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Self-determination—Canada—Quebec—right to secede under constitutional law and public international law—role of international law in Canadian courts

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Stephen J. Toope
Stephen J. Toope
Affiliation:
McGill University
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Extract

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.

Supreme Court of Canada, August 20, 1998.

In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.

Type
International Decisions
Information
American Journal of International Law , Volume 93 , Issue 2 , April 1999 , pp. 519 - 525
Copyright
Copyright © American Society of International Law 1999

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References

1 [1998] 161 D.L.R. (4th) 385, 446 [hereinafter Secession Reference].

2 Id. at 448.

3 Id. at 439.

4 “Plan A” involved continued, but low-key, constitutional negotiations, addressing specific grievances through political accommodation and generally promoting the benefits of federalism in a soft manner.

5 “Sovereigntist” is the term used in Canada in this context.

6 See the comments of then-Premier Jacques Parizeau in 1996: “Quebeckers want to vote, they have a right to vote, they will vote. We cannot submit Quebeckers’ right to vote to a decision by the court. It would be contrary to our whole democratic system.” Lawyer wins first round in bid to block referendum, Gazette [Montreal], Sept. 1, 1995, at All (quoting Jacques Parizeau).

7 See Robert Howse & Alisa Malkin, Canadians Are a Sovereign People: How the Supreme Court Should Approach the Reference on Quebec Secession, 76 Can. Bar Rev. 186 (1997) (arguing that in liberal democracies legality is properly related to political legitimacy, that the rule of law underpins, and does not negate, rights of democratic participation).

8 The emergence of a violent revolutionary cadre in the late 1960s, the Front de Libération du Québec (FLQ), did not meet with massive public support, though it did generate considerable sympathy within the province’s francophone cultural elite.

9 Secession Reference at 394.

10 Id. Although this question was phrased in two parts, the Supreme Court quite properly chose to answer the question as an integral whole.

11 The reference jurisdiction of the Court is set out in the Supreme Court Act, R.S.C., ch. S–26, §53(1) (1985). Successive governments in Canada have invoked the reference jurisdiction in attempts to clarify thorny constitutional issues and to seek legitimacy for proposed courses of action. See, for relatively recent examples, Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (asking whether or not the federal Government could proceed to petition the UK Parliament to “patriate” the Canadian Constitution in the absence of consent from Quebec); Re: A.G. Quebec and A.G. Canada, [1982] 2 S.C.R. 793 (a reference from the sovereigntist government of Quebec on whether or not Quebec possessed a veto over fundamental constitution change); and Re: Manitoba Language Rights, [1985] 1 S.C.R. 721 (concerning the scope of constitutional guarantees of minority French-language rights in the Province of Manitoba).

12 Secession Reference at 446.

13 Id. at 448. The clarity required for each element remains undefined.

14 Id. at 447.

15 For a detailed analysis of the constitutional law aspects of the decisions, see Jean-Francois Gaudreault-DesBiens, The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law, Democracy, and Identity, 4 Vt. L. Rev. (forthcoming 1999).

16 The Franck opinion was lodged with the Court by the amicus curiae appointed after the refusal of the Quebec government to participate in the proceedings. The amicus did not “represent” Quebec but was charged with presenting the case in support of a unilateral right to secede. See Supplément au dossier[:] Rapports d’experts de l’amicus curiae, Secession Reference (Can. Sup. Ct.) (No. 25506).

17 Howse & Malkin, supra note 7, at 212. This analysis closely mirrors the opinion of Prof. Franck, supra note 16.

18 See, e.g., Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal 253 (1995); Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int’l L. 177, 185 (1991); Allen Buchanan, Self-Determination and the Right to Secede, 45 J. Int’l Aff. 347, 357 (1992); and Lawrence S. Eastwood, Jr., Note, Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia, 3 Duke J. Comp. & Int’l L. 299, 342, 347 (1993).

19 Secession Reference at 443.

20 Karen Knop argued forcefully in 1992 that recognition practice—at least in Europe—was being subjected to normative-content requirements related to human rights, protection of minorities and support for democratic governance. See Karen Knop, The “Righting” of Recognition: Recognition of States in Eastern Europe and the Soviet Union, 1992 Can. Council Int’l L., Proc. 36. But previous state practice and even the practice of European states after the European Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union,” Dec. 16, 1991, 31 ILM 1486 (1992), suggest that the statement was merely a blip in an otherwise consistent evolution of recognition from a constitutive practice to a declaratory practice based purely on political, and interest-driven, criteria. For prior recognition practice, see Eastwood, supra note 18, at 312 (re Bangladesh); and Malcolm Shaw, Title to Territory in Africa 23 (1986) (re various African states). As to recent European practice, note that Germany recognized Slovenia and Croatia on December 23, 1991, and the European Community on January 15, 1992, despite considerable doubt (since borne out) that these new states fully subscribed to the supposed normative requirements of commitment to human rights, minority rights and democracy. See Eastwood, supra, at 325. Sir Hersch Lauterpacht got it right just after World War II: “recognition of States is not a matter governed by law but a question of policy.” Hersch Lauterpacht, Recognition in International Law 1 (1947).

21 Howse & Malkin, supra note 7, at 212. See also Eastwood, supra note 18, at 312–13, 321 (asserting de facto existence of Bangladesh and the Balkan Republics as the “cause” of international recognition).

22 The Canadian Constitution is an amalgam of written texts and constitutional conventions, some inherited from the UK constitution, some of indigenous origin. See Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.

23 Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.).

24 See, e.g., Ronald St. John Macdonald, The Relationship between International Law and Domestic Law in Canada, in Canadian Perspectives on International Law and Organization 88 (Ronald St. John Macdonald, Gerald L. Morris & Douglas M.Johnston eds., 1974).

25 Unfortunately, courts have reached contradictory conclusions on how to interpret treaty commitments when treaties have not been expressly transformed into Canadian law. This is especially true for human rights treaty obligations. See, e.g., Longner v. M.E., (1995) 184 Nat’l Rep. 230 (Fed. C.A.) (untransformed treaties are irrelevant to the interpretation of a domestic statute); Regina v. Dolejs, (1989) 100 A.R. 26 (C.A.) (unincorporated treaties may support the interpretation of a domestic statute); International Fund for Animal Welfare Inc. v. Canada, (1987) 45 Can. Crim. Cas. (3d) 457 (domestic law should be interpreted, as far as possible, to conform with unincorporated treaties). For greater detail, see Stephen Toope, Canada and International Law, 1998 Can. Council Int’l L., Proc. (forthcoming).

26 Foreign Legations Case, [1943] S.C.R. 208.

27 See Secession Reference at 433.

28 Id.

29 Id.

30 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), UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970) [hereinafter Declaration on Friendly Relations].

31 Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975, 73 Dep’t St. Bull. 323 (1975), reprinted in 14 ILM 1292 (1975) [hereinafter Helsinki Final Act].

32 In UN Charter Arts. 1(2), 55; International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 1, 999 UNTS 171; and International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966, Art. 1, 993 UNTS 3.

33 Helsinki Final Act, supra note 31; and World Conference on Human Rights, Vienna Declaration and Programme of Action, June 25,1993, UN Doc. A/CONF.157/24, at 20 (1993), reprinted in 32 ILM 1661 (1993).

34 Declaration on Friendly Relations, supra note 30; and Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6 (Nov. 9, 1995).

35 Secession Reference at 442.

36 See Brilmayer, supra note 18, passim.

37 See Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); and Buchanan, supra note 18, passim.

38 See Buchanan, supra note 18.

39 See S. James Anaya, The Capacity of International Law to Advance Ethnic or Nationality Rights Claims, 75 Iowa L. Rev. 837 (1990).

40 See Holly A. Osterland, Note, National Self-Determination and Secession: The Slovak Model, 25 Case W.Res. J. Int’l L. 655 (1993).

41 See, e.g., Deborah Z. Cass, Re-thinking Self-Determination: A Critical Analysis of Current International Law Theories, 18 Syracuse J. Int’l L. & Com. 21, 24–29 (1992).

42 Message from President Wilson to Russia on the Occasion of the Visit of the American Mission (June 9, 1917), quoted in Eastwood, supra note 18, at 299.

43 See Eastwood, supra note 18, at 310–13 (though admitting that the case of Bangladesh probably has “little precedential value” because subsequent recognition seemed to be based upon the de facto existence of the new state).

44 See Cass, supra note 41, at 33, 34; and Eastwood, supra note 18, at 316–21.

45 See Carsten Thomas Ebenroth & Matthew James Kemner, The Enduring Political Nature of Questions of State Succession and Secession and the Quest for Objective Standards, 17 U. Pa. J. Int’l Econ. L. 753, 796–99 (1996); Howse & Malkin, supra note 7, at 223–24; and Eastwood, supra note 18, at 322–29.

46 See Cass, supra note 41, at 35–36.

47 Salvatore Massa, Comment, Secession by Mutual Assent: A Comparative Analysis of the Dissolution of Czechoslovakia and the Separatist Movement in Canada, 14 Wis. Int’l L.J. 183 (1997); Ebenroth & Kemner, supra note 45, at 816; Cass, supra note 41, at 35–36; and Osterland, supra note 40, passim.

48 See, e.g., Buchanan, supra note 18, at 352, 357–58; and Eastwood, supra note 18, at 337–43.

49 It is ironic that the Court took great pains to emphasize the importance of custom or convention in the constitutional context, but ignored custom in international law: “[T]he Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority.” Secession Reference at 445–46.