Department of Justice

REFERENCE TO THE SUPREME COURT OF CANADA
SUMMARY OF EXPERTS' REPORT

Professor James Crawford, an Australian who is now Whewell Professor of International Law at the University of Cambridge and a member of the United Nations International Law Commission, has prepared, at the request of the Government of Canada, a report entitled State Practice and International Law in Relation to Unilateral Secession. His conclusions are confirmed by Professor Luzius Wildhaber, a professor of international law at the University of Basel (Switzerland) and a judge on the European Court of Human Rights.

Main Conclusions

Professor Crawford concludes that states and the United Nations are extremely reluctant to support unilateral secession. In fact, outside the colonial context, no entity attempting to secede unilaterally has been admitted to the United Nations since 1945 against the wishes of the government of the state from which it was trying to secede. Unilateral secession is the exception even for colonial territories. Self-determination for peoples or groups in independent states is achieved within the state in a manner which respects the territorial integrity of the state.

Professor Wildhaber agrees with this assessment. There may be developments in the principle of self-determination according to which not only colonialism but also flagrant violations of human rights or undemocratic regimes could lead to a right to unilateral secession. However, none of these situations reflect that of Quebec.

Report Highlights

Professor Crawford

Professor Crawford made a detailed examination of unilateral secession -- the process by which a group seeks to form a new state by separating from the existing state to which it belongs without the consent of that state -- in the context of state practice and international law since 1945. What follows are the highlights of his report.

No right to unilateral secession

In international practice, outside the colonial context, there is no recognition of a right to unilateral secession based on a majority vote of the population of a sub-division or territory, whether or not that population constitutes one or more “peoples” in the ordinary sense of the word.

Professor Crawford explains that even where there is a strong and sustained call for independence, it is a matter for the government of the state concerned to decide how to respond. That government is not required to grant independence, and may take into account the national interest and the interests of all concerned in resolving the issue.

Unilateral secession was the exception even in the context of colonial territories. Self-determination was in the first place a matter for the colonial authority to implement; only if it was blocked by that government did the United Nations support unilateral secession.

Right of self-determination does not equal right to secession

In international law, self-determination for peoples or groups within an independent state is achieved by participation in the governmental system of the state.

A state that is democratically governed and respects the human rights of all of its people complies with the right of self-determination and is entitled to protection of its territorial integrity. The people of such a state exercise their right of self-determination through their equal participation in its system of government.

There are tentative developments in the distinct area of self-determination within the state, in the sense of the recognition of different groups or peoples within the state. But these developments lend no support to the view that peoples in independent states have a unilateral right to secede.

How states react to unilateral secession

Professor Crawford's analysis shows that outside the colonial context, the United Nations has never granted membership to a seceding entity against the wishes of the government of the state from which it has purported to secede. Where the parent state agrees to allow a territory to separate and become independent, the terms on which separation is agreed between the parties concerned will be respected. If independence is achieved under such an agreement, rapid admission to the United Nations will follow. But where the government of the state concerned has maintained its opposition to unilateral secession, the attempted secession has attracted virtually no international support or recognition by other states.

The practice of states of refusing to condone a right to unilateral secession is reflected in the fact that since 1945 no new state has been created outside the colonial context by way of unilateral secession, with the exception of Bangladesh. Even in that case, Bangladesh relied on military intervention by India to defeat the armed forces of Pakistan in Bangladesh. In fact, Bangladesh was not admitted to the United Nations until it was recognized as an independent state by Pakistan nearly four years after its unilateral declaration of independence.

Since 1945, all other new states have been created either with the consent of the state from which they were seceding -- such as the agreement which resulted in the breaking away of republics from the former Soviet Union or that dividing Czechoslovakia into two separate states or, in the case of the republics of the former Yugoslavia, through the total collapse of the pre-existing state.

This pattern of state practice on unilateral secession is reflected in the United Nations Friendly Relations Declaration of 1970 and the 1993 Vienna Declaration of the United Nations World Conference on Human Rights which emphasize the importance of the principle of respect for the territorial integrity of independent states.

If the 1970 and 1993 Declarations are taken to say that unilateral secession is permissible where the government of a state is discriminatory, it is doubtful whether they reflect international practice which is very reluctant to support unilateral secession even in cases of oppression (for example, the Kurds). But however that may be, a state which is governed democratically and respects the human rights of all its people is entitled to respect for its territorial integrity.

Professor Wildhaber

Professor Crawford's conclusions are confirmed by Professor Wildhaber whose comments may be summarized as follows.

Developments in the right of self-determination

Professor Wildhaber agrees with Professor Crawford's assessment of the current state of international law with respect to the fact that there is no right to unilateral secession outside the colonial context. This is confirmed in his own work as a judge on the European Court of Human Rights where he has had occasion to write on secession and self-determination.

According to Professor Wildhaber, there may be developments that point to a broadening of the principle of self-determination to allow for a right to unilateral secession not only for colonies but also where there are flagrant violations of human rights or undemocratic, discriminatory regimes. He concludes:

“While there is an international practice with respect to cases of consensual dissolution or breakup, there is no such practice with respect to unilateral breakaway or secession, and apart from a very few writers (such as Brossard or Turp [...]), scholars are practically unanimous that there is no right of unilateral secession at the free will of minorities, groups or other entities.”

Application to Quebec

Professor Wildhaber concludes that Quebec would not have a right to secede unilaterally from Canada. Quebec is not a colony, is not under an undemocratic, discriminatory regime, and is not subject to flagrant violations of human rights.