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Problems:
Procedure:Who decides?Democracy: Question, Citizens, qualifiedMajority?
Recognition
Right of self-determination of whom States, majority of which unit? Of Peoples?
Transitory LawRight of Self-determination
Historic cases of secession
1776 USA Declaration of IndependenceAnd later Secession of the South?1903 Panama from Columbia1905 Norway from Sweden1974 Jura90ies: Yugoslavia2006 Montenegro2008 Kosovo
Jura
Internal Secession from the Canton of Bern (federal unit)
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.
Question 1:Under the Constitution of Canada,
can the National Assembly, legislature or government
of Quebec effect the secession of Quebec from Canada
unilaterally?
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.
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.
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 favour 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.
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.
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?
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