"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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