Secession of Quebec

From Academic Kids

Reference re Secession of Quebec [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada.

In contradiction with each other, both the Quebec government and the Canadian government stated that they were most pleased with the Supreme Court's opinion.

As expected by many jurists familiar with the subject, the Supreme court answered "No" to the first two questions.

Contents

Questions addressed

The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions:

(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?

The opinion

Right to secede under Canadian law

The court addressed the three questions in order. First, they stated that under the Canadian Constitution, unilateral secession was not legal. Indeed, the Constitution of Canada does not contain a single line on the subject. Hence, no law could possibly allow for secession.

Right to secede under International law

The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state."

The Supreme Court of Canada argued that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court argued that:

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.

and that

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.

The court argued that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.

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.

Since the people of Quebec were able to exercise their self-determination right within Canada, they had no right to secede unilaterally therefrom.

It was soon pointed out by international observers that if it is true that there is no law allowing Quebec to unilaterally secede, it is also true that there is nothing specifically denying it and there is a widespread recognition of a right to self determination by groups other than nation states, such as a people. This right is found in the United Nations Charter, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, among other places.

Which law applies in Canada

Since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.

Reaction of Quebec

The Quebec government of Lucien Bouchard stated that it was very pleased with the opinion of the Supreme Court. In an official speech, Premier Bouchard stated that the court had validated the referendum strategy that the sovereignists had adopted with René Lévesque. Quebec was most satisfied when the court made it clear that the question of Quebec's political status was before all a political question and not a legal one. It also liked the fact that the Supreme Court made it clear that the government of Canada and that of the other provinces would have to negotiate after a winning referendum on secession, making a unilateral declaration of independence unnecessary.

Reaction of the federal government

The Canadian government of Jean Chrétien stated that it was pleased with the court's opinion. The Supreme Court had made it clear that Quebec could not declare independence unilaterally and that the obligation of Canada to negotiate with Quebec was conditional to the sovereignists' asking a clear question. The government of Canada proceeded to draft and later on enact the Clarity Act.

See also

External links

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