5th Class:Self-Determination Secession

andInternational Law

Thomas Fleiner

Prof. Thomas Fleiner/ Prof. Dr. Lidija R. Basta Fleiner

Theories and Praxis on Peace, Federalism, and Human RightsPART I – THEORY:

Federalism, Human Rights and Peace within the State

Historic cases of secession

1776 USA Declaration of IndependenceAnd later Secession of the South?1903 Panama 1901 Venezuela and Equador from Columbia1905 Norway from Sweden1947 India Pakistan1971 Bangladesh1974 Jura2006 Montenegro2008 Kosovo2011 South Sudan?

Threatening secession:North of IraqKashmirCongoBelgiumItalySpainQuebec?Sri Lanka?

Problems:

Procedure:Who decides?Democracy: Question, Citizens, qualifiedMajority?

Property

Recognition

Right of self-determination of whom Majority, qualified majority of Federal unit? Peoples? Citizens with residence?

Transitory Law

Jura

Secession from the Canton of Bern

Procedure:1 Constitutional Amendment of the Canton of Bern to grant self-determina-tion2 Referendum in the Region3 Referendum of Districts4 Referendum of Communes5 New Constitution6 Referendum for Constitutional Amen-Dement of Switzerland

Montenegro

Article 60Withdrawal from the State union of Serbia and Montenegro

Upon the expiry of a three-year period the member state shall have the right to initiate the procedure for a change of the state

status, i.e. for withdrawal from the State union of Serbia and Montenegro.

A decision to withdraw from the State union of Serbia and Montenegro shall be made after a referendum has been held.The Law on Referendum shall be passed by a member state, taking into account recognized democratic standards. The member state that exercises the right of withdrawal shall

not inherit the right to international legal personality and all outstanding issues shall be regulated separately between

the successor state and the state that has become independent.If both member states declare in a referendum that they are in favour of changing the state status, i.e. in favour

of independence, all outstanding issues shall be resolved in the succession procedure, as was the case with the former

Socialist Federal Republic of Yugoslavia

d) that in the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within

the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components

of the Federation and wield effective power;

BadinterArbitration Case

b) - The composition and workings of the essential organs of the

Federation, be they the Federal Presidency, the Federal Council, the Council of the Republics and

the Provinces, the Federal Executive Council, the Constitutional Court or the

Federal Army, no longer meet the criteria of participation and

representatives inherent in a federal state;

3) - Consequently, the Arbitration Committee is of the opinion:-that the Socialist Federal Republic of Yu--goslavia is in the process of dissolution;-that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities;-that it is up to those Republics that so wish, -to work together to form a new association -endowed with the democratic institutions -of their choice.

EthiopianConstitution

Article 39 The Right of Nations, Natio-nalities and Peoples

1. Every nation, nationality or people in Ethiopia shall have the unrestricted

right to self determination up to secession.

Secession Procedure

4. The right to self determination up to seces-sion of nation, nationality and peoples

may be exercised:- (a)where the demand for secession is appro-ved by a two thirds (2/3rds) majority of the

legislature of the nation, nationality or people concerned.

(b) where the Federal Government within three years upon receipt of the decision of the legis-lature of the nation, nationality or people de-

manding secession, organises a referendum for the nation, nationality or people demanding

secession.

(c) where the demand for secession is suppor-ted by a simple majority vote in the

referendum.

(d) where the Federal Government transfers power to the parliament of the nation, nationality or people which has opted

for secession.

(e) where property is partitioned in accordance with the law.

NewSwiss Constitution:

Art. 53 Existence and Territory of theCantons

1 The Confederation shall protect theExistence and the territory of the

Cantons

2 Modifications of the number of the Cantonsof the Cantons or their status are subject

to the assent of the population concerned,of the Cantons concerned, and of the

People and the Cantons.

(3) All changes to the territory of a Canton are subject to the approval of the electorateof the Cantons concerned, and to the assent of the Federal Assembly in the form of afederal decree.(4) Inter-cantonal boundary settlements may be made by treaty between the Cantonsconcerned.

QuébecSecession

Case

Highlights ofThe Decision ofThe Canadian

Supreme CourtOn the Secession

Of Queébec

Question 1:Under the Constitution of Canada,

can the National Assembly, legislature or government

of Quebec effect the secession of Quebec from Canada

unilaterally?

No explicit regulationOf the Consitution

Only procedures forAmendement

Constitutional Amendments Act 1982

Section 41 [Highly Qualified Proceedings]An amendment to the Constitution of Canada

in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only

where authorized by resolutions of the Senate and House of Commons and of

the legislative assemblies of each province:

The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority.

It is necessary to make a more profound inve-stigation of the underlying principles anima-ting the whole of the Constitution, including

the principles of federalism, democracy,constitutionalism and the rule of law, and

respect for minorities.

Arguments againstunilateralsecession

Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger

context of other constitutional values. Since Confederation, the people of the provin-ces and territories have created close ties of interdependence (economic, social, political

and cultural) based on shared values that inclu-de federalism, democracy, constitutionalism

and the rule of law, and respect for minorities

The Constitution which safes order and stabili-ty, and accordingly secession of a province "under the Constitution" could not be achie-

ved unilaterally, that is, without principled ne-gotiation with other participants in Confedera-

tion within the existing constitutional framework.

Arguments for SecessionProcedure not provided

In the Constitution

Our democratic institutions necessarily ac-commodate a continuous process of dis-cussion and evolution, which is reflected in the constitutional right of each partici-pant in the federation to initiate constitu-

tional change.

This right implies a reciprocal duty on the other participants to engage in discussions

to address any legitimate initiative to change the constitutional order.

Legitimacy

A clear majority vote in Quebec on a clear question in favor of secession would confer

democratic legitimacy on the secession initia-tive which all of the other participants in Confederation would have to recognize

Effects of a clearVote

Quebec could not, despite a clear referendum re-sult, purport to invoke a right of self-determina-

tion to dictate the terms of a proposed secession to the other parties to the federation. The demo-cratic 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 minori-ties, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced

from constitutional obligations

No direct legal effect

Non legal effectsNor, however, can the reverse proposition be ac-cepted: the continued existence and operation of

the Canadian constitutional order could not be indifferent to a clear expression of a clear ma-

jority of Quebequers that they no longer wish to re-main in Canada. The other provinces and the fede-ral government would have no basis to deny the right of the government of Quebec to pursue se-cession should a clear majority of the people of Quebec choose that goal, so long as in doing so,

Quebec respects the rights of others. The ne-gotiations that followed such a vote would add-ress the potential act of secession as well as its

possible terms should in fact secession proceed. There would be no conclusions predetermined by law

on any issue. Negotiations would need to address the interests of the other provinces, the federal

government and Quebec and indeed the rights of all Canadians both within and outside Quebec,

and specifically the rights of minorities.

Why Negotiations?

The negotiation process would require the re-conciliation of various rights and obligations

by negotiation between two legitimate majori-ties, namely, the majority of the population of Quebec, and that of Canada as a whole.

The main constitutionalPrinciples:

History

Federalism

Democracy

ConstitutionalismAnd

Rule of Law

Protection ofMinorities

History:

QuebecConference

1864

Theses:These included guarantees to protect French language and

culture, both directly (by making French an official language in

Quebec and Canada as a whole) and indirectly (by allocating

jurisdiction over education and "Property and Civil Rights in

the Province" to the provinces). The protection of minorities

was thus reaffirmed.

We are of different races, not so that we can wage war on

one another, but in order to work together for our

well-being.

Federalism:

Diversity Autonomy

DemocraticParticipation

Democracy

Procedural:Process of Government

Substantive:Promotion of Self-government

Dignity of Human Person

Rule of Law andConstitutionalism

that the law is supreme over the acts of both government and private persons.

the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order"

the exercise of all public power must find its ultimate source in a legal rule".

Protection of Minorities

We emphasize that the protection of minority rights is itself an independent

principle underlying our constitutional order.

Consistent with this long tradition of respect for minorities, which is at least as old as Ca-nada itself, the framers of the Constitution

Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights,

and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples

Question 2:Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession

of Quebec from Canada unilaterally?

Right ofSelf-determination

where "a people" is governed as part of a colonial empire;

where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied

any meaningful exercise of its right to self-determination within the state of

which it forms a part.

People?

While much of the Quebec population certain-ly shares many of the characteristics (such as a common language and culture) that

would be considered in determining whether a specific group is a "people", as do other

groups within Quebec and/or Canada, it is not necessary to explore this legal characte-

rization to resolve Question 2 appropriately.

Self-determination

Internal

The recognized sources of international law esta-

blish that the right to self-determination of a

people is normally ful-fil-led through internal self-determination – a peo-

ple's pursuit of its political, economic, so-

cial and cultural develop-ment within the

framework of an existing state.

external

A right to external self-determination (which in this case

potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extre-

me of cases and, even then, under carefully defined circumstances.

There is no necessary incompatibility bet-ween the maintenance of the territorial

integrity of existing states, including Cana-da, and the right of a "people" to achieve a full measure of self-determination. 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.

Principle of Effectivity

while international law may not ground a posi-tive right to unilateral secession in the con-

text of Quebec, international law equally does not prohibit secession and, in fact, interna-tional recognition would be conferred on such a political reality if it emerged, for

example, via effective control of the territory of what is now the province of Quebec.

It is, however, quite another matter to sug-gest that a subsequent condonation of an initially illegal act retroactively creates a legal right to engage in the act in the first

place.

Question 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?

In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

First Question:

1. Has the legislature the jurisdiction to rule secession procedures without

explicit provision of the constitution?

If the answer is yes, would it then also have the

competence modify substantially the procedures provided by the court in

the Québec case?

SecondQuestion:

The bill provides that the secession is decided by a popular referendum. However the question to be decided on has to be clear, and it is up to

the Canadian House of Commons to decide,whether the question is clear enough in order

to know whether the people wants a secession.

Would the court consider that a popular referen-dum is indispensable? Would the decision to divideTchequoslovakia in two sovereign states only

by parliament be constitutional? Was the German decision to unite the country only based

on a electoral vote constitutional?

Is the competence of the Commons to decide, what wording of the question is clear enough

constitutional?

Question 3:

The bill (clarity act) does not determine the percentage needed in order to obtain the majori-

ty necessary to initiate negotiations for seces-sion. This has to be decided by the Commons.

Does the court consider that a bill, which con-veys such a far reaching competence to the

Commons is constitutional?

How should the Commons decide if for instan-ce two third of the French speaking people

decide positive and two third of English spea-king and two third of the aborgigins

decided negative that is against secession?

Question 4:

What is the constitutional status of minorities living within the seceding territory?

Do those minorities enjoy the same rights as the majority?

Do those rights have a constitutional value, is it linked to the human rights,

and or to collective rights?