Secession and the virtues of clarity.

• Author: Dion, Stephane
• Position: Canada

The phenomenon of secession is considered with mistrust, even aversion when effected unilaterally. This mistrust can express itself at three levels: domestic law, international law and state practice. Even in circumstances when secession can be considered as a logical and practical solution--Kosovo, South Sudan --it is envisaged only with the utmost caution. The 1998 opinion rendered by the Supreme Court of Canada concerning the reference on the secession of Quebec could have a positive impact in this regard. It may help the international community clarify under what circumstances, and by what means, could the delineation of new international borders between populations be a just and applicable solution. In addition to influencing--for the best--today's debate on Canadian unity, the Court's opinion has a universal scope and significance that may help pacifically solve complex and delicate national breakup situations along the principles of clarity, the rule of law and justice for all.

Le phenomene de la secession est considere avec une mefiance certaine par la communaute internationale, voire avec une veritable aversion lorsqu'elle est faite de facon unilaterale. Cette mefiance transparait dans le droit interne des Etats, dans le droit international et dans la pratique des Etats. Meme quand la secession ressort comme une solution logique et pratique --Kosovo, Sud-Soudan--clic n'est envisagee qu'avec beaucoup de precaution. L'avis rendu en 1998 par la Cour supreme du Canada relatif a la secession du Quebec pourrait aider la communaute internationale a etablir dans quelles circonstances et selon quelles modalites la delimitation de nouvelles frontieres internationales entre des populations pourrait devenir une solution juste et applicable. En ce sens, cet avis de la Cour supreme du Canada, en plus d'influencer pour le mieux le debat d'aujourd'hui sur l'unite canadienne, a une portee universelle qui pourrait aider a resoudre pacifiquement les situations complexes et delicates de rupture nationale, sur la base de la clarte, de la legalite et de la justice pour tous.

1. INTRODUCTION II. THE AVERSION OF STATES ANDTHE INTERNATIONAL COMMUNITY TO SECESSION A. Domestic Law B. International Law C. State Practice D. The Case of South Sudan E. The Reasons for Aversion to Secession III. UNIVERSAL SCOPE AND SIGNIFICANCE OF THE SUPREME COURT OF CANADA'S OPINION ON SECESSION IV. SCOPE AND SIGNIFICANCE OF THE SUPREME COURT OF CANADA'S OPINION ON SECESSION IN CANADA TODAY V. CONCLUSION I. INTRODUCTION

   The phenomenon of secession poses a major challenge for many countries and for the international community. One question to which we need the answer is: under what circumstances, and by what means, could the delineation of new international borders between populations be a just and applicable solution? One document that will greatly assist the international community in answering that question is the opinion rendered by the Supreme Court of Canada on August 20, 1998 concerning the reference on the secession of Quebec. (1) This opinion, a turning point in Canadian history, could have a positive impact at the international level. It partakes in the great tradition of our country's contribution to peace and harmony in the world, from the drafting of the UN Universal Declaration of Human Rights (2) to the Convention on the Prohibition of Anti-Personnel Mines.' After describing how the international community views the phenomenon of secession and identifying the principles in play, this article will argue that the opinion of the Supreme Court of Canada does indeed have universal scope and significance. The article will conclude by discussing the current situation concerning Canadian unity and the Quebec separatist movement.

2. THE AVERSION OF STATES AND THE INTERNATIONAL COMMUNITY TO SECESSION

   Secession is the act of separating from a state to form a new one or to join another existing state. Around the world, secession is not something that is encouraged outside of the colonial setting. On the contrary, secession is considered with definite mistrust, even aversion, when it is effected unilaterally; that is, without an agreement negotiated with the predecessor state. This mistrust of secession exists at three levels: domestic state law, international law and state practice.

   1. Domestic Law

      In terms of domestic law, numerous states affirm their indivisibility in their constitution or jurisprudence. Many democratic states consider themselves to be inseparable entities. For example, France, the United States of America (US), Italy, Spain, Australia, Finland, Norway and Sweden.

   2. International Law

      In international law, any attempt at unilateral secession--secession with no agreement negotiated with the existing state is without legal foundation. However, international law does not prohibit unilateral secessions; it simply does not authorize them. There are no regulations in this respect, except in cases where there is a right to secession, namely in the case of colonies, subjugation or foreign occupation.

      On July 22, 2010, the International Court of Justice declared in an advisory opinion that Kosovo's unilateral declaration of independence did not violate international law. (4) The International Court noted that there is no applicable rule in international law under which such declarations can be disallowed. It did not say that Kosovo had a right to secede from Serbia. In fact, the International Court did not rule on the legal consequences of this unilateral declaration of independence. It explicitly refused to say whether or not Kosovo has the status of a state, and did not tell other states whether they should recognize it as such.

      International law has no rule prohibiting unilateral secessions, and conversely, no rule allowing a secessionist government to legally impose secession on those who do not want it. The absence of an international rule prohibiting secession does not create a positive right to secession that would oblige citizens or states to recognize or conform to it. Yet, that is exactly what a secessionist government would require if it wanted to proceed unilaterally: a legal means of forcing everyone to accept a change of countries, including those who are against it. International law does not provide for unilateral secession, nor does it contain any peremptory norms that would make it possible to ignore the domestic laws of the state from which the secessionist government is trying to separate.

   3. State Practice

      State practice is extremely reluctant to recognize unilateral secession outside the colonial setting. In fact, no state created by unilateral secession has been admitted to the United Nations (UN) against the declared will of the predecessor state's government.

      The case of Kosovo illustrates this reluctance to recognize unilateral secessions. The states that recognize Kosovo against the will of Serbia, notably the US, European Union countries and Canada, have taken endless precautions. They insist that Kosovo is a unique case that, in their opinion, does not create a precedent. Their support is founded in a combination of four factors. First, the people of Kosovo were victims of serious abuse, particularly during the bloody attempt at ethnic cleansing under the Milosevic regime at the end of the 1990s. Second, there is no doubt that nearly all the peoples of Albanian descent in Kosovo want their independence. Third, the separation of Kosovo from Serbia was already an established fact in the field. In the spring of 1999, NATO drove the Serbian forces out of Kosovo to put an end to a humanitarian disaster. Kosovo was placed under UN authority for nearly ten years. Fourth, forcing the people of Kosovo to return under Serbian authority would inevitably cause instability in an already fragile region. We cannot go hack in time.

      Despite these four solid arguments supporting the recognition of Kosovo as an independent state, a large number of states continue to support Serbia's point of view; this includes China and Russia, which both have veto power on the UN Security Council. This leaves Kosovo, more than twenty years after its first unilateral declaration of independence, with partial, restricted recognition throughout the world--a situation that would be unacceptable to a population like Canada's, which is used to having its citizenship, passport and government routinely recognized all over the world.

   4. The Case of South Sudan

      In another recent case, that of South Sudan, there were solid reasons for resorting to secession as a means of pacifying a conflict between warring populations. However, the international community was reluctant to go down...