Secession

1
Belgrade April 6 2006
Thomas Fleiner
Secession
Major Issues according to Constitutional and
International Law
Public Conference at the Political Science
Department Of the University of Belgrade
2
Historical Precedents
The Badinter Decision
Secession
Québec Decision
Lessons Learned for Kosovo
3
American Historical Precedents
Declaration of Independence
War of Secession
Mayflower
4
USA
1620
Mayflower
and by vertue hearof, to enacte, constitute, and
frame shuch just equall lawes, ordinances,
Acts, consti- tutions, offices, from time to
time, as shall be thought most meete
conuenient for ye generall good of ye colonie
vnto which we promise all due submission and
obedience.
Virginia Declaration of Rights
That all power is vested in and consequently
derived from, the people That the Legislative and
Executive powers of the State should be separate
and distinct from the Judicative
5
Jefferson Declaration of Independence
WHEN, in the Course of human Events, it becomes
necessary for one People to dissolve the
Political Bands, which have connected them with
another, and to assume, among the Powers of the
Earth, the separate and equal Station to which
the Laws of Na- ture and of Nature's GOD entitle
them, a decent Respect to the Opinions of
Mankind requires that they should declare the
Causes which impel them to the Separation.
WE hold these Truths to be self-evident, that all
Men are created equal, that they are endowed by
their Creator with certain unalienable Rights
6
The Badinter Arbitration Cases 1991
Is a Federation a second class State?
7
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
8
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
9

• 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.

10
The Decision of the Canadian Supreme Court on the
Secession of Québec 1998
First Constitutional Law
Second International Law
Third Minority Protection
11
Constitutional Law
12
Question 1 Under the Constitution of Canada,
can the National Assembly, legislature or
government of Quebec effect the secession of
Quebec from Canada unilaterally?
13
First Argument No explicit regulation Of the
Constitution Only procedures for Amendement
14
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.
15
Under these arguments 1. Arguments
against unilateral secession
16
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.
17
2. Arguments for Secession Procedure not
provided In the Constitution
18
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.
19
The Argument of 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
20
Effects of a clear Vote?
No direct legal effect
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
21
But indirect effects Negotiations required
22
Nor, 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. 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.
Non legal effects
23
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.
24
The main constitutional Principles
History
Constitutionalism And Rule of Law
Federalism
Protection of Minorities
Democracy
25
Federalism
The principle of federalism recognizes the
di- versity of the component parts of
Confedera- tion, and the autonomy of provincial
govern- ments to develop their societies within
their respective spheres of jurisdiction. The
federal structure of our country also
facilitates demo- cratic participation by
distributing power to the government thought to
be most suited to achieving the particular
societal objective having regard to this
diversity.
26
Democracy
Democracy is not simply concerned with the
process of government. democracy is
fun- damentally connected to substantive goals,
most importantly, the promotion of
self-go- vernment. Democracy accommodates
cultu- ral and group identities. Put another way,
a sovereign people exercises its right to
self- government through the democratic process.
The relationship between democracy and
fe- deralism means, for example, that in Canada
there may be different and equally legitimate
majorities in different provinces and
territo- ries and at the federal level.
27
Rule of Law and Constitutionalism
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".
28
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
29
International Law
30
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?
31
Right of Self-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.
32
Self-determination
Internal
external
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.
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.
33
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.
34
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.
35
Minorities
36
Question 3
What is the 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?
37
First, a constitution may provide an added
safe- guard for fundamental human rights and
in- dividual freedoms which might otherwise be
susceptible to government interference.
Although democratic government is gene- rally
solicitous of those rights, there are occasions
when the majority will be temp- ted to ignore
fundamental rights in order to accomplish
collective goals more easily or effectively.
Constitutional entrenchment ensures that those
rights will be given due regard and protection.
38
Second, a constitution may seek to ensure that
vulne- rable minority groups are endowed with the
institutions and rights necessary to maintain
and promote their identities against the
assi- milative pressures of the majority
39
And third, a constitution may provide for a
division of political power that allocates
political power amongst different levels of
government. That purpose would be defeated if
one of those democratically elected levels of
govern- ment could usurp the powers of the other
simply by exercising its legislative power to
allocate additional political power to itself
unilaterally.
40
Secession of Kosovo

• Questions
• Is it a secession
• To what extent is it different from
• Quebec?
• 3. What are the specific constitutional
• Rules to be applied?
• 4. What is the international law to be
• applied?

41
Is it a secession?
No Badinter Decision is applicable
Badinter only applicable to Republics
Kosovo has since been integrated Into Serbja
The international Intervention and The
Resolution 1244 have changed The legal status
42
Unilateral secession is legitimate
Because of the Tyranny of Milosevic
After the war the security council Did not decide
for secession.
Because the Government in Pristina has acquired
legitimacy
This would only be a valid argument if It would
also have achieved legitimacy With regard to all
communities
43
Constitution of 1974 is applicable
Constitution of 1974 was only appli- Cable on the
bases of the tyranny of the party
Article one of this constitution is based on the
composition of Yugoslavia based on the free will
of the people, from this one can not deduce the
freedom of uni- lateral secession without
additional Constitutional right. The EU is based
on freedom but there is no secession from it
except in the new constitution.
44
Argument of Reality
Consequences The international community in
particular the security council would become the
holder of the right of secession for any
minority. Minorities could by
internationalisation of The conflict and thus by
its brutalisation achieve international
recognition and support for secession. It would
create a precedent with unforeseeable
consequences
45
Kosovo as different case
Part of Serbia by international law Therefore
Secession needs not only internal Consensus that
is a constitutional Amendment but also Consensus
of the Security Council.
Constitution of Serbia provides in Article 4 a
referendum of the citizens
Charter of Serbia and Montenegro mentions
explicitly Kosovo and metohia
46
What possible solution?

• Negotiations and Consensus then Referen-
• dum

2. If sovereign independence is the
only Solution The government in Pristina
would need to achieve full legitimacy with
regard to the Serb Community. if the Serbs in
Kosovo prefer also indepen- dent Kosovo they
might convince the majority of citizens in Serbia
to agree.