Sixth Class
Right of Self-Determination
Problems:
Right of self-determination of whom States,
majority of which unit? Of Peoples?
Procedure:
Who decides?
Democracy: Question, Citizens, qualified
Majority?
Right of Self-determination
Transitory Law
Recognition
Historic cases of secession
1776 USA Declaration of Independence
And later Secession of the South?
1903 Panama from Columbia
1905 Norway from Sweden
1974 Jura
90ies: Yugoslavia
2006 Montenegro
2008 Kosovo
Jura
Internal Secession from the
Canton of Bern (federal unit)
Procedure:
1 Constitutional Amendment of the
Canton of Bern to grant self-determination
2 Referendum in the Region
3 Referendum of Districts
4 Referendum of Communes
5 New Constitution
6 Referendum for Constitutional AmenDement of Switzerland
Montenegro
Article 60
Withdrawal 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
Badinter
Arbitration Case
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;
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.
Ethiopian
Constitution
Article 39 The Right of Nations, Nationalities 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 secession of nation, nationality and peoples
may be exercised:(a)where the demand for secession is approved 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 legislature of the nation, nationality or people demanding secession, organises a referendum for
the nation, nationality or people demanding
secession.
(c) where the demand for secession is supported 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.
Jura
CH
Bern
Creation
of the new
Canton of
Jura
by
secession
and
selfdetermination
French
Along
language
border
line?
German
Catholic
Or
along
religious
borderlines?
Protestant
New
Swiss Constitution:
Art. 53 Existence and Territory of the
Cantons
1 The Confederation shall protect the
Existence and the territory of the
Cantons
2 Modifications of the number of the Cantons
of 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 electorate
of the Cantons concerned, and to the assent
of the Federal Assembly in the form of a
federal decree.
(4) Inter-cantonal boundary settlements may
be made by treaty between the Cantons
concerned.
Québec
Secession
Case
Highlights of
The Decision of
The Canadian
Supreme Court
On the Secession
Of Queébec
Question 1:
Under the Constitution of Canada,
can the National Assembly,
legislature or government
of Quebec effect the secession
of Quebec from Canada
unilaterally?
No explicit regulation
Of the Consitution
Only procedures for
Amendement
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 investigation of the underlying principles animating the whole of the Constitution, including
the principles of federalism, democracy,
constitutionalism and the rule of law, and
respect for minorities.
Arguments against
unilateral
secession
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 provinces and territories have created close ties of
interdependence (economic, social, political
and cultural) based on shared values that include federalism, democracy, constitutionalism
and the rule of law, and respect for minorities
The Constitution which safes order and stability, and accordingly secession of a province
"under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional
framework.
Arguments for Secession
Procedure not provided
In the Constitution
Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected
in the constitutional right of each participant in the federation to initiate constitutional 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 initiative which all of the other participants in
Confederation would have to recognize
Effects of a clear
Vote
No direct legal effect
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession
to the other parties to the federation. The democratic 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 minorities, 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
Nor, however, can the reverse proposition be accepted: the continued
existence
and operation of
Non legal
effects
the Canadian constitutional order could not be
indifferent to a clear expression of a clear majority of Quebequers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the
right of the government of Quebec to pursue secession 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 negotiations that followed such a vote would address the potential act of secession as well as its
possible terms should in fact secession proceed.
here 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 reconciliation of various rights and obligations
by negotiation between two legitimate majorities, namely, the majority of the population
of Quebec, and that of Canada as a whole.
The main constitutional
Principles:
History
Constitutionalism
And
Rule of Law
Federalism
Democracy
Protection of
Minorities
History:
Theses:
Quebec
Conference These included guarantees to
protect French language and
1864
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.
Federalism:
Diversity
Democratic
Participation
Autonomy
Democracy
Procedural:
Process of Government
Substantive:
Promotion of Self-government
Dignity of Human Person
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".
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 Canada 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 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.
People?
While much of the Quebec population certainly 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 characterization to resolve Question 2 appropriately.
Self-determination
Internal
external
The recognized sources
A right to external
of international law estaself-determination
blish that the right to
(which
in
this
case
self-determination of a
people is normally ful-fil- potentially takes the
led through internal self- form of the assertion
determination – a peo- of a right to unilateral
secession) arises in
ple's pursuit of its
only the most extrepolitical, economic, some of cases and,
cial and cultural developeven then, under
ment within the
carefully defined
framework
circumstances.
of an existing state.
There is no necessary incompatibility between the maintenance of the territorial
integrity of existing states, including Canada, 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 positive right to unilateral secession in the context of Quebec, international law equally does
not prohibit secession and, in fact, international 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 suggest 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?
Second
Question:
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 referendum is indispensable? Would the decision to divi
deTchequoslovakia 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 secession. This has to be decided by the Commons.
Does the court consider that a bill, which conveys such a far reaching competence to the
Commons is constitutional?
How should the Commons decide if for instance two third of the French speaking people
decide positive and two third of English speaking and two third of the aborgigins
decided negative that is against secession?
Question 4:
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?
Descargar

Switzerland Federalism, Democracy and individual …