Daniel Turp

Paper presented at the Symposium on Québec Secession Reference

The Implications for Québec’s Sovereignty Project on November 13, 1998

Publication forthcoming in Canada Watch

In its advisory opinion dated August 20 1998 on Quebec sovereignty, the Supreme Court of Canada expressed views on several aspects of the process of Québec’s accession to sovereignty. From a political standpoint, the key element of this advisory opinion is that the Court affirms that "a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognise" (par. 150). But, from a legal standpoint, such a duty to recognise entails a right to «seek to achieve sovereignty" and would place "an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations (…)" (par. 88).

This obligation to negotiate, to which the Supreme Court gives a constitutional value and deems as an imperative obligation, now sees itself given a prominent role in the process of accession to sovereignty. The existence of such an obligation will allow sovereigntists to oppose any pre-emptive argument that the rest of Canada will not negotiate with Québec following a Yes vote in a Québec referendum, such as those made during past referendum campaigns by federalist leaders such as Pierre Elliott Trudeau or Mike Harris. Whereas the domestic use of the new legal argument provided to sovereigntists by the Supreme Court of Canada is obvious, its international use is also provided to sovereigntists by the Supreme Court in light of the linkages that the Court itself makes between such an obligation and the international community. Hence, the Court internationalizes the process of Québec’s accession to sovereignty in inviting other sovereign States to act not only as interested witnesses of the process of Québec’s accession to sovereignty (I), but also as involved parties in such a process (II).

I- Sovereign States as interested witnesses in Québec’s Accession to Sovereignty

The Supreme Court does not hesitate to link the obligation to negotiate to the international context when it affirms "that the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane" (par. 103). In so doing, the Court acknowledges that the consequence of a Yes vote, inasmuch as it stems from a clear question and a clear majority, internationalizes a matter that could be seen as exclusively domestic.

What is interesting is that the Supreme Court does not simply recognise that other States might show, as they always have, an interest in attitudes of both Canada and Quebec governments in these matters, but it also considers that they can play a role in relation with an obligation to negotiate which is a domestic constitutional obligation. Hence, the Court appears to grant such States a standing, which is more political that legal, but confers them nevertheless a key role.

It seems that such an internationalisation occurs at first during the stage of negotiations themselves and implies that foreign governments can evaluate, albeit indirectly, if Québec and the rest of Canada are conducting themselves in compliance with the obligation to negotiate. This conduct, as mentioned by the court, "would be governed by the same constitutional principles, which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities» (par. 90). Thus, foreign governments are invited by the Supreme Court of Canada to evaluate the way in which these constitutional principles are taken into account during the negotiations and how "the interests of the federal government, of Québec and other provinces, of other participants, and of the rights of all Canadians inside and outside Québec" (par. 92).

Those interests are also linked to the subjects of negotiation that the Supreme Court of Canada refers to in its opinion and which would «address a wide range of issues» (par. 96). It seems, for the court, that among the issues to be discussed there would be the «high level of integration in economic, political and social institutions across Canada», the "national economy and a national debt», "boundary issues", "linguistic and cultural minorities, including aboriginal peoples" (ibid.). The Supreme Court thus implies that State members of the international community will indirectly evaluate all these aspects of the negotiation. But the Court seems to confer an additional, and even more critical role to the international community and its member States in suggesting that such States could become involves parties in the process of Québec’s accession to sovereignty.

II- Sovereign States as Involved Parties in Québec’s Accession to Sovereignty

If the Supreme Court of Canada does grant a role to other sovereign States in the phase of negotiations itself, it seems that it also thinks that they will have a key in the post-negotiation period. The Court clearly links the violation of the obligation to negotiate with the issue of international recognition. In a statement of great significance, the Court affirms :

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 recognised 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 (par. 103).

The Court’s emphasis on recognition is further evidenced by statements which again link the conduct of parties to negotiations. The Court asserts that "[t]he ultimate success of [the] secession would be dependent on effective control of a territory and recognition by the international community" (par. 106), and further adds :

The ultimate success of [the] 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. (par. 155).

The Court shows thus a great deal of interest in the role of recognition and appears to suggest that the legal framework and process it has created to deal with Québec’s claim to sovereignty within the Canadian context will be highly relevant. From such a standpoint, the Court states that "(…) one of the legal norms which may be recognised by states in granting or withholding recognition of emergent states is the legitimacy of the process by which the de facto secession is, or was, being pursued" (par. 144). It hastens to add that «the process of recognition, once considered to be an exercise of pure sovereign discretion, has come to be associated with legal norms» (ibid.) and quotes to support such a position the European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union.

These statements of the Supreme Court of Canada clearly reveal that the Court see other State members as involved parties in the process of Québec’s accession of sovereignty. The involvement of third parties is obviously not seen as a violation of Canada’s independence and the Court does not condemn in advance any recognition of Québec sovereignty as «premature». Quite on the contrary, it appears to accept the idea that foreign governments could recognise Québec if Canada did show intransigence during the negotiations and did not abide by its obligation to negotiate in good faith with Québec.

On August 21^st, the importance of these views expressed by the Supreme Court of Canada were noted by the Prime Minister of Quebec, Mr. Lucien Bouchard, who stated, that Court was «sending a clear signal to the international community by saying that, after a "Yes" vote, if Canada and the other provinces were intransigent towards Quebec in the process of negotiations, Quebec’s recognition would be easier to obtain". He also added, using a language reminiscent of the present electoral campaign, that Court was giving Quebec "one of the additional condition to successful negotiations".

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In light of the numerous statements of the Court with regards to the key role that States could play in the process of Québec’s accession to sovereignty, the sovereigntists have reiterated that they are committed to fulfill their obligation to negotiate with the rest of Canada. They intend to negotiate in good faith all matters related to Québec’s accession to sovereignty and, furthermore, to conclude a treaty of partnership in order to maintain the existing economic and monetary union. This commitment is made principally to Canada, but is also addressed to all those States that are considered by the Supreme Court of Canada as interested witnesses and, possibly, involved parties in Québec’s process to become a sovereign country.