Canadian Supreme Court's Decision, 20 August, 1998

The Courts ruling essentially answers the three 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 (such a) right?

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 ht secession of Quebec from Canada unilaterally, which would take precedence in Canada? The Court's answer to the first two questions was NO. In answer to the first question, the justices replied that, under the existing constitutional framework, 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 initiate constitutional change, but this right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order 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.

The Court added, however, that 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 goverment 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 process that ensued 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.

In the Court's view, it will be for the political actors to determine what constitutes a clear majority on a clear question.

In answer to the second question, the Court answered that, under international law, it was not necessary to decide the "people" issue because a right to secession only arises under the principle of self-determination of peoples 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.

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. In view of the answers to Questions 1 and 2, the Court ruled that there is no conflict between domestic and international law to be addressed in the context of this Reference. (Source: High Commission of Canada, New Delhi)