This quest for justice may lead to negotiations
on borders, to avoid, whenever possible, populations having to change countries
against their clearly expressed will. This is a sensitive issue, which should be
treated with the same sense of tolerance and democracy that leads to the
acceptance of secession itself.
Secession could not be proclaimed until
negotiations had produced a separation agreement, accompanied by a
constitutional amendment.
Many details remain to be worked out, something
the Supreme Court has wisely left to the discretion of politicians, but that is
the broad outline of the Canadian approach. There is no doubt in my mind that,
for Canada, this approach has a beneficial effect with regard to unity. That is
because this approach introduces clarity. And indeed, if there is one thing that
comes out clearly in poll after poll, it is that, with a clear question,
Quebecers choose a united Canada.
The vast majority of Quebecers want to remain
Canadian. They do not want to be forced to choose between their Quebec identity
and their Canadian identity. They reject exclusive definitions of the word
"people", and want to belong to the Quebec people and the Canadian
people at the same time, in this global world where having multiple identities
will be more of an asset than ever before to open ourselves to others.
It is not because of what the justices want, but
because of what Quebecers want, that the Supreme Court's opinion has the effect
of strengthening Canadian unity. By obliging all of us to act with clarity, the
Court's opinion confronts us with the clear choice of Quebecers: a united
Canada.
Despite its so clearly beneficial effects on
Canadian unity, I don't doubt that the approach stemming from the Supreme Court
of Canada's opinion is viewed outside Canada as very daring and liberal in the
face of the universally detested phenomenon of secession. After all, as the
newly elected president of the European Court of Human Rights has noted: "Nowhere
has there been any national court that spelled out the rules in advance of a
conceivable separation."
The Canadian approach rejects the use of force,
or any form of violence. The Canadian approach focuses on clarity, legality and
justice for all. While it may seem idealistic in many national contexts, that is
precisely because it seeks to deal in an ideal way with situations of break-up,
which are always complex and sensitive.
In terms of universal values, the Canadian
approach seems to me an admirable one. Its virtue lies not only in ensuring that
such a painful and difficult undertaking as secession is effected in the least
unfavourable way possible. Above all, the advantage of the Canadian approach is
that it provides an excellent argument against secession. For it is by behaving
admirably, even when beset by the most painful ills, that a country fosters in
its citizens the desire to stay together. As the Christian Science Monitor
so aptly put it (August 25, 1998): "The court, in a unanimous ruling,
has plotted a course that allows for separation but makes clear the gravity of
that undertaking. Its clear reasoning and fair-mindedness, in themselves, should
give many Quebecers yet another reason to stay within Canada."
Conclusion
Canada has worked hard to contribute to world
peace and to promote democratic values. Perhaps this is in part why the
international community finds it so difficult to hide its preference for a
united Canada, while taking pains not to interfere in Canada's domestic affairs.
For example, UN Secretary-General Kofi Annan
couldn't help telling a Quebec journalist recently: "Do not push for
separation." (Le Devoir, October 5, 1998). And the newly
elected president of the European Court of Human Rights, Mr Luzius Wildhaber,
has said that he would see the break-up of Canada as "a personal
loss" (Ottawa Citizen, October 11, 1998). And the former U.S.
Ambassador to Canada, Mr James Blanchard, said in a recent book that he was
convinced that "the entire world" wants Canada to stay
united.
And now, Canada has added another contribution, a
unique and original contribution which is certainly difficult to put into
practice, but is just as certainly a step in the right direction. It suggests a
way to more effectively manage what is becoming the most important challenge in
maintaining international order, namely the difficult reconciliation of respect
for states' territorial integrity and the phenomenon of secession.
The Canadian approach consists first of
highlighting the need to continually improve a country which all citizens can be
proud of, a democratic and prosperous country whose varied populations can
flourish with their own cultures and institutions, while working together toward
common objectives.
If, despite these types of arrangements that
federations such as Canada can achieve, a population were to express clearly its
desire to separate, negotiations on secession should be initiated, within the
framework of legality and justice for all, however numerous the difficulties
inherent in those negotiations would be.
That's the Canadian approach. I am convinced that
it will help Canada to stay united. I suggest it might also contribute to peace
and to enlightened state practice.
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