After the 1995 self-determination referendum in Quebec, in which independence was rejected by a margin of just 1% of the votes, the Canadian government —at that time led by anti-independence Quebecois Jean Chrétien— asked the Supreme Court to clarify whether Quebec was allowed to unilaterally secede. In response, the Court issued the 2 S.C.R. 217 opinion of 1998, which can be summarized in three main points. The first one, that Canadian law does not provide that Quebec can unilaterally secede, nor that the province can dictate to Canada the terms of its separation. The second one, that Canada has no basis to reject Quebec’s independence under the democratic principle provided that a majority of Quebecois clearly show in a referendum that they want to split. And the third one, that if this latter scenario does occur, the Canadian and the Quebec governments must enter into negotiations to agree on the terms of separation.
The opinion of the Supreme Court gave arguments to both sides, as evidenced by the fact that both the Canadian and the Quebec governments welcomed it. The unionist camp felt that the Court had acknowledged that Quebec could not unilaterally secede, and furthermore, that the decision must be “clear”. In fact, the so-called Clarity Act was born out of this idea: approved by the Canadian Parliament in 2000, the law establishes that the wording of the question of any independence referendum should be clear enough, as should be clear any pro-independence majority. (The same year, the National Assembly of Quebec countered by passing the so-called Act 99, according to which the required “yes” majority in a referendum should be a mere 50% of the votes plus one.)
The pro-secession camp was given by the Supreme Court a possibly wider victory, as it became admitted that independence is above all a political issueThe pro-secession camp, on the other side, was given by the Court a possibly wider victory, as it became admitted that independence is above all a political issue, and that democratic decisions made by a majority should prevail over whether the Canadian legal corpus explicitly admits the possibility of Quebec independence.
This is probably the world’s most explicit Constitution regarding secession and plurinationality. The Ethiopian Constitution proclaims the “unrestricted” right of “Nations, Nationalities and Peoples” to “self-determination up to secession” (Article 39.1). The African country —which from late 19th century until the end of the Cold War sought to build a highly centralized power— has been organized under a federal model since 1991, after the communist regime led by Mengistu Haile Mariam was overthrown. There are 11 federal regions/territories, most of them formed on an ethnolinguistic basis: the Oromo, the Somali and the Afar, for instance, each have their own region, with their own government and Parliament.
The Constitution also specifies the procedure to achieve independence: the seceding nation must do a formal request, a referendum in the region must then be held, and finally the transfer of powers to the council of the seceding nation and the partition of property must be organized.
In practice, however, Ethiopia is currently ruled by the Ethiopian People's Revolutionary Democratic Front (EPRDF), which holds 500 of 547 seats in the federal Parliament —its allies control the remaining 47 seats. The EPRDF is accused by worldwide human rights organizations and by Ethiopian opposition groups alike of ruling the country with an iron hand and of not allowing any real democratic system to take root. Under those conditions, it is difficult to think that any territory would be now allowed to launch its own way towards independence. The 2016 crackdown against protests in Oromia —the country’s largest and most populated region— are an example of that.
However, the fact that the Constitution says what it says is no small deed, bearing in mind that any future regime change and transition to democracy could lead to a new scenario in which the right to secession could be effectively implemented.
Saint Kitts and Nevis
Another less well known, but equally interesting case of admission of the right to secession is to be found in the federal republic of Saint Kitts and Nevis, comprising those two homonymous islands in the Caribbean. The 1983 Constitution grants the smaller island —Nevis— the unilateral right to secede. The rule specifies that independence must be supported by the people of Nevis in a referendum by a two-thirds majority (article 113).
The island of Nevis, at the back, seen from Saint Kitts / Image: Kayokayo.
Nevis has organized two independence votes so far. The first one, in 1977, was held before the adoption of the Constitution, and was nullified by the central government of the federation, albeit more than 99% of voters supported separation. At that time, the pro-independence movement used to argue that, from the moment that the two islands had become a UK associated, semi-independent state, Nevis had found itself turned into a de facto colony of Saint Kitts, the Nevisian islanders’ quality of life having fallen in the meantime.
The second referendum took place in 1998, after the current Constitution had already been passed and the Federation was completely freed from UK rule. The Assembly of Nevis called the referendum. 62% of voters said “yes” to independence. The share therefore felt short of the required threshold, and independence was not achieved.
Nobody would imagine that such a tiny country could wish to further subdivide itself. But the fact is that the Principality of Liechtenstein is the only country in the world where each of its municipalities —numbering eleven— enjoys a constitutional right to independence (Article 4). The resident citizens of each individual municipality are the ones who can decide whether their village/town starts the secession procedure, the remaining citizens of Liechtenstein not being allowed to block it. No municipality has so far made use of that provision.
Such a striking principle even had the Venice Commission referring to it in an opinion issued in 2002. “The creation of a new, even smaller State, would seem to be inappropriate and undesirable,” the body said, but “this does not change the fact that a constitutional provision as discussed here is not in violation of international law.”
Indeed, the secession of some municipalities would result in unusual situations. If Schaan decided to become independent, Liechtenstein would be divided into two geographically disconnected halves. The independence of Schellenberg (3.5 square kilometers) would create the third smallest country in the world. Finally, if Planken (less than 400 inhabitants) went its own way, it would become the least populated country on Earth.
Since independence, the former Soviet republic has faced two secessionist challenges, in Transnistria —which remains unresolved— and Gagauzia. The latter, mainly inhabited by a Turkic-speaking people, declared independence from Moldova in August 1991. But Gagauz leaders wished to maintain ties with the USSR or Russia, and the population feared that Gagauz identity would be diluted if Moldova ever joined a prospective Greater Romania —the possibility was being discussed at that time.
The right to “external self-determination” means that, should Romania annex Moldova, Gagauzia would be entitled to establish itself as an independent stateThe dispute was resolved in 1994, after the Moldovan Parliament passed the law on the autonomy of Gagauzia, which contains a clause that allows the “external self-determination” of the territory. Under what conditions? The Gagauz legal code specifies that it could be triggered “if the status of the Republic of Moldova as an independent state changes.” In other words, this means that should Romania annex Moldova, Gagauzia would be entitled to secede and establish itself as an independent state.
The Scandinavian country is a unitary state, but it also comprises two territories that enjoy a high degree of autonomy —Greenland and the Faroe Islands. Since the adoption of its 2009 Statute of Autonomy, Greenland has had the right to self-determination and independence recognized from the Danish state. The same right was denied to the Faroes when they sought to exercise it in 1946, after they held a controversial referendum. Nevertheless, several Danish prime ministers have in recent decades considered Faroese independence as a plausible, acceptable outcome.
Ólavsøka, one of the Faroese national holidays / Image: Stefan Wisselink @ Flickr.
Moreover, the recognition of the right to self-determination is one of the main clauses contained in a draft Constitution that the Faroes are expected to vote on 25 April 2018. If the Constitution is approved, the right to secession from Denmark will be legally established.
Papua New Guinea
The second largest country in Oceania has no specific constitutional provisions that allow secession. Still, this did not prevent the government of Papua New Guinea and the provisional government of the island of Bougainville from signing a peace agreement in 2001 —ending a deathly conflict in the latter territory— which provided for the creation of a semi-autonomous Bougainville government within Papua New Guinea, the holding of elections starting from 2005, and as a culmination, the calling of a referendum on independence at some date between June 2015 and June 2020.
Bougainville will hold a referendum on its independence from Papua New Guinea. The provisional date is 15 June 2019In 2016, the governments of Bougainville and Papua New Guinea struck a provisional deal on the holding of the referendum, which was set for 15 June 2019. According to analysts, it is likely that a majority will vote for separation. Independence would then create a new state of 250,000 inhabitants, located between Papua New Guinea and the Solomon Islands.
Without a Constitution that could forbid or allow it, the UK has shown in the last two decades that it could be ready to accept the secession of at least two parts of its territory —Scotland and Northern Ireland.
In the case of Scotland, UK prime minister David Cameron agreed with his Scottish counterpart Alex Salmond to hold an independence referendum in September 2014. The deal was struck after Salmond’s pro-independence SNP party won an absolute majority in the 2011 Scottish Parliament election. A “yes” vote would have led to the creation of a sovereign Scottish state.
The UK accepted a vote on independence in Scotland, and has committed itself to implement Irish reunification if that is the majority decision on the two sides of the borderIn the case of Northern Ireland, the 1998 Good Friday Agreement —signed by the UK and Irish governments and eight political parties in Northern Ireland— opens the door to the reunification of Ireland by democratic means. London and Dublin will be forced to implement it as long as a majority in both Northern Ireland and the Republic of Ireland votes for in a referendum. Following the Brexit earthquake, Sinn Féin asked the UK Secretary of State —who may call such a vote at any time— to call a referendum on reunification.
Yet another territory could be added to the list: the Falkland Islands, which in 2013 voted on keeping their status as a British overseas territory. The “yes” option won, with 99.8% votes for. Had the “no” vote been successful, a second referendum should have been called. In that event, it is plausible that independence would have been one of the options included on the ballot.
The Kingdom of the Netherlands is made up of four constituent countries: the Netherlands themselves, plus the Caribbean islands of Aruba, Curaçao and Sint Maarten. The Charter of the Kingdom of the Netherlands is the law governing relations between the four parts, and has adapted itself to change since it was first enacted in 1954. For example, Suriname was a constituent country of the Kingdom from 1954 until 1975, when the South American nation gained full independence. In the Charter (Article 58) it is said that Aruba can launch, at any time, the procedure to put an end to the arrangements provided for in the legal text. This amounts in practice to declare independence.
Willemstad, capital of Curaçao / Image: graphic-vision @ Pixabay.
Some sectors of the Dutch political spectrum support the completion of what they understand is a de facto decolonization process, and openly speak of granting independence to the three Caribbean islands. “If they call me tomorrow that they want out, then we’ll arrange it immediately,” Dutch prime minister Mark Rutte was quoted as saying in 2013. But this can not legally occur until the three Caribbean countries choose to. Aruba illustrates that apparent paradox: in 1977, islanders voted to become a fully sovereign state, but in the 1990s the decision was indefinitely postponed given that Aruba itself was unsure about the move. In Curaçao, the pro-independence movement has promised to deliver independence in the 2020s, but no further steps have been taken.
To conclude with, it may be surprising that the “indivisible” republic (Article 1 of the Constitution) is listed in this article. But in fact, France recognizes the right to independence of one of its territories —New Caledonia. It does so since 1998, when the French government and political representatives (both pro-independence and unionists) of the Oceanian nation signed the Nouméa Accords. The agreements —which were subsequently ratified in a referendum— foresee the holding of a vote on self-determination in November 2018 at the latest. If independence is rejected, the 1998 deal provides for the possibility of holding another two referendums on the same issue.