Information report | Doc. 14390 | 04 September 2017
Towards a democratic approach to the issues of self-determination and secession
Committee on Legal Affairs and Human Rights
Summary
The question of self-determination or secession is as much a legal issue as it is a political one. Certain debates under way in Europe reveal how contentious this question can be. However, other European examples also show that such issues can be dealt with more calmly.
In the light of the complex and highly politicised nature of the legal issues at hand, and the very diverse nature of the relevant, practical situations, the Committee on Legal Affairs and Human Rights felt that it was impossible for it to assume the role of arbitrator and to define universally applicable, generic guidelines. The committee therefore decided to present an information report, outlining the applicable principles of public international law, without taking sides vis-à-vis the aspirations of the various parties involved for or against independence. Numerous representative (though not exhaustive) examples illustrate the report.
In this report, the committee underlines the need to settle these matters through peaceful and democratic dialogue that respects the rule of law and human rights (including the rights of national minorities) between the region concerned and the government of the State of which it forms part.
1. Introduction
1.1. Procedure
1. On 2 October 2015, the Parliamentary Assembly transmitted
the motion for a resolution “Towards a democratic approach to the
issues of governance in European multinational States” to the Committee
on Legal Affairs and Human Rights for report. 
At
its meeting on 8 December 2015, the committee appointed me as rapporteur.
Having studied the introductory memorandum that was the basis of
the present text, and after several exchanges of views, the committee
accepted my proposal to draft an information report on this subject.
1.2. The issues at stake
2. The motion for a resolution behind this report states that “[s]elf-determination movements are active across the Council of Europe region; they base their legitimacy on the broad support of the populations in their territories and their own internal democratic standards, including a rejection of violence”. The motion for a resolution refers to the right to self-determination, together with the rights of minorities, and calls on the Parliamentary Assembly to “examine the question of self-determination of European regions”. It cites various examples, including the United Kingdom (Scotland) and Denmark (Faroe Islands and Greenland). The subject of this report raises tricky issues relating to the pro-independence debates under way in various Council of Europe member States. Whereas some examples, such as Scotland, show that such matters can be dealt with relatively calmly, others such as Catalonia have proven highly contentious. It is important to note that independence, or secession, is as much a legal issue as it is a political one.
3. There are a number of factors involved in these debates, not only history, culture, identity and language but also important territorial, financial and budgetary issues.
4. This information report will not claim, of course, to offer solutions or outcomes to the discussions currently under way in various Council of Europe member States. What it will do, however, is reiterate a few principles of public international law and emphasise the need to settle these matters through peaceful and democratic dialogue that respects the rule of law and human rights (including the rights of national minorities) between the relevant region and the government of the State of which it forms part.
2. Right to self-determination and secession in international law
5. For the purposes of this report, it is important to remind ourselves of the different ways in which new States can come about:
- creation, as part of the decolonisation process, of a new, independent State, which was already territorially defined (where a colonised State breaks away from the metropolitan State);
- dissolution of an existing State, whereby a State splits into one or more new States, none of which can claim to be the legal successor of the one from which they derived, unless otherwise agreed by the successor States (for example the break-up of the Union of Soviet Socialist Republics (USSR) or Yugoslavia);
- secession (namely where a State loses part of its territory, resulting in the emergence of States such as Montenegro or South Sudan, for example);
- merger (Yemen for example).
6. Article 1.2 of the United
Nations Charter of 1945 states that one of the purposes of the United
Nations is to “develop friendly relations among nations based on
respect for the principle of equal rights and self-determination
of peoples”. Article 1 of the International
Covenant on Civil and Political Rights of 1966 states that “[a]ll peoples have the right of
self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social
and cultural development”. This right to self-determination is conferred
under international law on “peoples”, without any formal clarification
as to what is meant by “peoples”. Taking into account the
particular situation of peoples under colonial or other forms of
alien domination or foreign occupation, the Vienna Declaration of
1993 (among others) reaffirms the right to self-determination.
7. Outside the decolonisation process, however, public international
law does not recognise the right of peoples to secede, as secession
conflicts with the fundamental principle of States’ territorial
integrity. Our colleague Marina Schuster
(Germany, ALDE) has already examined the right to secession for
our committee when preparing her report on “National sovereignty
and statehood in contemporary international law: the need for clarification”. In that report, she
clearly describes the standard answer, namely that, because States’ territorial
integrity prevails, no (unilateral) right to secession can be said
to exist. Except for unilateral declarations of independence as
part of the decolonisation process, which have been considered legitimate.
8. In effect, international law enshrines the principle of
territorial integrity and the inviolability of borders and any attempt
at secession may be considered a disruption of international relations.
This view was confirmed inter alia in
United Nations General Assembly Resolution 1514 (XV) which states that “[a]ny attempt aimed
at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations”. Resolution
2625 (XXV) makes it clear that the right of peoples to self-determination
cannot be construed “as authorising or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity
or political unity of sovereign and independent States”.
9. In addition. Article 27 of the Covenant on Civil and Political
Rights, which refers explicitly to the rights of national minorities,
makes no mention of their right to self-determination. Within
the context of the Council of Europe, the Framework Convention for
the Protection of National Minorities (ETS No. 157) of 1994, the
first legally binding, European multilateral instrument devoted
to the protection of national minorities in general, seeks to protect
the existence of national minorities “within the respective territories”
of the Parties. In the preamble to this convention, it is also stated
that “the realisation of a tolerant and prosperous Europe does not depend
solely on co-operation between States but also requires transfrontier
co-operation between local and regional authorities without prejudice
to the constitution and territorial integrity of each State”. Article
15 of the Framework Convention stipulates that “[t]he Parties shall
create the conditions necessary for the effective participation
of persons belonging to national minorities in cultural, social
and economic life and in public affairs, in particular those affecting
them”.
10. A right to unilateral secession might be considered to
exist outside the colonial context in the case of a people which
was the victim of attacks on its physical existence or of a massive
violation of its fundamental rights. Canada’s
Supreme Court summarises the situation as follows: “The international
law right to self-determination only generates, at best, a right
to external self-determination in situations of former colonies; where
a people is oppressed, as for example under foreign military occupation;
or where a definable group is denied meaningful access to government
to pursue their political, economic, social and cultural development.”
11. The Advisory Opinion issued by the International Court
of Justice (hereafter the ICJ) on 22 July 2010 on accordance with
international law of the unilateral declaration of independence
in respect of Kosovo* is worth mentioning
here.
12. The ICJ concluded that Kosovo’s declaration of independence
on 17 February 2008 did not violate general international law. It
based this opinion on the fact that international law contained
no rules prohibiting such declarations. Serbia disagreed. In its
written comments submitted to the ICJ, it argued that the unilateral declaration
of independence was “in violation of the principle of territorial
integrity of States which is one of the fundamental principles of
international law, as well as in violation of the international
legal regime established by Security Council Resolution 1244 (1999).
In that sense, the [unilateral declaration of independence] can
be viewed both as an attempt to illegally secede territory from
Serbia, the parent State, and an attempt to terminate the United
Nations administration of Kosovo established by the Security Council
pursuant to Chapter VII of the Charter”.
13. The view of the ICJ is not shared by everyone and the
ICJ itself notes in its opinion that several participants in the
proceedings contended that a prohibition of unilateral declarations
of independence was implicit in the principle of territorial integrity. This was particularly
the case of Serbia, which argued that the principle of territorial
integrity, which is an integral element of the international order,
extends beyond States and binds non-State entities in situations
of non-consensual attempts to violate the territorial integrity
of independent States. The Court, for its part, considers
that “the scope of the principle of territorial integrity is confined
to the sphere of relations between States”.
14. In practice, the United Nations Security Council has condemned
declarations of independence in cases where the ICJ has found that
“the illegality attached to the declarations of independence … stemmed
not from the unilateral character of these declarations as such,
but from the fact that they were, or would have been, connected
with the unlawful use of force or other egregious violations of
norms of general international law”.
15. In its opinion, the ICJ does not answer the question about
entitlement to break away from a State. It considers that issues
relating to the extent of the right of self-determination and the
existence of any right of “remedial secession” are beyond the scope
of the question posed.
16. In her report mentioned above (paragraph 7), Ms Schuster
noted that “the right to self-determination is not seen by prevailing
opinion as giving rise to a right for any regional minority group
to secede from an existing State” and that “[s]elf-determination
of minority groups should be realised rather by way of participation
in the government of the State as a whole and by the devolution
of power through the development of regional autonomy, namely, self-government
in matters such as education, culture, etc., falling short of independence”. States
have a duty not to recognise the secessionist entity if it was created
in violation of international law. In
its Resolution
1832 (2011) “National sovereignty and statehood in contemporary international
law: the need for clarification”, the Assembly “considers that even
if international law were to recognise a right of national or ethnic
minorities or even, in some cases, national majorities, to self-determination,
such a right would not give rise to an automatic right to secession.
The right to self-determination should first and foremost be implemented
by way of the protection of minority rights as foreseen in the Council of
Europe Framework Convention for the Protection of National Minorities
(ETS No. 157) and Assembly Resolution
1334 (2003) on positive experiences of autonomous regions as a source
of inspiration for conflict resolution in Europe, as well as in
other relevant instruments of international law.”
17. To take a broad view of the right to self-determination would pose a risk of fragmentation or “Balkanisation”, which should not be underestimated. Various events which have taken place in recent years, however, such as the emergence, following a peaceful process, of new States such as Montenegro in 2006 or the separation of the Czech and Slovak Republics in 1993, can pave the way for a debate about peaceful secession, conducted in full accordance with democratic principles, the rule of law and human rights.
3. Examples of debates under way in Europe
18. Within the member States of the Council of Europe, various identity-based or indeed pro-independence movements can be observed, and there are a number of “frozen conflict” zones. The regions in question are looking for greater autonomy and, in some cases, independence. Their demands for recognition of their identity cannot be met through cultural, economic or even regional political autonomy which, in their view, is not enough.
19. I have chosen to illustrate this report with a few examples which, while representative, are not exhaustive. The examples cited are of pro-independence movements which operate peacefully and through democratic processes. Leaving aside the issue of “frozen conflicts”, I will begin by looking south to Catalonia and then north to Scotland, before turning my attention to my native Belgium and the secessionist aspirations of Flanders. My intention is to take a strictly neutral stance and to try to describe the current situation in the most objective manner possible. The examples I have chosen are relevant not least because these regions are all home to sizeable pro-independence movements and because they have organised political structures and institutions and already enjoy extensive autonomous powers. The fact, too, that these examples are drawn from member States of the European Union, an international organisation sui generis, which is far more integrated than the Council of Europe, lends them added interest.
20. The following examples are based on generally accepted information.
- Catalonia
21. Since the early 2000s, the nationalist movement in Catalonia has been going from strength to strength. Under the new Statute of Autonomy, adopted in 2006, Catalans have “nationality” status within Spain. Following approval by the Catalan parliament, Spain’s Congress of Deputies and the Senate, on 18 June 2006 this Statute was approved by more than 73% of voters in a Catalonia-wide referendum. Under the terms of the Statute, the Autonomous Community of Catalonia has its own political bodies known as the Generalitat, consisting of the Parliament, the Presidency of the Generalitat and the Government.
22. The Statute of Autonomy was subsequently challenged in the Spanish Constitutional Court which, four years later in a judgment delivered on 28 June 2010, annulled 14 articles of the Statute and amended a further 27. While recognising its historical and cultural value, the Constitutional Court held that enshrining the concept of a “Catalan nation” in the Statute of Autonomy was unconstitutional. It also ruled unconstitutional the preference given to the Catalan language in public administration and public media, while accepting its compulsory use in education, and other articles concerning, inter alia, various financial powers.
23. Following this decision, on 10 July 2010 a protest march in Barcelona drew over a million people, including representatives of the main institutions and most of the Catalan political parties. In the years that followed, similar large-scale demonstrations were held every 11 September (Catalonia’s national day) to demand the right to decide and independence.
24. On 23 January 2013, the Catalan parliament approved the “Declaration on the Sovereignty and right to decide of the people of Catalonia”. On 25 March 2014, Spain’s Constitutional Court found that the principle of sovereignty, as articulated in the Declaration, was unconstitutional.
25. On 9 November 2014, an informal poll on the independence of Catalonia showed that 80% of the 2 million-plus voters backed independence. The result was non-binding, however, since the Constitutional Court, in its decision of 25 March 2014, had ruled out holding a formal referendum. Those opposed to independence, furthermore, had urged voters to abstain.
26. On 27 September 2015, for the first time, pro-independence
parties won
an absolute majority in the Catalan parliamentary elections, securing
72 seats out of 135. The Catalan parliament and government formed after
the election vowed to implement a roadmap to Catalan independence.
27. On 9 November 2015, the Catalan parliament passed a resolution
proclaiming the start of the process of creating an independent
Catalan State in the form of a republic. On 2 December 2015, the resolution was declared
void by Spain’s Constitutional Court but the Catalan parliament had anticipated
this move and made it clear in the resolution that “the Parliament
and the process of democratic uncoupling from the Spanish State shall
not be subject to the decisions of the institutions of the Spanish
State, in particular the Constitutional Court”.
28. The Constitutional Court bases its decisions on Article 1.2 of the Spanish Constitution which states that national sovereignty is vested in the Spanish people, and on Article 2 which proclaims the indivisibility of the Spanish nation. It is interesting to note, however, that, in its 2014 decision, the Constitutional Court pointed out that the Spanish Constitution could be revised under existing procedures and emphasised the importance of dialogue.
29. On 6 October 2016, the Catalan parliament approved a roadmap
which included the holding of an independence referendum in 2017.
On 14 December 2016, the Constitutional Court, to which the matter
had been referred by the Spanish Government, suspended the roadmap
and stated that it would rule on the merits within five months. The President of the Generalitat
announced that the referendum would be held on 1 October 2017. Madrid
contests the holding of any such referendum.
30. It is interesting to note that an exchange of letters took place between the President of the Generalitat and the President of the European Commission for Democracy through Law (Venice Commission). Replying to a letter from the former, the latter reiterated the Venice Commission’s consistently held position that any referendum must be carried out in full compliance with the Constitution and the applicable legislation.
- Scotland
31. Scotland’s experience is remarkable for the way in which the United Kingdom Government responded to the rise of Scottish nationalism in the 1990s through devolution. Since the Scotland Act of 1998, Scotland has enjoyed a large measure of self-government, within the limits of the sovereignty of the United Kingdom. It has its own government and the restored Scottish Parliament votes on Scottish affairs.
32. In 2012, furthermore, the Scottish and United Kingdom
governments agreed in the Edinburgh Agreement to establish the legal
framework for a possible referendum on Scottish independence. Under
the terms of this agreement, the referendum should have a clear
legal base, be legislated for by the Scottish Parliament, be conducted
so as to command the confidence of parliaments, government and people
and deliver a fair test and decisive expression of the views of
people in Scotland and a result that everyone would respect. A referendum was duly held on 18
September 2014. It resulted in a victory for the “no” camp, which won
55.3% of the votes cast. Following the referendum, the process of
devolving powers to Scotland (notably in fiscal matters, but also
in the constitutional sphere) continued with the passing of the
Scotland Act 2016.
33. What makes this process remarkable is the fact that it took place against a backdrop of calm, democratic dialogue and prior agreement between the regional institutions and central government on the arrangements for holding the referendum.
34. Following the victory of the “Leave” camp in the United
Kingdom referendum on “Brexit” on 23 June 2016, the Scottish Government
announced its intention to hold another referendum on Scottish independence. Unlike
England, Scotland predominantly voted to remain in the European
Union (62% in favour). Holding a second referendum may require the
consent of the United Kingdom Government, unless the 2012 Edinburgh Agreement
applies mutatis mutandis.
It will be observed, however, that the Scottish Nationalist Party’s suggestion
that under the Scotland Act 2016, the Scottish Parliament should
be able to decide when to hold another referendum on independence,
was rejected by the United Kingdom Parliament. In October 2016, the Scottish
Government published a bill on a second independence referendum. In March 2017, the Scottish Parliament
voted in favour of formally requesting that the United Kingdom grant
it the necessary powers to hold another independence referendum
in spring 2019 to coincide with the United Kingdom’s exit from the
European Union.
35. There is no doubt that developments in Scotland in the aftermath of Brexit are being closely followed in Europe. Also highly relevant is the question of under what conditions, and how quickly, an independent Scotland would re-join the European Union.
- Flanders
36. I come now to my third example, namely the emancipatory aspirations that can be observed in Flanders and occasionally also in Wallonia. Historically, the movement began with demands for the protection of linguistic rights. In 1970, following an initial revision of the Belgian Constitution (the first State reform), the country saw the establishment of cultural communities: the Flemish Cultural Community, the French Cultural Community and the German Cultural Community. Tensions between the French-speaking and Flemish communities prompted the Belgian State to continue restructuring and reforming itself on several occasions (1980, second State reform; 1988/1989, third State reform). For many years a unitary State, Belgium has, since the constitutional revision in 1993 (fourth State reform), been a federal State made up of three communities and three regions. The State reforms are continuing and, with them, the transfer of powers and responsibilities from the federal authority to the regions and communities (2001, fifth State reform).
37. In 2010, the Flemish separatist party N-VA won the largest share of the vote in the early parliamentary elections in Flanders. In the wake of its victory, N-VA demanded institutional reform with a view to securing greater autonomy for Flanders in economic and social matters. After a record period without a federal government, an agreement was reached on constitutional reform which paved the way for further devolution (2012/2014, sixth State reform). Following the 2014 elections, the NV-A entered the federal government. However, it was decided to put the community issue to one side during this legislature (until 2019), even though community tensions can be seen in a number of spheres.
38. Belgium federalism is highly advanced in that the federal State does not take precedence over the federated entities. The federated entities, furthermore, have numerous exclusive powers, which cannot, therefore, be wielded by the federal State. The Flemish Community and the Flemish Region have their own government and parliament. Among their many exclusive powers is the management of international relations in the areas concerned.
4. What is at stake in this debate?
39. Staying with the examples mentioned above, I would like to highlight certain issues which are currently being discussed around the subject of independence.
40. Demands for independence primarily have their roots in historical, cultural and linguistic issues. The territories or regions concerned are determined to defend and protect their identity, language and specific cultural features. These are obviously legitimate interests but they need to be defended in a way that respects the rights and freedoms of minorities living in these same territories (very often people from the majority population of the central State).
41. The financial issue is undoubtedly a key factor in these
discussions. Catalonia is a prosperous region, accounting for nearly
20% of the country’s wealth, and a major contributor to the
Spanish economy. Catalonia regularly complains that it contributes
more than its fair share to the repayment of Spanish debt and receives less
back from central government than other regions.
42. Likewise Flanders, with 60% of the Belgian population
and also approximately 60% of the country’s gross domestic product
(GDP) is a far more prosperous region than
Wallonia. Here too, the disproportionate contribution made by Flanders
in favour of Wallonia is at the heart of the independence debate.
43. While the situation is different in the case of Scotland, which is not more prosperous than the rest of the country, the region’s oil revenues are nevertheless a topic of debate.
44. The climate and tone adopted in the debates in the various cases mentioned above are crucial.
45. In Spain, the lack of constructive dialogue has served to exacerbate separatist sentiment. Until just a few years ago, most Catalans might have been happy with greater autonomy for Catalonia (including in fiscal matters) but Madrid’s refusal to engage in dialogue and its dismissal of these demands has served to crystallise the disagreements and hardened opinions in favour of independence.
46. By contrast, the United Kingdom and Scotland were able to agree, through calm political dialogue, on the procedure for holding a Scottish referendum on independence. The question was asked and voters opted to remain in the United Kingdom. This position is not immutable, however, and in the wake of the Brexit vote the issue has once again come to the fore.
47. It is worth pointing out that in the examples mentioned above the demands for independence have all been expressed peacefully.
48. It is important to bear in mind that however legitimate calls for independence or secession from the majority population in a particular territory may be, the interests and rights of minorities within the pro-independence majority must also be taken into account and respected. Any attempt to impose independence without negotiation would be liable to conflict with the rule of law, democratic principles and human rights, or even violate the rights of minorities.
49. One last area of concern relates to the costs and/or benefits of secession. To my mind, this is a legitimate issue, and one worth raising. Cost-benefit estimates are difficult to come by in this area, however. It is essential to have accurate figures. The recent Brexit campaign showed the extent to which financial arguments, whether or not they are well-founded, have an influence on shaping citizens’ views. It is essential, therefore, to have figures based on sound, incontrovertible data in order to prevent economic and budgetary arguments from being misused to support this or that position.
5. Examples of peaceful independence processes outside the colonial context
50. While examples of peaceful independence processes leading to the creation of one or more new States, other than in the context of decolonisation, are few and far between, they do exist, including in Europe. It would be interesting to identify some criteria that contributed to peaceful, negotiated independence processes in accordance with the principles of democratic dialogue and without infringing human rights.
– Czechoslovakia’s “velvet divorce”
51. One example of a negotiated solution which led to the peaceful emergence of new States (following the break-up of an existing State) was the “velvet divorce” that split Czechoslovakia. At the time of the collapse of the iron curtain, the Slovak National Council declared independence on 17 July 1993 and on 1 September adopted a Constitution. The dissolution of the Czech and Slovak Federative Republic was approved by the Federal Assembly on 25 November 1993. On 16 December 1993, the Czech National Council in turn approved the Constitution of the Czech Republic. From start to finish, the process of formally establishing the two States’ independence took just six months.
52. In the case of Czechoslovakia, a combination of factors
helped to make the split easier. These included: a recently established,
not very centralised State, separate justice systems (apart from
the Supreme Court), a low level of public debt (10% of GDP), the
fact that there was no single powerful political party operating
across the country as a whole – the Communist Party was largely
discredited and unpopular at the time – and lack of tension over
the redrawing of borders. Furthermore, the Czechs were able to come
to terms with Slovak aspirations for independence, as the Slovaks
were fewer in number and less wealthy than the Czechs and the latter
did not suffer economically from the break-up of the Czechoslovak
State. The
fact, too, that both new State entities were anxious to maintain
mutual relations through numerous bilateral agreements and to quickly join
the international institutions greatly contributed to a peaceful,
negotiated solution.
53. It is interesting to note that neither of the two new States claimed, or was considered by the international community, to be the successor of the former Czechoslovakia. The political agreement between the two parties resulted in a joint break-up. Another interesting point to note is that no referendum was held to seek the views of the people.
– Serbia and Montenegro
54. Montenegro, the latest State to join the Council of Europe,
likewise came about after peacefully seceding from Serbia. On
21 May 2006, Montenegro held a referendum on independence (55.5%
of the votes cast were in favour). On
3 June 2006, the Montenegrin Parliament adopted a declaration of
independence. This was followed by a declaration by the Serbian
Parliament on 5 June 2006, declaring Serbia the successor to the State
Union of Serbia and Montenegro and recognising the independence
of Serbia and consequently Montenegro.
55. Under Article 60 of the 2003 Constitution of Serbia and
Montenegro, indeed, the two constituent republics had the right
to seek full independence three years after the adoption of the
new Constitution. The article in question dealt
in advance with numerous practical matters relating to independence
and succession, thereby paving the way for peaceful separation.
56. Under Article 5 of the special law on the referendum on State legal status (LRSLS), a condition was inserted, to the effect that 55% of the votes cast in the referendum must be in favour of independence in order for it to be recognised.
57. It is important to emphasise that Montenegro is an exception
as in the vast majority of countries, the Constitution does not
authorise secession.
– Quebec
58. Another case worth mentioning here is that of Quebec.
The issue of Quebec’s independence from Canada is not a new one
and there have already been two referendums on the subject (one
in 1980 and another in 1995, which produced a very close result
with 49.42% in favour of independence and 50.58% against). Since then, various legal
aspects have been clarified.
59. First, clarification was provided through the Reference
re Secession of Quebec delivered by Canada’s Supreme Court on 20
August 1998 at the request
of the government. In its
opinion, the Supreme Court emphasised Canada’s duty to negotiate
with the province expressing through a referendum the desire to secede.
The Supreme Court laid down two conditions: a clear referendum question
and a clear result.
60. In this reference, the Supreme Court states that the right to self-determination cannot be said to ground a right to unilateral secession in the context of Quebec. It further explains that “secession of a province ‘under the Constitution’ could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework”.
61. The other important point made by the Supreme Court lies in the fact that even a clear referendum result would not entitle Quebec to invoke a right to self-determination to dictate the terms of a proposed secession to the other parties to the federation. The Supreme Court accordingly stipulates that “[t]he 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”.
62. “Democratic rights under the Constitution cannot be divorced from constitutional obligations.” The Supreme Court nevertheless points out that the Canadian constitutional order would not allow the other provinces and the federal government to ignore a clear expression of a clear majority of Quebecers that they no longer wished to remain in Canada. There would therefore have to be a process of negotiation, with no predetermined outcome. The Supreme Court also emphasises that the negotiations would need to specifically address the rights of minorities.
63. Next, the Clarity Act, adopted
in 2000, elaborated on the arrangements in the event that one of Canada’s
provinces should secede. In line with the opinion expressed by the
Supreme Court, the Act states that a clear referendum question and
a clear majority are essential conditions for secession.
64. The question of what constitutes a “clear” majority still remains to be answered. The Supreme Court has studiously avoided the issue, stating that “it will be for the political actors to determine what constitutes ‘a clear majority on a clear question’ in the circumstances under which a future referendum vote may be taken”.
6. Conclusions
65. The issues raised in this report are complex and controversial, touching upon two principles of public international law that cannot be easily reconciled: the right of peoples to self-determination and the principle of the territorial integrity of States.
66. The examples mentioned can be inspirational and have certainly fuelled the pro-independence debate in some European States. While it is possible to identify various criteria which contributed to a peaceful, negotiated solution, it is important to emphasise that the processes followed are never completely transposable, as each State’s circumstances are complex and unique.
67. Issues relating to self-determination and independence are obviously highly politicised. It would seem that individual States decide whether or not to recognise new declarations of independence having regard to any pressure there might be within their own borders for independence or even just self-government. Many States would be against redrawing existing State borders for fear it would open a Pandora’s box, with each new declaration of independence and each newly created and recognised State effectively setting a precedent that might give succour to other separatist demands.
68. In the light of the complex and highly politicised nature of the legal issues at hand, as well as the very diverse nature of the relevant, concrete situations, it would be impossible for the committee to assume the role of arbitrator and to define universally applicable, generic guidelines. That is why it has decided to present only an information report, outlining the relevant principles of public international law without proposing any general recommendations. The importance of reaching agreement on contentious issues relating to independence and secession by means of peaceful and democratic dialogue that respects the rule of law and human rights cannot be overstated.