"How to deal with secessionist demands in democracies?"

Secession, or the act of separating from a state to form a new one, is a particularly rare phenomenon in democracy. In fact, there has never been a well established democracy, having had at least ten consecutive years of genuine universal suffrage, that has experienced secession. The cases most often mentioned occurred only a few years after the introduction or significant expansion of universal suffrage: Norway and Sweden in 1905, Iceland and Denmark in 1918, Ireland and the United Kingdom in 1922. Numerous secessions have occurred since the end of the Second World War, but they have all arisen in the context of decolonization or during periods of transition that have marked the passage between the end of authoritarian or totalitarian regimes and the establishment of new democracies.

That a well established democracy has never experienced secession does not mean such a phenomenon cannot happen. But it nevertheless suggests, as I will show, that it is difficult to reconcile secession and democracy.

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 want to address here, not those that resort to violence and terrorism. I take it for granted we all agree that we must not give in to terrorism. The only question I am asking is as follows: how should a democracy react to a perfectly peaceful secessionist claim?

Such a claim exists in your country, with the Scottish National Party (SNP) which wants to make Scotland an independent state, no longer part of the United Kingdom.¹  It also exists in my country, Canada, with the Parti québécois and the Bloc québécois, which want Quebec to become an independent state, no longer part of Canada. One could also mention the case of Spain, where the political party currently in power in the autonomous community of the Basque Country, the Basque Nationalist Party (Partido Nacionalista Vasco, PNV), is advocating accession to independence by peaceful means and has dissociated itself from acts of violence by ETA. How should these democracies treat these peaceful secessionist claims?

Let us first note that in those three countries, those peaceful separatist parties are legally recognized in every respect. They have the right to run candidates in elections, to sit in Parliament and in Spanish Cortes if they are so elected, and to govern if warranted. But would they have the right to effect secession?

In Spain, the major political parties, the Popular Party (Partido Popular, PP) and the Socialist Party (Partido Socialista Obrero Español, PSOE), respond in the negative to a right to secession, citing the indivisibility of the country, a character which is entrenched in article 2 of the Spanish 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 entrench their indivisibility in their constitution, explicitly or implicitly. These include France, the United States, Italy, Australia and many other democracies which affirm that they form indissoluble entities.²

In your country, the SNP has stated that if it were to form the Scottish government, it would ask the Scots by referendum, in the course of its first mandate (four years), if they want their independence.³  The SNP also says that, even if that referendum was perhaps only consultative from a legal standpoint, the United Kingdom would be politically obliged to consent to secession if a majority of Scots supported it. Would such an obligation really exist? In the Scottish legislative election last spring, the validity of such a referendum appeared to be challenged, and Scots separatist leaders were outraged.⁴

This question concerns only the British, just as Canadian unity concerns only Canadians, or Spanish unity only Spaniards. Canada cherishes its faithful relations with a strong and, indeed, united UK, but it does not interfere or intervene in British domestic affairs.

Rather, the question that arises is whether there are universal principles that are likely to guide democracies facing peaceful secessionist claims. In that respect, it may be helpful if, as Canada’s Intergovernmental Affairs Minister, charged with the responsibility for national unity for the past eight years, I were to set out for you the major recent developments in Canada.

On June 29, 2000, Canada became the first major democratic state to acknowledge its own divisibility through legislation. In 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, more simply called the Clarity Act, the Canadian Parliament specified the circumstances in which the Government of Canada might undertake negotiations on the secession of one of its provinces. Today I would like to highlight the ethical underpinnings of that Act, which I had the honour of sponsoring in the Canadian Parliament. I am grateful for the opportunity given to me at such a prestigious forum as the Constitution Unit.

The Clarity Act received broad support, but was also criticized both by the proponents of secession on demand and by those who, on the contrary, advocate the absolute indivisibility of the national territory. I shall begin my presentation with a critical examination of the secession-on-demand thesis, before describing the Clarity Act and its underlying principles.

1. The three weaknesses of the secession-on-demand thesis

For the past three decades, Quebec secessionist leaders have defended a thesis I shall summarize as follows. According to this thesis, a mere victory in a provincial election would allow a Parti québécois government to effect Quebec’s independence through a majority vote in its National Assembly. Holding a referendum would not be considered necessary in law, although it is acknowledged that such approval from the population of Quebec would be an additional source of democratic legitimacy. It is the Government of Quebec which, because of its majority in its National Assembly, would formulate the referendum question. A majority result, however slim in favour of the government’s proposal, would be sufficient for Quebec’s National Assembly to be able to proclaim independence. But before that proclamation of independence took place, negotiations could be undertaken with the Government of Canada in order to facilitate the transition and with a view to eventually forming an economic association or political and economic partnership. Nevertheless, at any point in those negotiations, the National Assembly could unilaterally proclaim itself to be the parliament of an independent state. As soon as it were made, that declaration of independence would apply to all of Quebec’s territory, the borders of which would be sacred. All citizens and all governments would henceforth be bound to consider the Government of Quebec to be effectively the government of an independent state. Negotiations could continue, but now between two independent states.

This procedure for secession is well reflected in Bill 1, An Act Respecting the Future of Québec,⁵  introduced by the Government of Quebec in the National Assembly prior to the 1995 referendum. Under section 1, “The National Assembly is authorized, within the scope of this Act, to proclaim the sovereignty of Québec.” For greater certainty, section 2 specifies: “On the date fixed in the proclamation of the National Assembly, the Declaration of sovereignty appearing in the Preamble shall take effect and Québec shall become a sovereign country [...] .” Section 26 adds that the negotiations on a partnership treaty with Canada must be completed within a one year deadline, during which time the National Assembly may proclaim sovereignty at any point where it believed that the negotiations were proving fruitless.

This was the Quebec separatist leaders’ conception of the procedure for secession. They based it on the right of peoples to self-determination. At times the Parti Québécois leaders asserted that this principle of self-determination confers a right to secession recognized in international law, at other times they made of it a democratic rule that transcends formal law.

Such a procedure for unilateral secession has three weaknesses that make it unacceptable: it poses serious problems in terms of the law, fairness and clarity.

This procedure has no legal basis. The Supreme Court of Canada has confirmed that the government of a province 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.⁶  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.⁷

Is it significant that this procedure has no legal basis? Absolutely. The thesis by which accession to independence is a purely political question with no legal dimension whatsoever, is incompatible with the elementary principles of democracy and the rule of law. A government that itself acts in violation of the law, while requiring its citizens to comply with its laws, exposes society to dangers that are unacceptable in democracy. Why would citizens attached to a country agree to have it taken from them illegally? There are countless difficulties that would prevent a unilateral declaration of independence from taking effect on the ground.

The law is not that easily discarded. Quebec separatist leaders, who regularly claim that accession to independence is a purely political question, never miss an opportunity to announce their intention to use their legal authority to give effect to secession and proclaim in law the indivisibility of the state thereby created. This leads us to the second problem inherent in this procedure for secession on demand: not only is it without legal basis, it is unfair.

Indeed, Quebec’s separatist leaders believe that secession on demand is only valid for them. Canada’s territory is divisible, Quebec’s is not. If populations concentrated in certain territories within Quebec asked to separate in turn, or simply to remain a part of Canada, the Quebec secessionist leaders feel they have the right to take measures to prevent them from doing so. This problem is not theoretical: in the two referenda the Parti québécois held and lost, the first in 1980 and the second in 1995, Aboriginal nations held their own referenda, which clearly demonstrated their desire to remain a part of Canada.

Finally, the third problem is that this procedure lacks clarity. It assumes that secession can be snatched from the jaws of defeat, on the basis of an uncertain and fragile majority which might not have been possible to obtain the day before or the day after. A clear procedure should require that a secession be effected on the basis of a clear majority, for it is a serious and likely irreversible act which is binding on future generations and entails major consequences for all citizens of the country thus divided.

The referendum question must also be clear. It is obvious that only a question truly about secession can determine whether citizens want secession. The Parti québécois government, in both the 1980 and 1995 referenda, preferred to ask Quebecers a referendum question that intermingled a proposal for independence with the maintenance of some sort of possible association with Canada. Thus, the 1995 question read as follows: “Do you agree that Quebec 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 Quebec and of the agreement signed on June 12, 1995?”

With such wording, it is not surprising that many voters went to the polls believing in good faith that independence was conditional on an agreement on political and economic partnership with Canada. For example, in October 1995, a poll indicated that only 46% of voters had understood that the question meant that Quebec would become independent even if the negotiations on political and economic partnership were to fail.⁸

2. Under what circumstances should negotiations on secession take place in a democracy?

So secession on demand as proposed by Quebec separatist leaders is unacceptable for reasons of law, fairness and clarity. Should we therefore consider Canada as indivisible? Some have maintained so, putting forward arguments which, while not without validity, also have their limits.

It can certainly be agreed that citizens of a democracy are bound by a principle of mutual loyalty. They 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: “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.”⁹

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 forseeable 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. Indeed, there are measures which a democratic state would not even consider to hold, against its clearly expressed will, a population concentrated in one part of its territory. 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 Government of Canada has defended against both the Quebec separatist movement and the proponents of the absolute indivisibility of the national territory. That is the position I will now outline.

The Government of Canada affirms that it could not proceed to break up the country nor abdicate its constitutional responsibilities toward Quebecers – or any other Canadian population – 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.

Negotiation on secession would 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 Government of Canada has expressed this position on a number of occasions, notably through the Attorney General of Canada, when he explained to the House of Commons the reasons why he was asking the Supreme Court of Canada whether or not the Government of Quebec has the right to effect secession unilaterally: “The leading political figures of all the provinces and indeed the Canadian public have long agreed that this country will not be held together against the will of Quebecers clearly expressed.”¹⁰

The Supreme Court of Canada rendered its opinion on August 20, 1998. It confirms that the Government of Quebec does not have the right to effect secession unilaterally, neither under Canadian law nor under international law. To be legal, 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,” possibly including that of territorial boundaries.¹¹  The obligation to undertake such a negotiation on secession exists only in the presence of clear support for secession, expressed through a clear majority and 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.”¹²

It was in this spirit that the Government of Canada had 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 adopted in the Canadian Parliament. This Clarity Act 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 Clarity Act also specifies the elements that must be included in 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.”¹³

In short, because accepting secession as an automatic right is contrary to democracy, and given that an absolute prohibition on secession can prove to be impracticable in a democracy, I feel the Canadian approach I have just described is a realistic one. It consists of first focussing on the need to continually improve a country of which all citizens can be proud, a democratic and prosperous country whose highly diversified populations develop and flourish with their own cultures and their own institutions, while working together toward common objectives. If, in spite of this type of entente inherent in a federation, a population should clearly express its desire to separate, then negotiations on secession should be undertaken legally and with a concern for justice for all, no matter how numerous the difficulties inherent in such a negotiation.

Conclusion

That is the Canadian approach. Its fundamental premise that secession, while not impossible, should be negotiated only if there is a clear will to split up, seems to me to be just and of universal application. Such a principle is often echoed favourably in the literature on secession. For example, according to Doctor Daryl J. Glaser, of Strathclyde University: “Existing states should thus allow secessions to occur provided that the secessionists can demonstrate clear and durable majority support amongst the inhabitants of the breakaway territory; include in the breakaway state as small as practicable a number of people who oppose its formation, whether by demonstrating the support of super majorities in plebiscites, [and] claiming tightly drawn boundaries [...].”¹⁴

In Canada’s case, this approach has had a beneficial effect on national unity in introducing the notion of clarity. And 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.¹⁵  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” 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.

Despite its obviously beneficial impact on Canadian unity, I do not doubt that the approach I have just described as realistic may appear very daring and too liberal in the face of the internationally abhorred phenomenon of secession. The Canadian approach rejects the use of force, of any form of violence. It emphasizes clarity, legality and justice for all. While it may appear idealistic to many nations, that is precisely because this approach seeks to address in an ideal manner situations which are complex and delicate. It could contribute, in my view, to peace and enlightened state practice.

1. I also understand that the Welsh nationalist party, Plaid Cymru, now explicitly refers to “independence” as its goal.
2. Patrick J. Monahan et al., Coming to Terms with Plan B: Ten Principles Governing Secession (Toronto: C.D. Howe Institute Commentary 83, June 1996).
3. Scottish National Party, A Constitution for a Free Scotland (Edinburgh, September 2002).
4. Alex Salmond, “Labour Blunders into Dangerous Ground on a Scots Referendum,” The Scotsman (April 22, 2003).
5. Bill No 1, An Act Respecting the Future of Québec, tabled September 7, 1995.
6. Opinion by the Supreme Court of Canada on the Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
7. Antonio Cassese, Self-determination of peoples: a legal reappraisal (Cambridge, Cambridge University Press, 1995); James Crawford, State Practice and International Law in Relation to Unilateral Secession. (Expert’s Report submitted to the Supreme Court of Canada on February 19, 1997); see also Opinion by the Supreme Court of Canada on Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at par. 113 to 139.
8. Maurice Pinard, Confusion and Misunderstanding Surrounding the Sovereignist Option (Brief submitted to the legislative committee of the House of Commons studying Bill C-20, February 24, 2000).
9. Opinion by the Supreme Court, at par. 125.
10. Statement by the Honourable Allan Rock, Minister of Justice and Attorney General of Canada, in the House of Commons, Hansard (September 26, 1996), p. 4707.
11. Opinion by the Supreme Court, at par. 96.
12. Opinion by the Supreme Court, at par. 97.
13. Clarity Act: An 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 [Assented to 29th June, 2000], ch. 26, par. 3(2).
14. Dr. Daryl J. Glaser, “The Right to Secession: An Anti-Secessionist Defence,” Democratic Theories and Disaffected Democracies (Paper for the 51st Political Studies Association Conference, Manchester, United Kingdom, April 10-12, 2001), p. 18.
15. Pinard, Confusion and Misunderstanding.