On secession

The May 5 elections for the Scottish Parliament returned a majority Scottish Nationalist Party government. Party leader Alex Salmond quickly announced that a referendum on Scotland’s independence from the United Kingdom would be held during the SNP’s term in office, and recently clarified that it would be held in 2015.

For a Canadian, this immediately brings to mind the province of Quebec’s repeated attempts to gain independence. To date, two referendums have been held, one in 1980, the most recent in 1995. Both were defeated, though the last one was extremely close, with the No side winning 50.58% to the Yes side’s 49.42%.

Following the second referendum, the Government of Canada initiated a reference to the Supreme Court of Canada to answer the legality of a unilateral declaration of independence from a Canadian province. The Government submitted the request for an advisory opinion on the following three specific questions:

  1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
  2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
  3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The court addressed the three questions in order (click here for full ruling). First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession.” Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal.

The answer to the second question, which concerned Quebec’s right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state.”

The Supreme Court of Canada’s opinion stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:

The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.

and that

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.

The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.

As for the third question, since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.

Following the ruling by the Supreme Court of Canada, the Canadian Government passed the Clarity Act, which became law in June 2000. While usually attributed to Liberal cabinet minister Stéphane Dion, then Minister for Intergovernmental Affairs, it shared much in common with a private member’s bill (C-341– An Act to establish the terms and conditions that must apply to a referendum relating to the separation of Quebec from Canada before it may be recognized as a proper expression of the will of the people of Quebec) that had been introduced four years earlier (1996) by Reform Party leader Preston Manning and drafted by Calgary MP Stephen Harper (who is now Prime Minister of Canada).

The Clarity Act gives effect to the requirement for clarity set out by the Supreme Court of Canada in the Quebec Succession Reference. It is the interpretation of the Supreme Court, in its opinion, that the federal government give “political actors” the responsibility of returning the right to determine, what, among other things, constitutes a question and a clear majority after a referendum that one province or territory initiates with a view to succession from Canada.

The key points of the legislation included the following:

  • Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
  • Specifically stating that any question not solely referring to secession was to be considered unclear;
  • Giving the House of Commons the power to determine whether or not a clear majority has expressed itself in any referendum, implying that some sort of supermajority is required for success;
  • Stating that all provinces and the First Nations were to be part of the negotiations;
  • Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
  • The secession of a province of Canada would require an amendment to the Constitution of Canada.

Although the Quebec government rejected the Clarity Act and countered with the Fundamental Rights Act, which claims exclusive provincial jurisdiction over the process surrounding a future referendum on Quebec secession, the federal government’s insistence on clarity seems to have paid off, at least according to Constitutional expert Sujit Choudrey. In Referendum? What Referendum? Choudrey argues that:

notwithstanding the clash between the Clarity Act and Bill 99, the Secession Reference and the Clarity Act appear to have changed the terms of the debate within Quebec. Indeed, in many respects, the federal government appears to have gained the upper hand.

Choudrey reaches this conclusion based on an analysis of recent events in Quebec. For example, in 2004, former Parti Québécois leader Jacques Parizeau proposed in an op-ed piece in La Presse, that the PQ “view an election victory as a direct mandate to pursue sovereignty without the need for a referendum”:

Public opinion polls consistently show that a clear question on independence would not garner majority support. Moreover, if the House of Commons determined the question to be unclear, support for a yes vote could drop, because a federal challenge to the question would launch a debate in the midst of the referendum campaign “over legitimacy, constitutionality and the meaning of a law.” Faced with the choice between a losing question and an illegitimate and unconstitutional one, Parizeau proposed dumping the idea of a referendum entirely. The very fact that he made this proposal acknowledged that the Clarity Act had fundamentally changed the terrain on which the next referendum would be fought. The reason it had this effect is that while Quebec’s political elites are willing to secede in defiance of the Canadian constitution, the citizens of Quebec themselves are firmly committed to the rule of law.

Parizeau’s proposal was sharply criticized by both federalists and sovereigntists in Quebec and ultimately rejected. In 2005, the PQ’s election platform outlined its policy for achieving independence. This include setting:

the threshold for victory at 50 percent plus one, to be followed by an immediate unilateral declaration of independence. No attempt would be made to negotiate a constitutional amendment with Canada. An independent Quebec would immediately adopt laws to ensure legal continuity, to create a supreme court and to ensure that all taxes paid within the province would be collected by the Quebec government. Quebec would then signal its intention to negotiate an agreement with Canada allowing for the free movement of persons, goods, services and capital, would commence negotiations to accede to international treaties to which Canada is a party and would take steps to secure international recognition and admission to the United Nations.

This policy too was sharply criticized. A former leadership candidate, Louis Bernard, “rejected the notion of a unilateral declaration of independence. Such a declaration would simply have no effect, he argued, because the federal government would continue to operate in the province.” In May 2006, a group of prominent sovereigntists published in Le Devoir “Le Manifeste pour une approche realiste de la souveraineté” (Manifesto for a realistic approach to sovereignty):

The heart of the manifesto’s argument is that the PQ platform’s failure to comply with the Secession Reference would be fatal to Quebec’s attempts to secure international recognition as an independent state. A universal declaration of independence that did not follow a referendum on a clear question on secession, with a yes vote by more than a slim majority, followed by good faith negotiations with Canada, would enable Canada to argue internationally that a unilateral declaration by Quebec should not be recognized.

All this to say that increasingly, there is acceptance in Quebec of the need for a clear question, a yes vote by more than a slim majority, and negotiations with Canada in order to achieve independence for the province.

Recently, however, the issue has resurfaced in the news, not because of a Quebec politician or party, but because the official party position of Canada’s new Official Opposition party, the New Democratic Party, as outlined in their “Sherbrooke Declaration”, states that “the NDP would recognize a majority decision (50% + 1) of the Quebec people.” When asked to clarify his party’s position, party leader Jack Layton replied:

“The Supreme Court decision says you need a clear majority and our Sherbrooke Declaration put a number to what a clear majority means,” Layton said. “Fifty per cent plus one, that’s been our policy for a long time and it remains so.”

There has been much written about this in the past few days. Some defended the NDP position, such as this post. Unfortunately, I read most of these blog posts via an aggregator site, and don’t recall which bloggers wrote what, which is why I am not linking to them. I simply can’t find the posts again. Some of the arguments raised were rather questionable, however. More than a few, including the one linked to above, referred to the example of the province of Newfoundland, which joined Confederation after a referendum vote in favour of 52%:

In 1948, Newfoundland had two referendums on whether or not to join Canada. After not getting the desired result in the first referendum, Joey Smallwood and company ran another one and 52.3% decided to join Canada. This is not a whopping majority and is a rather slim margin, being decided by less than 7 000 votes.

Therefore, a majority of less than 5% is enough to join Canada. But does meet the threshold of a “clear majority”? Who knows! It does meet the NDP criteria as it is above 50%. As for the other parties, there is a lack of…um…clarity.

The first problem here is the claim (which is perhaps being made sarcastically, it’s difficult to tell) that Newfoundland kept having referendums until the desired outcome was achieved. This isn’t the case. There were indeed two referendums. The first, however, had three options: a continuation of Commission Government (essentially government by the UK), responsible government (independence), or Confederation with Canada. The first option was roundly rejected, receiving only 14% support, but the other two options both failed to get over 50% support, with the responsible government option slightly more popular than Confederation (44% to 41%). That is why a second referendum was held, with the two most popular options offered, and Confederation won with 52% of the vote.

However, to this day, there is debate in Newfoundland over that result. There were rumours that the independence option actually won, but the ballot totals were reversed (see the film “Secret Nation”), or that there was a concerted conspiracy before the vote to ensure that the Confederation option would win (see the upcoming book by Greg Malone). Conspiracy theories aside, there were some in the rest of Canada who believed that the 52% result wasn’t a decisive enough verdict endorsing Confederation:

The result, while giving a slight edge to Confederation, contains no clear mandate for union with Canada. The island is sharply divided and the size of opposition to union makes it extremely doubtful if any attempt should be made to decide the question without further clarification of public opinion. The next step is difficult to foresee and there are no guide posts available. The one clear decision arising out of the two referendums is that Newfoundland does not desire to continue commission government.

My point here is simply to illustrate that even a slightly more decisive result than 50% +1 still engenders a lot of controversy.

Other bloggers (or people commenting on blogs) point to Kosovo as case in point for proof that if the Canadian government were to refuse to recognize a 50%+1 result, it would be going against international law. However, the Kosovo example doesn’t really hold water. Leaving aside the obvious that the messy situation in the Balkans cannot be compared to how Quebec has been treated in Confederation, Kosovo did not hold a referendum, it unilaterally declared itself independent from Serbia.

On July 22, 2010, the International Court of Justice delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence conformed to international law.

The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.

However, the ICJ’s opinion did not directly relate to Reference re Secession of Quebec, because the former only addresses the ability to issue a declaration (no declaration of independence of Quebec has ever been issued, in any case); whereas the Supreme Court’s opinion on Reference re Secession concerns the ability to actually effect secession.

A better, and far more relevant example would be the case of Montenegro, which voted for independence from Serbia in May 2006. At the insistence of the European Union, led by France, the majority threshold was raised from 50% plus one to 55%, and the question had to be clear. Failure to achieve that result would mean that the EU would not recognize Montenegro’s independence.  The EU was following recommendations from the Venice Commission, the Council of Europe’s advisory body on constitutional issues. The Venice Commission based its recommendations largely on the Supreme Court of Canada’s ruling and Canada’s Clarity Act. Please also see this document for background on how the Montenegro referendum process evolved.

As Choudrey concludes:

The question of whether Montenegro is a precedent for a future Quebec referendum was a major issue in Quebec last spring. The logical conclusion was that France and the European Union would expect the same of Quebec. Since the PQ has always hoped that France would take the lead in recognizing an independent Quebec, the Montenegro precedent has caused a lot of concern. Every Quebec political party was quick to affirm that for Quebec, the rule is 50 percent plus one. Pauline Marois and Gilles Duceppe went one step further, penning editorials arguing that the Venice Commission did not actually require a 55 percent threshold and calling for referendum rules to be set by Montenegro alone, as Quebec had already done.

But the Montenegro precedent would almost certainly shape the international response to a unilateral declaration of independence by Quebec, as the manifesto acknowledged. Even here, the influence of the Secession Reference and the Clarity Act can be seen, because they were relied on by the Venice Commission in support of its decision. So if the Secession Reference and the Clarity Act are good enough for Montenegro, they will likely be good enough for Quebec.

While there might not be agreement on whether a “clear majority” is 55% or 60% or something even higher, one thing is certain. A clear majority should not be a result that could easily be overturned in a judicial recount.

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