Can Quebec unilaterally secede from Canada? YES

Constitutional and international law recognize a right to secede unilaterally, and Quebec would do so if necessary after a successful referendum, writes Daniel Turp.

Thursday night at the War Museum, in a debate hosted by the Macdonald-Laurier Institute and moderated by historian Jack Granatstein, former federal Liberal leader Stéphane Dion and former Bloc and PQ member Daniel Turp debated the resolution: The Government of Quebec can decide unilaterally to secede from Canada. For Stéphane Dion’s argument, click here.

In my view, the government of Quebec can decide to unilaterally secede because it holds a right to pursue secession under Canadian constitutional law, and a unilateral declaration of independence would not be illegal under public international law. My arguments are based on the state of constitutional and international law, as determined by the Supreme Court of Canada and the International Court of Justice.

With regard to Canadian constitutional law, let me first quote the Supreme Court of Canada in its August 20, 1998 Reference re Secession of Quebec initiated by the federal government when Stéphane Dion held the position of minister of intergovernmental affairs. Based on the principles of federalism and democracy, the judges unanimously affirmed that: “The rights of other provinces and the federal government cannot 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.”

Hence Quebec has under Canadian constitutional law a “right” to secede. In addition, and according to the court, “(t)he clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles.” Quebec’s right to secede thus has a corollary, which the Court presents as the “constitutional duty to negotiate.”

I agree that the Court did not rule that Quebec has the right to seek to achieve secession “unilaterally.” In this regard, the judges do state that “the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act.” However the unanimous judges added:

“Conversely, violations of those principles by the federal or other provincial governments responding to the request for secession may undermine their legitimacy. Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerations in the recognition process. In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane.”

This last formulation suggests that if Quebec negotiated in accordance with the applicable constitutional principles and negotiations were unsuccessful, the issue of secession and, indeed of unilateral secession, would become an issue to be dealt with at the international level. Hence, the state of international law on this issue would become highly relevant. And how does international law deal with a unilateral declaration of independence which is adopted in order to effect secession? In its advisory opinion of July 22, 2010, on the accordance with international law of the unilateral declaration of independence of Kosovo, the International Court of Justice stated as follows:

“(T)he Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law.”

On the basis of this determination, the government of Quebec, just like the government of Kosovo, can decide to unilaterally secede. And such a decision would not violate international law.

The successive governments of the Parti Québécois have consistently made known that they intend to negotiate the terms of Quebec’s independence with the government of Canada. A unilateral decision to secede from Canada has thus never been the preferred option for the political parties, movements and citizens who promote independence for Quebec. But Quebec’s right to pursue secession, recognized in Canadian constitutional law, should not be meaningless.

After a successful referendum on independence and negotiations conducted by the government of Quebec in accordance with the underlying constitutional principles, a new Clyde Wells (who torpedoed the Meech Lake Agreement in 1990 as constitutional historians will recall) might well emerge and refuse to adopt the constitutional amendment required to acknowledge and respect the expression of democratic will of the people of Quebec. Such a refusal would then justify a decision to unilaterally secede from Canada and the adoption of a unilateral declaration of indepedence. It would become the better option for Quebec. And it would legal.

Daniel Turp is a law professor at the Université de Montréal, former Bloc MP and former member of the National Assembly of Québec for the Parti Québécois.