"Unity in Clarity: The Canadian Experience"

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I want to thank the Fundación para la Libertad for kindly inviting me here today, to share some perspectives with you on Canada’s experience as it relates to the unity of democratic states. Before I begin however, I want to express my solidarity and that of all Canadians, with all of you here who oppose any form of violence for political purposes, who were victims of violence or whose loved ones suffered such brutality. Terrorism and political savagery must be vigorously opposed and eliminated. Canada condemns these terrorist acts which cause you so much harm. The perpetrators are common criminals subject to the full force of the law. We in Canada, who take for granted this basic right to express political views without fear for our lives, salute you for your courage and for your determination to build a peaceful society in this part of Spain and Europe.

Canada is all the more saddened by the political violence raging here because Spain is dear to its heart, especially the Basque Country. After all, our history has brought us closer together. Many of your intrepid forebears settled in Canada after fishing cod off our coasts. Place names such as Ile aux Basques and Port aux Basques remind Canadians of this heritage. The future holds the promise of further cooperation between Canada and your innovative region, on the cultural and scientific level as well as the economic one. A number of Canadian companies are doing business here and do indeed appreciate the dynamic Basque entrepreneurship. One can only dream of what your region would be able to achieve – for itself, for Spain, and indeed for the entire world – if it was freed from the awful political violence that injures you so unfairly.

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.

But rather than violent nationalism, it is with peaceful nationalism that I will deal here. More precisely, I will exclusively address peaceful secessionist claims which, without reservation, support a democratic debate free of any coercion. In a few democratic states, there are political parties which, in a completely peaceful manner, by a democratic route, seek to effect secession. 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.

This is a question for which an answer must be found, whether one wants secession or not. For my part, I do not want it. I want Quebec to stay in Canada and I would like to explain why. I will then outline the circumstances of legality and clarity under which I would deem acceptable - although still undesirable - Quebec’s secession from Canada. I will show how those requirements for clarity were specified in 1998 in an opinion by the Supreme Court of Canada, to which legislation passed in 2000 by the Parliament of Canada gave effect. I will conclude by affirming my conviction that Quebecers will always want to remain Canadian.

1.        Plural identities

It is to help my country stay united that I accepted the invitation from the Prime Minister of Canada, the Right Honourable Jean Chrétien, to join his Cabinet as Intergovernmental Affairs Minister, a responsibility I have held for eight years. As it happens, I want to be both a Quebecer and a Canadian, without ever having to choose between those two wonderful identities.

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.

I know the majority of Quebecers feel as I do. That being said, there are some who think otherwise. They want to be Quebecers without being Canadian. They want Quebec to separate from Canada and become an independent state. I want to dialogue with those fellow citizens with whom I disagree, because I believe they are deeply wrong. I am trying to convince them not to renounce the Canadian dimension in themselves, which fully belongs to them. But as a good democrat, I respect them and do not consider them as enemies. I believe Quebec’s secession from Canada would be a terrible mistake, but I would be prepared to accept it provided it were done in accordance with democracy and the rule of law. As the Attorney General of Canada has stated: “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.”¹

So the question becomes whether secession may be effected while respecting democracy and the rule of law, and if so, how? It may be useful, from that viewpoint, having been Canada’s Minister of Intergovernmental Affairs with responsibilities in connection with Canadian unity for eight years, for me to talk about some recent developments in Canada.

In fact, you may be aware of those developments. On August 20, 1998, the Supreme Court of Canada issued an opinion in the Reference Re Secession of Quebec. On June 29, 2000, the Parliament of Canada passed 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. I am aware these two legal texts are known in Spain and are referred to in your national discourse.

For example, I read, in the general policy paper that the President of the Government of the Autonomous Community of the Basque Country, the Lehendakari Mr. Juan José Ibarretxe, presented last September 26, the following reference to the Supreme Court of Canada’s opinion: “The decision [opinion] by the Supreme Court of Canada, which interprets current international law, takes into consideration the commitment not to exercise unilaterally the right to self-determination and the explicit recognition of the obligation to open the process of negotiation and agreement with the state.”²  [Translation]

I need to be very clear from the outset, with all respect, that the Supreme Court of Canada has never claimed to render an opinion that would have effect outside Canada. That opinion is legally valid only for Canada. But because, for very understandable reasons, it is the subject of discussions in Spain, and indeed in other democracies, allow me to set out the logic and the ethical underpinnings of the Supreme Court of Canada’s opinion and the Clarity Act which gives effect thereto.

2.         The Supreme Court of Canada’s opinion on Quebec secession

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.”³

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.⁴  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.⁵

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,” perhaps including that of territorial boundaries.⁶

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.”⁷

3.         The Clarity Act

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 a province. It prohibits the Government of Canada from undertaking such negotiations 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.”⁸

Conclusion

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.

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.”⁹  Just think! The more Québécois we are, the more we feel Canadian.

1. Statement by the Honourable Allan Rock, Minister of Justice and Attorney General ofCanada, in the House of Commons, September 26, 1996, Hansard, p. 4707.
2. Debate de Politíca General : Intervención del Lehendakari, Euskadico Lehendakaria/ El Lehendakari de Euskadi, Vitoria-Gasteiz, 26 de septiembre del 2003.
3. Opinion by the Supreme Court of Canada on the Reference re Secession of Quebec,[1998] 2 S.C.R. 217, at par. 125.
4. Opinion by the Supreme Court, at par. 155.
5. 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.
6. Opinion by the Supreme Court, at par. 96.
7. Opinion by the Supreme Court, at par. 97.
8. 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).

9. José Carreras, “Cuanto más catalán me dejan ser, más español me siento,” El Mundo(Vol. VII, number 2, August 26, 1995) available at: http://www.el-mundo.es/papel/hemeroteca/1995/08/26/uve/