It is with great emotion that I take the floor today, at the invitation of the President of the Senate, His Excellency Juan José Lucas Giménez, on the occasion of this conference marking the 25th anniversary of the Spanish Constitution. I am honoured and proud to commemorate with you the ratification of the legislative instrument whereby, a quarter century ago, Spain entered into what, at that time, was a very limited world of democracies.

The emotion I feel today is similar to how I felt on November 13, 2002, when Carlos III University of Madrid gave me an honorary doctorate, which I received from the hands of one of the “Fathers of the Spanish Constitution,” Rector Gregorio Peces-Barba Martinez. On that occasion, I spoke of the conviction I have, and which I reiterate today, that one of the most determining events of the 20th century was the democratization of Spain.

Indeed, we should bear in mind how difficult the situation of democracies was in the 1970s. Latin America, Africa, Asia, Eastern Europe and part of Mediterranean Europe were under the yoke of authoritarian or totalitarian regimes. In countries such as France or Italy, around one quarter of voters cast their ballots for parties that were openly hostile to pluralist democracy. Such ideas made headway in unions and academic circles in all Western democracies. American democracy, for its part, was discredited by the aftermath of the war in Vietnam and the Watergate crisis.

Now what happened in the years that followed was the very opposite of a diminution of democratic space and individual freedom. Humanity experienced one of the most positive phenomena in all of its history: the dazzling advance of democracy on all continents. And where did that global shift originate? In Greece, in Portugal, in Spain, in short in the Mediterranean, the eternal cradle of civilization.

I have long thought that one of the heroes of the 20th century is your King, His Majesty Juan Carlos I. Rather than listening to the fatalistic voices claiming that the Latin people were not made for democracy, he believed in the democratic destiny of a Spain ready to accept its pluralism. In so doing, it was not only the destiny of Spain that was at stake: one can believe that it was, perhaps, also that of humanity. For it is hardly an oversimplification to say that, once it became clear that Spain would not go back and would become democratic, Latin Americans said to themselves: if the Spanish can do it, so can we!

And so a vast democratic wave swept over every continent, bringing down even the Berlin Wall. There was nothing inevitable in that felicitous development, which was not the result of any historical determinism. It was rather the achievement of courageous women and men, such as your King. And so today, rather than taking this progress for granted, we should make every effort to build further on democracy and its underlying values.

It is precisely about one of the major democratic wagers of our time that you have invited me to speak today. The theme the Senate has proposed to me is as follows: Nationalism and democracy: The future of decentralized systems. In other words, you are asking me to what extent decentralization is the means to ensure the harmonious cohabitation of different populations within a single democratic state.

This question is certainly relevant for Spain and Canada, two democracies both characterised by pluralism and collective identities. But many other states are in the same situation. While there are fewer than 200 countries in the UN, worldwide it is estimated there are between 3,000 and 5,000 human groups that recognize a collective identity for themselves. In other words, humanity has no choice: either have the planet break into a scattering of ethnic groupings, or learn to live together within pluralist states. The belief that every population with its own specific characteristics has to have its own state is terribly wrong. It is not only impractical, it is wrong from a moral standpoint, because it rejects the fact that the cohabitation of cultures within a single state helps human beings to become better citizens by enabling them to live the experience of tolerance. I will leave it to you to speak for Spain, but I am convinced that my country is duty-bound to show the world that the pluralism of identities is a strength for a state and not a weakness.

In fact, you have invited me to talk about the very wager that led me to accept the invitation made by the Prime Minister of Canada, the Right Honourable Jean Chrétien, to join his Cabinet as Minister of Intergovernmental Affairs, a responsibility I have held for eight years. I am convinced that the main strength and the true grandeur of Canada is its capacity to rally different populations around common objectives. The key idea that led me to leave academia to enter the political arena is that of plural identities. As a Quebecer and a Canadian, I maintain that, in this era of globalization, when one has the opportunity to have different identities, one should accept all of them. When we have the support of fellow citizens who open us up to other cultural characteristics, to other experiences and other assets than our own, we should accept their help and offer ours in return. The real choice for me is not between being a Quebecer or a Canadian. It is not between Quebec and Canada. It is about being a Quebecer and a Canadian, rather than being a Quebecer without Canada. Identities add to each other, they never subtract.

But how can this be done, how do we ensure that populations that differ in terms of language, religion or culture can live in trust and harmony with a sense of common belonging to the same democratic state? You have invited me to answer that question by focussing on the concepts of decentralisation and nationalism. I shall give you my personal opinion on how these two concepts can combine optimally in a democracy. But I shall also look at a less felicitous scenario, that of break-up: what should a democracy do when one of its populations asks to leave the state and form a new one of its own.

1.         Decentralization and nationalism in democracy

The first thing I would say is that a liberal democracy, both in its Constitution and in practice, must above all be founded on individual rights, and not on collective loyalties, whether they are called peoples, nations or otherwise. The reason for this is simple: only flesh-and-blood persons exist tangibly, and only they are capable of feelings, freedom, and happiness.

The decentralization of public powers can contribute to individual well-being. It helps individuals participate in the affairs of the polity and allows them to try out different solutions depending on the context. But centralization also has advantages for them. A centralized state is well positioned to initiate a course of action and ensure that equality of rights among fellow citizens prevails. The quest for the optimal balance between centralization and decentralization is the subject of ongoing debate in democracy, whether it is a federal state like Canada or a regionalised one like Spain.

That being said, this quest for an effective balance between centralization and decentralization has to take account of the fact that individuals are social beings. They maintain or develop affinities by virtue of sharing common traits. Some of those affinities pertain to language, culture or religion and are translated into collective identities. Those collective identities have to be taken into account, not to deny individual rights, but to enable citizens to develop and flourish as best they can.

For example, if, in a given region, a population speaks a different language from that used in the rest of the country, or if it has a somewhat different legal tradition, the public powers should be organized to respond to the specific needs of that population. The objective must not be to cut off that population from the rest of the country. On the contrary, the objective must be to enable that population to flourish and to contribute in its own way to strengthening the country as a whole.

This is how unity is obtained in diversity and plural identities are addressed in a way that strengthens the sense of belonging to the country as a whole. To do otherwise, to renounce the primacy of individual rights, to develop the country first and foremost in terms of identity-driven collective representation as defined by the public authorities, would be a mistake. Collective identities, whether they are called peoples, nations or otherwise, must be taken into account, but without postulating an artificial uniformity among individuals who make up each of those collective entities. It is my belief that one cannot build on diversity if one denies its most basic dimension: the inalienable difference that makes every individual, every human being, unique.

Nationalism can be a good thing, to the extent it inspires more effective mutual assistance within a human group, in a spirit of openness to other groups. But it becomes a harmful and potentially dangerous force when it is seen as the only principle of political and social organization, when it provides the only ideological grid by which life in society is perceived. It then lends itself to religious fundamentalism which, just like exaggerated nationalism, constitutes the greatest menace to democracy and international security. The supreme value must remain the flesh-and-blood individual, not his or her collective loyalties.

Allow me to illustrate that assertion by using the example of relations between Quebec and Canada. Quebec is the only majority Francophone province in Canada. The proximity of the United States gives the English language an enormous power of assimilation. Under such conditions, one can easily imagine that Francophone Quebec will always be nationalist. From that viewpoint, it matters little whether Quebecers are defined as a distinct people, or a nation within Canada, or a unique society in its own right, or a nationality, to refer to a term used in your Constitution. What is important to me is that the seven million individuals who live in Quebec find in their country, Canada, a source of support to address their specific needs. I want Quebecers, in return, strengthened by their specific identity, their own culture, their love for Quebec, to have every opportunity to fully help other Canadians.

Let us review the principal measures Canada has taken in response to the specific needs of Quebecers. French, together with English, is one of Canada’s two official languages. The federal Parliament is duty-bound to work as effectively in French as in English. The federal government is required to provide services in French wherever numbers warrant, including all of Quebec. It makes special efforts to promote French-speaking culture in Canada, to the extent that it invests more in that sector in Quebec than the provincial and all municipal governments combined. The Government of Quebec, for its part, has put in place its own language policy. The Constitution Act, 1982 gives the Government of Quebec the constitutional right to limit access to English schools for as long as it deems desirable, in order to protect the French language more effectively in the North American context. Quebec and New Brunswick have the status of participating governments within the International Organisation of the Francophonie, which is not the case for Canada’s other provinces.

Quebec’s legal tradition is different from the rest of the country’s: it uses the Civil Law, whereas the Common Law is prevalent elsewhere. Quebec’s legal specificity is recognized in Canada’s Constitution. Indeed, that is why three of the nine Supreme Court justices are Civil Law lawyers from Quebec.

Quebec has broad autonomy as a Canadian province, as Canada is a decentralized federation in terms of the strength of its second order of government. Compared to the constitutions of other federations, Canada’s recognizes few shared jurisdictions and our provinces have major legislative jurisdictions of their own. Over time, the provinces have also increased their tax revenues in comparison with the federal government’s. Moreover, funding transfers from the federal government to the provinces have few conditions attached.

In addition, Quebec has taken greater advantage than the other provinces of the possibilities provided by Canada’s Constitution or federal-provincial agreements in terms of provincial autonomy. Thus, with respect to individual income tax, while all the other provinces have tax collection agreements with the federal government, only Quebec has its own separate regime. With respect to pensions, Quebec has its own plan, while the other provinces have preferred to join the federal plan. Quebec and Ontario have their own police forces, while the other provinces call on the Royal Canadian Mounted Police to obtain policing services on a contractual basis. In Quebec, the immigration system is different from the other provinces’, as the Government of Quebec has concluded a bilateral agreement with the federal government in that area of shared jurisdiction. Regarding professional training, Quebec has opted for a full margin of autonomy, whereas other provinces have preferred co-management with the federal government.

That broad autonomy enjoyed by Quebec in no way prevents Quebecers from playing their full role in Canada’s common institutions. Indeed, the prime minister of Canada has almost always been a Quebecer for the past 35 years.

Does Quebec need more autonomy within Canada? Many Quebecers think so, and it will certainly be an ongoing debate in Canada, just as you will always debate in Spain the appropriate arrangements for each of your autonomous communities. I am merely pointing out that the best way to look at things is always to give priority to the needs of citizens, including those living in Quebec and those living elsewhere in Canada. But that is not the reasoning of some Quebec nationalists, who put their conception of the nation ahead of the interests of citizens. They affirm that, because Quebec forms a nation, the federal government must cede to Quebec a great number, if not all, of its powers. They demand these transfers of power without examining the consequences they would have for citizens in terms of the quality of public service.

For example, in the health policy field, the federal government sets five conditions for its financial assistance to the provinces, which can be reduced to the following principle: in Canada, access to health care does not depend on the size of the patient’s wallet. But some Quebec nationalists demand that this federal funding transfer be unconditional for Quebec, not because they are opposed to the principle in question, but because they believe that by definition, Quebec being a nation, the Government of Quebec does not have to respect Canadian national standards. In other words, they subordinate patients’ rights to their conception of the nation. For my part, I fail to see how the fact that Quebecers have their own collective identity should mean they have a lesser guarantee of access to health care than do other Canadians.

Some nationalists want to strip the federal government of its powers, not in order to improve public service, but because they hope that Quebec separates from Canada. They want to leave Canada, not strengthen it. I am convinced that separatism cannot be appeased by transfers of powers. What the separatists want is not piecemeal powers, but their own state.

In short, the balance between centralization and decentralization must be sought in accordance of the most basic interest of the citizen, in the very nature of public service. But that interest must include the various needs of citizens as a function of their collective loyalties. The approach I advocate consists of focussing on the need to continually improve a country of which all its citizens can be proud, a democratic and prosperous country whose highly diversified population can flourish with their own cultures and institutions while working together to achieve common objectives. I believe that is the best way to achieve unity in diversity.

But what should be done if, in spite of all those efforts, a population were clearly to express its desire to separate? That is the question I will now try to answer.

2.         Democracy and secession

In a few democratic states, there are political parties which, in a completely peaceful manner, by a democratic route, seek to effect secession. It is these peaceful secessionist claims I will to address here, which, without reservation, support a democratic debate free of any coercion. In a democratic society, any act of terrorism for whatever political cause reduces those that use it to common criminals subject to the full force of the law. They are certainly not heroes or patriots. The only question I ask is as follows: how should a democracy react to a perfectly peaceful secessionist claim?

The appropriate response to this question in Spain concerns only the Spanish, just as Canadian unity concerns only Canadians. Canada is very pleased with the productive relations and warm friendship it maintains with a strong and united Spain, but it does not interfere or intervene in Spanish domestic affairs. Rather, the question that arises is whether there are universal principles that are likely to guide democracies facing peaceful secessionist claims.

Your country considers itself to be indivisible, a characteristic entrenched in article 2 of your Constitution: “The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy of the nationalities and regions which make it up and the solidarity among all of them.” Indeed, many other well established democracies declare themselves indivisible in their constitutions, explicitly or implicitly. These include France, the United States, Italy, Australia and many other democracies which affirm that they form indissoluble entities.

The underlying principle of that indivisibility is easily understood. That very principle is evoked in article 2 of your Constitution: solidarity, which binds together all citizens and all regions of a country. One can certainly agree that citizens of a democracy are bound by a principle of solidarity or of mutual loyalty. They all owe one another their assistance regardless of considerations of race, religion or regional belonging. For this reason, all citizens are, so to speak, the owners of the country as a whole, with all its potential for wealth and human solidarity. No group of citizens can take it upon itself to monopolize citizenship over one portion of the national territory, or to take away from fellow citizens, against their will, their right to full belonging to the country in its entirety. All citizens should be able to pass on to their children that right to belong. Ideally, such a right should never be challenged in a democracy. That is probably why so many democracies consider themselves to be indivisible.

Because loyalty binds all citizens together, over and above their differences, no group of citizens within a democratic state can claim for itself the right to secession on the pretext that its particular attributes – language, culture or religion – qualify it as a nation or distinct people within the state. As the Supreme Court of Canada has written regarding Quebec in its Reference Re the Secession of Quebec of August 20, 1998: “Whatever be the correct application of the definition of people(s) in this context, their right of self-determination cannot in the present circumstances [those of a democratic state] be said to ground a right to unilateral secession.”¹

But at the same time, one cannot rule out the possibility of circumstances arising in a democracy that make negotiating a secession the least harmful of foreseeable solutions. That might be the case in the event that one part of the population clearly expresses, peacefully but resolutely, its desire no longer to be part of the country. There are, in fact, measures which a democratic state would not contemplate using to hold a population, concentrated in one part of its territory, against its clearly expressed will.

In other words, secession is not a right in democracy, but it remains a possibility to which the existing state may agree in the face of a clearly affirmed will for separation.

That is the position the Supreme Court of Canada took in its opinion of August 20, 1998. It confirmed that the Government of Quebec does not have the right to effect secession unilaterally. It does not have the right to proclaim itself, unilaterally, the government of an independent state. It does not have that right either under Canadian law or under international law.²  As you know, under international law, peoples’ right to self-determination cannot form the foundation of a right to external self-determination, that is to say, a right to effect secession unilaterally, except in situations of colonization, military occupation or serious human rights violations. Apart from such extreme cases, the right to self-determination applies within the limits accorded to the territorial integrity of states.³

The Supreme Court has confirmed that, to be legal in Canada, a secession would necessitate an amendment to Canada’s Constitution. Such an amendment would entail the negotiation of “many issues of great complexity and difficulty,” which could include that of territorial boundaries.⁴  The obligation to undertake such a negotiation on secession would exist only in the presence of clear support for secession, expressed through a clear majority and in response to a clear question. Only such clear support would give the secessionist demand sufficient democratic legitimacy to justify the obligation of a negotiation on secession. The Government of Quebec would still not have a right to unilaterally effect secession even after negotiations proved fruitless in its opinion. “Under the Constitution, secession requires that an amendment be negotiated.”⁵

The Parliament of Canada passed, on June 29, 2000, the Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference. This law, more generally referred to as the Clarity Act, which I had the honour of sponsoring in the Canadian Parliament, made Canada the first major democratic state to acknowledge its divisibility by a legal enactment. It sets out the circumstances in which the Government of Canada could undertake negotiations on the secession of one of its provinces. It prohibits the Government of Canada from undertaking negotiations on the secession of a province unless the House of Commons has determined that the referendum question clearly pertained to secession and that a clear majority had been expressed in favour of secession.

The Government of Canada affirms that it could not proceed to break up the country nor abdicate its constitutional responsibilities toward Quebecers – or the population of any other Canadian province – without the assurance that this is what they clearly want. In fact, no democratic state could cease to honour its responsibilities toward one part of its population in the absence of clear support for secession.

The Government of Canada would not agree to undertake any negotiations on secession except in the event that the population of a province clearly demonstrated its will to no longer be part of Canada. This clear will to secede should be expressed by a clear majority in support of a question clearly pertaining to secession, rather than on some vague proposal of political partnership. If undertaking negotiations on secession is excluded, unless it is supported by a clear majority and not an uncertain and fragile one, it is because secession is a serious and likely irreversible act which binds future generations and has major consequences for all citizens of the country thus divided. The referendum question must also be clear, for it is obvious that only a question truly about secession can determine whether citizens want secession.

Negotiation on secession should be undertaken within the Canadian constitutional framework and should be guided by a genuine quest for justice for all. For example, in the event that territorially concentrated populations within Quebec clearly asked to remain a part of Canada, the divisibility of Quebec’s territory would have to be contemplated with the same spirit of openness which led to accepting the divisibility of Canada’s territory.

The Clarity Act also specifies the elements that must be included on the agenda for the negotiations: “No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.”⁶

That is the Canadian way of contemplating secession in democracy. Its fundamental premise is that a secession cannot be effected unilaterally in democracy. It necessarily involves constitutional negotiations. A democratic state could undertake such negotiations only in the presence of clear support for secession. A democratic state could not authorize secession until after such negotiations had been duly completed, respecting established laws and justice for all.

Conclusion

I have stated today that the balance between centralization and decentralization must be sought in accordance with the interest of citizens. I have added that citizens are social beings who have collective loyalties that must be taken into account. Thus conceived, nationalism can be a positive force which prompts citizens to help one another more effectively within their country, while respecting their plural identities and their common identity.

I have also looked at how peaceful secessionist demands may be treated in democracy. I know full well, from that viewpoint, that both the Supreme Court’s opinion on Quebec secession and the Clarity Act, giving effect thereto, are known in Spain and are referred to in various ways in your national discourse. Indeed, they have become a reference in a number of other democracies.

All I can say is that, in Canada’s case, this exercise of clarification has had a beneficial effect on national unity. For indeed, if there is one thing that clearly stands out, poll after poll, it is that with a clear question, Quebecers choose a united Canada. The vast majority of Quebecers want to remain Canadian and do not want to break the ties of loyalty that bind them to their fellow citizens in other parts of Canada. They have no wish to be forced to choose between their Quebec identity and their Canadian identity. They reject the exclusive definitions of the word “people” or “nation”and want to belong to both the Quebec people and the Canadian people, in this global world where concurrent identities will more than ever be an asset for opening oneself to others.

It was José Carreras who said: “Cuanto más catalán me dejan ser, más español me siento.”⁷  Just think! The more Québécois we are, the more we feel Canadian.

1. Opinion by the Supreme Court of Canada on the Reference re Secession of Quebec,[1998] 2 S.C.R. 217, at par. 125.
2. Opinion by the Supreme Court, at par. 155.
3. Antonio Cassese, Self-determination of peoples: a legal reappraisal (Cambridge,Cambridge University Press, 1995); James Crawford, State Practice and InternationalLaw in Relation to Unilateral Secession. (Expert’s Report submitted to the SupremeCourt of Canada on February 19, 1997); see also Opinion by the Supreme Court ofCanada on Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at par. 113 to 139.
4. Opinion by the Supreme Court, at par. 96.
5. Opinion by the Supreme Court, at par. 97.
6. Clarity Act: An Act to give effect to the requirement for clarity as set out in the opinion ofthe Supreme Court of Canada in the Quebec Secession Reference [Assented to 29th June,2000], ch. 26, par. 3(2).
7. José Carreras, “Cuanto más catalán me dejan ser, más español me siento,” Le Mundo(Vol. VII, number 2, August 26, 1995) available at: http://www.el-mundo.es/papel/hemeroteca/1995/08/26/uve/