Secession and the Virtues of Clarity
By Te Honourable Stéphane Dion, P.C., M.P.
COMMENTARY/COMMENTAIRE
Te Honourable Stéphane Dion, P.C., M.P.(Privy Council of Canada and Member of Parliament for Saint-Laurent/Cartierville)House of Commons, Ottawa
Stéphane Dion (PC) is the Member o Par-liament or the riding o Saint-Laurent–Cartierville in Montreal. He was rst elected in 1996 and served as the Minister o Intergovernmental Aairs in the Chre-tien government. He later served as leader o the Liberal Party o Canada and theLeader o Her Majesty’s Loyal Oppositionin the Canadian House o Commons rom2006 to 2008. Prior to entering politics, Mr. Dion was a proessor at the Universitéde Montréal. Tis Commentary is based on Mr. Dion’s presentation, entitled Seces-sion and the Virtues o Clarity, which wasdelivered at the 8th Annual Michel Basta-rache Conerence at the Rideau Club onFebruary 11, 2011.Stéphane Dion (CP) est député édéral pour la circonscription de Saint-Laurent–Cartierville à Montréal. Il a été élu pour la première ois en 1996 et a servi en tant que ministre des Aaires intergouverne-mentales dans le gouvernement Chrétien.Il est par la suite devenu che du Partilibéral du Canada et che de l’Oppositionà la Chambre des communes de 2006 à2008. Avant de aire de la politique, M.Dion était proesseur à l’Université de Montréal. Ce Commentaire reprend les principaux éléments de l’allocution de M.Dion intitulée « La sécession et les vertusde la clarté », prononcée lors de la 8e Con- érence annuelle Michel Bastarache auRideau Club le 11 évrier 2011.
It is an honour and a pleasure or me to have been invited to the Michel BastaracheCommission… excuse me, Conerence.When they invited me, Dean Bruce Feldthusen and Vice-Dean François Larocque sug-gested the theme o “clarity in the event o secession”. And indeed, I believe this isa theme that needs to be addressed, because the phenomenon o secession poses amajor challenge or a good many countries and or the international community. Onequestion to which we need the answer is this: under what circumstances, and by whatmeans, could the delineation o new international borders between populations be a just and applicable solution?I will argue that one document which will greatly assist the international community in answering that question is the opinion rendered by the Supreme Court o Canadaon August 20, 1998 concerning the Reerence on the secession o Quebec. Tis opin-ion, a turning point in Canadian history, could have a positive impact at the interna-tional level. It partakes o the great tradition o our country’s contribution to peace and
2harmony in the world, rom the draing o the UN Universal Declaration o HumanRights to the Convention on the Prohibition o Anti-Personnel Mines. Tat is my con- viction, and I could not hope or a better orum in which to express it, since one o the justices who rendered that unanimous opinion on August 20, 1998 was in act theHonourable Michel Bastarache.Aer describing how the international community views the phenomenon o seces-sion and identiying the principles in play, I will argue that the opinion o our SupremeCourt does indeed have universal scope and signicance, and then close by bringingthe discussion back home, that is, to the current situation o Canadian unity and theQuebec separatist movement.
1. Te aversion o States and the international community to secession
Secession is the act o separating rom a State to orm a new one or to join another one.Let us note rst o all that, all around the world, secession is not something that is en-couraged outside o the colonial setting. On the contrary, secession is considered withdenite mistrust – even real aversion when it is eected unilaterally, that is, withoutan agreement negotiated with the predecessor State. Tis mistrust o secession can be veried at three levels: those o domestic State law, international law, and internal Statepractice.
1.1 Domestic law
In terms o domestic law, numerous States arm their indivisibility in their constitu-tion or their jurisprudence. Many democratic States, or example France, the UnitedStates, Italy, Spain, Australia, Finland, Norway and Sweden, consider themselves to beinseparable entities.
1.2 International law
In international law, any attempt at unilateral secession, that is, secession with noagreement negotiated with the existing State, is without legal oundation. Internation-al law does not prohibit unilateral secessions. It simply does not authorize them. Tereare no regulations in this respect, except in cases where there is a right to secession,namely in the case o colonies, subjugation or oreign occupation.On July 22, 2010, the International Court o Justice declared in an advisory opinionthat the unilateral declaration o independence o Kosovo did not violate internationallaw. Te Court noted that there is no applicable rule in international law under whichsuch declarations can be disallowed.Te Court did not say that Kosovo had a right to secede rom Serbia. In act, the Courtdid not rule on the legal consequences o this unilateral declaration o independence.It explicitly reused to say whether or not Kosovo has the status o a State, and did nottell States whether they should recognize Kosovo as a State.Aside rom cases o colonies or subjugation, international law has no rule or the pro-
3hibition o unilateral secessions, and conversely, no rule to allow a secessionist gov-ernment to impose secession legally on those who do not want it. Te absence o aninternational rule prohibiting secession does not create a positive right to secessionwhich would oblige citizens or States to recognize it or conorm to it.Yet that is exactly what a secessionist government would need i it wanted to proceedunilaterally: a legal means o orcing everyone to accept a change o countries, includ-ing those who do not want to. International law does not provide or unilateral seces-sion, nor does it contain any peremptory norms that would make it possible to ignorethe domestic laws o the State rom which the secessionist government is trying toseparate.
1.3 State practice
State practice is extremely reluctant to recognize unilateral secession outside the colo-nial setting. In act, no State created by unilateral secession has been admitted to theUnited Nations against the declared will o the government o the predecessor State.Let us return to the recent case o Kosovo, as it illustrates this reluctance to recognizeunilateral secessions. Te States that recognized Kosovo against the wishes o Serbia,notably the United States, European Union countries and Canada, took endless pre-cautions. Tey insist that Kosovo is a particular case which, in their opinion, does notcreate a precedent. Tey reer to a combination o our actors.
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First, the people o Kosovo were victims o serious abuse, particularly during thebloody attempt at ethnic cleansing at the hands o the Milosevic regime, at the endo the 1990s.
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Second, no one doubts that nearly all o the people o Albanian descent in Kosovowant their independence.
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Tird, the separation o Kosovo rom Serbia is already an established act in theterritory itsel. In the spring o 1999, NAO drove the Serbian orces out o Kosovoto put an end to a humanitarian disaster. Kosovo was placed under UN authority or nearly ten years.
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Fourth, orcing the people o Kosovo to return under Serbian authority would in-evitably cause instability in an already ragile region. We cannot go back in time.Despite these our solid arguments or the recognition o Kosovo, a majority o Statescontinue to support Serbia’s point o view; this includes China and Russia which bothhave veto power on the UN Security Council. Tis leaves Kosovo, 20 years aer its rstunilateral declaration o independence, with partial, restricted recognition throughoutthe world, a situation that would be unacceptable to a population like ours, which isused to having its citizenship, passport and government routinely recognized all overthe world.
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Secession and the Virtues of Clarity
A Commentary by the Hon. Stéphane Dion, P.C., M.P., published by the Macdonald-Laurier Institute.
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