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Secession and the Virtues of Clarity

Secession and the Virtues of Clarity

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Published by CBCPolitics
A Commentary by the Hon. Stéphane Dion, P.C., M.P., published by the Macdonald-Laurier Institute.
A Commentary by the Hon. Stéphane Dion, P.C., M.P., published by the Macdonald-Laurier Institute.

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Published by: CBCPolitics on May 25, 2011
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Secession and the Virtues of Clarity 
By Te Honourable Stéphane Dion, P.C., M.P.
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 Aairs 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 proessor 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 Conerence 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 Aaires 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 proesseur 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, Conerence.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 Reerence 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 draing 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.Aer describing how the international community views the phenomenon o seces-sion and identiying the principles in play, I will argue that the opinion o our SupremeCourt does indeed have universal scope and signicance, 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 withdenite mistrust – even real aversion when it is eected unilaterally, that is, withoutan agreement negotiated with the predecessor State. Tis mistrust o secession can be veried at three levels: those o domestic State law, international law, and internal Statepractice.
1.1 Domestic law 
In terms o domestic law, numerous States arm 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 reused 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 conorm 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 reer to a combination o our actors.
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.
Second, no one doubts that nearly all o the people o Albanian descent in Kosovowant their independence.
Tird, the separation o Kosovo rom Serbia is already an established act in theterritory itsel. In the spring o 1999, NAO drove the Serbian orces out o Kosovoto put an end to a humanitarian disaster. Kosovo was placed under UN authority or nearly ten years.
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 aer 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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