By Marianne Dagenais-Lesperance*

The right to self-determination is an internationally recognised principle which has caused ferocious debates, especially recently. Contemporary controversies include the recent results of the Iraqi Kurds’ and Catalonians’ referendum, where the vote for independence from their respective State passed with a strong majority.

Spain and Iraq’s dismissal of the referendums as unlawful and threat or use of violence against the populations of Catalonia and Kurdistan have added fuel to the fire. But how shouldstates respond to such results? What are their obligations towards the expression of the will to secede from part of their territory?

The right to self-determination is the legal right of people to decide their own destiny in the international order. Articulated under Article 1 of the United Nations Charter, and later reaffirmed in United Nations resolutions (General Assembly 1755 (XVII); 2138 (XXI); 2151 (XXI); 2379 (XXIII); 2383 (XXIII); Security Council 183 (1963); 301 (1971); 377 (1975); and 384 (1975)) and international treaties (ICCPR; ICESCR), it does not clearly state who the beneficiaries of the right are and what it entails in practice.

International scholars such as Alina Kaczorowska and Malcolm N. Shaw refer to the Canadian Supreme Court judgment Reference re: Secession of Quebec when discussing the right to unilaterally secede. In the aftermath of the second referendum on Quebec’s independence, the Governor in Council (‘GC’) referred this case to the court. Three questions were submitted concerning the legal situation in the event of a secession attempt by Quebec. The analysis of this judgment from academics is often limited to the conclusion that there is no such right. This conclusion offers only a limited appreciation of the Supreme Court’s judgment as it also gives guidance on the rights and responsibilities held by States and separatist movements in the event of a positive response to a referendum asking for independence. Its legacy goes beyond the limited question of the right to unilaterally secede.

The Court was asked to decide on three legal issues. Due to negative response to the first two, the third was not examined. The first question asked whether under the Constitution of Canada, the National Assembly, legislature, or government of Quebec could unilaterally effect the secession of Quebec. The second asked whether international law gave such right. The third question was related to instances of conflict between national and international law.

In response to the first question, the Court, basing its decision upon the principles of federalism, democracy, constitutionalism, the rule of law, and the rights of minorities, ruled that Quebec did not have the ability under the Canadian Constitutions to secede unilaterally, whatever the amplitude of the majority. Nonetheless, a clear expression of the desire to secede by the population of a province would give rise to a reciprocal obligation on all parties to negotiate constitutional changes to respond to that desire. What constitutes a ‘clear expression’ remains undefined. In the case of Kurdistan, 80% of registered voters cast votes and the results showed 92% of Iraqi Kurds in favour of independence. This could be concluded as being a clear expression of the will of the population to secede.

The case of Catalonia is slightly different, as, although the results showed 90% in favour of secession, only 43% of Catalonians’ cast their ballots. Many factors have brought such low turnout such as opposition from the Spanish government declaring the referendum illegal or use of violence by the police at voting polls, injuring more than 800 people. This issue of ‘clear expression of the majority’ will therefore be an important matter to address with regards to Catalonia. In any case, without clearly explaining how such negotiations would be undertaken, the Canadian Supreme Court rejected two absolutism propositions:

• Other provinces and the federation government are obliged to accept the secession, limiting negotiations to mere details;
• There are no obligations imposed on other provinces and the federation government pursuing a clear expression of the democratic will to secede.

In other words, one party cannot merely dismiss the other’s claims. They will need to accept the rights and interests of the other party and negotiate in good faith. The Court warns that a failure to undertake the negotiations adequately could undermine the legitimacy claim made by either side in front of the international community. In short, a province might not have the constitutional right to secede, but it still has power to affect changes of its condition.

As for the second question regarding the right to unilaterally secede under international law, the Court concluded that when such right arises under the principle of self-determination, it can be legally achieved if a nation (1) is governed as part of a colonial empire, (2) is subject to alien subjugation, domination, or exploitation, or (3) when it is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. Otherwise, the people are expected to achieve secession within the framework of their existing state. Quebec did not fit into any of those categories, and therefore the answer to the second question was negative. However, the possibility of an unconstitutional declaration of secession leading to a de facto secession was not ruled out by the Court. It concluded that the ultimate success of secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of both parties.

As we can see, the Canadian Supreme Court rejected the existence of a unilateral right to secede, both internally and internationally. Nonetheless, it offers States and separatist nations, such as Spain and Catalonia as well as Iraq and the Kurdistan region, guidance as to how to deal with the issue. It strikes an appropriate balance between the right to self-determination and the right of territorial integrity, by determining the obligations of each party to negotiate in good faith and the possible consequences on their legitimacy if such negotiations are not undertaken.

This article was originally published here.