Supreme Court Breaks New Ground
Two years ago, the federal government asked the Supreme Court for its opinion in three areas:
Can Quebec secede unilaterally from Canada under the Constitution?
Does it have the right to secede unilaterally under international law? Does international law include a right to self-determination that would permit secession?
If there is a conflict between Canadian and international law, which takes precedence?
In a four-day hearing last February, 16 parties, including the federal government, aboriginal groups, minority rights advocates and a so-called friend of the court representing the Quebec separatist position, presented complicated, often radically opposing arguments. Ottawa contended that there is no right to unilateral secession in domestic or international law. The friend of the court, separatist lawyer André Joli-Coeur, countered that, under international law, Quebecers are a people with the right to self-determination. He said that even if that right does not "strictly" include the right to secede, the international community would recognize a seceding Quebec - because it would exercise effective control over its territory. Most of the remaining intervenors argued that Quebec could not unilaterally secede - because that would violate their own constitutional rights.
The court faced a dilemma of daunting proportions, both legally and politically. If it simply ruled that the law did not permit unilateral secession, it would inflame political passions: Quebecers have long maintained that they constitute a people with the right to self-determination, including the right to secede. If the court spelled out the detailed rights of other intervenors, it could create a dangerous recipe for constitutional chaos. And if it hedged its legal opinion to placate public opinion, it could damage itself - and perhaps erode respect for the rule of law. The risks, therefore, were enormous when the nine judges published their unanimous 78-page ruling last Thursday.
THE JUDGMENT'S PHILOSOPHY
In a meticulously reasoned ruling, the court reviewed the steps that prompted Great Britain's colonies to confederate in 1867. They singled out four values that underpin the resulting Constitution:
Canada is a federation - which recognizes and honors the diversity of its parts.
Canada is a democracy.
Canada respects its Constitution - and the rule of law.
Canada protects the rights of its minorities.
The court noted that it is tempting to conclude that the Constitution can be circumvented by a majority vote in a referendum: that assertion appeals to the notion of popular sovereignty. But, they countered, while public institutions must consider the aspirations of the people, those institutions must also remember that they draw their very legitimacy from the rule of law. "Democracy in any real sense of the word cannot exist without the rule of law," the court said.
The court drew lines beyond which it would not venture. It would not decide what constitutes a clear answer to a clear question: those are political problems. It refused to speculate on what would happen if negotiations were to break down. It stressed that neither party can ignore those fundamental values: other governments cannot deny the democratic right of the Quebec government to pursue secession - and Quebec cannot maintain that it has an "absolute legal entitlement" to secede when it starts negotiations.
In such circumstances, the court conceded, talks "would undoubtedly be difficult." The issues would range from the national debt to the boundaries of each nation to the protection of linguistic and cultural minorities, including aboriginals. Although the court insisted that secession requires a constitutional amendment, it refused to stipulate which of several possible formulas, including unanimity or the consent of seven provinces with at least 50 per cent of the population, might apply. Such decisions could wait "unless and until sufficiently clear facts exist." But the court warned that each party would undermine its own case - and its legitimacy internationally - if it did not respect the very values that it had once pledged to honor: "A Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiating process."
THE STICK - AND THE CARROT
The court considered Joli-Coeur's assertion that, at the end of the day, it does not really matter what the Canadian Constitution says. If a state secedes, and if it maintains effective political control of its territory, he argued, the international community must eventually recognize its existence. That may be true, the court conceded: successful revolutions may create legal entities. But that does not mean that secession itself is legal.
Instead, the court returned to fundamental values. Yes, the judges wrote, other nations may recognize Quebec for reasons of self-interest or political advantage if it unilaterally declared sovereignty. But the international community would take a long, hard look at the circumstances surrounding that secession. If the seceding state discards its legitimate obligations - the need to respect its partners, its minorities, the rule of law and its democratic obligations - it "can potentially expect to be hindered by that disregard in achieving international recognition." But if it complies with its obligations, such estimable conduct "would weigh in [its] favor."
In the end, the court's thoughtful approach should discourage partisan politicians from scoring cheap and easy political points at the expense of the ruling. The nine judges set the moral and legal standards. Now, by those standards, the participants in the debate will be measured.
Maclean's August 31, 1998
The court observed that the federation is a 131-year-old network of social, economic, political and cultural links, founded on those common values and bonded by those constitutional ties. If Quebec attempted to secede unilaterally, it would imperil those relationships, disrupt its partners and threaten the stability of the nation that it once helped forge. The judges wrote: "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."
If the judges had stopped there, the uproar within Quebec would likely have been considerable. But the court views the Constitution as a skein of mutual obligations: each partner has a duty to respect its fellow parties - and each party must honor those fundamental values. That leads to an extraordinary assertion in the judgment, which breaks new ground. If a referendum vote produces a "clear majority vote on a clear question in favor of secession," this would confer legitimacy on the Quebec government's demands. "As long as Quebec exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation," the court stated.
That, in turn, creates "a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire." Representatives of the clear majority of Quebec and "the clear majority of Canada as a whole, whatever that may be," must start talking. "The Constitution is not a straitjacket," the court stated.
After an extensive survey of international laws and treaties, the court concluded that "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." But the court added that the exercise of that right must be "sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states."
There are two exceptions to that rule. Colonized peoples may break away from imperial powers. Oppressed peoples may throw out foreign occupiers. Since even the friend of the court conceded that Quebecers were not an oppressed people, the court concluded that the right to self-determination did not provide Quebec with the right to secede under international law.
In that decision, the court stickhandled around the tricky issue of minority claims to constitutional protection in the event of secession. First, the court asserted that it was not necessary to decide what constitutes "a people" - since the right of a people in Quebec to self-determination does not include the right to secede. It did note that much of the Quebec population shares many characteristics - such as common language and culture - which would be considered in defining a people. But it noted that other groups within Quebec also share common traits. The court added that it had paid close attention to aboriginal concerns about their rights and territories, particularly in northern Quebec, if the province unilaterally seceded. Since the right to unilateral secession does not exist, and since negotiations would have to take place, "aboriginal interests would be taken into account."
The court ruled that there is no conflict between international and domestic law.