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"Referendums on secession and
requirement for clarity:
examples from Northern Europe"
Notes for an address by
the President of the Privy Council and
Minister of Intergovernmental Affairs
the Honourable Stéphane Dion
at the Conference of the
Nordic Association for Canadian Studies
Reykjavik, Iceland
August 5, 1999
If the topic for discussion were left entirely up to me, I would talk to you,
Canadianists of the Nordic Association for Canadian Studies, about the
northernness that we share. Our geographic kinship brings us closer together
than we realize. For example, I could talk about the Arctic Council, established
in 1996, on which our countries sit side by side, and which was first chaired by
Canada.
But you have not invited the Minister of Indian and Northern Affairs. You
have chosen the Minister of Intergovernmental Affairs because you likely want to
hear about Canadian unity.
And if you want to hear about Canadian unity it is likely because you have in
mind the close result of the referendum held in Quebec on October 30, 1995, in
which 50.6% of the valid votes cast supported the "No" in response to
a vague question posed by the Government of Quebec, on a rather nebulous
project, that of Quebec sovereignty with an offer of political and economic
partnership with Canada. I say "vague", but I leave it to you to judge
the clarity of the wording of the question for yourselves: "Do you agree
that Québec should become sovereign, after having made a formal offer to Canada
for a new Economic and Political Partnership, within the scope of the Bill
respecting the future of Québec and of the agreement signed on June 12,
1995?". You will not be surprised to learn that such a question generated a
great deal of confusion, which was measured by polls. For example, a Créatec
poll conducted in September 1995 revealed, among other things, that 53% of
Quebecers found the question ambiguous and 29% thought that a sovereign Quebec
would remain a Canadian province.
Since then, the Government of Canada has undertaken numerous initiatives that
have strengthened the unity of the country and reinforced the desire of many
Quebecers to remain Canadian. It has taken up the task of improving one of the
best qualities of life in the world and making one of the most decentralized
federations in existence even more flexible. The Government of Canada's approach
to Canadian unity consists first and foremost of continually improving a country
of which its citizens can be proud, a democratic and prosperous country, a
federation whose varied populations are flourishing with their own institutions
and cultures, while working together toward common objectives, a respected
country that conducts itself as a good citizen of the world, always willing to
serve the cause of peace and democracy.
Today, I am going to talk to you about one of these initiatives that has
helped to strengthen Canadian unity, and will continue to do so. I am referring
to the Government of Canada's decision to submit to the Supreme Court of Canada
certain questions relating to a potential unilateral secession of Quebec. As you
are no doubt aware, the Court rendered its opinion on August 20, 1998. As I
shall demonstrate, that opinion constitutes a turning point in the history of
the Canadian federation.
A conference of the Nordic Association for Canadian Studies provides an
excellent forum to discuss this important opinion rendered by the Supreme Court
of Canada on unilateral secession. Why? Because the experiences of your
countries with regard to national unity and secession can help us to understand
the merits of the principles set out by the Court. Indeed, many of these
experiences from Northern Europe, which I propose to highlight, were placed
before the Supreme Court of Canada when the reference was heard. Among the
principles set out by the Court, two in particular allow us to draw an
interesting parallel with the histories of your countries: first, that
unilateral secession has no legal basis; and second, that in a referendum that
is part of a process that could lead to secession, a clear question must be
asked and a clear majority must be obtained in order for secession to eventually
be effected.
After summarizing how the Supreme Court of Canada set out these two
principles, I will illustrate their significance using examples from your
countries' histories.
1. The Supreme Court's opinion on unilateral secession
Among the most democratic countries, many prohibit secession in their
Constitution. In Northern Europe, this is the case in Finland, Norway, Sweden,
Estonia and Lithuania. The principle justifying such a prohibition is the
indivisibility of a state's territory. Each portion of the national territory is
deemed to belong to all citizens of the country, therefore this territory cannot
be divided.
This is a valid principle. In Canada, however, we have adopted a different
approach. For the Government of Canada believes that our country would not be
the same if it were not based on the voluntary adhesion of all its provinces.
But the Government of Canada also believes that a move toward secession should
be negotiated within the established legal framework, and not undertaken
unilaterally by a provincial government.
The Government of Canada referred this question to the Supreme Court, which
confirmed the merits of the Government's position. What did the justices of
Canada's highest court have to say? The nine justices of the Supreme Court,
three of whom come from Quebec, unanimously confirmed that a unilateral
secession has no legal basis, neither in Canadian law nor in international law.
The Court added that the obligation to undertake negotiations on secession does
not exist unless Quebecers clearly give their support to secession, by means of
a clear majority on a clear question about secession.
I have no doubt that this opinion by the Court has had, and will continue to
have, a beneficial effect on Canadian unity. This is because the approach
advocated by the Court requires us all to act with clarity. If there is one
thing that emerges clearly, poll after poll, it is that, when asked to answer a
clear question on secession, Quebecers choose to stay in Canada. In other words,
if the opinion of the Supreme Court has had the effect of strengthening Canadian
unity, it is not because of what the justices want, but because of what
Quebecers want. By obliging all of us to act with clarity, the Court's opinion
highlights the clear choice of Quebecers: a united Canada.
This approach to the problem of secession, based on two principles -- respect
for legality and the obligation of clarity -- is not entirely unfamiliar to you,
members of the Nordic Association for Canadian Studies, because your countries
have experienced this phenomenon each in their own way. Quebecers and all other
Canadians can learn from your experiences. Let us look first at the issue of
legality, and then turn to the question of clarity.
2. Secession and legality
Outside of the colonial context, of situations where a population is subject
to foreign domination, and possibly of cases in which the human rights of a
population are grossly violated, international law does not recognize a right to
unilateral secession. This was acknowledged by the Supreme Court of Canada. The
first major case that helped to clarify this aspect of international law was
that of the Aaland Islands, which belong to Finland.
As you know, the Aaland Islands are located at the entrance to the Gulf of
Bothnia between Sweden and Finland. Between 1917 and 1921, the Islands'
residents sought to secede from Finland, not in order to become an independent
country, but to join Sweden, with which they have linguistic and ethnic ties.
Sweden supported this request, but Finland opposed it. The issue was referred to
the League of Nations, which appointed two commissions. The commissions ruled
that Finland's sovereignty over the Islands was "incontestable", that
the Islands had no right to secession, whether by plebiscite or otherwise, and
that the right to self-determination ought not to be confused with the right to
secession.
The Aaland Islands are still a part of Finland. They enjoy an autonomous
status, which is reinforced by special legislation most recently modified in
1991. There is also legislation in place which protects the unique culture of
the inhabitants of these islands. In many respects, the case of the Aaland
Islands demonstrates how self-determination can be achieved internally, within
an existing state.
In addition to international law, state practice must also be considered. The
international community has shown itself extremely reluctant to recognize
unilateral secessions outside the colonial context. There is likely no better
example of this deep aversion of the international community than the case of
the Baltic republics.
The Baltic republics were forcibly annexed by the Soviet Union in 1940. Few
democratic countries recognized the extinction of the Baltic states and their
brutal annexation to the Soviet Union. Therefore, when Lithuania declared its
independence in March 1990, one might have expected that the international
community would recognize it very quickly, if not automatically. But such was
not the case.
Before its independence was recognized, Lithuania had to face military action
by the Soviet Union in January 1991, had to hold a referendum on February 9,
1991 which clearly confirmed Lithuanians' support for independence, had to
obtain the recognition of the President of the Russian Republic, Boris Yeltsin,
on July 29, and had to wait until a failed coup attempt in the Soviet Union, on
August 21, confirmed the weakness of the Soviet government vis-a-vis Yeltsin.
Latvia and Estonia experienced similar obstacles before gaining international
recognition. In fact, the only two countries that recognized the independence of
the Baltic republics before Russia -- which subsequently became the continuator
state of the Soviet Union -- were Iceland (in the case of the three Baltic
republics) and Denmark (in the case of Lithuania).
For its part, Canada recognized the independence of the Baltic republics on
August 26, 1991. The United States did the same on September 2. The Security
Council recommended their admission to the United Nations on September 12.
We observe that the international community exercises extreme caution in
responding to unilateral requests for international recognition, even in cases
where a population clearly claims its independence and is the victim of grave
mistreatment by the state from which it wants to separate.
There are good reasons why neither international law nor state practice
sanctions an automatic right to unilateral secession: it would be very difficult
to determine on whom that right should be conferred, such an automatic right to
secession would have dramatic consequences for the international community --
with more than 3,000 human groups in the world conscious of a collective
identity -- and the creation of each new state would risk creating within that
state minorities which would in turn claim their own independence.
More fundamentally, a philosophy of democracy based on the logic of secession
would encourage groups to separate rather than try to forge closer ties and find
common ground.
3. Secession and clarity
For a referendum to be able to lead to secession, it must confirm the
existence of a consensus in favour of secession. The referendum question must
clearly address secession and that option must receive the support of a clear
majority. This principle of clarity was not invented by the Supreme Court of
Canada. It is perfectly consistent with what has happened in the histories of
your countries.
The Norwegian population approved separation from Sweden almost unanimously.
In the plebiscite of 1905, which was organized with the support of the Swedish
government, the population was asked to answer the following question: "Do
you agree with the dissolution of the Union or not?" Norwegians responded
favourably by 99.95% of the valid votes cast.
The union between Iceland and Denmark came to an end following a referendum
that was held in Iceland in 1944. The question put to the Icelandic population
was unequivocal: "The Althing resolves to declare that the Danish-Icelandic
Act of Union of 1918 is terminated," the Althing being the Icelandic
legislative assembly. The Act of Union of 1918, which was subject to revision
after 25 years, provided for the possibility of terminating the Union, but only
under very specific conditions. For example, it required a majority of at least
three quarters of the valid votes cast. That requirement was greatly exceeded:
the Yes side obtained 98.65% of valid votes cast.
Let us return to the case of the Baltic republics. In Lithuania, 93.2% of the
valid votes cast indicated a favourable response to the question: "Are you
for the independent and democratic Republic of Lithuania?"
In Estonia, it was with 79.7% of the valid votes cast that the electorate
indicated a favourable response to the question: "Do you want the
restoration of the state sovereignty and independence of the Republic of
Estonia?"
And in Latvia, 74.9% of the valid votes cast indicated a favourable response
to the question: "Do you support the democratic and independent statehood
of the Republic of Latvia?"
The case of the Faroe Islands must also be mentioned, as it demonstrates that
too small a majority is insufficient to effect secession. These islands are part
of Denmark. In September 1946, the governments of Denmark and the Faroe Islands
held a referendum in which 50.72% of the valid votes cast indicated support for
the Islands' independence. The unilateral declaration of independence that
followed the referendum was not accepted by the Government of Denmark.
There are at least two justifications for requiring a clear majority in
support of secession. First, it is highly desirable that the support of the
affected population be sufficiently strong to be maintained during the hardships
that inevitably accompany a secession. Second, secession is a change with
far-reaching consequences, both for the seceding population and for the entire
state affected by the rupture, a virtually irreversible change that commits
future generations. It is important that such a change not be attempted on the
basis of a majority of circumstance.
Conclusion
I have drawn examples from the recent history of your countries which, in
different ways, highlight the merits of the opinion of the Supreme Court of
Canada, which establishes, among other things, that an attempt at secession must
be negotiated in a legal and clear fashion if it is to be reconcilable with
democracy.
These examples, though different from one another, strengthen my conviction:
- that it would not be acceptable to us, Quebecers, to see our belonging to
Canada challenged in an atmosphere of confusion. We would have to express
clearly our desire to renounce this belonging;
- that a vague question, like the one posed in 1995 relating to sovereignty
with an offer of political and economic partnership, does not make it possible
to determine whether Quebecers really want to effect secession, really want
Quebec to cease to be a part of Canada and become an independent state;
- that it would be irresponsible to enter into negotiations on secession on
the basis of a slim majority, of a Quebec split in half;
- that the Government of Canada could not undertake to negotiate the end of
its constitutional obligations toward Quebecers unless Quebecers clearly asked
it to do so, by means of a clear majority on a clear question about secession;
- that it is completely unrealistic for the secessionist leaders to believe
that the international community would recognize their attempted secession
against the expressed wishes of the Government of Canada;
- and, above all, that since it is clear that we, Quebecers, want to stay
Canadian, a referendum that we do not want must not be imposed on us.
We must stop wasting our energy on referendum after referendum. Together,
Quebecers and other Canadians, we must devote our efforts to the economic,
social, cultural and environmental issues on which our quality of life depends.
Let us focus our efforts, for example, on the North, since that is the first
thing that I spoke of in my introduction, on the future of the North, this great
ecological barometer of our planet, a crucial issue for all of us, which my
country and yours must face together.
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