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 War of Secession Declaration of Independence 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.