Independence Referendums and Democratic Theory in Quebec and Montenegro

Abstract

The article tackles some of the questions that arise from the invocation of “the people” in independence referendums in a contextualized way by examining the constitutional experience of two independence referendums: Quebec's unsuccessful independence referendum in 1995 and Montenegro's successful one in 2006. I argue that democratic theory does not presuppose the unified people as a decision-making unit, but rather that it conceals two, more logically primitive—and to an extent conflicted—general conceptions relevant to independence referendums. While not arbitrating between them, the concluding part argues that the tension in democratic theory ought to, at a minimum, contribute to reducing the vehemence of nationalist politics involved in attempts to achieve political independence.

Notes

1. Robert Dahl, After the Revolution?: Authority in a Good Society (New Haven and London: Yale University Press, 1970); for an early acknowledgment of the problem also see, Frederic G. Whelan, “Democratic Theory and the Boundary Problem,” in J. Roland Pennock and John Chapman, eds., Liberal Democracy (New York and London: New York University Press, 1983).

2. Stephen Tierney, “Constitutional Referendums: A Theoretical Inquiry,” The Modern Law Review 72(9): 374–75 (2009).

3. Ibid., 366.

4. Ibid., 376.

5. For an influential discussion, see Walker Connor, The National Question in Marxist-Leninist Theory and Strategy (Princeton and New York: Princeton University Press, 1984), 160–63.

6. Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3rd edition (Toronto: University of Toronto Press, 2002), 34–53. See also, Janet Ajzenstat et al., eds., Canada's Founding Debates (Toronto: University of Toronto Press, 2003), 22–77.

7. Russell, Constitutional Odyssey, 35.

8. Reference re Secession of Quebec [1998] 2 S.C.R. 217.

9. European Commission for Democracy through Law (Venice Commission), “On the Compatibility of the Existing Legislation in Montenegro Concerning the Organization of Referendums with Applicable International Standards,” Opinion No. 343, CDL-AD(2005)041: 1–16 (2005), http://www.venice.coe.int/docs/2005/CDL-AD(2005)041-e.pdf (accessed 17 Oct. 2011).

10. Sujit Choudhry, “Referendum? What Referendum?,” Literary Review of Canada 15(3): 7–9 (2007).

11. Jelena Džankić, “Country Report Memo: Montenegro,” EUDO Citizenship Observatory 1–26 (2010), 13, fn. 9.

12. Venice Commission, para. 65.

13. Grand Council of the Crees, “1. Who are “People” with the Right to Self-Determination?” in Sovereign Injustice (1997), www.gcc.ca/archive/article.php?id=124 (accessed on 17 Oct. 2011).

14. Stéphane Dion, “Nier et invoquer la pertinence du droit,” Le Devoir, A7 (14 Aug. 1997).

15. Bernard Landry, “Tourner les dos aux les principes democratiques,” Le Devoir, A7 (14 Aug. 1997).

16. Ibid., A7

17. An Act to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference (S.C. 2000, c. 26), s. 2.2 [hereinafter Clarity Act 2000].

18. I do not discuss the issue of the clarity of the referendum question in this article. Although this issue is of paramount political importance, it has no direct link with the more narrow topic of this article, the relationship between referendums and democratic theory.

19. Kenneth Morrison, Montenegro: A Modern History (London: I. B. Tauris & Co, 2009), 208.

20. Republička Referendumska Komisija, Izvještaj o rezultatu glasanja na referendumu o državno-pravnom statusu Republike Crne Gore [Report on the results of the independence referendum for the Republic of Montenegro] održanom 21. maja 2006. godine., http://web.archive.org/web/20060712005226/http://www.rrk.cg.yu/aktuelnosti/aktuelnosti.htm (accessed on 20 Oct. 2011).

21. Robert Dutrisac, “Référendum—Québec fixe la barre à 50% plus un,” Le Devoir (16 March 2006), http://www.ledevoir.com/non-classe/104493/referendum-quebec-fixe-la-barre-a-50-plus-un [translation mine] (accessed 11 April 2011).

22. Ibid.

23. Choudhry, “Referendum? What Referendum,” 9.

24. Claude G. Charron, La partition du Québec: De Lord Durham a Stéphane Dion. (Montreal: VLB Editeur, 1996), 167. For a discussion of territorial reconfigurations in Canada in light of a potential secession of Quebec from the perspective of political geography, see A.-L. Seguin, “The Quebec Question and the Political Geography of Canada,” Geojournal 8(2): 99–107 (1982).

25. For a theoretical defense of his position, see Stéphane Dion, “Why is Secession Difficult in Well-Established Democracies? Lessons from Quebec,” British Journal of Political Science 26(2): 269–83 (1996).

26. Ottawa Citizen, 24 Sept. 1997, B4.

27. Landry, “Tourner les dos,” A7.

28. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 96.

29. Clarity Act 2000, s. 3.2.

30. If the municipalities that voted for the union with Serbia —Plužine, Pljevlja, Šavnik, Mojkovac, Žabljak, Andrijevica—were allowed to recursively secede they could have formed a contiguous unit bordering Serbia. The exceptions would be the proindependence municipalities of Bijelo Polje, Rožaje, and Plav that would be cut off from the rest of independent Montenegro and a prounion coastal municipality of Herceg Novi that would have been cut off from the unionist territory. For the referendum results by municipality, see Republička Referendumska Komisija, http://web.archive.org/web/20060712005226/http://www.rrk.cg.yu/aktuelnosti/aktuelnosti.htm (accessed on 23 Oct. 2011).

31. Stéphane Dion, “La gouvernance démocratique et le principe d’intégrité territoriale,” [Democratic Governance and the Principle of Territorial Integrity], in Pierre Favre, Jack Hayward, and Yves Schemeil, eds., Être gouverné: Études en l’honneur de Jean Leca (Paris: Presses de Sciences Po, 2003), 91–108, 96.

32. Peter Morici, “A Sovereign Quebec and US National Interests,” The American Review of Canadian Studies 27(1): 147–48 (1997).

33. “Address by William Jefferson Clinton,” Publius: The Journal of Federalism 29(4): 23 (1999).

34. Bruce Wallace, “An Airing of the Dirty Linen,” Macleans 112(42): 38–39 (1999).

35. Reg Whitaker, “Quebec's Self-Determination and Aboriginal Self-Government,” in Joseph Carens, ed., Is Quebec Nationalism Just?: Perspectives from Anglophone Canada (Montreal and Kingston: McGill-Queen's University Press, 1995), 215.

36. Nathalie Tocci, The EU and the Conflict Resolution: Promoting Peace in the Backyard (London: Routledge, 2007), 78.

37. Ibid., 78

38. Miroslav Lajčák, “Serbia and Montenegro after the Referendum,” Südosteuropa Mitteilungen 4: 6 at 1 (2006).

39. The best example is perhaps Christopher Wellman, who rejects both the idea of the consent of the governed as well as individual political autonomy in justifying secession. Instead, the actor who has a right to political self-determination, including secession, subject to strictures of viability, is a “group”; what is left unexplained is what justifies its creation. Christopher H. Wellman, A Theory of Secession (Cambridge: Cambridge University Press, 2005), 8–9.

40. Secession Reference, para. 67.

41. Harry Beran, “A Liberal Theory of Secession,” Political Studies 32(1): 25–26 (1984).

42. Harry Beran, “A Democratic Theory of Political Self- Determination for a New World Order,” in Percy Lehning, ed., Theories of Secession (London and New York: Routledge, 1998), 33. I am running a bit roughshod over Beran's argument. Beran's initial work linked consent of the governed to liberalism, not explicitly to democratic theory as such, even though he explicitly links consent to democratic theory's ur-concept: the people. In the 1998 piece, where he explicitly develops a “democratic theory” of self-determination (secession), he did not depart from consent theory and in fact claims: “[t]he democratic theory of self- determination and the consent theory of political authority may, therefore, stand or fall together” (p. 57). I believe that I am justified in conceptually connecting consent to democratic theory. If this tack suggests that the classics of democratic theory simultaneously relied on liberalism's axioms in constructing the idea of “the people,” I am comfortable with that conclusion.

43. Daniel Philpott, “In Defense of Self-Determination,” Ethics 105(2): 367 (1995).

44. Ibid., 357.

45. Ibid.

46. Ibid., 362–63.

47. See Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,” Political Theory 35(1): 37–65 (2008). Abizadeh's argument is technically not about “affected interests” but about “being coerced” by a decision, but the implication is the same. Because different individuals can be differently affected in the exercise of their interests, demos is, according to Abizadeh, in principle, unlimited (48).

48. Robert Goodin, “Enfranchising All Affected Interests, and its Alternatives,” Philosophy and Public Affairs 35(1): 40–68 (2007).

49. Carol Gould, “Self-Determination Beyond Sovereignty: Relating Transnational Democracy to Local Autonomy,” Journal of Social Philosophy 37(1): 55 (2006).

50. Ludvig Beckman, “Democratic Inclusion, Law and Causes,” Ratio Juris 21(3): 350 (2008).

51. Hans Agné, “Why Democracy must be Global: Self-Founding And Democratic Intervention,” International Theory 2(3): 381–409 (2010).

52. For a discussion of a classical case of “cascading referenda” in the context of the creation of the Canton Jura in Switzerland, see Jean A. Laponce, “Turning Votes Into Territories: Boundary Referendums in Theory and Practice,” Political Geography 23(2): 175–79 (2004). Laponce warns that the Swiss experience marked by the “practice of consensual government” is not easily transferable in more adversarial settings, such as Canada and Quebec. Ibid., 179.

53. Agné, “Why Democracy must be Global,” 395.

54. Ibid., 391.

55. Daniel Turp and Gibran Van Ert, “International Recognition in the Supreme Court of Canada's Quebec Reference,” Canadian Yearbook of International Law 35: 342–44 (2000).

56. Secession Reference, para. 142.

57. Secession Reference, para. 143.

58. For a nationalist account of territorial rights, see Tamar Meisels, Territorial Rights (Dordrecht: Springer, 2005).

59. Gregory Millard, Secession and Self: Quebec in Canadian Thought (Kingston-Montreal: McGill-Queen's University Press, 2008), 91–92.

60. For a rare suggestion that “the people of Shetlands” should have a right to secede from an independent Scotland, see Hansard, “Budget Resolutions and Economic Situation,” HC Deb 30 March 1977, vol. 929, cc427–538, http://hansard.millbanksystems.com/commons/1977/mar/30/budget-resolutions-and-economic-situation#S5CV0929P0_19770330_HOC_331 (accessed 21 Oct. 2011).