Tots som catalans: un blog nacional

Vídeo electoral de Reagrupament independentista

2010-11-14T11:19:00.000+01:00

4-07-1976, Entebbe

2010-07-03T19:34:00.001+02:00

Avui fa 34 anys que va tenir lloc la gesta del rescat d'Entebbe per les forces israelianes.

Fèlix Pons, in memoriam

2010-07-03T19:15:00.003+02:00

Aquesta foto correspon a la manifestació del Primer de Maig de 1979, a Palma, al seu pas per la plaça de Cort. Els manifestants es varen aturar davant l'Ajuntament, el qual era governat per un pacte d'esquerres des de feia deu dies.
Els comunistes del PCE no alçaven el puny, el del MCI sí que ho feia; els socialistes, excepte Fèlix Pons, també l'alçaven. Aquesta foto expressa com era el moment polític. Com es pot veure, Fèlix Pons és l'únic que duia corbata.
La foto va ser publicada a la portada del dia 2-05-1979 del diari Última Hora.
Al cel sia.

Sobre el dret de secessió

2010-01-24T11:55:00.001+01:00

INTERNATIONAL COURT OF JUSTICE
Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self Government of Kosovo (Advisory Opinion)
Harold Hongju Koh
The Legal Adviser, United States Department of State
December 8, 2009
1. Mr. President, Honorable members of the Court:
It is a great honor to appear before you today on behalf of the United States of America, a nation born of a declaration of independence more than two centuries ago, to urge this Court to leave undisturbed the declaration of independence of the people of Kosovo.
2. The United States appears today as a friend of both Serbia and Kosovo. The people of the United States share a bond of friendship with the people of Serbia marked by cooperation in two world wars and longstanding political and economic ties that date back at least to the bilateral Treaty of Commerce of 1881. Our relationship with the people of Kosovo, strengthened through crisis these last two decades, continues to grow. That said, our sole task today is to address the narrow legal question before this Court.
3. Over the past week, those pleading before you have discussed a broad range of issues, including the validity of recognitions of Kosovo, the effectiveness of the United Nations, the legality of military actions in 1999, and the potential responsibility of non-state actors for internationally wrongful acts. Yet the precise question put to this Court is much narrower: ―Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?‖ The answer to that question, we submit, is yes. For as a general matter, international law does not regulate declarations of independence,
2
nor is there anything about Kosovo‘s particular declaration that would render it not ―in accordance with international law.‖1 Standing alone, a declaration neither constitutes nor establishes political independence; it announces a political reality or aspiration that must then be achieved by other means. Declaring independence is fundamentally an act of popular will—a political act, made by a body politic, which other states then decide whether to recognize or not.2
4. To say that international law does not generally authorize or prohibit declarations of independence signals no lack of respect either for international law or the work of this Court. Rather, such a statement merely recognizes that international law does not regulate every human event, and that an important measure of human liberty is the freedom of a people to conduct their own affairs. In many cases, including Kosovo‘s, the terms of a declaration of independence can mark a new nation‘s fundamental respect for international law. As our own Declaration put it, a ―decent respect to the Opinions of Mankind‖ dictates ―that facts be submitted to a candid world.‖ Of the more than 100 declarations of independence issued by more than half of the countries in the world,3 we know of none that has been held by an international court to violate international law. We submit that this Court should not choose Kosovo‘s declaration of independence as the first case for such unprecedented judicial treatment. Few declarations can match the political legitimacy of Kosovo‘s peaceful declaration, which issued from a body representing the will of the people, was born of a successful, decade-long UN effort to bring peace and security to the Balkans region, and reflected the capacity of the people of Kosovo to govern themselves. As the principal judicial organ of the United Nations, this Court should decline the invitation to undo
1 Written Statement of the United States of America (―U.S. Statement‖), pp. 50-55. 2 Id. pp. 51-52. 3 David Armitage, The Declaration of Independence: A Global History 3, 20 (2007).
3
the hard work of so many other parts of the UN system, potentially destabilizing the situation and unraveling the gains so painstakingly achieved under Resolution 1244.4 5. Mr. President: A careful consideration of the pleadings before this Court compels three conclusions, which will structure the rest of my presentation: First, Kosovo‘s declaration of independence brought a necessary and stabilizing end to a turbulent chapter in the history of the Western Balkans, and made possible a transition to a common European future for the people of Kosovo and their neighbors. The real question this Court faces is whether to support re-opening of this tragic past or whether instead to let Kosovo and Serbia look forward to this more promising future. Second, as a legal matter, there is no inconsistency between Kosovo‘s peaceful declaration of independence and principles of international law, including Security Council Resolution 1244. Like others attending these proceedings who participated in these historic events, I attended the Rambouillet negotiations as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, and observed the great pains taken to respect international law and to preserve human rights throughout the lengthy diplomatic negotiations that led to Resolution 1244, and ultimately to Kosovo‘s Declaration. We respectfully submit that a Security Council resolution drafted with such an intent did not give birth to a declaration of independence that violates international law.
Third, and finally, we question whether this case—which involves an unprecedented referral of a narrow, anomalous question—marks an appropriate occasion for this Court to exercise its advisory jurisdiction. But should the Court decide that it must render an advisory opinion, the Court would best be served by answering that
4 See Written Comments of the United States of America (―U.S. Comments‖), pp. 3-4.
4
narrow question in the affirmative: that Kosovo's declaration of independence is in accordance with international law. I. Kosovo’s Declaration of Independence 6. Mr. President, you have now heard many times the story of Kosovo‘s declaration of independence and the trauma from which it was born. That declaration was the product of not one, but three overlapping historical processes, which did not preordain Kosovo‘s declaration, but do help to explain it —the disintegration of Yugoslavia; the human rights crisis within Kosovo; and the United Nations‘ response.
7. First, from the Bosnia case, this Court knows well the painful story of the Yugoslav process: the rise of Serb nationalism in the 1980s, followed by the breakup first of the Socialist Federal Republic of Yugoslavia (S.F.R.Y.) in 1991-92, then of the Federal Republic of Yugoslavia (F.R.Y.) more than a decade later. You know of the successive independence of Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, Montenegro and finally, of Kosovo. 5
8. Second, you have heard about Kosovo’s internal process: the grim, well-chronicled background of atrocities and ethnic cleansing; how the people of Kosovo suffered years of exclusion from public facilities and offices; how some 10,000 people were killed in state-sponsored violence, how one million people were driven from the territory, and how the people of Kosovo developed self-government over nearly ten years of separation from Belgrade. You know of the drastic escalation of oppression by Belgrade in the late 1990s; of the atrocities that were recorded by the United Nations and human rights organizations; of the unsuccessful attempt to achieve a solution acceptable to both Serbia and Kosovo at Rambouillet; of the brutal
5 See U.S. Statement, pp. 8-9, 77-78.
5
campaign of ethnic cleansing launched by Belgrade against ethnic Albanians in the spring of 1999; and of the eventual adoption of Security Council Resolution 1244 in June 1999.6
9. Third, the declaration at issue did not happen spontaneously; it emerged only after an extended United Nations process, in which a United Nations administration focused on developing Kosovo‘s self-governing institutions, and a sustained UN mediation effort exhausted all available avenues for a mutually agreed solution, before finally concluding—in Martti Ahtisaari‘s words—that ―the only viable option for Kosovo is independence.‖7
10. By adopting Resolution 1244, the Security Council sought to create a framework to promote two goals. The first was to protect the people of Kosovo, by building an interim environment where they would be protected by an international security presence—the NATO-led KFOR—and where they could develop political institutions free from Belgrade‘s coercion under an international civil presence in the form of UNMIK.8 Second, the Resolution authorized the international civil presence to facilitate a political process designed to determine Kosovo‘s future status, but only at a later stage.9
11. This UN umbrella and game plan provided critical breathing space for Kosovo to stabilize and develop effective Provisional Institutions of Self-Government (PISG): an elected assembly, a president, a prime minister, ministries and a judiciary.10 UNMIK steadily devolved authority to those Kosovo institutions, allowing the people of Kosovo to rule themselves free
6 See ibid., pp. 8-22. 7 Report of the Special Envoy of the Secretary-General on Kosovo‘s Future Status, S/2007/168, 26 March 2007, para. 5 (emphasis added) [Dossier No. 203]; see also U.S. Statement, pp. 22-32. 8 See U.S. Statement, pp. 19-20. 9 See ibid., pp. 20-21. 10 See ibid., p. 23.
6
from Belgrade‘s influence.11 In 2005, the Secretary-General‘s Special Envoy Kai Eide found the status quo unsustainable, which led the UN Security Council to launch a political process, led by Special Envoy Martti Ahtisaari, to determine Kosovo‘s future status.12 But after many months of intensive negotiations involving all interested parties, Special Envoy Ahtisaari concluded in March 2007: (1) that even with autonomy, Kosovo‘s reintegration with Serbia was ―simply not tenable‖; (2) that continuing interim administration without resolving Kosovo‘s future status risked instability; and (3) that further efforts to find common ground between Kosovo and Serbia were futile.13 In Mr. Ahtisaari‘s words, ―the negotiations‘ potential to produce any mutually agreeable outcome on Kosovo‘s status is exhausted,‖ and ―[n]o amount of additional talks, whatever the format, will overcome this impasse.‖14 Going forward, the Envoy concluded, ―the only viable option for Kosovo is independence, to be supervised for an initial period by the international community.‖15
12. While some in these proceedings have questioned the integrity and impartiality of the Special Envoy, a most distinguished Nobel Laureate, the Secretary-General confirmed his full support for the Special Envoy‘s recommendation, having himself ―taken into account the developments in the process designed to determine Kosovo‘s future status.‖16 The entire Contact
11 See ibid., p. 24. 12 See ibid., pp. 25-26. 13 See Report of the Special Envoy of the Secretary-General on Kosovo‘s Future Status, S/2007/168, 26 March 2007, paras. 3-9, 16 [Dossier No. 203]. 14 Ibid., paras. 3, 5. 15 Ibid., para. 3 (emphasis added). 16 See Letter dated 26 March 2007 from the Secretary-General to the President of the Security Council, attaching Report of the Special Envoy of the Secretary-General on Kosovo‘s Future State, S/2007/168, 26 March 2007 [Dossier No. 203]; see also U.S. Statement, p. 30.
7
Group ―endorsed fully the United Nations Secretary-General‘s assessment that the status quo is not sustainable.‖17 And the Council of the European Union—including even those members who would later decline to recognize Kosovo‘s independence—expressed its ―full support‖ for the Special Envoy and ―his efforts in conducting the political process to determine Kosovo‘s future status.‖18
13. Nevertheless, a ―Troika‖ of senior negotiators was charged to make a last-ditch effort to find a negotiated solution.19 According to its report, the Troika ―left no stone unturned in trying to achieve a negotiated settlement of the Kosovo status question.‖20 But when those Troika talks also reached an impasse, Kosovo‘s elected leaders consulted widely and on February 17, 2008, issued their declaration pronouncing Kosovo ―an independent and sovereign state.‖21
14. Like many declarations of independence, Kosovo‘s declaration was a general manifesto, published to all the world, that affirmed the new state‘s commitments as a member of the international community. The declaration accepted the obligations in the Ahtisaari Plan, and announced Kosovo‘s desire for friendship and cooperation with Serbia and all states.22
17 Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council, S/2007/723, 10 December 2007, Annex 3 (Statement on Kosovo by Contact Group Ministers, New York, 27 September 2007) [Dossier No. 209].
18 Council of the European Union, 2756th External Relations Council Meeting of 16-17 October 2006, para. 6, available at http://www.westernbalkans.info/upload/docs/91337.pdf. 19 See U.S. Statement, p. 31. 20 Statement of the Federal Republic of Germany, Annex 5 (Letter of 5 December 2007 from German Ambassador Wolfgang Ischinger to European Union High Representative Javier Solana). 21 See U.S. Statement, pp. 32-33. 22 See Declaration of Independence [Docket No. 192]; U.S. Statement, pp. 33, 56-57.
8
15. Today, nearly two years later, we see that the declaration of independence was the ultimate product of all three processes I have described: it brought closure to Yugoslavia‘s disintegration; it enshrined human rights protections for all communities within Kosovo; and it broke the impasse in the United Nations process. Yesterday, counsel for Cyprus colorfully but inaptly suggested that the United Nations Security Council was involved in the ―amputation‖ of Kosovo and the ―dismemberment‖ of Serbia. But Cyprus never mentioned that Kosovo became independent not because of unilateral, brutal U.N. action, but through the interaction between a U.N. process that helped end brutality, and the parallel processes of Yugoslavia‘s disintegration and increasing Kosovo self-governance. 16. The simple fact is that Resolution 1244 worked. Without preordaining, it permitted Kosovo‘s independence. Kosovo is now both independent and functioning effectively. Kosovo has been recognized by 63 nations, and all but one of its immediate neighbors, including former Yugoslav Republics Slovenia, Croatia, Macedonia, and Montenegro. No fewer than 115 of the world‘s countries have treated Kosovo as a state, by either formally recognizing it or voting for its admission to international financial institutions. And the 2008 declaration of independence has opened the way for a new European future for the people both of Kosovo and the wider Balkans region. II. Legal Arguments 17. Mr. President, against this reality, Serbia now seeks an opinion by this Court that would turn back time, although doing so would undermine the progress and stability that Kosovo‘s declaration has brought to the region. As a legal matter, this Court should find that Serbia‘s desired outcome is dictated neither by general principles of international law, nor by Security Council Resolution 1244.
9
A. General International Law
18. As we detailed in our written pleadings, Kosovo‘s declaration of independence declared a political aspiration, which cannot by itself violate international law. General international law does not as a general matter prohibit or authorize declarations of independence.23 Other nations accept or reject the legitimacy of a declaration of independence by their willingness or refusal to treat the entity as a state: that test only confirms the legitimacy of Kosovo‘s declaration here. But without citing any authority, Serbia asks the Court to adopt the opposite, sweeping rule: when territory has not been illegally annexed, Serbia claims, the international law principle of territorial integrity prohibits all nonconsensual secessions (and a fortiori, all declarations of independence), except where domestic law grants a right of secession or the parent state accepts the declaration before or soon after the secession.24 Yet as our written filings establish, no such general international law rule bars declarations of independence, nor can there be such ad hoc exceptions to a general rule that does not exist.25
23 See Malcolm Shaw, ―Re: Order in Council P.C. 1996-1497 of 30 September 1996,‖ in Self-Determination in International Law: Quebec and Lessons Learned, p. 136 (Anne Bayefsky, ed. 2000) (―It is true that the international community is very cautious about secessionist attempts, especially when the situation is such that threats to international peace and security are manifest. Nevertheless, as a matter of law the international system neither authorises nor condemns such attempts, but rather stands neutral. Secession, as such, therefore, is not contrary to international law.‖); John Dugard & David Raič, ―The Role of Recognition in the Law and Practice of Secession,‖ in Secession: International Law Perspectives, p. 102 (Marcelo Kohen, ed. 2006) (―One will search in vain for an explicit prohibition of unilateral secession in international instruments. The same is true for the explicit recognition of such a right.‖); Daniel Thürer, ―Secession‖, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum, ed.) available at http://www.mpepil.com, p. 2 (―International law, thus, does not state conditions of legality of a secession, and neither does it provide for a general ‗right of secession‘. It does not in general condemn movements aiming at the acquisition of independence, either.‖); see generally U.S. Statement, pp. 50-55; U.S. Comments, pp. 13-14. 24 Written Statement of the Government of the Republic of Serbia (―Serbia Statement‖), para. 943. 25 See U.S. Written Comments, pp. 13-20; see also U.S. Written Statement, pp. 50-55.
10
19. To see that international law does not prohibit declarations of independence simply because they were issued without the parent state‘s consent, one need look no further than Yugoslavia itself, where the Slovenian and Croatian declarations of independence initiated Yugoslavia‘s breakup in 1991. When those declarations issued, Belgrade also declared, wrongly, that both declarations violated both Yugoslav and international law. But today, even Belgrade no longer makes those claims. To the contrary, Serbia now asserts that Slovenia‘s and Croatia‘s secessions were lawful under international law because they were permitted under Yugoslav domestic law, although Belgrade took precisely the opposite position at the time.26 In reversing its position, Belgrade nowhere explains how the international law rule in this area can turn on a question of domestic law that the international community cannot knowledgeably evaluate. The second ad hoc exception that Serbia offers—that a parent state can make lawful an unlawful declaration by later acceptance—conflicts with its own arguments in these proceedings: that the illegality of a declaration cannot be cured by subsequent events.
20. Neither did Kosovo‘s declaration violate the general principle of territorial integrity. That basic principle calls upon states to respect the territorial integrity of other states. But it does not regulate the internal conduct of groups within states, or preclude such internal groups from seceding or declaring independence.27 Citing Security Council resolutions, Serbia claims
26 Compare Written Comments of the Government of the Republic of Serbia (―Serbia Comments‖), para. 201 (―With regard to domestic law, some constitutions provide for a right to secession, as it was the case of the S.F.R.Y., only with regard to the six constituent nations‖), with Stands and Conclusions of the S.F.R.Y. Presidency Concerning the Situation in Yugoslavia, 27 June 1991 (reprinted in Yugoslavia Through Documents: From Its Creation to Its Dissolution (Snezana Tifunovska, ed. 1994), p. 305 (describing the Slovenian and Croatian declarations as ―anti-constitutional and unilateral acts lacking legality and legitimacy on the internal and external plane‖).
27 See Georges Abi-Saab, ―Conclusion‖, in Secession: International Law Perspectives, p. 474 (Marcelo Kohen, ed. 2006) (―[I]t would be erroneous to say that secession violates the principle of territorial integrity of the State, since this principle applies only in international relations, i.e. against other States that are required to respect that integrity
11
that the obligation to respect territorial integrity also regulates non-state actors and precludes them from declaring independence, whether peacefully or not. But none of the resolutions it cites supports that claim.28 We do not deny that international law may regulate particular declarations of independence, if they are conjoined with illegal uses of force or violate other peremptory norms, such as the prohibition against apartheid. But that is hardly the case here, where those declaring independence did not violate peremptory norms. In fact, Kosovo‘s declaration makes such a deep commitment to respect human rights precisely because the people of Kosovo had experienced such egregious human rights abuses. B. Resolution 1244
21. Mr. President, Kosovo‘s declaration of independence comports not just with general rules of international law, but also with Resolution 1244, which—as our written submissions detail—anticipated, without predetermining, that independence might be an appropriate outcome for Kosovo‘s future status.29
22. Mr. President, Members of the Court: If you look with me at the text of Resolution 1244, you will see that it was overwhelmingly driven by the Council‘s overriding concern for resolving the humanitarian and human rights tragedy occurring in Kosovo. It demands that the Federal Republic of Yugoslavia ―put an immediate and verifiable end to violence and repression in Kosovo‖ by beginning a verifiable phased withdrawal of security forces on a timetable
and not encroach on the territory of their neighbours; it does not apply within the State.‖); Malcolm Shaw, ―Re: Order in Council P.C. 1996-1497 of 30 September 1996,‖ in Self-Determination in International Law: Quebec and Lessons Learned, p. 136 (Anne Bayefsky, ed. 2000) (―[I]t must be recognized that international law places no analogous obligation [of respect for territorial integrity] upon individuals or groups within states. The provisions contained in the relevant international instruments bind states parties to them and not persons and peoples within states.‖); see generally U.S. Comments, pp. 15-20. 28 See U.S. Comments, pp. 18-20. 29 See U.S. Statement, pp. 68-79; U.S. Comments, pp. 24-34.
12
synchronized with the phased insertion of an international security presence.30 Paragraphs 10 and 11 authorize the establishment of an international civil presence to ―[f]acilitat[e] a political process designed to determine Kosovo‘s future status, taking into account the Rambouillet accords.‖31
23. Serbia claims that 1244‘s explicit reference to Rambouillet ―clearly adopt[ed] the principle of the continued territorial integrity and sovereignty of the F.R.Y. over Kosovo.‖32 But at the time, Serbia claimed just the opposite: calling the Rambouillet Accords an ―unprecedented attempt to impose a solution clearly endorsing the separatists‘ objectives.‖33 This is not surprising, because as you heard yesterday from Denmark, a prime objective at Rambouillet was to respect the will of the people of Kosovo. That is why, as we have seen, Rambouillet carefully avoided pre-determining any particular political outcome, on the one hand, neither favoring independence, but on the other hand, never ruling that possibility out.
24. Nor did anything in Resolution 1244‘s description of the future status process give Serbia a veto over a future Kosovo declaration of independence.34 To the contrary, the Rambouillet Accords, to which Resolution 1244 refers, rejected any requirement that the F.R.Y. consent to Kosovo‘s future status.35 In the negotiations over the Accords—and the four so-called ―Hill Agreements‖ upon which Rambouillet was modeled—the negotiators rejected any
30 See Security Council resolution 1244 (1999), S/RES/1244, para. 3 [Dossier No. 34]. 31 Ibid., paras. 10, 11. 32 Serbia Statement, para. 784; see also Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Advisory Opinion, Verbatim Record (―Verbatim Record‖), 1 December 2009, Statement of Mr. Shaw for Serbia, para. 24. 33 See U.S. Statement, pp. 16-17, 65. 34 See U.S. Comments, pp. 32-37. 35 See U.S. Statement, pp. 65-68.
13
requirement that the Federal Republic of Yugoslavia consent before Kosovo‘s future status could be finally determined.36 As Professor Murphy explained last Tuesday, the first three drafts of the Hill Agreements would have required the F.R.Y.‘s express agreement to change Kosovo‘s status at the end of the interim period. But in the fourth draft of the Hill Agreement, that language was placed in brackets, and no similar requirement for Belgrade‘s approval of future status appeared in the final version of either the Rambouillet Accords or Resolution 1244.
25. Some have claimed during these oral proceedings that the reference in the preamble of Resolution 1244 to the ―territorial integrity‖ of the Federal Republic of Yugoslavia proved that the Security Council was foreclosing independence as a possible outcome. During these proceedings, one state that sat on the Security Council at the time suggested that all states understood Resolution 1244 to guarantee permanently the F.R.Y.‘s ―territorial integrity.‖37 But if that were true, why did the F.R.Y. protest at the time that the resolution ―opens up the possibility of the secession of Kosovo … from Serbia and the Federal Republic of Yugoslavia‖?38 And why did nine of the states that were on the Council when it adopted resolution 1244 – Bahrain, Canada, France, Gambia, Malaysia, Netherlands, Slovenia, the United Kingdom and the United States – later recognize Kosovo, if they had already supposedly voted for a resolution that permanently prohibited its independence?
26. What Serbia‘s argument leaves out is the telling silence in Resolution 1244, the dog that did not bark. Resolution 1244 said absolutely nothing about the territorial integrity of the Federal Republic of Yugoslavia beyond the interim period. Unlike the previous UN Security
36 See ibid. 37 Verbatim Record, 2 December 2009, Statement of Ms. Ruiz Cerutti for Argentina, para. 12. 38 Remarks of Mr. Jovanović, Chargé d‘affaires of the Permanent Mission of Yugoslavia to the United Nations, in Security Council debate on adoption of resolution 1244, S/PV.4011, 10 June 1999, p. 6 [Dossier No. 33].
14
Council resolutions on Kosovo, Resolution 1244 qualifies its reference to territorial integrity with the phrase ―as set out in Annex 2.‖ But Annex 2 refers to territorial integrity only in paragraph 8, which in turn describes only the political framework agreement that will cover the interim period. And while the text of 1244 reaffirms the commitment of the ―member states‖—not internal groups—to the territorial integrity of the F.R.Y., even this it does only during the interim period, without limiting the options for future status.39
27. As important, the resolution refers not to preserving the territorial integrity of Serbia, but the territorial integrity of the Federal Republic of Yugoslavia, an entity that no longer exists.40 Even though the Resolution required Kosovo to remain within the F.R.Y., it never required Kosovo to remain within ―Serbia.‖ To the contrary, as we have explained, the resolution specifically avoided any such implication, to preserve the possibility of what were called at the time ―third republic options,‖ under which Kosovo might end up as a third republic inside the borders of a three-republic F.R.Y., alongside Serbia and Montenegro.41
28. 1244‘s reference to territorial integrity was further qualified by the Resolution‘s explicit reference, in preambular paragraph 10, not just to Annex 2 (which applied only during the interim period), but also to the Helsinki Final Act. The Helsinki reference underscored the Security Council‘s overriding humanitarian concern with protecting civilians, by keeping
39 See U.S. Statement, pp. 68-71; U.S. Comments, pp. 25-29. 40 No one is challenging that Serbia is the legal continuity of the F.R.Y., but the law of state succession does not mean that all references in international documents to a parent are automatically considered to apply to a continuation state. See U.S. Comments, p. 29. 41 See U.S. Statement, pp. 74-78; U.S. Comments, pp. 29-31. Our Written Comments describe Belgrade‘s desire to avoid this possibility. Belgrade called such proposals ―the most perfidious fraud Serbia has ever been exposed to.‖ U.S. Comments, pp. 30-31.
15
Kosovo detached from the Serbia that had so harshly oppressed them.42 Kosovo had famously suffered massive, systematic human rights abuses throughout the decade, which led the F.R.Y. to be suspended from participation in the OSCE. Thus, 1244‘s pointed reference to the Helsinki Final Act underscored that the Council was reaffirming the F.R.Y.‘s territorial integrity, not as an absolute principle, but as only one of many principles (including most obviously, Helsinki human rights commitments) that needed to be considered, each principle—in the Final Act‘s words—being interpreted taking into account the others.‖43
29. Serbia and its supporters never specify precisely which words in Resolution 1244 they believe that Kosovo violated. But some suggest that Kosovo violated international law by preventing UNMIK from carrying out its mandate under Paragraph 11(e) ―to facilitate a political process‖ designed to determine Kosovo‘s future status. But that paragraph required only that the international civilian presence facilitate ―a‖ political process—not multiple political processes.44 By the time that Kosovo declared independence in February 2008, the specific political process envisioned by Resolution 1244 had ended. The future status process had run its course and the negotiations‘ potential to produce any mutually agreed outcome on Kosovo‘s status had been exhausted. With the Secretary-General‘s support, the Special Envoy—who was charged with determining the scope and duration of the political process—had announced that ―[n]o amount of additional talks, whatever the format, will overcome this impasse,‖ and the Envoy had specifically declared that the only viable option for Kosovo was independence.
42 See U.S. Statement, pp. 71-74. 43 Helsinki Final Act, 1 August 1975, available at http://www.osce.org/documents/mcs/1975/08/4044_en.pdf. 44 See U.S. Comments, pp. 32, 36.
16
30. In these proceedings, some argue that the effort by some states, including the United States, to secure a new Security Council resolution on Kosovo in July 200745 somehow proves that we considered a successor resolution to 1244 legally necessary for Kosovo to become independent. But like Resolution 1244, the draft 2007 resolution was entirely ―status-neutral.‖ Its central legal purpose was to terminate UNMIK‘s operations in Kosovo, as the Ahtisaari Plan had envisioned. Nothing in the draft resolution would have decided on, or even endorsed a recommendation for, Kosovo‘s independence. Its non-enactment meant only that adjustments would be needed in the roles of UNMIK and other international actors envisioned in the Ahtisaari Plan. If anything, the success of that subsequent coordination only underscores the consistency of the declaration of independence with the operation of U.N. entities under Resolution 1244.
31. In short, by February 2008, the absence of any prospect of bridging the divide between Serbia and Kosovo had rendered any further negotiations pointless.46 In these proceedings, Serbia ironically charges Kosovo with bad faith, suggesting that Kosovo‘s position favoring independence in the negotiations is ―in sharp contrast‖ with 1244‘s requirement that ―the sovereignty and territorial integrity of Serbia should be safeguarded.‖47 But neither UNMIK, Ahtisaari, nor the Troika ever suggested that Kosovo was negotiating in bad faith. Serbia claims that Kosovo did not need independence because Serbia had offered Kosovo the ―highest degree of autonomy‖ under Resolution 1244.48 But anyone who has read the factual
45 A draft of the resolution is attached as Exhibit 36 to Serbia‘s Statement. 46 U.S. Statement, pp. 79-84. 47 Serbia Statement, para. 919.
48 Verbatim Record, 1 December 2009, Statement of Mr. Zimmermann for Serbia, para. 46; Serbia Statement, para. 203.
17
findings of the Trial Chamber in the Milutinovic case, who has seen photographs of Serbian tanks stationed outside the Kosovo Assembly building in March 1989, or who followed events in the Balkans during the past two decades, understands why the entire Contact Group identified Belgrade‘s ―disastrous policies of the past [as lying] at the heart of the current problems.‖49 It was Serbia, not Kosovo, that the Contact Group admonished ―to demonstrate much greater flexibility‖ and ―to begin considering reasonable and workable compromises.‖50
32. Nor would it establish any violation of international law to argue that the declaration of independence was an ultra vires act by the Kosovo Assembly.51 For even if it were true that issuing the declaration somehow exceeded the authority conferred on the Assembly by UNMIK under the Constitutional Framework, that would only amount to a claim that it was issued by the wrong persons in Pristina. But if the declaration were considered flawed because it issued from the Provisional Institutions of Self-Government, that technicality could now easily be fixed simply by having a different constituent body within Kosovo reissue it. No one doubts that the people of Kosovo wanted independence, or that their declaration expressed their will. The people of Kosovo declared independence not under a ―top-down‖ grant of domestic law authority from UNMIK, but rather, through a ―bottom-up‖ expression of the will of the people of Kosovo, who left no doubt of their desire for independence.
33. Finally, even assuming for the sake of argument that the declaration did somehow violate the Constitutional Framework, that Framework, like the other regulations adopted by
49 Statement by the Contact Group on the Future of Kosovo, London, 31 January 2006, available at http://pristina.usembassy.gov/press20060131a.html. 50 Contact Group Ministerial Statement, Vienna, 24 July 2006, available at http://www.diplomatie.gouv.fr /en/IMG/pdf/statement_Vienne_24_juillet_version_finale.pdf. 51 U.S. Statement, p.57 n.231; U.S. Comments, pp. 38-39.
18
UNMIK, operated as domestic, not international, law.‖52 We have previously demonstrated that UNMIK regulations must be domestic law because they operated at the domestic level, replace existing laws, and regulate local matters.53 Serbia conceded the accuracy of this point, but argued that UNMIK rules somehow constitute international law because they were issued by the Security Council, an international authority.54 But just because the Security Council authorized UNMIK to establish Kosovo‘s domestic law did not automatically convert that domestic law into international law. For example, an automobile driver in Kosovo who might violate a speed limit in an UNMIK traffic regulation surely does not violate international law simply because the entity that promulgated the law against speeding was created by an international body.55
34. Mr. President, if there were ever a time when U.N. officials could have acted to set aside the declaration of independence, it was soon after that declaration issued in February 2008. But the responsible organs of the U.N. made a considered decision nearly two years ago not to invalidate that declaration of independence. They made that decision with full awareness of that declaration‘s specific acceptance of Resolution 1244 and the international presences established
52 UNMIK‘s grant of authority was to exercise ―legislative and executive powers‖—that is what it was doing when it promulgated Regulation 2001/9—and its responsibility was to ―change, repeal or suspend existing laws to the extent necessary for the carrying out of [its] functions. Report of the Secretary-General on the United Nations Interim Administration in Kosovo, S/1999/779, 12 July 1999 [Dossier No. 37]. A contemporaneous 2001 commentary noted that Regulation 2001/9, the Constitutional Framework, assigns to the SRSG and KFOR ―the powers that are typically associated with a federal government.‖ A. Zimmerman and C. Stahn, Yugoslav Territory, United Nations Trusteeship or Sovereign State, 70 Nordic J. Intl L. 423, 428 (2001). 53 See U.S. Comments, pp. 39-42. 54 See Verbatim Record, 1 December 2009, Statement of Mr. Djeric for Serbia, paras. 39-41. 55 See U.S. Comments, pp. 39-42 and citations therein.
19
by it, and Kosovo‘s pledge to act consistently with all Security Council resolutions and requirements of international law.56 III. The Court Should Answer Only the Narrow Question Posed 35. Finally, Mr. President, the Court should answer only the narrow question posed. What all this has demonstrated is just how anomalous and narrow is the question presented in this case. It is not a question about whether Kosovo is an independent state today, nor whether it has been properly recognized. Nor is this case about whether UNMIK and the United Nations should be doing anything differently. It is not about whether the U.N. institutions empowered to do so acted properly in declining to invalidate the declaration of independence nearly two years ago. Finally, it is not about whether Kosovo‘s future status talks—which were properly ended as ―exhausted‖ years ago—could or should now be resumed.
36. The usual premise upon which this Court‘s advisory jurisdiction rests is that the requesting organ—here, the General Assembly—needs the Court‘s legal advice to carry out its functions effectively.57 But here the question has been asked not to give the Assembly legal advice, so much as to give advice to member states.58 Resolution 63/3, which referred the advisory question to the Court, nowhere indicates how the Court‗s opinion would relate to any planned activity of the General Assembly nor does it identify any constructive use to which the
56 See U.S. Statement, pp. 84-89; U.S. Comments, pp. 43-45. 57 See U.S. Statement, pp. 42-45; U.S. Comments, pp. 10-12.
58 As this Court has emphasized in the past, advisory opinions serve to advise the organs of the United Nations, not individual member states. In seeking support for its Resolution, Serbia continually emphasized not the need of the General Assembly for an answer to the question, but the purported right of member states to refer a question to the Court. Serbia frankly described this case as being ―about the right of any member state of the United Nations to pose a simple, elementary question,‖ asserting before the General Assembly that ―[n]o country should be denied the right to refer such a matter to the ICJ‖; and that a vote against the resolution ―would in effect be a vote to deny the right of any country to seek—now or in the future—judicial recourse through the United Nations system.‖ See U.S. Statement, p. 44.
20
Assembly might put a Court opinion. And unlike every prior occasion on which the General Assembly has requested an advisory opinion, Resolution 63/3 was adopted not in connection with a substantive agenda item for the General Assembly‘s work, but rather, only under an ad hoc agenda item created for the sole purpose of requesting an advisory opinion from the Court.59
37. Ironically, the member state who sponsored the referral of this narrow question has avowed that the Court‘s answer will not change even its conduct. Serbia has repeatedly said that it will not recognize Kosovo ―at any cost, even in the event that the [Court‘s] decision is in favor of Pristina.‖60 But Mr. President, this Court has no obligation to issue advisory opinions that the moving state has already suggested it might ignore, that seek to reopen long-ended political negotiations that responsible U.N. officials have concluded are futile, or that seek to enlist the Court to unravel delicate political arrangements that have brought stability to a troubled region.
38. We therefore urge this Court to leave Kosovo‘s declaration undisturbed—either by refraining from issuing an opinion or by simply answering in the affirmative the question presented: whether Kosovo‘s declaration of independence accords with international law.61 As our written pleadings make clear, the Court may answer the question posed to it and opine that international law did not prohibit Kosovo‘s declaration of independence, without addressing other political situations or the complex issues of self-determination raised by a number of states in these proceedings.62
59 See U.S. Comments, pp. 11-12. 60 See ibid., p. 10. 61 See U.S. Statement, pp. 45-49; U.S. Comments, p. 10. 62 See U.S. Comments, pp. 21-23.
21
39. But if the Court should find it necessary to examine Kosovo‘s declaration through the lens of self-determination, it should consider the unique legal and factual circumstances of this case, including the extensive Security Council attention given to Kosovo; the large-scale atrocities against the population of Kosovo that led to Rambouillet and the 1244 process; the U.N.‘s concern for the will of the people of Kosovo, their undivided territory and unique historical, legal, cultural and linguistic attributes; the lengthy history of Kosovo‘s autonomy; the participation of Kosovo‘s representatives in the internationally led political process; the commitment of the people of Kosovo in their declaration to respect prior Security Council resolutions and international law; and the decision by U.N. organs to leave undisturbed Kosovo‘s move to independence.63 40. Mr. President: In its presentation yesterday, Cyprus pointedly sought to analogize the 1244 process to the heart-wrenching, but misleading, case where a parent sends a small child off to state supervision, only to lose her forever. But upon reflection, the far better analogy would be to acknowledge the futility of the state forcing an adult child to return to an abusive home against her will, particularly where parent and child have already long lived apart, and where repeated efforts at reconciliation have reached impasse. There, as here, declaring independence would be the only viable option, and would certainly be in accordance with law. IV. Conclusion
41. In conclusion, Mr. President, Kosovo‘s declaration of independence has proven to be necessary and politically stabilizing. The 2008 declaration of independence, and the ensuing recognition of Kosovo by many nations, brought much-needed stability to the Balkans and
63 See ibid., p. 21-23.
22
closed the books on the protracted break-up of what once was Yugoslavia.64 Kosovo‘s declaration of independence emanated from a process supervised by the United Nations, which through Resolution 1244 and the institutions it established, was deeply involved in Kosovo‘s past and present. And the declaration has now made possible a future in which Kosovo is not merely independent politically, but also self-sufficient economically, administratively, and civilly.
42. Although Serbia, acting through the General Assembly, has urged this Court to issue an advisory opinion it hopes will reopen status negotiations to re-determine Kosovo‘s future, it has given this Court no reason to upend what has become a stable equilibrium. For Kosovo is now independent. Both Kosovo and Serbia are part of Europe‘s future. As the principal judicial organ of the United Nations, this Court should not be conscripted into a member state‘s effort to roll back the clock nearly a decade, undoing a careful process accomplished under Resolution 1244 and overseen by so many other United Nations bodies.65 At a time when Kosovo‘s independence has finally closed one of the most painful chapters of modern European history, this Court should not use its advisory jurisdiction to reopen that chapter. Instead, we should all look to a common future in which both Serbia and an independent Kosovo have vitally important roles to play. 43. Mr. President, Honorable members of the Court: on behalf of my country, I thank you all for your thoughtful attention.
64 See ibid., p. 3. 65 See ibid.

1659-2009

2009-10-24T12:52:00.002+02:00

Act of Abjuration, 1581(Dutch Declaration of Independence)

2008-07-04T23:17:00.004+02:00

The States General of the United Provinces of the Low Countries, to all whom it may concern, do by these Presents send greeting:
As it is apparent to all that a prince is constituted by God to be ruler of a people, to defend them from oppression and violence as the shepherd his sheep; and whereas God did not create the people slaves to their prince, to obey his commands, whether right or wrong, but rather the prince for the sake of the subjects (without which he could be no prince), to govern them according to equity, to love and support them as a father his children or a shepherd his flock, and even at the hazard of life to defend and preserve them. And when he does not behave thus, but, on the contrary, oppresses them, seeking opportunities to infringe their ancient customs and privileges, exacting from them slavish compliance, then he is no longer a prince, but a tyrant, and the subjects are to consider him in no other view. And particularly when this is done deliberately, unauthorized by the states, they may not only disallow his authority, but legally proceed to the choice of another prince for their defense. This is the only method left for subjects whose humble petitions and remonstrances could never soften their prince or dissuade him from his tyrannical proceedings; and this is what the law of nature dictates for the defense of liberty, which we ought to transmit to posterity, even at the hazard of our lives. And this we have seen done frequently in several countries upon the like occasion, whereof there are notorious instances, and more justifiable in our land, which has been always governed according to their ancient privileges, which are expressed in the oath taken by the prince at his admission to the government; for most of the Provinces receive their prince upon certain conditions, which he swears to maintain, which, if the prince violates, he is no longer sovereign.

Now thus it was that the king of Spain after the demise of the emperor, his father, Charles the Fifth, of the glorious memory (of whom he received all these provinces), forgetting the services done by the subjects of these countries, both to his father and himself, by whose valor he got so glorious and memorable victories over his enemies that his name and power became famous and dreaded over all the world, forgetting also the advice of his said imperial majesty, made to him before to the contrary, did rather hearken to the counsel of those Spaniards about him, who had conceived a secret hatred to this land and to its liberty, because they could not enjoy posts of honor and high employments here under the states as in Naples, Sicily, Milan and the Indies, and other countries under the king's dominion. Thus allured by the riches of the said provinces, wherewith many of them were well acquainted, the said counselors, we say, or the principal of them, frequently remonstrated to the king that it was more for his Majesty's reputation and grandeur to subdue the Low Countries a second time, and to make himself absolute (by which they mean to tyrannize at pleasure), than to govern according to the restrictions he had accepted, and at his admission sworn to observe. From that time forward the king of Spain, following these evil counselors, sought by all means possible to reduce this country (stripping them of their ancient privileges) to slavery, under the government of Spaniards having first, under the mask of religion, endeavored to settle new bishops in the largest and principal cities, endowing and incorporating them with the richest abbeys, assigning to each bishop nine canons to assist him as counselors, three whereof should superintend the inquisition.

By this incorporation the said bishops (who might be strangers as well as natives) would have had the first place and vote in the assembly of the states, and always the prince's creatures at devotion; and by the addition of the said canons he would have introduced the Spanish inquisition, which has been always as dreadful and detested in these provinces as the worst of slavery, as is well known, in so much that his imperial majesty, having once before proposed it to these states, and upon whose remonstrances did desist, and entirely gave it up, hereby giving proof of the great affection he had for his subjects. But, notwithstanding the many remonstrances made to the king both by the provinces and particular towns, in writing as well as by some principal lords by word of mouth; and, namely, by the Baron of Montigny and Earl of Egmont, who with the approbation of the Duchess of Parma, then governess of the Low Countries, by the advice of the council of state were sent several times to Spain upon this affair. And, although the king had by fair words given them grounds to hope that their request should be complied with, yet by his letters he ordered the contrary, soon after expressly commanding, upon pain of his displeasure, to admit the new bishops immediately, and put them in possession of their bishoprics and incorporated abbeys, to hold the court of the inquisition in the places where it had been before, to obey and follow the decrees and ordinances of the Council of Trent, which in many articles are destructive of the privileges of the country.

This being come to the knowledge of the people gave just occasion to great uneasiness and clamor among them, and lessened that good affection they had always borne toward the king and his predecessors. And, especially, seeing that he did not only seek to tyrannize over their persons and estates, but also over their consciences, for which they believed themselves accountable to God only. Upon this occasion the chief of the nobility in compassion to the poor people, in the year 1566, exhibited a certain remonstrance in form of a petition, humbly praying, in order to appease them and prevent public disturbances, that it would please his majesty (by showing that clemency due from a good prince to his people) to soften the said points, and especially with regard to the rigorous inquisition, and capital punishments for matters of religion. And to inform the king of this affair in a more solemn manner, and to represent to him how necessary it was for the peace and prosperity of the public to remove the aforesaid innovations, and moderate the severity of his declarations published concerning divine worship, the Marquis de Berghen, and the aforesaid Baron of Montigny had been sent, at the request of the said lady regent, council of state, and of the states-general as ambassadors to Spain, where the king, instead of giving them audience, and redress the grievances they had complained of (which for want of a timely remedy did always appear in their evil consequences among the common people), did, by the advice of Spanish council, declare all those who were concerned in preparing the said remonstrance to be rebels, and guilty of high treason, and to be punished with death, and confiscation of their estates; and, what is more (thinking himself well assured of reducing these countries under absolute tyranny by the army of the Duke of Alva), did soon after imprison and put to death the said lords the ambassadors, and confiscated their estates, contrary to the law of nations, which has been always religiously observed even among the most tyrannic and barbarous princes.

And, although the said disturbances, which in the year 1566 happened on the aforementioned occasion, were now appeased by the governess and her ministers, and many friends to liberty were either banished or subdued, in so much that the king had not any show of reason to use arms and violence, and further oppress this country, yet for these causes and reasons, long time before sought by the council of Spain (as appears by intercepted letters from the Spanish ambassador, Alana, then in France, writ to the Duchess of Parma), to annul all the privileges of this country, and govern it tyrannically at pleasure as in the Indies; and in their new conquests he has, at the instigation of the council of Spain, showing the little regard he had for his people, so contrary to the duty which a good prince owes to his subjects), sent the Duke of Alva with a powerful army to oppress this land, who for his inhuman cruelties is looked upon as one of its greatest enemies, accompanied with counselors too like himself. And, although he came in without the least opposition, and was received by the poor subjects with all marks of honor and clemency, which the king had often hypocritically promised in his letters, and that himself intended to come in person to give orders to their general satisfaction, having since the departure of the Duke of Alva equipped a fleet to carry him from Spain, and another in Zealand to come to meet him at the great expense of the country, the better to deceive his subjects, and allure them into the toils, nevertheless the said duke, immediately after his arrival (though a stranger, and no way related to the royal family), declared that he had a captain-general's commission, and soon after that of governor of these provinces, contrary to all its ancient customs and privileges; and, the more to manifest his designs, he immediately garrisoned the principal towns and castles, and caused fortresses and citadels to be built in the great cities to awe them into subjection, and very courteously sent for the chief nobility in the king's name, under pretense of taking their advice, and to employ them in the service of their country. And those who believed his letters were seized and carried out of Brabant, contrary to law, where they were imprisoned and prosecuted as criminals before him who had no right, nor could be a competent judge; and at last he, without hearing their defense at large, sentenced them to death, which was publicly and ignominiously executed.

The others, better acquainted with Spanish hypocrisy, residing in foreign countries, were declared outlawed, and had their estates confiscated, so that the poor subjects could make no use of their fortresses nor be assisted by their princes in defense of their liberty against the violence of the pope; besides a great number of other gentlemen and substantial citizens, some of whom were executed, and others banished that their estates might be confiscated, plaguing the other honest inhabitants, not only by the injuries done to their wives, children and estates by the Spanish soldiers lodged in their houses, as likewise by diverse contributions, which they were forced to pay toward building citadels and new fortifications of towns even to their own ruin, besides the taxes of the hundredth, twentieth, and tenth penny, to pay both the foreign and those raised in the country, to be employed against their fellow-citizens and against those who at the hazard of their lives defended their liberties. In order to impoverish the subjects, and to incapacitate them to hinder his design, and that he might with more ease execute the instructions received in Spain, to treat these countries as new conquests, he began to alter the course of justice after the Spanish mode, directly contrary to our privileges; and, imagining at last he had nothing more to fear, he endeavored by main force to settle a tax called the tenth penny on merchandise and manufacture, to the total ruin of these countries, the prosperity of which depends upon a flourishing trade, notwithstanding frequent remonstrances, not by a single province only, but by all of them united, which he had effected, had it not been for the Prince of Orange with diverse gentlemen and other inhabitants, who had followed this prince in his exile, most of whom were in his pay, and banished by the Duke of Alva with others who between him and the states of all the provinces, on the contrary sought, by all possible promises made to the colonels already at his devotion, to gain the German troops, who were then garrisoned in the principal fortresses and the cities, that by their assistance he might master them, as he had gained many of them already, and held them attached to his interest in order, by their assistance, to force those who would not join with him in making war against the Prince of Orange, and the provinces of Holland and Zealand, more cruel and bloody than any war before. But, as no disguises can long conceal our intentions, this project was discovered before it could be executed; and he, unable to perform his promises, and instead of that peace so much boasted of at his arrival a new war kindled, not yet extinguished.

All these considerations give us more than sufficient reason to renounce the King of Spain, and seek some other powerful and more gracious prince to take us under his protection; and, more especially, as these countries have been for these twenty years abandoned to disturbance and oppression by their king, during which time the inhabitants were not treated as subjects, but enemies, enslaved forcibly by their own governors.

Having also, after the decease of Don Juan, sufficiently declared by the Baron de Selles that he would not allow the pacification of Ghent, the which Don Juan had in his majesty's name sworn to maintain, but daily proposing new terms of agreement less advantageous. Notwithstanding these discouragements we used all possible means, by petitions in writing, and the good offices of the greatest princes in Christendom, to be reconciled to our king, having lastly maintained for a long time our deputies at the Congress of Cologne, hoping that the intercession of his imperial majesty and of the electors would procure an honorable and lasting peace, and some degree of liberty, particularly relating to religion (which chiefly concerns God and our own consciences), at last we found by experience that nothing would be obtained of the king by prayers and treaties, which latter he made use of to divide and weaken the provinces, that he might the easier execute his plan rigorously, by subduing them one by one, which afterwards plainly appeared by certain proclamations and proscriptions published by the king's orders, by virtue of which we and all officers of the United Provinces with all our friends are declared rebels and as such to have forfeited our lives and estates. Thus, by rendering us odious to all, he might interrupt our commerce, likewise reducing us to despair, offering a great sum to any that would assassinate the Prince of Orange.

So, having no hope of reconciliation, and finding no other remedy, we have, agreeable to the law of nature in our own defense, and for maintaining the rights, privileges, and liberties of our countrymen, wives, and children, and latest posterity from being enslaved by the Spaniards, been constrained to renounce allegiance to the King of Spain, and pursue such methods as appear to us most likely to secure our ancient liberties and privileges. Know all men by these presents that being reduced to the last extremity, as above mentioned, we have unanimously and deliberately declared, and do by these presents declare, that the King of Spain has forfeited, ipso jure, all hereditary right to the sovereignty of those countries, and are determined from henceforward not to acknowledge his sovereignty or jurisdiction, nor any act of his relating to the domains of the Low Countries, nor make use of his name as prince, nor suffer others to do it. In consequence whereof we also declare all officers, judges, lords, gentlemen, vassals, and all other the inhabitants of this country of what condition or quality soever, to be henceforth discharged from all oaths and obligations whatsoever made to the King of Spain as sovereign of those countries. And whereas, upon the motives already mentioned, the greater part of the United Provinces have, by common consent of their members, submitted to the government and sovereignty of the illustrious Prince and Duke of Anjou, upon certain conditions stipulated with his highness, and whereas the most serene Archduke Matthias has resigned the government of these countries with our approbation, we command and order all justiciaries, officers, and all whom it may concern, not to make use of the name, titles, great or privy seal of the King of Spain from henceforward; but in lieu of them, as long as his highness the Duke of Anjou is absent upon urgent affairs relating to the welfare of these countries, having so agreed with his highness or otherwise, they shall provisionally use the name and title of the President and Council of the Province.

And, until such a president and counselors shall be nominated, assembled, and act in that capacity, they shall act in our name, except that in Holland and Zealand where they shall use the name of the Prince of Orange, and of the states of the said provinces until the aforesaid council shall legally sit, and then shall conform to the directions of that council agreeable to the contract made with his highness. And, instead of the king's seal aforesaid, they shall make use of our great seal, center-seal, and signet, in affairs relating to the public, according as the said council shall from time to time be authorized. And in affairs concerning the administration of justice, and transactions peculiar to each province, the provincial council and other councils of that country shall use respectively the name, title, and seal of the said province, where the case is to be tried, and no other, on pain of having all letters, documents, and despatches annulled. And, for the better and effectual performance hereof, we have ordered and commanded, and do hereby order and command, that all the seals of the King of Spain which are in these United Provinces shall immediately, upon the publication of these presents, be delivered to the estate of each province respectively, or to such persons as by the said estates shall be authorized and appointed, upon peril of discretionary punishment.

Moreover, we order and command that from henceforth no money coined shall be stamped with the name, title, or arms of the King of Spain in any of these United Provinces, but that all new gold and silver pieces, with their halfs and quarters, shall only bear such impressions as the states shall direct. We order likewise and command the president and other lords of the privy council, and all other chancellors, presidents, accountants-general, and to others in all the chambers of accounts respectively in these said countries, and likewise to all other judges and officers, as we hold them discharged from henceforth of their oath made to the King of Spain, pursuant to the tenor of their commission, that they shall take a new oath to the states of that country on whose jurisdiction they depend, or to commissaries appointed by them, to be true to us against the King of Spain and all his adherents, according to the formula of words prepared by the states-general for that purpose. And we shall give to the said counselors, justiciaries, and officers employed in these provinces, who have contracted in our name with his highness the Duke of Anjou, an act to continue them in their respective offices, instead of new commissions, a clause annulling the former provisionally until the arrival of his highness. Moreover, to all such counselors, accomptants, justiciaries, and officers in these Provinces, who have not contracted with his highness, aforesaid, we shall grant new commissions under our hands and seals, unless any of the said officers are accused and convicted of having acted under their former commissions against the liberties and privileges of this country or of other the like maladministration.

We farther command of the president and members of the privy council, chancellor of the Duchy of Brabant, also the chancellor of the Duchy of Guelders, and county of Zutphen, to the president and members of the council of Holland, to the receivers of great officers of Beoostersheldt and Bewestersheldt in Zealand, to the president and council of Friese, and to the Escoulet of Mechelen, to the president and members of the council of Utrecht, and to all other justiciaries and officers whom it may concern, to the lieutenants all and every of them, to cause this our ordinance to be published and proclaimed throughout their respective jurisdictions, in the usual places appointed for that purpose, that none may plead ignorance. And to cause our said ordinance to be observed inviolably, punishing the offenders impartially and without delay; for so it is found expedient for the public good. And, for better maintaining all and every article hereof, we give to all and every one of you, by express command, full power and authority. In witness whereof we have hereunto set our hands and seals, dated in our assembly at the Hague, the six and twentieth day of July, 1581, indorsed by the orders of the states-general, and signed J. De Asseliers.

President Heribert Barrera

2008-03-18T20:04:00.003+01:00

El polític més lúcid de Catalunya, un cervell privilegiat, un patriota insubornable.
És un plaer sentir el seu català.

Soldats d'Israel al Mur Occidental, juny 1967

2008-03-17T20:33:00.002+01:00

Proclama irlandesa de 1916

2008-03-17T19:46:00.002+01:00

The Balfour Declaration

2008-03-17T18:40:00.001+01:00

Foreign Office
November 2nd, 1917

Dear Lord Rothschild,

I have much pleasure in conveying to you, on behalf of His Majesty's Government, the following declaration of sympathy with Jewish Zionist aspirations which has been submitted to, and approved by, the Cabinet.

"His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."

I should be grateful if you would bring this declaration to the knowledge of the Zionist Federation.

Yours sincerely,
Arthur James Balfour

Tibet

2008-03-17T18:33:00.004+01:00

On mani padme hum.
Tibet i Catalunya, la mateixa lluita!
Boicot als Jocs de Beijing 2008!
Com sempre són els Estats Units els que defensen l'oprimit davant el gegant opressor i colonialista.
No volem governs realistes que giren la mirada. solidaritat activa amb el poble reprimit!
Quin serà el primer país que dirà que no anirà als Jocs? Qui vol aquest honor?
M'agradaria que aquest país pugués ser Catalunya.

Discurs del cap del Govern d'Andorra Òscar Ribas pronunciat a les Nacions Unides arran de l'admissió

2008-03-12T18:11:00.003+01:00

Excel·lentíssim Senyor Secretari General.
Digníssims representants dels Estats.
Senyores i senyors.

Avui és un dia històric per a Andorra. El meu país ha estat admès com a membre de l'Organització de les Nacions Unides; hem vingut aquí a Nova York per hissar la nostra bandera junt amb les dels altres països. Culminem així moltes de les aspiracions del nostre poble i tot un procés de serena i tenaç transformació. Andorra ja no és un vestigi del dret feudal i medieval, sinó un Estat homologat segons els criteris del Dret internacional modern. I d'aquesta manera s'ha tancat tot un secular procés de formulació jurídica que es va iniciar amb els Pariatges ara fa més de set-cents anys i ens ha conduït a la cerimònia que estem vivint.

En aquest moment, i en aquesta ocasió, és just que ho faci, i així ho faig, que tingui un especial record pels nostres dos caps d'Estat, els Excel·lentíssims Coprínceps, que han impulsat, col·laborat i acceptat la modernització institucional; i per a tots aquells dels meus conciutadans que des de l'any 1925, amb un primer intent d'aproximació a la Societat de Nacions, han lluitat per fer possible que aquest acte se celebrés.

Permetin, també, que els digui que per a mi personalment és un altíssim honor el fet de representar avui i aquí el poble andorrà i que em considero molt privilegiat de viure aquest moment i complir aquest deure tan gratificant. Perquè, avui, en assolir aquesta fita, Andorra obté els objectius de normalització o d'integració a la comunitat internacional als quals moltes persones de la meva generació i jo mateix hem dedicat els millors anys de la nostra vida.

Vull expressar el sincer agraïment al Consell de Seguretat i al Secretari General pel suport que ens ha estat atorgat en la tramitació de la nostra entrada. I de manera molt singular, vull fer constar la nostra viva i profunda gratitud als Excel·lentíssims representants de la República Francesa i del Regne d'Espanya, que, de fet, apadrinen avui l'ingrés del meu país. Els prego que facin arribar als seus Governs respectius l'expressió dels nostres sentiments, que són els que tradicionalment han marcat la nostra franca i lleial col·laboració, que estic segur que no solament es mantindrà sinó que encara s'enfortirà en el futur. I també estic convencut que, de manera semblant, es consolidarà la nostra integració en tot allò que la Comunitat Europea representa, perquè territorialment hi estem enclavats, però filosòficament i com a model de societat volem igualment estar-hi immergits.

Som un país petit però conscient del valor d'allò que és autèntic i que, en un món segons com desmesurat, la dimensió reduïda pot significar una aportació positiva d'equilibri i convivència. Quina hauria de ser la talla ideal d'un Estat? Evidentment ni l'economia ni la ciència política poden donar l'adequada resposta. Aristòtil nota, en la seva Política, que el volum de la polis ha de permetre que tothom conegui el caràcter dels altres; el territori, segons diu, ha de poder contemplar-se en la seva totalitat des del cim d'una muntanya: Andorra respon a aquestes característiques humanes i geogràfiques.

Amb altres micro-estats del món, temem més el gegantisme polític com més lligats estem a la noció de mesura i a l'accessibilitat del fet polític, una de les característiques dels nostres costums que s'ha de salvaguardar; perquè, encara creiem d'actualitat la fórmula de Protàgores: l'home és la mesura de totes les coses. Els grecs sabien perfectament que la diferència de volum comporta una diferència de qualitat. En un món que ha de lluitar per la pau, em sembla que hi ha un espai per als que hem optat per conviure i no imposar. I, per tant, Andorra té el decidit propòsit de fer, tan modestament com es vulgui, a escala de les seves possibilitats, aquesta contribució a la pau i la cooperació mundial i també la del seu antic i present amor per la llibertat.

Som un país que no té riqueses naturals. No té cap altra forca ni riquesa que la seva gent. Som un país del Pirineu, aquesta muntanya d'Europa que no separa, sinó que és un lloc de trobada. Estimular el desenvolupament econòmic del Pirineu és una prioritat que respon a criteris de benestar, prosperitat i qualitat de vida, però també, a part de consideracions de justícia i solidaritat, a la necessitat de fixar i retenir les poblacions autòctones a la muntanya per raons d'interès general com les de conservació de la natura. Andorra no és, però, una zona deprimida. Sempre ha estat capaç d'adaptar-se a les noves circumstàncies per aconseguir un elevat nivell de renda. Amb l'adopció de la nostra Constitució de forma democràtica i l'obertura de participació en el món internacional que iniciem en aquest acte d'avui, Andorra mira el futur amb optimisme, i ho fa confiant en les seves capacitats i esperances en les noves oportunitats que té al seu abast.

En realitat som una vall. I la vall és una forma de vida. És casa, aigua i habitatge i, per tant, una comunitat a mida de la persona i de la família. Tal com les grans valls del Ganges o del Nil han estat bressol de grans civilitzacions, la nostra petita vall del Valira també ha decantat, a través de segles, una identitat nacional que no s'ha fet contra res ni contra ningú. Ans al contrari, hem estat sempre un país d'acollida i una vall oberta a tothom que hi ha vingut. És precisament des de la nostra identitat que volem l'aportació de la nostra personalitat col·lectiva. Perquè identitat i universalitat són perfectament compatibles i juntes constitueixen la sòlida base de l'intercanvi de cultures, fonament necessari per bastir un món de pau i llibertat. És per això que, per obrir-se a la projecció exterior, convé donar primer cohesió a la pròpia identitat. Tenim ben clar que per fer coses i per comunicar-les cal ser cosmopolites i políglots, però també que per ser cal aprofundir en les pròpies arrels. I les nostres són les de la cultura catalana. El català és el nostre idioma oficial. És en la llengua de Ramon Llull, Ausies March i Salvador Espriu, la qual es parla des de Fraga -a l'Aragó- fins a Maó -a l'illa balear de Menorca- i des de Salses -al Rosselló francès- fins a Guardamar -a les terres meridionals del País Valencià. És en aquesta llengua, la catalana, que he vingut davant aquesta Assemblea a parlar de pau, llibertat i fraternitat.

Permetin que acabi citant la llegenda que figura en el nostre Escut nacional - Virtus, Unita, Fortior (l'acció o la força unida és més forta), que s'adiu amb els objectius que s'han fixat les Nacions Unides.

Moltes gràcies.

DECLARATION OF ESTABLISHMENT OF THE STATE OF ISRAEL

2008-03-12T17:54:00.003+01:00

ERETZ-ISRAEL was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.

After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom.

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, ma'pilim and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country's inhabitants, and aspiring towards independent nationhood.

In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country.

This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home.

The catastrophe which recently befell the Jewish people - the massacre of millions of Jews in Europe - was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State, which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the comity of nations.

Survivors of the Nazi holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Eretz-Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national homeland.

In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations.

On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.

This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.

ACCORDINGLY WE, MEMBERS OF THE PEOPLE'S COUNCIL, REPRESENTATIVES OF THE JEWISH COMMUNITY OF ERETZ-ISRAEL AND OF THE ZIONIST MOVEMENT, ARE HERE ASSEMBLED ON THE DAY OF THE TERMINATION OF THE BRITISH MANDATE OVER ERETZ-ISRAEL AND, BY VIRTUE OF OUR NATURAL AND HISTORIC RIGHT AND ON THE STRENGTH OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY, HEREBY DECLARE THE ESTABLISHMENT OF A JEWISH STATE IN ERETZ-ISRAEL, TO BE KNOWN AS THE STATE OF ISRAEL.

WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of State, and its executive organ, the People's Administration, shall be the Provisional Government of the Jewish State, to be called "Israel".

THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947, and will take steps to bring about the economic union of the whole of Eretz-Israel.

WE APPEAL to the United Nations to assist the Jewish people in the building-up of its State and to receive the State of Israel into the comity of nations.

WE APPEAL - in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.

WE EXTEND our hand to all neighbouring states and their peoples in an offer of peace and good neighbourliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.

WE APPEAL to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream - the redemption of Israel.

PLACING OUR TRUST IN THE "ROCK OF ISRAEL", WE AFFIX OUR SIGNATURES TO THIS PROCLAMATION AT THIS SESSION OF THE PROVISIONAL COUNCIL OF STATE, ON THE SOIL OF THE HOMELAND, IN THE CITY OF TEL-AVIV, ON THIS SABBATH EVE, THE 5TH DAY OF IYAR, 5708 (14TH MAY,1948).

David Ben-Gurion

Daniel Auster
Mordekhai Bentov
Yitzchak Ben Zvi
Eliyahu Berligne
Fritz Bernstein
Rabbi Wolf Gold
Meir Grabovsky
Yitzchak Gruenbaum
Dr. Abraham Granovsky
Eliyahu Dobkin
Meir Wilner-Kovner
Zerach Wahrhaftig
Herzl Vardi

Rachel Cohen
Rabbi Kalman Kahana
Saadia Kobashi
Rabbi Yitzchak Meir Levin
Meir David Loewenstein
Zvi Luria
Golda Myerson
Nachum Nir
Zvi Segal
Rabbi Yehuda Leib Hacohen Fishman

David Zvi Pinkas
Aharon Zisling
Moshe Kolodny
Eliezer Kaplan
Abraham Katznelson
Felix Rosenblueth
David Remez
Berl Repetur
Mordekhai Shattner
Ben Zion Sternberg
Bekhor Shitreet
Moshe Shapira
Moshe Shertok

* Published in the Official Gazette, No. 1 of the 5th, Iyar, 5708 (14th May, 1948).

Estonian Declaration of Independence

2008-03-12T17:51:00.002+01:00

MANIFESTO
To All The Peoples of EstoniaNever in the course of centuries have the Estonian people lost their ardent desire for Independence. From generation to generation Estonians have kept alive the secret hope that in spite of enslavement and oppression by other nations the time will come in Estonia "when all splinters, at both end, will burst forth into flames" and when "Kalev will come home to bring his children happiness."

Now this time has arrived.

An unprecedented struggle of nations has destroyed the rotten foundations of the Russian Tsarist Empire. All over the Sarmatian plains ruinous anarchy is spreading, threatening to overwhelm in its wake all peoples living within the borders of the former Russian Empire. From the West the victorious armies of Germany are approaching in order to claim their share of Russia's legacy and, above all, to take possession of the coastal territories of the Baltic Sea.

In this fateful hour the Estonian National Council, as the legal representative of our land and people, has, in unanimous agreement with Estonian democratic political parties and organizations, and by virtue of the right of self-determination of peoples, found it necessary to take the following decisive steps to shape the destiny of Estonian land and people.

ESTONIA,within her historical and ethnic boundaries, is declared as of today an
INDEPENDENT DEMOCRATIC REPUBLIC.
The independent Republic of Estonia shall include Harjumaa, Läänemaa, Järvamaa, Virumaa, with the city of Narva and its surroundings, Tartumaa, Võrumaa, Viljandimaa, and Pärnumaa with the Baltic islands of Saaremaa, Hiiumaa, Muhumaa, and others where the Estonians have settled for ages in large majorities. Final determination of the boundaries of the Republic in the areas bordering on Latvia and Russia will be carried out by plebiscite after the conclusion of the present World War.

In the aforementioned areas the only supreme and organizing authority is the democratically supported Estonian Salvation Committee created by the Estonian National Council.

The Republic of Estonia wishes to maintain absolute political neutrality towards all neighbouring states and peoples and expects that they will equally respond with complete neutrality.

Estonian military forces shall be reduced to the extent necessary to maintain internal order. Estonian soldiers serving in the Russian military forces will be called home and demobilized.

Until the Estonian Constituent Assembly, elected by general, direct, secret, and proportional elections, will convene and determine the constitutional structure of the country, all executive and legislative authority will remain vested in the Estonian National Council and in the Estonian Provisional Government created by it, whose activities must be guided by the following principles:

1. All citizens of the Republic of Estonia, irrespective of their religion, ethnic origin, and political views, shall enjoy equal protection under the law and courts of justice of the Republic.

2. All ethnic minorities, the Russians, Germans, Swedes, Jews, and others residing within the borders of the republic, shall be guaranteed the right to their cultural autonomy.

3. All civic freedoms, such at the freedom of expression, of the press, of religion, of assembly, of association, and the freedom to strike as well as the inviolability of the individual and the home, shall be irrefutably effective within the territory of the Estonian Republic and based on laws which the Government shall immediately work out.

4. The Provisional Government will be charged with the immediate organization of the courts of justice to protect the security of the citizens. All political prisoners shall be released immediately.

5. The city, county, and township local governments will be called upon to continue their work, which has been violently interrupted.

6. For maintenance of public order, people's militia, subordinated to local governments, shall be immediately organized and citizens' self-defence organizations established in the cities and rural areas.

7. The Provisional Government in instructed to work out without delay, on a broad democratic basis, bills for the solution of the agrarian problem, and the problems of labor, of food supply, and of finances.

E s t o n i a ! You stand on the threshold of a hopeful future in which you shall be free and independent in determining and directing your destiny. Begin building a home of your own, ruled by law and order in order to be a worthy member within the family of civilized nations. Sons and daughters of our homeland, let us unite as one man in the sacred task of building our homeland. The sweat and blood shed by our ancestors for this country oblige us to do it, and we must do it for the sake of our future generations.

May God watch over Thee
And amply bless
Whatever thou undertake
My dear homeland!

Long live the independent democratic Republic of Estonia!
Long live peace among nations!

The Council of Elders
Estonian National Council
February 24, 1918

DECLARATION OF INDEPENDENCE OF LITHUANIA

2008-03-12T17:32:00.002+01:00

The Council of Lithuania (Lietuvos Taryba) in its session of February 16, 1918 decided unanimously to address the governments of Russia, Germany, and other states with the following declaration:
The Council of Lithuania, as the sole representative of the Lithuanian nation, in conformity with the recognized right to national self-determination, and in accordance with the resolution of the Vilnius Conference of September 18-23, 1917 proclaims the restoration of the independent state of Lithuania, founded on democratic principles, with Vilnius as its capital, and declares the termination of all state ties which formerly bound this State to other nations.
The Council of Lithuania also declares that the foundation of the Lithuanian state and its relations with other countries will be finally determined by the Constituent Assembly, to be convocated as soon as possible, elected democratically by all its inhabitants.
The Council of Lithuania in informing the Government of -------to this effect kindly requests the recognition of the Independent State of Lithuania.
Vilnius, February 16, 1918
Council of Lithuania

USA Declaration of Independence

2008-03-06T21:00:00.002+01:00

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 nature 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; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only.

He has called together legislative bodies at places unusual uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining, in the mean time, exposed to all the dangers of invasions from without and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.

He has kept among us, in times of peace, standing armies, without the consent of our legislatures.

He has affected to render the military independent of, and superior to, the civil power.

He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us;

For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states;

For cutting off our trade with all parts of the world;

For imposing taxes on us without our consent;

For depriving us, in many cases, of the benefits of trial by jury;

For transporting us beyond seas, to be tried for pretended offenses;

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies;

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrection among us, and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in our attentions to our British brethren. We have warned them, from time to time, of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity; and we have conjured them, by the ties of our common kindred, to disavow these usurpations which would inevitably interrupt our connections and correspondence. They too, have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity which denounces our separation, and hold them as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.

Kosovo Declaration of Independence

2008-02-21T19:25:00.002+01:00

The Kosovo assembly adopted the Declaration of Independence on February 17.

Convened in an extraordinary meeting on February 17, 2008, in Pristina, the capital of Kosovo,

Answering the call of the people to build a society that honours human dignity and affirms the pride and purpose of its citizens,
Committed to confront the painful legacy of the recent past in a spirit of reconciliation and forgiveness,
Dedicated to protecting, promoting and honoring the diversity of our people,
Reaffirming our wish to become fully integrated into the Euro-Atlantic family of democracies,
Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation,
Recalling the years of strife and violence in Kosovo, that disturbed the conscience of all civilised people,
Grateful that in 1999 the world intervened, thereby removing Belgrade's governance over Kosovo and placing Kosovo under United Nations interim administration,
Proud that Kosovo has since developed functional, multi-ethnic institutions of democracy that express freely the will of our citizens,
Recalling the years of internationally-sponsored negotiations between Belgrade and Pristina over the question of our future political status,
Regretting that no mutually-acceptable status outcome was possible, in spite of the good-faith engagement of our leaders,
Confirming that the recommendations of UN Special Envoy Martti Ahtisaari provide Kosovo with a comprehensive framework for its future development and are in line with the highest European standards of human rights and good governance,
Determined to see our status resolved in order to give our people clarity about their future, move beyond the conflicts of the past and realise the full democratic potential of our society,
Honouring all the men and women who made great sacrifices to build a better future for Kosovo,
1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.
2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision-making processes.
3. We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the legislation included in its Annex XII, particularly those that protect and promote the rights of communities and their members.
4. We shall adopt as soon as possible a Constitution that enshrines our commitment to respect the human rights and fundamental freedoms of all our citizens, particularly as defined by the European Convention on Human Rights. The Constitution shall incorporate all relevant principles of the Ahtisaari Plan and be adopted through a democratic and deliberative process.
5. We welcome the international community's continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission. We also invite and welcome the North Atlantic Treaty Organization to retain the leadership role of the international military presence in Kosovo and to implement responsibilities assigned to it under UN Security Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo institutions are capable of assuming these responsibilities. We shall cooperate fully with these presences to ensure Kosovo's future peace, prosperity and stability.
6. For reasons of culture, geography and history, we believe our future lies with the European family. We therefore declare our intention to take all steps necessary to facilitate full membership in the European Union as soon as feasible and implement the reforms required for European and Euro-Atlantic integration.
7. We express our deep gratitude to the United Nations for the work it has done to help us recover and rebuild from war and build institutions of democracy. We are committed to working constructively with the United Nations as it continues its work in the period ahead.
8. With independence comes the duty of responsible membership in the international community. We accept fully this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and Cooperation in Europe, and the international legal obligations and principles of international comity that mark the relations among states. Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall fully respect the sovereignty and territorial integrity of all our neighbors. Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations.
9. We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part, including the Vienna Conventions on diplomatic and consular relations. We shall cooperate fully with the International Criminal Tribunal for the Former Yugoslavia. We intend to seek membership in international organisations, in which Kosovo shall seek to contribute to the pursuit of international peace and stability.
10. Kosovo declares its commitment to peace and stability in our region of southeast Europe. Our independence brings to an end the process of Yugoslavia's violent dissolution. While this process has been a painful one, we shall work tirelessly to contribute to a reconciliation that would allow southeast Europe to move beyond the conflicts of our past and forge new links of regional cooperation. We shall therefore work together with our neighbours to advance a common European future.
11. We express, in particular, our desire to establish good relations with all our neighbours, including the Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to develop further in the near future. We shall continue our efforts to contribute to relations of friendship and cooperation with the Republic of Serbia, while promoting reconciliation among our people.
12. We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999). We declare publicly that all states are entitled to rely upon this declaration, and appeal to them to extend to us their support and friendship.

Kosovo

2008-02-20T18:55:00.004+01:00

El que m'ha cridat més l'atenció de tot és que la gent enlaira la bandera albanesa i l'americana, no la kosovar, blava amb la silueta del país.
Personalment, crec que Kosovo ha de decidir què fa amb Albània (Shqiperia).
I a la gent que diu que no es pot declarar la independència unilateralment els dic: digueu-ho als americans, que crec que el 4 de juliol de 1776 no varen demanar permís als britànics!
Hauríem de reflexionar sobre el fet que tots els pobles europeus que darrerament han lluitat per obtenir la llibertat ho han fet enlairant la bandera americana i que a casa nostra, aquest fet, seria vist com una cosa estranya.

El rei en Jaume

2008-02-02T21:21:00.001+01:00

Festa de l'Estendard

2007-12-31T21:07:00.001+01:00

Avui ha tengut lloc a la plaça de Cort la Festa de l'Estendard. Comparant el cerimonial d'avui amb el que hi havia fins l'any 2000 not a faltar determinades coses.
Els soldats entraven i sortien de la plaça en formació i durant tot el temps de la cerimònia la mantenien. Així mateix, les tres salves que disparaven donaven a l'homenatge un caràcter més solemne.
Tot això ara no hi és.

Abans podíem veure que mentre la Corporació era a la Seu dos policies locals en uniforme de gala custodiaven el penó. Avui el penó estava totsol enmig de la plaça... No és el millor homenatge que se li pot fer.

Comparat amb el contengut que tenia la festa ja en els temps d'en Ramon Muntaner és clar que a cada bugada hi perdem un llençol...

Ara que encara queden més de 8 mesos per tornar celebrar la festa hauríem de començar a perfilar una estratègia perquè la d’enguany sigui millor i més digna que la dels darrers anys.
Llegint al BOIB 186 de 15-12-07 la declaració de Bé d’Interès Cultural immaterial a favor de la Festa de l’Estendard veig com és de precària la nostra situació: un enfilall de tòpics, faltes d’ortografia, un esforç deliberat per no dir català ni Catalunya, en fi…
A diferència del que es feia fins l’any 2000 és vergonyós que l’estendard romangui tot sol a la plaça de Cort mentre dura l’ofici a la Seu. Qui pot fer-ho hauria d’ordenar que dos policies municipals (segles enrere ho feien els artillers) el tornassin custodiar en tot moment.
Tot i que preferiria que l’estendard es passejàs per la ciutat seguint el trajecte tradicional. I s’hauria de recuperar en tot el possible el moment culminant que era quan l’estendard era hissat per sobre de la murada sense perdre la verticalitat ( tal com fan el 9 d’Octubre a la ciutat de València, encara que amb la senyera equivocada).
Esper que els termes de la declaració de BIC de la Festa no siguin una cotilla que n’afavoresqui la folklorització i la fossilització.

Amos i esclaus

2007-12-22T11:54:00.000+01:00

La marca de l'esclau és parlar la llengua del seu amo. Tàcit.
Algú sap com es diu aquesta frase en llatí?

Discurs de Joan Pau II a la UNESCO de 1980

2007-12-06T12:02:00.000+01:00

DISCORSO DI GIOVANNI PAOLO II
ALL'ORGANIZZAZIONE DELLE NAZIONI UNITE
PER L'EDUCAZIONE, LA SCIENZA E LA CULTURA (UNESCO)

Parigi
Lunedì 2 giugno 1980

Signor presidente della conferenza generale,
signor presidente del consiglio esecutivo,
signor direttore generale, signore, signori.

1. Desidero anzitutto esprimere i miei ringraziamenti molto cordiali per l'invito che il signor Amadou Mahtar-M'Bow, direttore generale dell'Organizzazione delle Nazioni Unite per l'Educazione, la Scienza e la Cultura mi ha indirizzato a più riprese e fin dalla prima visita che egli mi ha reso l'onore di farmi. Numerose sono le ragioni per le quali io sono felice di poter rispondere oggi a questo invito che ho, fin dal primo momento, altamente apprezzato. Per le amabili parole di benvenuto che essi hanno appena pronunciato a mio riguardo, ringrazio il signor Napoléon Leblanc, presidente della conferenza generale, il signor Chams Eldine El-Wakil, presidente del consiglio esecutivo, e il signor Amadou Mahtar-M'Bow, direttore generale dell'organizzazione. Voglio salutare anche tutti coloro che sono qui riuniti per la 109° sessione del consiglio esecutivo dell'Unesco. Non potrei nascondere la mia gioia nel vedere riuniti in questa occasione tanti delegati delle nazioni del mondo intero, tante personalità eminenti, tanti specialisti, tanti illustri rappresentanti del mondo della cultura e della scienza. Con il mio intervento cercherò di portare la mia modesta pietra all'edificio che voi costruite con assiduità e perseveranza, signore e signori, mediante le vostre riflessioni e decisioni in tutti gli ambiti che sono di competenza dell'Unesco.

2. Che mi sia permesso di cominciare riferendomi alle origini della vostra organizzazione. Gli avvenimenti che hanno segnato la fondazione dell'Unesco mi ispirano gioia e gratitudine verso la provvidenza: la firma della sua costituzione il 16 novembre 1945; l'entrata in vigore di questa costituzione e la fondazione dell'organizzazione il 4 novembre 1946; l'accordo fra l'Unesco e l'Organizzazione delle Nazioni Unite approvato dall'assemblea generale dell'Onu nello stesso anno.

La vostra organizzazione è, di fatto, l'opera delle nazioni che furono, dopo la fine della terribile seconda guerra mondiale, spinte da ciò che si potrebbe chiamare un desiderio spontaneo di pace, d'unione e di riconciliazione. Queste nazioni cercarono i mezzi e le forme d'una collaborazione capace di stabilire. d'approfondire e di assicurare, in maniera durevole, questa nuova intesa.

L'Unesco è dunque nata, come l'Organizzazione delle Nazioni Unite, perché i popoli sapessero che alla base delle grandi imprese destinate a servire la pace e il progresso dell'umanità sull'insieme del globo, c'era la necessità dell'unione delle nazioni, del rispetto reciproco e della comprensione internazionale.

3. Continuando l'azione, il pensiero e il messaggio del mio grande predecessore, il Papa Paolo VI, io ho avuto l'onore di prendere la parola davanti all'assemblea generale delle Nazioni Unite, nel mese d'ottobre scorso, su invito del signor Kurt Waldheim, segretario dell'Onu. Poco dopo, il 12 novembre 1979, sono stato invitato dal signor Edouard Saouma, direttore generale dell'Organizzazione delle Nazioni Unite per l'alimentazione e l'agricoltura a Roma. In quelle circostanze mi è stato permesso di trattare questioni profondamente legate all'insieme dei problemi che si riferiscono all'avvenire pacifico dell'uomo sulla terra. Di fatto, tutti questi problemi sono intimamente legati. Noi ci troviamo in presenza, per così dire, d'un vasto sistema di vasi comunicanti; i problemi della cultura, della scienza e dell'educazione non si presentano, nella vita delle nazioni e nelle relazioni internazionali, in maniera indipendente dagli altri problemi dell'esistenza umana, come quelli della pace e della fame. I problemi della cultura sono condizionati dalle altre dimensioni dell'esistenza umana come, a loro volta, questi li condizionano.

4. Vi è anche - ed io l'ho sottolineato nel mio discorso all'Onu, riferendomi alla dichiarazione universale dei diritti dell'uomo - una dimensione fondamentale, che è capace di sconvolgere nelle loro fondamenta i sistemi che strutturano l'insieme del l'umanità e di liberare l'esistenza umana, individuale e collettiva, dalle minacce che pesano su di lei. Questa dimensione fondamentale è l'uomo, l'uomo nella sua integrità, l'uomo che vive nel medesimo tempo nella sfera dei valori materiali e in quella dei valori spirituali. Il rispetto dei diritti inalienabili della persona umana è alla base di tutto (cfr. Ioannis Pauli PP. II «Allocutio ad Nationum Unitarum Legatos», 7 et 13, die 2 oct. 1979: «Insegnamenti di Giovanni Paolo II», II,2 [1979] 525-526 et 531-532). Ogni minaccia contro i diritti dell'uomo, che sia nel quadro dei suoi beni spirituali o in quello dei suoi beni materiali, fa violenza a questa dimensione fondamentale. Per questo, nel mio discorso alla Fao, ho sottolineato che nessun uomo, nessun paese e nessun sistema del mondo possono restare indifferenti dinanzi alla «geografia della fame» e le minacce gigantesche che ne seguiranno se tutto l'orientamento della politica economica, ed in particolare la gerarchia degli investimenti, non cambieranno in modo essenziale e radicale. Per questo anche insisto, riferendomi alle origini della vostra organizzazione, sulla necessità di mobilitare tutte le forze che orientano la dimensione spirituale dell'esistenza umana, che testimoniano del primato dello spirituale nell'uomo - di ciò che corrisponde alla dignità della sua intelligenza, della sua volontà e del suo cuore - per non soccombere di nuovo alla mostruosa alienazione del male collettivo che è sempre pronto ad utilizzare le risorse materiali nella lotta sterminatrice degli uomini contro gli uomini, delle nazioni contro le nazioni.

5. All'origine dell'Unesco, come anche alla base della dichiarazione universale dei diritti dell'uomo si trovano dunque questi primi nobili impulsi della coscienza umana, dell'intelligenza e della volontà. Io mi richiamo a questa origine, a questo inizio, a queste premesse e a questi primi principi. E in loro nome che vengo oggi a Parigi, nella sede della vostra organizzazione, con una preghiera: che al termine d'una tappa di più di trent'anni delle vostre attività, voi vogliate unirvi ancora di più attorno a questi ideali e principi che ci furono all'inizio. E in loro nome anche che mi permetterò ora di proporvi alcune considerazioni veramente fondamentali perché è solamente alla loro luce che risplende pienamente il significato di questa istituzione che ha per nome Unesco, Organizzazione delle Nazioni Unite per l'educazione, la Scienza e la Cultura.

6. «Genus humanum arte et ratione vivit» (cfr. S.Thomae «In Aristotelis "Post. Analyt."», 1). Queste parole di uno dei più grandi geni del cristianesimo, che fu nello stesso tempo un continuatore fecondo del pensiero antico, portano al di là del cerchio e del significato contemporaneo della cultura occidentale sia mediterranea che atlantica. Esse hanno un significato che si applica all'insieme dell'umanità in cui si incontrano le diverse tradizioni che costituiscono la sua eredità spirituale e le diverse epoche della sua cultura. Il significato essenziale della cultura consiste, secondo queste parole di san Tommaso d'Aquino, nel fatto che essa è una caratteristica della vita umana come tale. L'uomo vive di una vita veramente umana grazie alla cultura. La vita umana è cultura nel senso anche che l'uomo si distingue e si differenzia attraverso essa da tutto ciò che esiste per altra parte nel mondo visibile: l'uomo non può essere fuori della cultura. La cultura è un modo specifico dell'«esistere» e dell'«essere» dell'uomo. L'uomo vive sempre secondo una cultura che gli è propria, e che, a sua volta, crea fra gli uomini un legame che pure è loro proprio, determinando il carattere inter-umano e sociale dell'esistenza umana. Nell'unità della cultura, come modo proprio dell'esistenza umana, si radica nello stesso tempo la pluralità delle culture in seno alle quali l'uomo vive. In questa pluralità, L'uomo si sviluppa senza perdere tuttavia il contatto essenziale con l'unità della cultura in quanto dimensione fondamentale ed essenziale della sua esistenza e del suo essere.

7. L'uomo che, nel mondo visibile, è l'unico soggetto ontico della cultura, è anche il suo unico oggetto e il suo termine. La cultura è ciò per cui l'uomo in quanto uomo diventa più uomo, «è» di più, accede di più all'«essere». E' qui anche che si fonda la distinzione capitale fra ciò che l'uomo è e ciò che egli ha, fra l'essere e l'avere. La cultura si situa sempre in relazione essenziale e necessaria a ciò che è l'uomo, mentre la sua relazione a ciò che egli ha, al suo «avere», è non soltanto secondaria, ma del tutto relativa. Tutto l'«avere» dell'uomo non è importante per la cultura, non è un fattore creatore della cultura se non nella misura in cui l'uomo, con la mediazione del suo «avere», può nello stesso tempo «essere» più pienamente come uomo in tutte le dimensioni della sua esistenza, in tutto ciò che caratterizza la sua umanità. L'esperienza delle diverse epoche, senza escludere la presente, dimostra che si pensa alla cultura e che se ne parla anzitutto in relazione alla natura dell'uomo e solo in modo secondario e indiretto in relazione al mondo delle sue produzioni. Questo non toglie nulla al fatto che noi giudichiamo il fenomeno della cultura a partire da ciò che l'uomo produce o che noi traiamo da questo nello stesso tempo delle conclusioni sull'uomo. Tale approccio - modo tipico di processo di conoscenza «a posteriori» - contiene in sé la possibilista di risalire, in senso opposto, verso le dipendenze ontico-causali. L'uomo, e solo l'uomo, è «autore» o «artefice» della cultura; l'uomo, e solo l'uomo, si esprime in essa ed in essa trova il suo proprio equilibrio.

8. Noi tutti qui presenti ci incontriamo sul terreno della cultura, realtà fondamentale che ci unisce e che è alla base dell'istituzione e delle finalità dell'Unesco. Ci incontriamo per lo stesso fatto intorno all'uomo e in un certo senso, in lui, nell'uomo. Quest'uomo che si esprime e si oggettivizza nella e mediante la cultura, è unico, completo e indivisibile. Egli è allo stesso tempo soggetto e artefice della cultura. Non lo si può quindi considerare unicamente come la risultante di tutte le condizioni concrete della sua esistenza, come la risultante - per non citare che un esempio - delle relazioni di produzione che prevalgono ad un'epoca determinata. Questo criterio delle relazioni di produzione non sarebbe allora in nessun modo una chiave per la comprensione della storicità dell'uomo, per la comprensione della sua cultura e delle molteplici forme del suo sviluppo? Certo, questo criterio costituisce bene una chiave, ed anche una chiave preziosa, ma non è la chiave fondamentale, costitutiva. Le culture umane riflettono, non c'è dubbio, i diversi sistemi delle relazioni della produzione; tuttavia non è questo o quel sistema che è all'origine della cultura, ma è l'uomo, L'uomo che vive nel sistema, che l'accetta o che cerca di cambiarlo. Non si può pensare una cultura senza soggettività umana e senza causalità umana; ma nell'ambito culturale, l'uomo è sempre il fatto primario: l'uomo è il fatto primordiale e fondamentale della cultura. E questo l'uomo lo è sempre nella sua totalità: nell'insieme integrale della sua soggettività spirituale e materiale. Se la distinzione fra cultura spirituale e cultura materiale è giusta in funzione del carattere e del contenuto dei prodotti nei quali la cultura si manifesta, bisogna constatare nello stesso tempo che, da una parte, le opere della cultura materiale fanno apparire sempre una «spiritualizzazione» della materia, una sottomissione dell'elemento materiale alle forze spirituali dell'uomo, vale a dire, alla sua intelligenza e alla sua volontà, e che, d'altra parte, le opere della cultura spirituale manifestano, in una maniera specifica, una «materializzazione» dello spirito, una incarnazione di ciò che è spirituale. Nelle opere culturali, questa duplice caratteristica sembra essere ugualmente primordiale ed ugualmente permanente. Ecco dunque, a guisa di conclusione teorica, una base sufficiente per comprendere la cultura attraverso l'uomo integrale, attraverso tutta la realtà della sua soggettività. Ecco anche - nell'ambito dell'agire - la base sufficiente per cercare sempre nella cultura l'uomo integrale, l'uomo tutto intero, in tutta la verità della sua soggettività spirituale e corporale; la base che è sufficiente per non sovrapporre alla cultura - sistema autenticamente umano, sintesi splendida dello spirito e del corpo - delle divisioni e delle opposizioni preconcette. Di fatto, che si tratti di una assolutizzazione della materia nella struttura del soggetto umano, o, inversamente, di una assolutizzazione dello spirito in questa stessa struttura, né l'una né l'altra esprimono la verità dell'uomo e non servono la sua cultura.

9. Vorrei fermarmi qui ad un'altra considerazione essenziale, ad una realtà di un ordine ben diverso. Possiamo accostarla notando il fatto che la santa Sede è rappresentata all'Unesco dal suo osservatore permanente, la cui presenza si situa nella prospettiva della natura stessa della sede apostolica. Questa presenza è, in un modo più ampio ancora, in consonanza con la natura e la missione della Chiesa cattolica e, indirettamente, con quella di tutto il cristianesimo. Colgo l'occasione che mi è offerta oggi per esprimere una convinzione personale profonda. La presenza della sede apostolica presso la vostra organizzazione - benché motivata dalla sovranità specifica della santa Sede - trova soprattutto la sua ragion d'essere nel legame organico e costitutivo che esiste fra la religione in generale e il cristianesimo in particolare da una parte, e la cultura dall'altra. Questa relazione si estende alle molteplici realtà che bisogna definire come espressioni concrete della cultura nelle diverse epoche della storia e in tutti i punti del globo. Non sarà certo esagerato affermare in particolare che, attraverso una moltitudine di fatti, l'Europa tutta intera - dall'Atlantico agli Urali - testimonia, nella storia di ogni nazione come in quella della comunità intera, il legame fra la cultura e il cristianesimo. Ricordando questo, non voglio in alcun modo diminuire l'eredità degli altri continenti, né la specificità e il valore di quella stessa eredità che deriva da altre fonti di ispirazione religiosa, umana ed etica. Ben di più, a tutte le culture dell'insieme della famiglia umana, dalle più antiche a quelle che ci sono contemporanee, desidero rendere l'omaggio più profondo e sincero. E' pensando a tutte le culture che voglio dire ad alta voce qui, a Parigi, nella sede dell'Unesco, con rispetto e ammirazione. «Ecco l'uomo!». Voglio proclamare la mia ammirazione davanti alla ricchezza creatrice dello spirito umano, davanti ai suoi sforzi incessanti per conoscere e per affermare l'identità dell'uomo: di quest'uomo che è sempre presente in tutte le forme particolari di cultura.

10. Parlando invece del posto della Chiesa e della sede apostolica presso la vostra organizzazione, non penso soltanto a tutte le opere della cultura nelle quali, nel corso dei due ultimi millenni, si è espresso l'uomo che ha accettato Cristo e il Vangelo, né alle istituzioni di diverse specie che sono nate dalla stessa ispirazione nell'ambito dell'educazione, dell'istruzione, della beneficenza, dell'assistenza sociale e in tanti altri. Penso soprattutto, signore e signori, al legame fondamentale del Vangelo, ossia del messaggio di Cristo e della Chiesa, con l'uomo nella sua stessa umanità. Questo legame è in effetti creatore della cultura nel suo fondamento stesso. Per creare la cultura, bisogna considerare, fino alle sue ultime conseguenze e integralmente, l'uomo come un valore particolare e autonomo, come il soggetto portatore della trascendenza della persona. Bisogna affermare l'uomo per se stesso e non per qualche altro motivo o ragione: unicamente per se stesso! Ancor più, bisogna amare l'uomo perché è uomo, bisogna rivendicare l'amore per l'uomo in ragione della dignità particolare che egli possiede. L'insieme delle affermazioni concernenti l'uomo appartiene alla sostanza stessa del messaggio di Cristo e della missione della Chiesa, malgrado tutto ciò che gli spiriti critici hanno potuto dichiarare in materia, e tutto ciò che hanno potuto fare le diverse correnti opposte alla religione in generale e al cristianesimo in particolare. Nel cuore della storia, noi siamo già stati più di una volta e siamo ancora i testimoni d'un processo, d'un fenomeno molto significativo. Là dove sono state soppresse le istituzioni religiose, dove le idee e le opere nate dall'ispirazione religiosa e, in particolare, dalla ispirazione cristiana, sono state private del loro diritto di cittadinanza, gli uomini ritrovano di nuovo questi stessi dati, fuori dalle strade istituzionali, col confronto che si opera, nella verità e nello sforzo interiore, fra ciò che costituisce la loro umanità e ciò che è contenuto nel messaggio cristiano. Signore e signori, mi vorrete perdonare questa affermazione. Proponendola, non ho voluto offendere assolutamente nessuno. Vi prego di comprendere che, in nome di ciò che sono, non potevo astenermi di dare questa testimonianza. Essa porta anche in sé quella verità - che non può essere passata sotto silenzio - sulla cultura, se si cerca in essa tutto ciò che è umano, ciò in cui l'uomo si esprime o mediante il quale vuol essere il soggetto della propria esistenza. Parlandone, volevo nello stesso tempo manifestare ancor più la mia gratitudine per i legami che uniscono l'Unesco alla sede apostolica, legami di cui la mia presenza oggi vuol essere una espressione particolare.

11. Da tutto questo deriva un certo numero di conclusioni fondamentali. In effetti, le considerazioni che ho fatto mostrano con evidenza che il compito primario ed essenziale della cultura in generale e anche di ogni cultura, è l'educazione. L'educazione consiste in sostanza nel fatto che l'uomo divenga sempre più umano, che possa «essere» di più e non solamente che possa «avere» di più, e che, di conseguenza, attraverso tutto ciò che egli «ha», tutto ciò che egli «possiede», sappia sempre più pienamente, «essere» uomo. Per questo bisogna che l'uomo sappia «essere più» non solo «con gli altri», ma anche «per gli altri». L'educazione ha un'importanza fondamentale per la formazione dei rapporti interumani e sociali. A questo punto, tocco anche un insieme di assiomi, sul terreno dei quali le tradizioni del cristianesimo derivate dal Vangelo incontrano l'esperienza educativa di molti uomini ben disposti e profondamente saggi, tanto numerosi in tutti i secoli della storia. Non mancano neppure nella nostra epoca questi uomini che si rivelano grandi semplicemente per la loro umanità, che sanno dividere con gli altri, in particolare con i giovani. Nello stesso tempo, i sintomi di crisi di ogni genere, di fronte ai quali soccombono gli ambienti e le società, che, per altro verso, sono i più provveduti - crisi che investono prima di tutto le giovani generazioni - fanno a gara nel testimoniare che l'opera di educazione dell'uomo non si compie soltanto con l'aiuto delle istituzioni né solo con l'aiuto di mezzi organizzati e materiali, per quanto eccellenti siano. Essi mostrano anche che il più importante è sempre l'uomo, l'uomo e la sua autorità morale, che deriva dalla verità dei suoi principi e dalla conformità delle sue azioni con questi principi.

12. In quanto organizzazione mondiale di massima competenza in tutti i problemi della cultura, l'Unesco non può ignorare questi altri problemi assolutamente primordiali: che fare perché l'educazione dell'uomo si realizzi soprattutto nella famiglia? Quale è lo stato della moralità pubblica che assicurerà alla famiglia e soprattutto ai genitori, l'autorità morale necessaria a questo fine? Quale tipo d istruzione? Quale forma di legislazione sostiene questa autorità o, al contrario, l'indebolisce o la distrugge? Le cause di successo e di insuccesso nella formazione dell'uomo mediante la sua famiglia si situano sempre all'interno stesso dell'ambiente creatore fondamentale della cultura che è la famiglia ed anche a un livello superiore, quello della competenza dello Stato e dei suoi organi da cui esse restano dipendenti. Questi problemi non possono non provocare riflessione e sollecitudine nel foro dove si incontrano i rappresentanti qualificati dello Stato. Non c'è dubbio che il fatto culturale primario è fondamentale è l'uomo spiritualmente maturo, vale a dire pienamente educato, l'uomo capace di educare se stesso e di educare gli altri. Non c è dubbio neppure che la dimensione primaria e fondamentale della cultura è la sana moralità: la cultura morale.

13. Certo, si trovano in questo ambito numerosi problemi particolari, ma l'esperienza mostra che tutto resta e che questi problemi si situano in sistemi evidenti di dipendenza reciproca. Per esempio, nell'insieme del processo dell'educazione, dell'educazione scolastica in particolare, non è forse avvenuto uno spostamento unilaterale verso l'istruzione nel senso stretto della parola? Se si considerano le proporzioni assunte da questo fenomeno, come l'accrescimento sistematico dell'istruzione che si riferisce unicamente a ciò che l'uomo possiede, non è l'uomo stesso che si trova sempre più messo in ombra? Questo trascina allora con sé una vera alienazione dell'educazione: invece di operare in favore di ciò che l'uomo deve «essere», essa lavora unicamente in favore di ciò di cui l'uomo può servirsi nell'ambito dell'«avere», del «possesso». La tappa ulteriore di questa alienazione è di abituare l'uomo, privandolo della sua propria soggettività, ad essere oggetto di molteplici manipolazioni: le manipolazioni ideologiche o politiche che si fanno attraverso l'opinione pubblica; quelle che si operano attraverso il monopolio o il controllo, dalle forze economiche o dai poteri politici, dai mezzi di comunicazione sociale; la manipolazione, infine, che consiste nel presentare la vita come manipolazione specifica di se stessi. Sembra che da tali danni in materia di educazione siano minacciate soprattutto le società di civilizzazione tecnica più sviluppata. Queste società si trovano davanti la crisi specifica dell'uomo che consiste in una mancanza crescente di fiducia nei confronti della propria umanità, del significato del fatto d'essere uomo e dell'affermazione e della gioia che ne derivano e che sono sorgente di creazione. La civiltà contemporanea tenta d'imporre all'uomo una serie di imperativi apparenti che i loro portavoce giustificano ricorrendo al principio dello sviluppo e del progresso. Così, per esempio, al posto del rispetto della vita, l'«imperativo» di sbarazzarsi della vita e di distruggerla; al posto dell'amore, che è comunione responsabile di persone, l'«imperativo» del massimo di godimento sessuale al di fuori da ogni senso di responsabilità; al posto del primato della verità nell'azione, il «primato» del comportamento in voga, del soggettivo e del successo immediato. In tutto questo si esprime indirettamente una grande rinuncia sistematica alla sana ambizione che è l'ambizione di essere uomo. Non facciamoci illusioni: il sistema formato sulla base di questi falsi imperativi, di queste rinunce fondamentali, può determinare l'avvenire dell'uomo e l'avvenire della cultura.

14. Se, in nome dell'avvenire della cultura, bisogna proclamare che l'uomo ha il diritto di «essere» di più e se per la stessa ragione bisogna esigere un sano primato della famiglia nell'insieme dell'opera di educazione dell'uomo a una vera umanità, bisogna anche porre nella stessa linea il diritto della nazione; bisogna porre anch'essa alla base della cultura e dell'educazione. La nazione è in effetti la grande comunità degli uomini che sono uniti per diversi legami, ma, soprattutto, dalla cultura. La nazione esiste «mediante» la cultura e «per» la cultura, ed essa è dunque la grande educatrice degli uomini perché essi possano «essere di più» nella comunità. Essa è quella comunità che possiede una storia che sorpassa la storia dell'individuo e della famiglia. E' anche in questa comunità, in funzione della quale ogni famiglia educa, che la famiglia comincia la sua opera di educazione nella cosa più semplice, la lingua, permettendo così all'uomo che è ai suoi primi passi, d'imparare a parlare per diventare membro della comunità che è la sua famiglia e la sua nazione. In tutto ciò che io proclamo ora e che svilupperò ancora di più, le mie parole traducono un'esperienza particolare, una testimonianza nel suo genere. Io sono figlio di una nazione, che ha vissuto le più grandi esperienza della storia, che i suoi vicini hanno condannato a morte a più riprese, ma che è sopravvissuta e che è rimasta se stessa. Essa ha conservato la sua identità ed ha conservato, nonostante le spartizioni e le occupazioni straniere, la sua sovranità nazionale, non appoggiandosi sulle risorse della forza fisica, ma unicamente appoggiandosi sulla sua cultura. Questa cultura si è rivelata all'occorrenza d'una potenza più grande di tutte le altre forze. Quello che io dico qui in ordine al diritto della nazione, al fondamento della sua cultura e del suo avvenire non è «eco» di alcun nazionalismo, ma si tratta sempre di un elemento stabile dell'esperienza umana e delle prospettive umane dello sviluppo dell'uomo. Esiste una sovranità fondamentale della società che si manifesta nella cultura della nazione. Si tratta della sovranità per la quale, allo stesso tempo, l'uomo è supremamente sovrano. E quando mi esprimo così penso ugualmente, con un'emozione interiore profonda, alle culture di tanti popoli antichi che non hanno ceduto quando si sono trovati di fronte alle civiltà degli invasori ed esse restano ancora per l'uomo la fonte del suo «essere» uomo nella verità interiore della sua umanità. Penso anche con ammirazione alle culture delle nuove società, di quelle che si svegliano alla vita nella comunità della propria nazione - come la mia nazione si è svegliata alla vita dieci secoli fa - e che lottano per conservare la loro propria identità e i loro propri valori contro le influenze e le pressioni dei modelli preposti dall'esterno.

15. Indirizzandomi a voi, signore e signori che vi riunite in questo luogo da oltre trent'anni, ora, in nome del primato delle realtà culturali del luogo, delle comunità umane, dei popoli e delle nazioni, vi dico: vigilate, con tutti i mezzi a vostra disposizione, su questa sovranità fondamentale che possiede ogni nazione in virtù della sua propria cultura. Proteggetela come la pupilla dei vostri occhi per l'avvenire della grande famiglia umana. Proteggetela! Non permettete che questa sovranità fondamentale diventi la preda di qualche interesse politico o economico. Non permettete che diventi vittima dei totalitarismi, degli imperialismi o delle egemonie, per i quali l'uomo non conta che come oggetto di dominazione e non come soggetto della sua propria esistenza umana. Per essi anche la nazione - la loro propria nazione o le altre - non conta che come oggetto di dominazione ed esca di interessi diversi, e non come soggetto: il soggetto della sovranità che proviene dalla cultura autentica che le appartiene in proprio. Non ci sono forse sulla carta d'Europa e del mondo delle nazioni che hanno una meravigliosa sovranità storica che proviene dalla loro cultura e che sono tuttavia e allo stesso tempo private della loro piena sovranità? Non è questo un punto importante per l'avvenire delle cultura umana, importante soprattutto nella nostra epoca, quando è quanto urgente eliminare i resti del colonialismo?

16. Questa sovranità che esiste e che trae la sua origine dalla cultura propria della nazione e della società, dal primato della famiglia nell'opera dell'educazione ed infine dalla dignità personale di ogni uomo, deve restare il criterio fondamentale nella maniera di trattare quel problema importante per l'umanità d'oggi che è il problema dei mezzi di comunicazione sociale (dell'informazione che è loro legata e anche di ciò che si chiama la «cultura di massa»). Visto che questi mezzi sono i mezzi «sociali» della comunicazione, non possono essere mezzi di dominazione sugli altri da parte di agenti del potere politico come di quello delle potenze finanziarie che impongono il loro programma e il loro modello. Essi devono diventare il mezzo - e che mezzo importante! - di espressione di quella società che si serve di loro e che ne assicura anche l'esistenza. Essi devono tener conto dei veri bisogni di quella società. Essi devono tener conto della cultura della nazione e della sua storia. Devono rispettare la responsabilità della famiglia nell'ambito dell'educazione. Devono tener conto del bene dell'uomo, della sua dignità. Non possono essere sottomessi al criterio dell'interesse, del sensazionale e del successo immediato, ma tenendo conto delle esigenze dell'etica, devono servire alla costruzione di una vita «più umana».

17. «Genus humanum arte et ratione vivit». Si afferma in fondo che l'uomo è se stesso mediante la verità, e diventa sempre più se stesso mediante la conoscenza sempre più perfetta della verità. Vorrei qui rendere omaggio, signore e signori, a tutti i meriti della vostra organizzazione e nello stesso tempo all'impegno e a tutti gli sforzi degli Stati e delle istituzioni che voi rappresentate, sulla via della popolarizzazione della istruzione a tutti i gradi e a tutti i livelli, sulla via dell'eliminazione dell'analfabetismo che significa la mancanza di ogni istruzione anche la più elementare, mancanza dolorosa non solo dal punto di vista della cultura elementare degli individui e degli ambienti, ma anche dal punto di vista del progresso socio-economico. Ci sono degli indici inquietanti di ritardo in questo ambito, legati ad una distribuzione dei beni spesso radicalmente ineguale e ingiusta: pensiamo alle situazioni nelle quali esistono, accanto ad una oligarchia plutocratica poco numerosa, moltitudini di cittadini affamati che vivono nella miseria. Questo ritardo può essere eliminato non per la via di lotte sanguinarie per il potere, ma soprattutto per la via dell'alfabetizzazione sistematica attraverso la diffusione e la popolarizzazione dell'istruzione. Uno sforzo così orientato è necessario se si desidera operare per i cambiamenti che s'impongono nell'ambito socio-economico. L'uomo che «è più» grazie anche a ciò che «ha» e a ciò che «possiede», deve saper possedere, vale e dire disporre e amministrare i mezzi che possiede, per il suo bene proprio e per il bene comune. Per questo fine l'istruzione è indispensabile.

18. Il problema dell'istruzione è sempre stato strettamente legato alla missione della Chiesa. Nel corso dei secoli essa ha fondato scuole di ogni grado; ha dato i natali alle università medievali in Europa: a Parigi come a Bologna, a Salamanca come a Heidelberg, a Cracovia come a Lovanio. Nella nostra epoca, essa offre pure lo stesso contributo ovunque la sua attività in questo ambito è richiesta e rispettata. Che mi sia permesso di rivendicare in questo luogo per le famiglie cattoliche il diritto che appartiene a tutte le famiglie di educare i loro figli nelle scuole che corrispondono alla loro visione del mondo, ed in particolare lo stretto diritto dei genitori credenti a non vedere i loro figli sottoposti, nelle scuole, a programmi ispirati all'ateismo. Si tratta in effetti di diritti fondamentali dell'uomo e della famiglia.

19. Il sistema d'insegnamento è legato organicamente al sistema dei diversi orientamenti dati al modo di praticare e di rendere popolare la scienza. Fatto a cui servono gli istituti di insegnamento ad alto livello, le università ed anche, visto lo sviluppo attuale della specializzazione e dei metodi scientifici, gli istituti specializzati. Si tratta di istituzioni di cui sarebbe difficile parlare senza un'emozione profonda. Esse sono le banche del lavoro, presso le quali la vocazione dell'uomo alla conoscenza, come il legame costitutivo dell'umanità con la verità come scopo della conoscenza, diventano una realtà quotidiana, in un certo senso il pane quotidiano di tanti insegnanti, corifei venerati della scienza e, attorno a loro, di giovani ricercatori votati alla scienza e alle sue applicazioni, come pure della moltitudine di studenti che frequentano questi centri della scienza e della conoscenza. Noi ci troviamo a questo punto come sui gradini più alti della scala che l'uomo, dopo l'inizio, sale verso la conoscenza della realtà del mondo che lo circonda e verso quella del mistero della sua umanità. Questo processo storico ha raggiunto nella nostra epoca delle possibilità prima sconosciute; esso ha aperto all'intelligenza umana degli orizzonti finora insospettati. Sarebbe difficile entrare a questo punto nel dettaglio perché, sul cammino della conoscenza, gli orientamenti della specializzazione sono tanto numerosi come è ricco lo sviluppo della scienza.

20. La vostra organizzazione è un luogo di incontro, d'un incontro che ingloba nel suo ampio seno tutto l'ambito tanto essenziale della cultura umana. Questo auditorio è quindi il luogo più indicato per salutare tutti gli uomini di scienza e di rendere omaggio particolarmente a coloro che sono qui presenti e che hanno ottenuto per il loro lavoro il più alto riconoscimento e i più eminenti meriti mondiali. Mi sia permesso di esprimere loro i più sinceri auguri che, non dubito, raggiungeranno il pensiero e il cuore dei membri di questa augusta assemblea. Tanto ci edifica nel lavoro scientifico - ci edifica ed anche ci allieta profondamente - questa marcia della conoscenza disinteressata della verità che lo scienziato serve con la massima dedizione e talvolta a rischio della salute e perfino della vita, altrettanto deve preoccuparci tutto ciò che contraddice i principi di disinteresse e di oggettività, tutto ciò che farebbe della scienza uno strumento per conseguire fini che non hanno niente a vedere con essa. Sì, noi dobbiamo preoccuparci di tutto ciò che propone e presuppone solo scopi non scientifici esigendo uomini di scienza che si mettano a loro servizio senza permettere loro di giudicare e di decidere, in tutta indipendenza di spirito, dell'onestà umana ed etica di tali scopi o minacciandoli di portarne le conseguenze quando essi si rifiutano di contribuire. Questi scopi non scientifici di cui parlo, questo problema che pongo hanno bisogno di prove o di commenti? Voi sapete a che cosa mi riferisco; basti alludere al fatto che fra coloro che furono citati davanti ai tribunali internazionali alla fine dell'ultima guerra mondiale, vi furono anche uomini di scienza. Signore e signori, vi prego di perdonarmi queste parole, ma io non sarei fedele ai doveri del mio incarico se non le pronunciassi, non per tornare sul passato, ma per difendere l'avvenire della scienza e della cultura umana; più ancora per difendere l'avvenire dell'uomo e del mondo! Penso che Socrate, che, nella sua rettitudine poco comune, ha potuto sostenere che la scienza è allo stesso tempo virtù morale, dovrebbe respingere la sua certezza se potesse considerare le esperienze del nostro tempo.

21. Ci rendiamo conto, signore e signori, che l'avvenire dell'uomo e del mondo è minacciato, radicalmente minacciato, a dispetto delle intenzioni, certamente nobili, dell'uomo di cultura, dell'uomo di scienza. Ed è minacciato perché i meravigliosi risultati delle sue ricerche e delle sue scoperte, soprattutto nell'ambito delle scienze della natura, sono state e continuano ad essere utilizzate - a pregiudizio dell'imperativo etico - per dei fini che non hanno niente a che vedere con le esigenze della scienza e perfino a fini di distruzione e di morte, e questo ad un grado mai conosciuto fino ad oggi, causando dei danni veramente inimmaginabili. Allorché la scienza è chiamata ad essere al servizio della vita dell'uomo, si constata troppo sovente che essa è asservita a scopi che sono distruttori della vera dignità dell'uomo e della vita umana. E' il caso della ricerca scientifica quando è orientata verso questi scopi o quando i suoi risultati sono applicati a fini contrari al bene dell'umanità. Questo si verifica tanto nell'ambito della manipolazione genetica e della sperimentazione biologica che in quello degli armamenti chimici, batteriologici e nucleari. Due considerazioni mi guidano a sottoporre particolarmente alla vostra riflessione la minaccia nucleare che pesa sul mondo d'oggi e che, se non è scongiurata, potrebbe condurre alla distruzione dei frutti della cultura, dei prodotti della civiltà elaborati attraverso i secoli da generazioni successive di uomini che hanno creduto nel primato dello spirito e che non hanno risparmiato né i loro sforzi né le loro fatiche. La prima considerazione è questa. Ragioni geopolitiche, problemi economici di dimensione mondiale, terribili incomprensioni, orgogli nazionali feriti, il materialismo della nostra epoca e la decadenza dei valori morali hanno condotto il nostro mondo ad una situazione d'instabilità, a un equilibrio fragile, che rischia d'esser distrutto da un momento all'altro in seguito ad errori di giudizio, d'informazione o d'interpretazione. Un'altra considerazione si aggiunge a questa inquietante prospettiva. Si può, ai nostri giorni, essere ancora sicuri che la rottura dell'equilibrio non porterà alla guerra e a una guerra che non esiterebbe a ricorrere alle armi nucleari? Fino ad oggi si è detto che le armi nucleari hanno costituito una forza di dissuasione che ha impedito lo scoppio di una guerra più grande, ed è probabilmente vero. Ma ci si può nello stesso tempo chiedere se sarà sempre così. Le armi nucleari di qualsiasi ordine di grandezza o di qualsiasi tipo siano, si perfezionano ogni anno di più e si aggiungono all'arsenale di un numero crescente di paesi. Come si potrà essere sicuri che l'uso delle armi nucleari, anche ai fini di difesa nazionale o in conflitti limitati, non trascinerà con sé una scalata inevitabile portando a una distruzione che l'umanità non potrà mai né prendere in considerazione, né accettare? Ma non è a voi, uomini di scienza e di cultura, che devo domandare di non chiudere gli occhi su ciò che una guerra nucleare può rappresentare per l'umanità intera (cfr. Ioannis Pauli PP. II «Homilia Calendis Ianuariis habita, die paci fovendae terdecies dicato», die 1 ian. 1980: vide «Insegnamenti di Giovanni Paolo II», III,1 [1980] 3ss)

22. Signore e signori, il mondo non potrà proseguire a lungo su questa via. All'uomo che ha preso coscienza della situazione e della posta in gioco, che si ispira anche al senso elementare delle responsabilità che incombono a ciascuno, una convinzione s'impone, che è allo stesso tempo un'imperativo morale: bisogna mobilitare le coscienze! Bisogna aumentare gli sforzi delle coscienze umane nella misura della tensione tra il bene e il male alla quale sono sottoposti gli uomini alla fine del XX secolo. Bisogna convincersi della priorità dell'etica sulla tecnica, del primato della persona sulle cose, della superiorità dello spirito sulla materia (cfr. Ioannis Pauli PP II «Redemptor Hominis», 16). La causa dell'uomo sarà servita se la scienza si allea alla coscienza. L'uomo di scienza aiuterà veramente l'umanità se conserverà il «senso della trascendenza dell'uomo sul mondo e di Dio sull'uomo» (Ioannis Pauli PP. II «Allocutio in Aula Regia Palatii Vaticani habita, occasione oblata saeculi expleti ab obitu Alberti Einstein», 4, die 10 nov. 1979: «Insegnamenti di Giovanni Paolo II», II,2 [1979] 1109). Così, cogliendo l'occasione della mia presenza oggi nella sede dell'Unesco io, figlio dell'umanità e Vescovo di Roma, mi indirizzo direttamente a voi, uomini di scienza, a voi che siete qui riuniti, a voi che siete le più alte autorità in tutti gli ambienti della scienza moderna. E mi indirizzo, attraverso voi, ai vostri colleghi e amici di tutti i paesi e di tutti i continenti.

Mi indirizzo a voi in nome di questa terribile minaccia che pesa sull'umanità e, allo stesso tempo, in nome dell'avvenire e del bene di questa umanità del mondo intero. E vi supplico: dispieghiamo tutti gli sforzi per instaurare e rispettare, in tutti gli ambiti della scienza, il primato dell'etica. Dispieghiamo soprattutto i nostri sforzi per preservare la famiglia umana dall'orribile prospettiva della guerra nucleare! Ho toccato questo argomento davanti all'assemblea generale dell'Organizzazione delle Nazioni Unite, a New York il 2 ottobre dell'anno scorso. Ne parlo oggi a voi. Mi indirizzo alla vostra intelligenza e al vostro cuore, al di sopra delle passioni, delle ideologie e delle frontiere. Mi indirizzo a tutti coloro che, per il loro potere politico o economico, potrebbero essere e sono sovente condotti ad imporre agli uomini di scienza le condizioni del loro lavoro e il loro orientamento. Mi indirizzo prima di tutto ad ogni uomo di scienza individualmente e a tutta la comunità scientifica internazionale. Tutti insieme voi siete una potenza enorme: la potenza delle intelligenze e delle coscienze! Mostratevi più potenti dei più potenti del nostro mondo contemporaneo! Decidetevi a dar prova della più nobile solidarietà con l'umanità: quella che è fondata sulla dignità della persona umana. Costruite la pace cominciando dal fondamento: il rispetto di tutti i diritti dell'uomo, quelli che sono legati alla sua dimensione materiale ed economica come quelli che sono legati alla dimensione spirituale e interiore della sua esistenza in questo mondo.

Possa ispirarvi la saggezza. Possa guidarvi l'amore, quell'amore che soffocherà la minaccia crescente dell'odio e della distruzione! Uomini di scienza, impegnate tutta la vostra autorità morale per salvare l'umanità dalla distruzione nucleare.

23. Mi è stato dato di realizzare oggi uno dei desideri più vivi del mio cuore. Mi è stato dato di entrare, proprio qui, all'interno dell'areopago che è quello del mondo intero. Mi è stato dato di dire a voi tutti, membri della Organizzazione delle Nazioni Unite per l'Educazione, la Scienza e la Cultura, a voi che lavorate per il bene e per la riconciliazione degli uomini e dei popoli attraverso tutti gli ambiti della cultura, dell'educazione, della scienza e dell'informazione, di dirvi e di gridarvi dal fondo dell'anima: Sì! l'avvenire dell'uomo dipende dalla cultura! Sì! la pace del mondo dipende dal primato dello spirito. Sì! l'avvenire pacifico dell'umanità dipende dall'amore. Il vostro contributo personale, signore e signori, è importante, è vitale. Esso si attua nell'approccio corretto dei problemi, alla soluzione dei quali consacrate il vostro servizio. La mia parola finale è questa: Non cessate. Continuate. Continuate sempre.

Sentència del Tribunal Suprem del Canadà sobre l'autodeterminació del Quebec

2007-11-06T19:57:00.000+01:00

IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26;

AND IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996

Indexed as: Reference re Secession of Quebec

File No.: 25506.

1998: February 16, 17, 18, 19; 1998: August 20.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

reference by governor in council

Constitutional law ‑‑ Supreme Court of Canada ‑‑ Reference jurisdiction ‑‑ Whether Supreme Court's reference jurisdiction constitutional ‑‑ Constitution Act, 1867, s. 101 ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 53.

Courts ‑‑ Supreme Court of Canada ‑‑ Reference jurisdiction ‑‑ Governor in Council referring to Supreme Court three questions relating to secession of Quebec from Canada ‑‑ Whether questions submitted fall outside scope of reference provision of Supreme Court Act ‑‑ Whether questions submitted justiciable ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 53.

Constitutional law ‑‑ Secession of province ‑‑ Unilateral secession ‑‑ Whether Quebec can secede unilaterally from Canada under Constitution.

International law ‑‑ Secession of province of Canadian federation ‑‑ Right of self‑determination ‑‑ Effectivity principle ‑‑ Whether international law gives Quebec right to secede unilaterally from Canada.

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council referred the following questions to this Court:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self‑determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

Issues regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that s. 53 of the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally valid, the questions submitted were outside the scope of s. 53; and, finally, that these questions were not justiciable.

Held: Section 53 of the Supreme Court Act is constitutional and the Court should answer the reference questions.

(1) Supreme Court's Reference Jurisdiction

Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this Court the reference jurisdiction provided for in s. 53 of the Supreme Court Act. The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.

The reference questions are within the scope of s. 53 of the Supreme Court Act. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1)(a). Both Questions 1 and 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within s. 53(2). In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference.

The reference questions are justiciable and should be answered. They do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a pragmatic basis. The questions raise issues of fundamental public importance and they are not too imprecise or ambiguous to permit a proper legal answer. Nor has the Court been provided with insufficient information regarding the present context in which the questions arise. Finally, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.

(2) Question 1

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. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. 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. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession.

The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. 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. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes 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.

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. 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.

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 the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers 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. There 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.

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. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.

The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that operate within that framework. The obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

(3) Question 2

The Court was also required to consider whether a right to unilateral secession exists under international law. Some supporting an affirmative answer did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law 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. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. 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 internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a 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 Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.

(4) Question 3

In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

Cases Cited

Referred to: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Re References by Governor-General in Council (1910), 43 S.C.R. 536, aff'd [1912] A.C. 571; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; De Demko v. Home Secretary, [1959] A.C. 654; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445; Attorney‑General for Ontario v. Attorney-General for Canada, [1947] A.C. 127; Muskrat v. United States, 219 U.S. 346 (1911); Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208; Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Re the Initiative and Referendum Act, [1919] A.C. 935; Haig v. Canada, [1993] 2 S.C.R. 995; R. v. S. (S.), [1990] 2 S.C.R. 254; Switzman v. Elbling, [1957] S.C.R. 285; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Boucher v. The King, [1951] S.C.R. 265; Reference re Alberta Statutes, [1938] S.C.R. 100; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Oakes, [1986] 1 S.C.R. 103; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Roncarelli v. Duplessis, [1959] S.C.R. 121; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference re Education Act (Que.), [1993] 2 S.C.R. 511; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Adler v. Ontario, [1996] 3 S.C.R. 609; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Sparrow, [1990] 1 S.C.R. 1075; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49.

Statutes and Regulations Cited

Ala. Code 1975 § 12-2-10.

Bill of Rights of 1689 (Eng.), 1 Will. & Mar. sess. 2, c. 2.

Canadian Charter of Rights and Freedoms, ss. 2, 3, 4, 7 to 14, 15, 25, 33.

Charter of the United Nations, Can. T.S. 1945 No. 7, Arts. 1(2), 55.

Constitution Act, 1867, preamble, ss. 91, 92(14), 96, 101.

Constitution Act, 1982, ss. 25, 35, 52(1), (2).

Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No. 2, Europ. T.S. No. 5, p. 36.

Del. Code Ann. tit. 10, § 141 (1996 Supp.).

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 1.

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 1.

Magna Carta (1215).

Statute of the Inter-American Court of Human Rights (1979), Art. 2.

Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4 [reprinted in R.S.C., 1985, App. II, No. 27].

Supreme Court Act, R.S.C., 1985, c. S-26, ss. 3, 53(1)(a), (d), (2).

Treaty establishing the European Community, Art. 228(6).

Union Act, 1840 (U.K.), 3-4 Vict., c. 35 [reprinted in R.S.C., 1985, App. II, No. 4].

United States Constitution, art. III, § 2.

Authors Cited

Canada. Legislature. Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co., 1865.

Cassese, Antonio. Self-determination of peoples: A legal reappraisal. Cambridge: Cambridge University Press, 1995.

Conference on Security and Co-operation in Europe. Concluding Document of the Vienna Meeting 1986, Vienna 1989. Ottawa: Department of External Affairs, 1989.

Conference on Security and Co-operation in Europe. Final Act, 14 I.L.M. 1292 (1975).

de Smith, S. A. "Constitutional Lawyers in Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93.

Doehring, Karl. "Self-Determination". In Bruno Simma, ed., The Charter of the United Nations: A Commentary. Oxford: Oxford University Press, 1994.

European Community. Declaration. Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, December 16, 1991, 31 I.L.M. 1486 (1992).

Favoreu, Louis. "American and European Models of Constitutional Justice". In David S. Clark, ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday. Berlin: Duncker & Humblot, 1990, 105.

Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.

Jennings, Robert Yewdall. The Acquisition of Territory in International Law. Manchester: Manchester University Press, 1963.

MacLauchlan, H. Wade. "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997), 76 Can. Bar Rev. 155.

Pope, Joseph, ed. Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act. Toronto: Carswell, 1895.

United Nations. General Assembly. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.

United Nations. General Assembly. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995.

United Nations. World Conference on Human Rights. Vienna Declaration and Programme of Action, A/CONF.157/24 (Part I), 25 June 1993, chapter III.

Wade, H. W. R. "The Basis of Legal Sovereignty", [1955] Camb. L.J. 172.

Wheare, Kenneth Clinton. Federal Government, 4th ed. London: Oxford University Press, 1963.

REFERENCE by the Governor in Council, pursuant to s. 53 of the Supreme Court Act, concerning the secession of Quebec from Canada.

L. Yves Fortier, Q.C., Pierre Bienvenu, Warren J. Newman, Jean-Marc Aubry, Q.C., and Mary Dawson, Q.C., for the Attorney General of Canada.

André Joli-C{oe}ur, Michel Paradis, Louis Masson, André Binette, Clément Samson, Martin Bédard and Martin St-Amant, for the amicus curiae.

Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener the Attorney General of Manitoba.

Graeme G. Mitchell and John D. Whyte, Q.C., for the intervener the Attorney General for Saskatchewan.

Bernard W. Funston, for the intervener the Minister of Justice of the Northwest Territories.

Stuart J. Whitley, Q.C., and Howard L. Kushner, for the intervener the Minister of Justice for the Government of the Yukon Territory.

Agnès Laporte and Richard Gaudreau, for the intervener Kitigan Zibi Anishinabeg.

Claude-Armand Sheppard, Paul Joffe and Andrew Orkin, for the intervener the Grand Council of the Crees (Eeyou Estchee).

Peter W. Hutchins and Carol Hilling, for the intervener the Makivik Corporation.

Michael Sherry, for the intervener the Chiefs of Ontario.

Raj Anand and M. Kate Stephenson, for the intervener the Minority Advocacy and Rights Council.

Mary Eberts and Anne Bayefsky, for the intervener the Ad Hoc Committee of Canadian Women on the Constitution.

Guy Bertrand and Patrick Monahan, for the intervener Guy Bertrand.

Stephen A. Scott, for the interveners Roopnarine Singh, Keith Owen Henderson, Claude Leclerc, Kenneth O’Donnell and Van Hoven Petteway.

Vincent Pouliot, on his own behalf.

//The Court//

The following is the judgment delivered by

The Court --

I. Introduction

1 This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The observation we made more than a decade ago in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 (Manitoba Language Rights Reference), at p. 728, applies with equal force here: as in that case, the present one "combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity". In our view, it is not possible to answer the questions that have been put to us without a consideration of a number of underlying principles. An exploration of the meaning and nature of these underlying principles is not merely of academic interest. On the contrary, such an exploration is of immense practical utility. Only once those underlying principles have been examined and delineated may a considered response to the questions we are required to answer emerge.

2 The questions posed by the Governor in Council by way of Order in Council P.C. 1996-1497, dated September 30, 1996, read as follows:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3 Before turning to Question 1, as a preliminary matter, it is necessary to deal with the issues raised with regard to this Court's reference jurisdiction.

II. The Preliminary Objections to the Court's Reference Jurisdiction

4 The amicus curiae argued that s. 101 of the Constitution Act, 1867 does not give Parliament the authority to grant this Court the jurisdiction provided for in s. 53 of the Supreme Court Act, R.S.C., 1985, c. S-26. Alternatively, it is submitted that even if Parliament were entitled to enact s. 53 of the Supreme Court Act, the scope of that section should be interpreted to exclude the kinds of questions the Governor in Council has submitted in this Reference. In particular, it is contended that this Court cannot answer Question 2, since it is a question of "pure" international law over which this Court has no jurisdiction. Finally, even if this Court's reference jurisdiction is constitutionally valid, and even if the questions are within the purview of s. 53 of the Supreme Court Act, it is argued that the three questions referred to the Court are speculative, of a political nature, and, in any event, are not ripe for judicial decision, and therefore are not justiciable.

5 Notwithstanding certain formal objections by the Attorney General of Canada, it is our view that the amicus curiae was within his rights to make the preliminary objections, and that we should deal with them.

A. The Constitutional Validity of Section 53 of the Supreme Court Act

6 In Re References by Governor-General in Council (1910), 43 S.C.R. 536, affirmed on appeal to the Privy Council, [1912] A.C. 571 (sub nom. Attorney-General for Ontario v. Attorney-General for Canada), the constitutionality of this Court's special jurisdiction was twice upheld. The Court is asked to revisit these decisions. In light of the significant changes in the role of this Court since 1912, and the very important issues raised in this Reference, it is appropriate to reconsider briefly the constitutional validity of the Court's reference jurisdiction.

7 Section 3 of the Supreme Court Act establishes this Court both as a "general court of appeal" for Canada and as an "additional court for the better administration of the laws of Canada". These two roles reflect the two heads of power enumerated in s. 101 of the Constitution Act, 1867. However, the "laws of Canada" referred to in s. 101 consist only of federal law and statute: see Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at pp. 1065‑66. As a result, the phrase "additional courts" contained in s. 101 is an insufficient basis upon which to ground the special jurisdiction established in s. 53 of the Supreme Court Act, which clearly exceeds a consideration of federal law alone (see, e.g., s. 53(2)). Section 53 must therefore be taken as enacted pursuant to Parliament's power to create a "general court of appeal" for Canada.

8 Section 53 of the Supreme Court Act is intra vires Parliament's power under s. 101 if, in "pith and substance", it is legislation in relation to the constitution or organization of a "general court of appeal". Section 53 is defined by two leading characteristics ‑‑ it establishes an original jurisdiction in this Court and imposes a duty on the Court to render advisory opinions. Section 53 is therefore constitutionally valid only if (1) a "general court of appeal" may properly exercise an original jurisdiction; and (2) a "general court of appeal" may properly undertake other legal functions, such as the rendering of advisory opinions.

(1) May a Court of Appeal Exercise an Original Jurisdiction?

9 The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. In most instances, this Court acts as the exclusive ultimate appellate court in the country, and, as such, is properly constituted as the "general court of appeal" for Canada. Moreover, it is clear that an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction.

10 The English Court of Appeal, the U.S. Supreme Court and certain courts of appeal in Canada exercise an original jurisdiction in addition to their appellate functions. See De Demko v. Home Secretary, [1959] A.C. 654 (H.L.), at p. 660; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at p. 453; United States Constitution, art. III, § 2. Although these courts are not constituted under a head of power similar to s. 101, they certainly provide examples which suggest that there is nothing inherently self-contradictory about an appellate court exercising original jurisdiction on an exceptional basis.

11 It is also argued that this Court's original jurisdiction is unconstitutional because it conflicts with the original jurisdiction of the provincial superior courts and usurps the normal appellate process. However, Parliament's power to establish a general court of appeal pursuant to s. 101 is plenary, and takes priority over the province's power to control the administration of justice in s. 92(14). See Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127 (P.C.). Thus, even if it could be said that there is any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal" provided, as discussed below, advisory functions are not to be considered inconsistent with the functions of a general court of appeal.

(2) May a Court of Appeal Undertake Advisory Functions?

12 The amicus curiae submits that

[translation] [e]ither this constitutional power [to give the highest court in the federation jurisdiction to give advisory opinions] is expressly provided for by the Constitution, as is the case in India (Constitution of India, art. 143), or it is not provided for therein and so it simply does not exist. This is what the Supreme Court of the United States has held. [Emphasis added.]

13 However, the U.S. Supreme Court did not conclude that it was unable to render advisory opinions because no such express power was included in the United States Constitution. Quite the contrary, it based this conclusion on the express limitation in art. III, § 2 restricting federal court jurisdiction to actual "cases" or "controversies". See, e.g., Muskrat v. United States, 219 U.S. 346 (1911), at p. 362. This section reflects the strict separation of powers in the American federal constitutional arrangement. Where the "case or controversy" limitation is missing from their respective state constitutions, some American state courts do undertake advisory functions (e.g., in at least two states ‑‑ Alabama and Delaware ‑‑ advisory opinions are authorized, in certain circumstances, by statute: see Ala. Code 1975 § 12-2-10; Del. Code Ann. tit. 10, § 141 (1996 Supp.)).

14 In addition, the judicial systems in several European countries (such as Germany, France, Italy, Spain, Portugal and Belgium) include courts dedicated to the review of constitutional claims; these tribunals do not require a concrete dispute involving individual rights to examine the constitutionality of a new law ‑‑ an "abstract or objective question" is sufficient. See L. Favoreu, "American and European Models of Constitutional Justice", in D. S. Clark, ed., Comparative and Private International Law (1990), 105, at p. 113. The European Court of Justice, the European Court of Human Rights, and the Inter‑American Court of Human Rights also all enjoy explicit grants of jurisdiction to render advisory opinions. See Treaty establishing the European Community, Art. 228(6); Protocol No. 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Europ. T.S. No. 5, p. 36; Statute of the Inter-American Court of Human Rights, Art. 2. There is no plausible basis on which to conclude that a court is, by its nature, inherently precluded from undertaking another legal function in tandem with its judicial duties.

15 Moreover, the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court's receipt of jurisdiction to undertake such an advisory role. The legislative grant of reference jurisdiction found in s. 53 of the Supreme Court Act is therefore constitutionally valid.

B. The Court's Jurisdiction Under Section 53

16 Section 53 provides in its relevant parts as follows:

53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning

(a) the interpretation of the Constitution Acts;

. . .

(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

(2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

(3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

17 It is argued that even if Parliament were entitled to enact s. 53 of the Supreme Court Act, the questions submitted by the Governor in Council fall outside the scope of that section.

18 This submission cannot be accepted. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1)(a). Both Question 1 and Question 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are clearly "important questions of law or fact concerning any matter" so that they must come within s. 53(2).

19 However, the amicus curiae has also raised some specific concerns regarding this Court's jurisdiction to answer Question 2. The question, on its face, falls within the scope of s. 53, but the concern is a more general one with respect to the jurisdiction of this Court, as a domestic tribunal, to answer what is described as a question of "pure" international law.

20 The first contention is that in answering Question 2, the Court would be exceeding its jurisdiction by purporting to act as an international tribunal. The simple answer to this submission is that this Court would not, in providing an advisory opinion in the context of a reference, be purporting to "act as" or substitute itself for an international tribunal. In accordance with well accepted principles of international law, this Court's answer to Question 2 would not purport to bind any other state or international tribunal that might subsequently consider a similar question. The Court nevertheless has jurisdiction to provide an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation.

21 Second, there is a concern that Question 2 is beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law.

22 This concern is groundless. In a number of previous cases, it has been necessary for this Court to look to international law to determine the rights or obligations of some actor within the Canadian legal system. For example, in Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208, the Court was required to determine whether, taking into account the principles of international law with respect to diplomatic immunity, a municipal council had the power to levy rates on certain properties owned by foreign governments. In two subsequent references, this Court used international law to determine whether the federal government or a province possessed proprietary rights in certain portions of the territorial sea and continental shelf (Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86).

23 More importantly, Question 2 of this Reference does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the National Assembly, legislature or government of Quebec, institutions that clearly exist as part of the Canadian legal order. As will be seen, the amicus curiae himself submitted that the success of any initiative on the part of Quebec to secede from the Canadian federation would be governed by international law. In these circumstances, a consideration of international law in the context of this Reference about the legal aspects of the unilateral secession of Quebec is not only permissible but unavoidable.

C. Justiciability

24 It is submitted that even if the Court has jurisdiction over the questions referred, the questions themselves are not justiciable. Three main arguments are raised in this regard:

(1) the questions are not justiciable because they are too "theoretical" or speculative;

(2) the questions are not justiciable because they are political in nature;

(3) the questions are not yet ripe for judicial consideration.

25 In the context of a reference, the Court, rather than acting in its traditional adjudicative function, is acting in an advisory capacity. The very fact that the Court may be asked hypothetical questions in a reference, such as the constitutionality of proposed legislation, engages the Court in an exercise it would never entertain in the context of litigation. No matter how closely the procedure on a reference may mirror the litigation process, a reference does not engage the Court in a disposition of rights. For the same reason, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.

26 Though a reference differs from the Court's usual adjudicative function, the Court should not, even in the context of a reference, entertain questions that would be inappropriate to answer. However, given the very different nature of a reference, the question of the appropriateness of answering a question should not focus on whether the dispute is formally adversarial or whether it disposes of cognizable rights. Rather, it should consider whether the dispute is appropriately addressed by a court of law. As we stated in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545:

While there may be many reasons why a question is non‑justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non‑justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government. . . . In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. [Emphasis added.]

Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non‑justiciability" include:

(i) if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or

(ii) if the Court could not give an answer that lies within its area of expertise: the interpretation of law.

27 As to the "proper role" of the Court, it is important to underline, contrary to the submission of the amicus curiae, that the questions posed in this Reference do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions posed by the Governor in Council, as we interpret them, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. The attempted analogy to the U.S. "political questions" doctrine therefore has no application. The legal framework having been clarified, it will be for the population of Quebec, acting through the political process, to decide whether or not to pursue secession. As will be seen, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec, as well as those who live within Quebec.

28 As to the "legal" nature of the questions posed, if the Court is of the opinion that it is being asked a question with a significant extralegal component, it may interpret the question so as to answer only its legal aspects; if this is not possible, the Court may decline to answer the question. In the present Reference the questions may clearly be interpreted as directed to legal issues, and, so interpreted, the Court is in a position to answer them.

29 Finally, we turn to the proposition that even though the questions referred to us are justiciable in the "reference" sense, the Court must still determine whether it should exercise its discretion to refuse to answer the questions on a pragmatic basis.

30 Generally, the instances in which the Court has exercised its discretion to refuse to answer a reference question that is otherwise justiciable can be broadly divided into two categories. First, where the question is too imprecise or ambiguous to permit a complete or accurate answer: see, e.g., McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Provincial Judges Reference), at para. 256. Second, where the parties have not provided sufficient information to allow the Court to provide a complete or accurate answer: see, e.g., Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54 (Senate Reference); Provincial Judges Reference, at para. 257.

31 There is no doubt that the questions posed in this Reference raise difficult issues and are susceptible to varying interpretations. However, rather than refusing to answer at all, the Court is guided by the approach advocated by the majority on the "conventions" issue in Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (Patriation Reference), at pp. 875‑76:

If the questions are thought to be ambiguous, this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be misleading, or should it simply avoid the risk of misunderstanding, the Court is free either to interpret the question . . . or it may qualify both the question and the answer. . . .

The Reference questions raise issues of fundamental public importance. It cannot be said that the questions are too imprecise or ambiguous to permit a proper legal answer. Nor can it be said that the Court has been provided with insufficient information regarding the present context in which the questions arise. Thus, the Court is duty bound in the circumstances to provide its answers.

III. Reference Questions

A. Question 1

Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

(1) Introduction

32 As we confirmed in Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806, "The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable." The "Constitution of Canada" certainly includes the constitutional texts enumerated in s. 52(2) of the Constitution Act, 1982. Although these texts have a primary place in determining constitutional rules, they are not exhaustive. The Constitution also "embraces unwritten, as well as written rules", as we recently observed in the Provincial Judges Reference, supra, at para. 92. Finally, as was said in the Patriation Reference, supra, at p. 874, the Constitution of Canada includes

the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities. The foundation and substance of these principles are addressed in the following paragraphs. We will then turn to their specific application to the first reference question before us.

(2) Historical Context: The Significance of Confederation

33 In our constitutional tradition, legality and legitimacy are linked. The precise nature of this link will be discussed below. However, at this stage, we wish to emphasize only that our constitutional history demonstrates that our governing institutions have adapted and changed to reflect changing social and political values. This has generally been accomplished by methods that have ensured continuity, stability and legal order.

34 Because this Reference deals with questions fundamental to the nature of Canada, it should not be surprising that it is necessary to review the context in which the Canadian union has evolved. To this end, we will briefly describe the legal evolution of the Constitution and the foundational principles governing constitutional amendments. Our purpose is not to be exhaustive, but to highlight the features most relevant in the context of this Reference.

35 Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee's report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee's report.

36 An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union.

37 The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained.

38 Several matters remained to be resolved, and so the Charlottetown delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Conference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and 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.

39 Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that "The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference." (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).)

40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March 1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolutions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince Edward Island and Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley's pro-Confederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation.

41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. The Dominion of Canada thus became a reality.

42 There was an early attempt at secession. In the first Dominion election in September 1867, Premier Tupper's forces were decimated: members opposed to Confederation won 18 of Nova Scotia's 19 federal seats, and in the simultaneous provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new constitutional arrangements, but it was too late. The Colonial Office rejected Premier Howe's plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in 1868:

The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted. . . . I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen's government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation. . . .

(Quoted in H. Wade MacLauchlan, "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997), 76 Can. Bar Rev. 155, at p. 168.)

The interdependence characterized by "vast obligations, political and commercial", referred to by the Colonial Secretary in 1868, has, of course, multiplied immeasurably in the last 130 years.

43 Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in the context of the present Reference, to mention the words of George-Étienne Cartier (cited in the Parliamentary Debates on the subject of the Confederation (1865), at p. 60):

Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races [is] utopian -- it [is] impossible. Distinctions of this kind [will] always exist. Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme. . . . In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.

The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. It was the first step in the transition from colonies separately dependent on the Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. Federalism was the political mechanism by which diversity could be reconciled with unity.

44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada.

45 After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert’s Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999.

46 Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. Canada's independence from Britain was achieved through legal and political evolution with an adherence to the rule of law and stability. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canada’s commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms.

47 Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distinguished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution. It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. It did, however, have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms. As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter.

48 We think it apparent from even this brief historical review that the evolution of our constitutional arrangements has been characterized by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability. We now turn to a discussion of the general constitutional principles that bear on the present Reference.

(3) Analysis of the Constitutional Principles

(a) Nature of the Principles

49 What are those underlying principles? Our Constitution is primarily a written one, the product of 131 years of evolution. Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.

50 Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today.

51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.

52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.

53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".

54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". It is to a discussion of those underlying constitutional principles that we now turn.

(b) Federalism

55 It is undisputed that Canada is a federal state. Yet many commentators have observed that, according to the precise terms of the Constitution Act, 1867, the federal system was only partial. See, e.g., K. C. Wheare, Federal Government (4th ed. 1963), at pp. 18-20. This was so because, on paper, the federal government retained sweeping powers which threatened to undermine the autonomy of the provinces. Here again, however, a review of the written provisions of the Constitution does not provide the entire picture. Our political and constitutional practice has adhered to an underlying principle of federalism, and has interpreted the written provisions of the Constitution in this light. For example, although the federal power of disallowance was included in the Constitution Act, 1867, the underlying principle of federalism triumphed early. Many constitutional scholars contend that the federal power of disallowance has been abandoned (e.g., P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 120).

56 In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437 (P.C.), at pp. 441-42. It is up to the courts "to control the limits of the respective sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733, at p. 741. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided.

57 This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821, considered federalism to be "the dominant principle of Canadian constitutional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities.

58 The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme of the Constitution Act, 1867, it was said in Re the Initiative and Referendum Act, [1919] A.C. 935 (P.C.), at p. 942, was

not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.

More recently, in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1047, the majority of this Court held that differences between provinces "are a rational part of the political reality in the federal process". It was referring to the differential application of federal law in individual provinces, but the point applies more generally. A unanimous Court expressed similar views in R. v. S. (S.), [1990] 2 S.C.R. 254, at pp. 287-88.

59 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.

60 Federalism was also welcomed by Nova Scotia and New Brunswick, both of which also affirmed their will to protect their individual cultures and their autonomy over local matters. All new provinces joining the federation sought to achieve similar objectives, which are no less vigorously pursued by the provinces and territories as we approach the new millennium.

61 Democracy is a fundamental value in our constitutional law and political culture. While it has both an institutional and an individual aspect, the democratic principle was also argued before us in the sense of the supremacy of the sovereign will of a people, in this case potentially to be expressed by Quebecers in support of unilateral secession. It is useful to explore in a summary way these different aspects of the democratic principle.

62 The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that "the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, [1957] S.C.R. 285, Saumur v. City of Quebec, [1953] 2 S.C.R. 299, Boucher v. The King, [1951] S.C.R. 265, and Reference re Alberta Statutes, [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed.

63 Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. The evolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867. "[T]he Canadian tradition", the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is "one of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation". Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system — such as women, minorities, and aboriginal peoples — have continued, with some success, to the present day.

64 Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136):

The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

65 In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. These legislatures, we have said, are "at the core of the system of representative government": New Brunswick Broadcasting, supra, at p. 387. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. Historically, this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters (Reference re Provincial Electoral Boundaries, supra) and as candidates (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876). In addition, the effect of s. 4 of the Charter is to oblige the House of Commons and the provincial legislatures to hold regular elections and to permit citizens to elect representatives to their political institutions. The democratic principle is affirmed with particular clarity in that s. 4 is not subject to the notwithstanding power contained in s. 33.

66 It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.

67 The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values.

68 Finally, we highlight that a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas" (Saumur v. City of Quebec, supra, at p. 330). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live.

69 The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.

(d) Constitutionalism and the Rule of Law

70 The principles of constitutionalism and the rule of law lie at the root of our system of government. The rule of law, as observed in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure". As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

71 In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". It was this second aspect of the rule of law that was primarily at issue in the Manitoba Language Rights Reference itself. A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference, supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance.

72 The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

73 An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons.

74 First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted 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. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. 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 government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.

75 The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a province-wide referendum is superficially persuasive, in large measure because it seems to appeal to some of the same principles that underlie the legitimacy of the Constitution itself, namely, democracy and self-government. In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit "the people" in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy.

76 Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. Constitutional government is necessarily predicated on the idea that the political representatives of the people of a province have the capacity and the power to commit the province to be bound into the future by the constitutional rules being adopted. These rules are “binding” not in the sense of frustrating the will of a majority of a province, but as defining the majority which must be consulted in order to alter the fundamental balances of political power (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights in our society. Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled.

77 In this way, our belief in democracy may be harmonized with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an "enhanced majority" to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.

78 It might be objected, then, that constitutionalism is therefore incompatible with democratic government. This would be an erroneous view. Constitutionalism facilitates — indeed, makes possible — a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.

(e) Protection of Minorities

79 The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises. As this Court observed in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1173, and in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 529-30, the protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated. See also Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at pp. 401-2, and Adler v. Ontario, [1996] 3 S.C.R. 609. Similar concerns animated the provisions protecting minority language rights, as noted in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 564.

80 However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.

81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.

82 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. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.

(4) The Operation of the Constitutional Principles in the Secession Context

83 Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. In a federal state, secession typically takes the form of a territorial unit seeking to withdraw from the federation. Secession is a legal act as much as a political one. By the terms of Question 1 of this Reference, we are asked to rule on the legality of unilateral secession "[u]nder the Constitution of Canada". This is an appropriate question, as the legality of unilateral secession must be evaluated, at least in the first instance, from the perspective of the domestic legal order of the state from which the unit seeks to withdraw. As we shall see below, it is also argued that international law is a relevant standard by which the legality of a purported act of secession may be measured.

84 The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation. The amendments necessary to achieve a secession could be radical and extensive. Some commentators have suggested that secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution. We are not persuaded by this contention. It is of course true that the Constitution is silent as to the ability of a province to secede from Confederation but, although the Constitution neither expressly authorizes nor prohibits secession, an act of secession would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements. The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the Constitution of Canada.

85 The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including, should it be so desired, the secession of Quebec from Canada. As this Court held in the Manitoba Language Rights Reference, supra, at p. 745, "[t]he Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government". The manner in which such a political will could be formed and mobilized is a somewhat speculative exercise, though we are asked to assume the existence of such a political will for the purpose of answering the question before us. By the terms of this Reference, we have been asked to consider whether it would be constitutional in such a circumstance for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally.

86 The “unilateral” nature of the act is of cardinal importance and we must be clear as to what is understood by this term. In one sense, any step towards a constitutional amendment initiated by a single actor on the constitutional stage is “unilateral”. We do not believe that this is the meaning contemplated by Question 1, nor is this the sense in which the term has been used in argument before us. Rather, what is claimed by a right to secede “unilaterally” is the right to effectuate secession without prior negotiations with the other provinces and the federal government. At issue is not the legality of the first step but the legality of the final act of purported unilateral secession. The supposed juridical basis for such an act is said to be a clear expression of democratic will in a referendum in the province of Quebec. This claim requires us to examine the possible juridical impact, if any, of such a referendum on the functioning of our Constitution, and on the claimed legality of a unilateral act of secession.

87 Although the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct role or legal effect in our constitutional scheme, a referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion. The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession. Our political institutions are premised on the democratic principle, and so an expression of the democratic will of the people of a province carries weight, in that it would confer legitimacy on the efforts of the government of Quebec to initiate the Constitution's amendment process in order to secede by constitutional means. In this context, we refer to a "clear" majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.

88 The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The amendment of the Constitution begins with a political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation. Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people. The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed.

89 What is the content of this obligation to negotiate? At this juncture, we confront the difficult inter-relationship between substantive obligations flowing from the Constitution and questions of judicial competence and restraint in supervising or enforcing those obligations. This is mirrored by the distinction between the legality and the legitimacy of actions taken under the Constitution. We propose to focus first on the substantive obligations flowing from this obligation to negotiate; once the nature of those obligations has been described, it is easier to assess the appropriate means of enforcement of those obligations, and to comment on the distinction between legality and legitimacy.

90 The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. Those principles lead us to reject two absolutist propositions. One of those propositions is that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession. This proposition is attributed either to the supposed implications of the democratic principle of the Constitution, or to the international law principle of self-determination of peoples.

91 For both theoretical and practical reasons, we cannot accept this view. We hold that Quebec could not purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties: that would not be a negotiation at all. As well, it would be naive to expect that the substantive goal of secession could readily be distinguished from the practical details of secession. The devil would be in the details. The democracy principle, as we have emphasized, cannot be invoked to trump the principles of federalism and rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. No negotiations could be effective if their ultimate outcome, secession, is cast as an absolute legal entitlement based upon an obligation to give effect to that act of secession in the Constitution. Such a foregone conclusion would actually undermine the obligation to negotiate and render it hollow.

92 However, we are equally unable to accept the reverse proposition, that a clear expression of self-determination by the people of Quebec would impose no obligations upon the other provinces or the federal government. The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot 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. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec.

93 Is the rejection of both of these propositions reconcilable? Yes, once it is realized that none of the rights or principles under discussion is absolute to the exclusion of the others. This observation suggests that other parties cannot exercise their rights in such a way as to amount to an absolute denial of Quebec's rights, and similarly, that so long as Quebec exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation. The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. There can be no suggestion that either of these majorities "trumps" the other. A political majority that does not act in accordance with the underlying constitutional principles we have identified puts at risk the legitimacy of the exercise of its rights.

94 In such circumstances, the conduct of the parties assumes primary constitutional significance. The negotiation process must be conducted with an eye to the constitutional principles we have outlined, which must inform the actions of all the participants in the negotiation process.

95 Refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party's assertion of its rights, and perhaps the negotiation process as a whole. Those who quite legitimately insist upon the importance of upholding the rule of law cannot at the same time be oblivious to the need to act in conformity with constitutional principles and values, and so do their part to contribute to the maintenance and promotion of an environment in which the rule of law may flourish.

96 No one can predict the course that such negotiations might take. The possibility that they might not lead to an agreement amongst the parties must be recognized. Negotiations following a referendum vote in favour of seeking secession would inevitably address a wide range of issues, many of great import. After 131 years of Confederation, there exists, inevitably, a high level of integration in economic, political and social institutions across Canada. The vision of those who brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces. Accordingly, while there are regional economic interests, which sometimes coincide with provincial boundaries, there are also national interests and enterprises (both public and private) that would face potential dismemberment. There is a national economy and a national debt. Arguments were raised before us regarding boundary issues. There are linguistic and cultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for the protection of their rights. Of course, secession would give rise to many issues of great complexity and difficulty. These would have to be resolved within the overall framework of the rule of law, thereby assuring Canadians resident in Quebec and elsewhere a measure of stability in what would likely be a period of considerable upheaval and uncertainty. Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec. As the Attorney General of Saskatchewan put it in his oral submission:

A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation, . . . when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation. . . .

97 In the circumstances, negotiations following such a referendum would undoubtedly be difficult. While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached. It is foreseeable that even negotiations carried out in conformity with the underlying constitutional principles could reach an impasse. We need not speculate here as to what would then transpire. Under the Constitution, secession requires that an amendment be negotiated.

98 The respective roles of the courts and political actors in discharging the constitutional obligations we have identified follows ineluctably from the foregoing observations. In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions. It is also the case, however, that judicial intervention, even in relation to the law of the Constitution, is subject to the Court's appreciation of its proper role in the constitutional scheme.

99 The notion of justiciability is, as we earlier pointed out in dealing with the preliminary objection, linked to the notion of appropriate judicial restraint. We earlier made reference to the discussion of justiciability in Reference re Canada Assistance Plan, supra, at p. 545:

In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government.

In Operation Dismantle, supra, at p. 459, it was pointed out that justiciability is a "doctrine . . . founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes". An analogous doctrine of judicial restraint operates here. Also, as observed in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 (the Auditor General's case), at p. 91:

There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.

100 The role of the Court in this Reference is limited to the identification of the relevant aspects of the Constitution in their broadest sense. We have interpreted the questions as relating to the constitutional framework within which political decisions may ultimately be made. Within that framework, the workings of the political process are complex and can only be resolved by means of political judgments and evaluations. The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so. A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other.

101 If the circumstances giving rise to the duty to negotiate were to arise, the distinction between the strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis. The Court would not have access to all of the information available to the political actors, and the methods appropriate for the search for truth in a court of law are ill-suited to getting to the bottom of constitutional negotiations. To the extent that the questions are political in nature, it is not the role of the judiciary to interpose its own views on the different negotiating positions of the parties, even were it invited to do so. Rather, it is the obligation of the elected representatives to give concrete form to the discharge of their constitutional obligations which only they and their electors can ultimately assess. The reconciliation of the various legitimate constitutional interests outlined above is necessarily committed to the political rather than the judicial realm, precisely because that reconciliation can only be achieved through the give and take of the negotiation process. Having established the legal framework, it would be for the democratically elected leadership of the various participants to resolve their differences.

102 The non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions. Where there are legal rights there are remedies, but as we explained in the Auditor General's case, supra, at p. 90, and New Brunswick Broadcasting, supra, the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts.

103 To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level. Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government's claim to legitimacy which is generally a precondition for recognition by the international community. Conversely, violations of those principles by the federal or other provincial governments responding to the request for secession may undermine their legitimacy. Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerations in the recognition process. In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane.

104 Accordingly, the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The primary means by which that expression is given effect is the constitutional duty to negotiate in accordance with the constitutional principles that we have described herein. In the event secession negotiations are initiated, our Constitution, no less than our history, would call on the participants to work to reconcile the rights, obligations and legitimate aspirations of all Canadians within a framework that emphasizes constitutional responsibilities as much as it does constitutional rights.

105 It will be noted that Question 1 does not ask how secession could be achieved in a constitutional manner, but addresses one form of secession only, namely unilateral secession. Although the applicability of various procedures to achieve lawful secession was raised in argument, each option would require us to assume the existence of facts that at this stage are unknown. In accordance with the usual rule of prudence in constitutional cases, we refrain from pronouncing on the applicability of any particular constitutional procedure to effect secession unless and until sufficiently clear facts exist to squarely raise an issue for judicial determination.

(5) Suggested Principle of Effectivity

106 In the foregoing discussion we have not overlooked the principle of effectivity, which was placed at the forefront in argument before us. For the reasons that follow, we do not think that the principle of effectivity has any application to the issues raised by Question 1. A distinction must be drawn between the right of a people to act, and their power to do so. They are not identical. A right is recognized in law: mere physical ability is not necessarily given status as a right. The fact that an individual or group can act in a certain way says nothing at all about the legal status or consequences of the act. A power may be exercised even in the absence of a right to do so, but if it is, then it is exercised without legal foundation. Our Constitution does not address powers in this sense. On the contrary, the Constitution is concerned only with the rights and obligations of individuals, groups and governments, and the structure of our institutions. It was suggested before us that the National Assembly, legislature or government of Quebec could unilaterally effect the secession of that province from Canada, but it was not suggested that they might do so as a matter of law: rather, it was contended that they simply could do so as a matter of fact. Although under the Constitution there is no right to pursue secession unilaterally, that is secession without principled negotiation, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on effective control of a territory and recognition by the international community. The principles governing secession at international law are discussed in our answer to Question 2.

107 In our view, the alleged principle of effectivity has no constitutional or legal status in the sense that it does not provide an ex ante explanation or justification for an act. In essence, acceptance of a principle of effectivity would be tantamount to accepting that the National Assembly, legislature or government of Quebec may act without regard to the law, simply because it asserts the power to do so. So viewed, the suggestion is that the National Assembly, legislature or government of Quebec could purport to secede the province unilaterally from Canada in disregard of Canadian and international law. It is further suggested that if the secession bid was successful, a new legal order would be created in that province, which would then be considered an independent state.

108 Such a proposition is an assertion of fact, not a statement of law. It may or may not be true; in any event it is irrelevant to the questions of law before us. If, on the other hand, it is put forward as an assertion of law, then it simply amounts to the contention that the law may be broken as long as it can be broken successfully. Such a notion is contrary to the rule of law, and must be rejected.

B. 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? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

109 For reasons already discussed, the Court does not accept the contention that Question 2 raises a question of "pure" international law which this Court has no jurisdiction to address. Question 2 is posed in the context of a Reference to address the existence or non-existence of a right of unilateral secession by a province of Canada. The amicus curiae argues that this question ultimately falls to be determined under international law. In addressing this issue, the Court does not purport to act as an arbiter between sovereign states or more generally within the international community. The Court is engaged in rendering an advisory opinion on certain legal aspects of the continued existence of the Canadian federation. International law has been invoked as a consideration and it must therefore be addressed.

110 The argument before the Court on Question 2 has focused largely on determining whether, under international law, a positive legal right to unilateral secession exists in the factual circumstances assumed for the purpose of our response to Question 1. Arguments were also advanced to the effect that, regardless of the existence or non-existence of a positive right to unilateral secession, international law will in the end recognize effective political realities -- including the emergence of a new state -- as facts. While our response to Question 2 will address considerations raised by this alternative argument of "effectivity", it should first be noted that the existence of a positive legal entitlement is quite different from a prediction that the law will respond after the fact to a then existing political reality. These two concepts examine different points in time. The questions posed to the Court address legal rights in advance of a unilateral act of purported secession. While we touch below on the practice governing the international recognition of emerging states, the Court is as wary of entertaining speculation about the possible future conduct of sovereign states on the international level as it was under Question 1 to speculate about the possible future course of political negotiations among the participants in the Canadian federation. In both cases, the Reference questions are directed only to the legal framework within which the political actors discharge their various mandates.

(1) Secession at International Law

111 It is clear that international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their "parent" state. This is acknowledged by the experts who provided their opinions on behalf of both the amicus curiae and the Attorney General of Canada. Given the lack of specific authorization for unilateral secession, proponents of the existence of such a right at international law are therefore left to attempt to found their argument (i) on the proposition that unilateral secession is not specifically prohibited and that what is not specifically prohibited is inferentially permitted; or (ii) on the implied duty of states to recognize the legitimacy of secession brought about by the exercise of the well-established international law right of "a people" to self-determination. The amicus curiae addressed the right of self-determination, but submitted that it was not applicable to the circumstances of Quebec within the Canadian federation, irrespective of the existence or non-existence of a referendum result in favour of secession. We agree on this point with the amicus curiae, for reasons that we will briefly develop.

(a) Absence of a Specific Prohibition

112 International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people, discussed below. As will be seen, international law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part (R. Y. Jennings, The Acquisition of Territory in International Law (1963), at pp. 8-9). Where, as here, unilateral secession would be incompatible with the domestic Constitution, international law is likely to accept that conclusion subject to the right of peoples to self-determination, a topic to which we now turn.

(b) The Right of a People to Self-determination

113 While international law generally regulates the conduct of nation states, it does, in some specific circumstances, also recognize the "rights" of entities other than nation states -- such as the right of a people to self-determination.

114 The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond "convention" and is considered a general principle of international law. (A. Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171-72; K. Doehring, "Self-Determination", in B. Simma, ed., The Charter of the United Nations: A Commentary (1994), at p. 70.)

115 Article 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7, states in part that one of the purposes of the United Nations (U.N.) is:

Article 1

. . .

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

116 Article 55 of the U.N. Charter further states that the U.N. shall promote goals such as higher standards of living, full employment and human rights "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples".

117 This basic principle of self-determination has been carried forward and addressed in so many U.N. conventions and resolutions that, as noted by Doehring, supra, at p. 60:

The sheer number of resolutions concerning the right of self-determination makes their enumeration impossible.

118 For our purposes, reference to the following conventions and resolutions is sufficient. Article 1 of both the U.N.'s International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, states:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

119 Similarly, the U.N. General Assembly's Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970 (Declaration on Friendly Relations), states:

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

120 In 1993, the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993, that reaffirmed Article 1 of the two above-mentioned covenants. The U.N. General Assembly's Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995, also emphasizes the right to self-determination by providing that the U.N.'s member states will:

1. . . .

Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. . . . [Emphasis added.]

121 The right to self-determination is also recognized in other international legal documents. For example, the Final Act of the Conference on Security and Co-operation in Europe, 14 I.L.M. 1292 (1975) (Helsinki Final Act), states (in Part VIII):

The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. [Emphasis added.]

122 As will be seen, international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states. Where this is not possible, in the exceptional circumstances discussed below, a right of secession may arise.

(i) Defining "Peoples"

123 International law grants the right to self-determination to "peoples". Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, as the right to self-determination has developed by virtue of a combination of international agreements and conventions, coupled with state practice, with little formal elaboration of the definition of "peoples", the result has been that the precise meaning of the term "people" remains somewhat uncertain.

124 It is clear that "a people" may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to "nation" and "state". The juxtaposition of these terms is indicative that the reference to "people" does not necessarily mean the entirety of a state's population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.

125 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. Similarly, it is not necessary for the Court to determine whether, should a Quebec people exist within the definition of public international law, such a people encompasses the entirety of the provincial population or just a portion thereof. Nor is it necessary to examine the position of the aboriginal population within Quebec. As the following discussion of the scope of the right to self-determination will make clear, whatever be the correct application of the definition of people(s) in this context, their right of self-determination cannot in the present circumstances be said to ground a right to unilateral secession.

(ii) Scope of the Right to Self-determination

126 The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination -- a people's pursuit of its political, economic, social and cultural development 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 extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations as

[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. [Emphasis added.]

127 The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.

128 The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations are specific. They state, immediately after affirming a people's right to determine political, economic, social and cultural issues, that such rights are not to

be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction. . . . [Emphasis added.]

129 Similarly, while the concluding document of the Vienna Meeting in 1989 of the Conference on Security and Co-operation in Europe on the follow-up to the Helsinki Final Act again refers to peoples having the right to determine "their internal and external political status" (emphasis added), that statement is immediately followed by express recognition that the participating states will at all times act, as stated in the Helsinki Final Act, "in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States" (emphasis added). Principle 5 of the concluding document states that the participating states (including Canada):

. . . confirm their commitment strictly and effectively to observe the principle of the territorial integrity of States. They will refrain from any violation of this principle and thus from any action aimed by direct or indirect means, in contravention of the purposes and principles of the Charter of the United Nations, other obligations under international law or the provisions of the [Helsinki] Final Act, at violating the territorial integrity, political independence or the unity of a State. No actions or situations in contravention of this principle will be recognized as legal by the participating States. [Emphasis added.]

Accordingly, the reference in the Helsinki Final Act to a people determining its external political status is interpreted to mean the expression of a people's external political status through the government of the existing state, save in the exceptional circumstances discussed below. As noted by Cassese, supra, at p. 287, given the history and textual structure of this document, its reference to external self-determination simply means that "no territorial or other change can be brought about by the central authorities of a State that is contrary to the will of the whole people of that State".

130 While the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights do not specifically refer to the protection of territorial integrity, they both define the ambit of the right to self-determination in terms that are normally attainable within the framework 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.

(iii) Colonial and Oppressed Peoples

131 Accordingly, the general state of international law with respect to the right to self-determination is that the right operates within the overriding protection granted to the territorial integrity of "parent" states. However, as noted by Cassese, supra, at p. 334, there are certain defined contexts within which the right to the self-determination of peoples does allow that right to be exercised "externally", which, in the context of this Reference, would potentially mean secession:

. . . the right to external self-determination, which entails the possibility of choosing (or restoring) independence, has only been bestowed upon two classes of peoples (those under colonial rule or foreign occupation), based upon the assumption that both classes make up entities that are inherently distinct from the colonialist Power and the occupant Power and that their 'territorial integrity', all but destroyed by the colonialist or occupying Power, should be fully restored. . . .

132 The right of colonial peoples to exercise their right to self-determination by breaking away from the "imperial" power is now undisputed, but is irrelevant to this Reference.

133 The other clear case where a right to external self-determination accrues is where a people is subject to alien subjugation, domination or exploitation outside a colonial context. This recognition finds its roots in the Declaration on Friendly Relations:

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

134 A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent "the whole people belonging to the territory without distinction of any kind" adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.

135 Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold. As stated by the amicus curiae, Addendum to the factum of the amicus curiae, at paras. 15-16:

[translation] 15. The Quebec people is not the victim of attacks on its physical existence or integrity, or of a massive violation of its fundamental rights. The Quebec people is manifestly not, in the opinion of the amicus curiae, an oppressed people.

16. For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.

136 The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction".

137 The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination. In the absence of amendments to the Canadian Constitution, we must look at the constitutional arrangements presently in effect, and we cannot conclude under current circumstances that those arrangements place Quebecers in a disadvantaged position within the scope of the international law rule.

138 In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterized in terms of "people" or "peoples", nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right, under international law, to secede unilaterally from Canada.

139 We would not wish to leave this aspect of our answer to Question 2 without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. However, the concern of aboriginal peoples is precipitated by the asserted right of Quebec to unilateral secession. In light of our finding that there is no such right applicable to the population of Quebec, either under the Constitution of Canada or at international law, but that on the contrary a clear democratic expression of support for secession would lead under the Constitution to negotiations in which aboriginal interests would be taken into account, it becomes unnecessary to explore further the concerns of the aboriginal peoples in this Reference.

(2) Recognition of a Factual/Political Reality: the "Effectivity" Principle

140 As stated, an argument advanced by the amicus curiae on this branch of the Reference was that, 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.

141 It is true that international law may well, depending on the circumstances, adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its creation. However, as mentioned at the outset, effectivity, as such, does not have any real applicability to Question 2, which asks whether a right to unilateral secession exists.

142 No one doubts that legal consequences may flow from political facts, and that "sovereignty is a political fact for which no purely legal authority can be constituted . . .", H. W. R. Wade, "The Basis of Legal Sovereignty", [1955] Camb. L.J. 172, at p. 196. Secession of a province from Canada, if successful in the streets, might well lead to the creation of a new state. Although recognition by other states is not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states. That process of recognition is guided by legal norms. However, international recognition is not alone constitutive of statehood and, critically, does not relate back to the date of secession to serve retroactively as a source of a "legal" right to secede in the first place. Recognition occurs only after a territorial unit has been successful, as a political fact, in achieving secession.

143 As indicated in responding to Question 1, one of the legal norms which may be recognized by states in granting or withholding recognition of emergent states is the legitimacy of the process by which the de facto secession is, or was, being pursued. The process of recognition, once considered to be an exercise of pure sovereign discretion, has come to be associated with legal norms. See, e.g., European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 31 I.L.M. 1486 (1992), at p. 1487. While national interest and perceived political advantage to the recognizing state obviously play an important role, foreign states may also take into account their view as to the existence of a right to self-determination on the part of the population of the putative state, and a counterpart domestic evaluation, namely, an examination of the legality of the secession according to the law of the state from which the territorial unit purports to have seceded. As we indicated in our answer to Question 1, an emergent state that has disregarded legitimate obligations arising out of its previous situation can potentially expect to be hindered by that disregard in achieving international recognition, at least with respect to the timing of that recognition. On the other hand, compliance by the seceding province with such legitimate obligations would weigh in favour of international recognition. The notion that what is not explicitly prohibited is implicitly permitted has little relevance where (as here) international law refers the legality of secession to the domestic law of the seceding state and the law of that state holds unilateral secession to be unconstitutional.

144 As a court of law, we are ultimately concerned only with legal claims. If the principle of "effectivity" is no more than that "successful revolution begets its own legality" (S. A. de Smith, "Constitutional Lawyers in Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93, at p. 96), it necessarily means that legality follows and does not precede the successful revolution. Ex hypothesi, the successful revolution took place outside the constitutional framework of the predecessor state, otherwise it would not be characterized as "a revolution". It may be that a unilateral secession by Quebec would eventually be accorded legal status by Canada and other states, and thus give rise to legal consequences; but this does not support the more radical contention that subsequent recognition of a state of affairs brought about by a unilateral declaration of independence could be taken to mean that secession was achieved under colour of a legal right.

145 An argument was made to analogize the principle of effectivity with the second aspect of the rule of law identified by this Court in the Manitoba Language Rights Reference, supra, at p. 753, namely, avoidance of a legal vacuum. In that Reference, it will be recalled, this Court declined to strike down all of Manitoba's legislation for its failure to comply with constitutional dictates, out of concern that this would leave the province in a state of chaos. In so doing, we recognized that the rule of law is a constitutional principle which permits the courts to address the practical consequences of their actions, particularly in constitutional cases. The similarity between that principle and the principle of effectivity, it was argued, is that both attempt to refashion the law to meet social reality. However, nothing of our concern in the Manitoba Language Rights Reference about the severe practical consequences of unconstitutionality affected our conclusion that, as a matter of law, all Manitoba legislation at issue in that case was unconstitutional. The Court's declaration of unconstitutionality was clear and unambiguous. The Court's concern with maintenance of the rule of law was directed in its relevant aspect to the appropriate remedy, which in that case was to suspend the declaration of invalidity to permit appropriate rectification to take place.

146 The principle of effectivity operates very differently. It proclaims that an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the international plane. Our law has long recognized that through a combination of acquiescence and prescription, an illegal act may at some later point be accorded some form of legal status. In the law of property, for example, it is well known that a squatter on land may ultimately become the owner if the true owner sleeps on his or her right to repossess the land. In this way, a change in the factual circumstances may subsequently be reflected in a change in legal status. 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. The broader contention is not supported by the international principle of effectivity or otherwise and must be rejected.

C. Question 3

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

147 In view of our answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

IV. Summary of Conclusions

148 As stated at the outset, this Reference has required us to consider momentous questions that go to the heart of our system of constitutional government. We have emphasized that 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. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles that animate the whole of our Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event a clear majority of Quebecers votes on a clear question in favour of secession.

149 The Reference requires us to consider whether Quebec has a right to unilateral secession. Those who support the existence of such a right found their case primarily on the principle of democracy. Democracy, however, means more than simple majority rule. As reflected in our constitutional jurisprudence, democracy exists in the larger context of other constitutional values such as those already mentioned. In the 131 years since Confederation, the people of the provinces and territories have created close ties of interdependence (economically, socially, politically and culturally) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes 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.

150 The Constitution is not a straitjacket. Even a brief review of our constitutional history demonstrates periods of momentous and dramatic change. 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. While it is true that some attempts at constitutional amendment in recent years have faltered, 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.

151 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 the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers 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. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government, Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities. No one suggests that it would be an easy set of negotiations.

152 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. A political majority at either level that does not act in accordance with the underlying constitutional principles we have mentioned puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.

153 The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

154 We have also considered whether a positive legal entitlement to secession exists under international law in the factual circumstances contemplated by Question 1, i.e., a clear democratic expression of support on a clear question for Quebec secession. Some of those who supported an affirmative answer to this question did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of peoples at international law 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. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. 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 internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

155 Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a 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 Quebec and Canada, in determining whether to grant or withhold recognition. Such recognition, even if granted, would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.

156 The reference questions are answered accordingly.

Judgment accordingly.

Solicitor for the Attorney General of Canada: George Thomson, Ottawa.

Solicitors appointed by the Court as amicus curiae: Joli-C{oe}ur Lacasse Lemieux Simard St-Pierre, Sainte-Foy.

Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina.

Solicitor for the intervener the Minister of Justice of the Northwest Territories: Bernard W. Funston, Gloucester.

Solicitor for the intervener the Minister of Justice for the Government of the Yukon Territory: Stuart J. Whitley, Whitehorse.

Solicitor for the intervener Kitigan Zibi Anishinabeg: Agnès Laporte, Hull.

Solicitors for the intervener the Grand Council of the Crees (Eeyou Estchee): Robinson, Sheppard, Shapiro, Montréal.

Solicitors for the intervener the Makivik Corporation: Hutchins, Soroka & Dionne, Montréal.

Solicitor for the intervener the Chiefs of Ontario: Michael Sherry, Toronto.

Solicitors for the intervener the Minority Advocacy and Rights Council: Scott & Aylen, Toronto.

Solicitors for the intervener the Ad Hoc Committee of Canadian Women on the Constitution: Eberts Symes Street & Corbett, Toronto; Centre for Refugee Studies, North York.

Solicitors for the intervener Guy Bertrand: Guy Bertrand & Associés, Québec; Patrick Monahan, North York.

Solicitors for the interveners Roopnarine Singh, Keith Owen Henderson, Claude Leclerc, Kenneth O’Donnell and Van Hoven Petteway: Stephen A. Scott, Montréal.

Solicitors for the intervener Vincent Pouliot: Paquette & Associés, Montréal.

Muret

2007-09-11T20:20:00.000+02:00

El 12 de setembre de 2013 farà 800 anys de la batalla de Muret. Què hem de fer per commemorar-ho?

Els 14 punts de Wilson

2007-07-04T19:42:00.000+02:00

Wilson, en un missatge al Congrés el 8 de gener de 1918, va resumir en catorze punts els objectius dels USA per lluitar per la victòria:
1) abolició de la diplomàcia secreta i establiment d'uns tractats de pau justs
2) llibertat de les mars
3) supressió d'aranzells i instauració de la igualtat en el comerç
4) reducció d'armaments
5) solució dels problemes colonials
6) evacuació del territori rus
7) reconstrucció de Bèlgica
8) evacuació de França pels alemanys i devolució d'Alsàcia i Lorena
9) reajust de la frontera italiana
10) autodeterminació de les minories de l'imperi austrohongarès
11) solució als conflictes balcànics
12) autodeterminació de les nacionalidats sotmeses a Turquia
13) reconstitució de Polònia
14) creació de la Societat de Nacions

Woodrow Wilson i Cambó

2007-07-04T19:31:00.000+02:00

El president dels Estats Units, el demòcrata Woodrow Wilson, va dir a Francesc Cambó: Si voleu la independència, estarem al vostre costat, perquè es tractarà d'un assumpte internacional; si voleu l'autonomia dins Espanya, no tenim res a dir, perquè es tractarà d'un afer intern d'aquest país.

4 de juliol

2007-07-04T19:15:00.000+02:00

Ja que és la festa nacional dels USA, heus ací la lletra del seu himne...

THE STAR-SPANGLED BANNER

Oh, say can you see, by the dawn's early light,

What so proudly we hailed at the twilight's last gleaming?

Whose broad stripes and bright stars, through the perilous fight,

O'er the ramparts we watched, were so gallantly streaming?

And the rockets' red glare, the bombs bursting in air,

Gave proof through the night that our flag was still there.

O say, does that Star-Spangled Banner yet wave

O'er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,

Where the foe's haughty host in dread silence reposes,

What is that which the breeze, o'er the towering steep,

As it fitfully blows, now conceals, now discloses?

Now it catches the gleam of the morning's first beam,

In full glory reflected now shines on the stream:

'Tis the Star-Spangled Banner! O long may it wave

O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand

Between their loved homes and the war's desolation!

Blest with victory and peace, may the heaven-rescued land

Praise the Power that hath made and preserved us a nation.

Then conquer we must, for our cause it is just,

And this be our motto: "In God is our trust".

And the Star-Spangled Banner forever shall wave

O'er the land of the free and the home of the brave!

Approved in 1931

Words by FRANCIS SCOTT KEY (1779-1843)

Composer unknown

1714-1715

2007-07-04T19:02:00.000+02:00

D'aquí 7 i 8 anys s'escauran els 300 anys de l'Onze de Setembre i de l'Onze de Juliol. Com ho commemorarem?

El compromís de Casp

2007-07-04T19:01:00.000+02:00

D'aquí a cinc anys s'escauran els 600 anys del compromís de Casp. De quina manera serà estudiat?