secession and the virtues of clarity

8/6/2019 Secession and the Virtues of Clarity

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Secession and the Virtues of Clarity By Te Honourable Stéphane Dion, P.C., M.P.

COMMENTARY/COMMENTAIRE

Te Honourable Stéphane Dion, P.C., M.P.(Privy Council of Canada and Member of Parliament for Saint-Laurent/Cartierville)

House of Commons, Ottawa

Stéphane Dion (PC) is the Member o Par-liament or the riding o Saint-Laurent–Cartierville in Montreal. He was rst elected in 1996 and served as the Minister o Intergovernmental Aairs in the Chre-tien government. He later served as leader o the Liberal Party o Canada and the

Leader o Her Majesty’s Loyal Oppositionin the Canadian House o Commons rom2006 to 2008. Prior to entering politics, Mr. Dion was a proessor at the Universitéde Montréal. Tis Commentary is based on Mr. Dion’s presentation, entitled Seces-sion and the Virtues o Clarity, which wasdelivered at the 8th Annual Michel Basta-rache Conerence at the Rideau Club onFebruary 11, 2011.

Stéphane Dion (CP) est député édéral pour la circonscription de Saint-Laurent–Cartierville à Montréal. Il a été élu pour la première ois en 1996 et a servi en tant que ministre des Aaires intergouverne-mentales dans le gouvernement Chrétien.Il est par la suite devenu che du Parti

libéral du Canada et che de l’Oppositionà la Chambre des communes de 2006 à2008. Avant de aire de la politique, M.Dion était proesseur à l’Université de Montréal. Ce Commentaire reprend les principaux éléments de l’allocution de M.Dion intitulée « La sécession et les vertusde la clarté », prononcée lors de la 8e Con- érence annuelle Michel Bastarache auRideau Club le 11 évrier 2011.

It is an honour and a pleasure or me to have been invited to the Michel BastaracheCommission… excuse me, Conerence.

When they invited me, Dean Bruce Feldthusen and Vice-Dean François Larocque sug-gested the theme o “clarity in the event o secession”. And indeed, I believe this isa theme that needs to be addressed, because the phenomenon o secession poses amajor challenge or a good many countries and or the international community. Onequestion to which we need the answer is this: under what circumstances, and by whatmeans, could the delineation o new international borders between populations be a just and applicable solution?

I will argue that one document which will greatly assist the international community in answering that question is the opinion rendered by the Supreme Court o Canadaon August 20, 1998 concerning the Reerence on the secession o Quebec. Tis opin-ion, a turning point in Canadian history, could have a positive impact at the interna-tional level. It partakes o the great tradition o our country’s contribution to peace and



harmony in the world, rom the draing o the UN Universal Declaration o HumanRights to the Convention on the Prohibition o Anti-Personnel Mines. Tat is my con- viction, and I could not hope or a better orum in which to express it, since one o the justices who rendered that unanimous opinion on August 20, 1998 was in act theHonourable Michel Bastarache.

Aer describing how the international community views the phenomenon o seces-

sion and identiying the principles in play, I will argue that the opinion o our SupremeCourt does indeed have universal scope and signicance, and then close by bringingthe discussion back home, that is, to the current situation o Canadian unity and theQuebec separatist movement.

1. Te aversion o States and the international community to secession

Secession is the act o separating rom a State to orm a new one or to join another one.Let us note rst o all that, all around the world, secession is not something that is en-couraged outside o the colonial setting. On the contrary, secession is considered with

denite mistrust – even real aversion when it is eected unilaterally, that is, withoutan agreement negotiated with the predecessor State. Tis mistrust o secession can be veried at three levels: those o domestic State law, international law, and internal Statepractice.

1.1 Domestic law

In terms o domestic law, numerous States arm their indivisibility in their constitu-tion or their jurisprudence. Many democratic States, or example France, the UnitedStates, Italy, Spain, Australia, Finland, Norway and Sweden, consider themselves to beinseparable entities.

1.2 International law

In international law, any attempt at unilateral secession, that is, secession with noagreement negotiated with the existing State, is without legal oundation. Internation-al law does not prohibit unilateral secessions. It simply does not authorize them. Tereare no regulations in this respect, except in cases where there is a right to secession,namely in the case o colonies, subjugation or oreign occupation.

On July 22, 2010, the International Court o Justice declared in an advisory opinionthat the unilateral declaration o independence o Kosovo did not violate international

law. Te Court noted that there is no applicable rule in international law under whichsuch declarations can be disallowed.

Te Court did not say that Kosovo had a right to secede rom Serbia. In act, the Courtdid not rule on the legal consequences o this unilateral declaration o independence.It explicitly reused to say whether or not Kosovo has the status o a State, and did nottell States whether they should recognize Kosovo as a State.

Aside rom cases o colonies or subjugation, international law has no rule or the pro-



hibition o unilateral secessions, and conversely, no rule to allow a secessionist gov-ernment to impose secession legally on those who do not want it. Te absence o aninternational rule prohibiting secession does not create a positive right to secessionwhich would oblige citizens or States to recognize it or conorm to it.

Yet that is exactly what a secessionist government would need i it wanted to proceedunilaterally: a legal means o orcing everyone to accept a change o countries, includ-

ing those who do not want to. International law does not provide or unilateral seces-sion, nor does it contain any peremptory norms that would make it possible to ignorethe domestic laws o the State rom which the secessionist government is trying toseparate.

1.3 State practice

State practice is extremely reluctant to recognize unilateral secession outside the colo-nial setting. In act, no State created by unilateral secession has been admitted to theUnited Nations against the declared will o the government o the predecessor State.

Let us return to the recent case o Kosovo, as it illustrates this reluctance to recognizeunilateral secessions. Te States that recognized Kosovo against the wishes o Serbia,notably the United States, European Union countries and Canada, took endless pre-cautions. Tey insist that Kosovo is a particular case which, in their opinion, does notcreate a precedent. Tey reer to a combination o our actors.

• First, the people o Kosovo were victims o serious abuse, particularly during thebloody attempt at ethnic cleansing at the hands o the Milosevic regime, at the endo the 1990s.

• Second, no one doubts that nearly all o the people o Albanian descent in Kosovo

want their independence.

• Tird, the separation o Kosovo rom Serbia is already an established act in theterritory itsel. In the spring o 1999, NAO drove the Serbian orces out o Kosovoto put an end to a humanitarian disaster. Kosovo was placed under UN authority or nearly ten years.

• Fourth, orcing the people o Kosovo to return under Serbian authority would in-evitably cause instability in an already ragile region. We cannot go back in time.

Despite these our solid arguments or the recognition o Kosovo, a majority o States

continue to support Serbia’s point o view; this includes China and Russia which bothhave veto power on the UN Security Council. Tis leaves Kosovo, 20 years aer its rstunilateral declaration o independence, with partial, restricted recognition throughoutthe world, a situation that would be unacceptable to a population like ours, which isused to having its citizenship, passport and government routinely recognized all overthe world.



1.4 Te case of southern Sudan

In another recent case, that o the South Sudan, there were solid reasons or resortingto secession as a means o paciying a confict between warring populations. Howeverthe international community was reluctant to go down that road, and insisted that thesecession not be unilateral but negotiated by both sides.

Tere has been an almost uninterrupted succession o civil wars since the Sudan be-came independent in 1956, claiming millions o deaths, injuries and reugees. South-ern Sudan in particular has been the victim o serious abuses, including the impositiono traditional law (Shari’ah) upon a non-Muslim population.

Aer the last civil war led to a weakening o the northern authorities’ control over thesouth, a peace agreement was concluded in 2005, under the sponsorship o the UnitedStates and the United Nations, between the Sudanese government and the rebels o southern Sudan’s People’s Liberation Army/Movement. Tat agreement provided or areerendum in 2011, which was to conrm the massive support o the South Sudaneseor an independence which was already in part a de acto reality.

From 1995 to 2011, the UN and the Arican Union attempted to get the two sides tonegotiate a compromise which would have avoided the break-up o the Sudan, but in vain. In light o that act, the international community set to work with all o the Suda-nese authorities on preparing the reerendum, so that it might be held under the bestpossible conditions, to limit the risks o violence.

Care was taken to ensure that the question clearly posed the choice between Sudaneseunity and secession, with no ambiguity. o limit the number o malcontents, planswere made to permit at least one region to hold its own reerendum to choose betweennorthern and southern Sudan. Te simple majority chosen as the line o victory was

purely rhetorical, since no one doubted that there was a consensus or independenceamong the population o southern Sudan. Such a reerendum was not conceivable i the secession project had divided the South Sudanese population into two more or lessequal actions.

In other words, the ocus was on legality, clarity and negotiation.

1.5 Te reasons for this aversion to secession

Let us now examine why domestic State law, international law and State practice havesuch reservations towards unilateral secession.

Te rst reason, o course, is that the States are concerned that their own territorial in-tegrity not be challenged. Te golden rule o “do unto others as you would have othersdo unto you” has a powerul dissuasive eect. It is dicult or a State to demand thatits own unity be respected i it does not respect that o others. It will be more dicultor it to prevent separatist movements at home i it encourages them in other States.

Te second reason is the constant concern or international stability. Separatist move-ments are potential actors o disorder. I the international community is so clearly opposed to recognizing unilateral secession as an automatic right outside o the co-



lonial context, it is no doubt because it would be very dicult to determine to whomthat right should be granted, because such an automatic right to secession would havedramatic consequences on the international community -- with some 3,000 humangroups each claiming a collective identity or itsel in the world -- and because the cre-ation o each new State would risk mobilizing, within that same State, minorities whichwould in turn stake their own claim or their own independence.

Let us simply take the case o Arica. Nigeria has 250 local languages. Côte d’Ivoire ismade up o 60 ethnic groups, the Democratic Republic o Congo 105, Cameroon 200,and so orth. Understandably, the break-up o the Sudan is being contemplated witha great deal o precaution. Southern Sudan itsel is a ragmented region inhabited by some 60 dierent groups.

As ormer United Nations Secretary General Boutros Boutros-Ghali has stated: “Yet i every ethnic, religious or linguistic group claimed statehood, there would be no limit to ragmentation, and peace, security and economic well-being or all would become ever more dicult to achieve” (An Agenda or Peace, 1992, p. 17).

But in addition to these considerations o State and international stability, another ac-tor argues against recognizing an automatic right to secession. Tis is a actor unda-mental to democracies.

Te democratic ideal encourages all the citizens o a country to be loyal to each other,regardless o language, race, religion or regional considerations. Secession asks theopposite o citizens, asking them to break the solidarity that unites them, and to do so,almost always, based on considerations related to specic aliations, such as languageor ethnic origin. Secession is that rare and unusual exercise in democracy whereby a choice is made as to those o one’s ellow citizens one wants to keep and those onewants to transorm into oreigners.

A philosophy o democracy based on the logic o secession would be unworkable. Itwould incite groups to separate rom one another rather than trying to unite or reachagreement. Automatic secession would prevent democracy rom absorbing the ten-sions inherent in dierences. Recognition o the right to secession on demand wouldinvite separation as soon as diculties were experienced along ault lines which are very likely to develop around collective attributes such as religion, language or ethnic-ity.

We are surely touching here on the undamental reason why international law andState practice alike recognize a right to secession only in situations o colonization or

fagrant human rights violations. In extreme circumstances where a State reuses totreat a group o citizens as citizens, where it rides roughshod over their right to citizen-ship, those citizens in turn have the right to consider it no longer to be their State. Tey have that right not by virtue o distinctive traits pertaining to race, language or reli-gion, but because, like other human beings, they have a universal right to citizenship.

It does not mean that a democratic State must reject any and all secessionist demands.Te State may conclude that in light o a clear desire or secession, allowing the seces-sion is the lesser o two evils. But a democratic government has the obligation to en-



sure that this desire or secession is truly clear and unambiguous, and that it will not becarried out unilaterally, but within the ramework o legality and justice or all.

And this brings us to the Supreme Court o Canada’s opinion on secession o August20, 1998.

2. Universal scope and signifcance o the Supreme Court o Canada’s opinion onsecession

Te Supreme Court o Canada’s opinion on secession is a legal document which hasbeen quoted, studied and considered in light o situations as diverse as the relationshipbetween aiwan and China and the relationship between Montenegro and Serbia. Pro-essor Zoran Oklopcic o Carleton University has highlighted the extent to which thisopinion has come in or consideration all over the world (text in preparation which hasbeen provided to me by the author).

Te International Court o Justice opinion on Kosovo, and the bries submitted by

many countries on that occasion, reer to the opinion o our Supreme Court. A delega-tion o parliamentarians rom northern and southern Sudan has come to Canada tostudy our experience and the state o our law.

Beore recalling the content o this opinion, let us recall the reasons why the Govern-ment o Canada, under the leadership o Prime Minister Jean Chrétien, applied tothe Supreme Court aer the 1995 reerendum in Quebec. Tere were basically two o them. Te rst was that the separatist government o Quebec claimed it had a right tosecede unilaterally. Te second was that in both the 1980 and the 1995 reerendums,the government o Quebec had asked a conusing question, designed to articially swell support or the Yes vote.

Te Government o Canada elt that it had a moral obligation to reuse to consent tothe loss o Canada or Quebeckers unless they clearly supported secession and un-less secession was duly negotiated within the constitutional ramework, in a mannerrespectul o everyone’s rights. Te government o Quebec claimed that internationallaw would prevail over Canadian law in the event o a unilateral proclamation o in-dependence. In the terms used by the Attorney General o Quebec, Mr. Paul Bégin,beore the Superior Court o Quebec on April 12, 1996: “[RANSLAION] … sover-eignty is essentially to be decided through a undamental democratic process which ndsits sanction in international public law, and the Superior Court has no jurisdiction in

that regard” .

In other words, the Government o Canada argued that Canada was divisible, but not just anyhow: only in legality and clarity. In the words o the Attorney General o Can-ada o the time, the Honourable Allan Rock – whom I believe you know… – : “Teleading political gures o all our provinces and the Canadian public have long agreed that the country will not be held together against the clear will o Quebeckers.” Similarly,on December 8, 1997, Prime Minister Jean Chrétien said that [RANSLAION] “insuch a situation, there will undoubtedly be negotiations with the ederal government.” (LeSoleil, 08-12-97).



Tis is what the ederal government argued beore the Supreme Court o Canada. Forexample, the written response o the Attorney General o Canada to the questionsasked on February 19, 1998 by the Supreme Court o Canada mentions that the Gov-ernment o Canada has stated on many occasions that “Quebeckers would not be held inthis country against their will should they clearly express an unambiguous desire to leaveCanada” (para. 33). I mysel have stressed this principle many times in my speechesand public letters, starting with my rst statement as a minister, in which I indicated

that “[RANSLAION] in the unortunate eventuality that a rm majority in Quebecwere to vote on a clear question in avour o secession, I believe that the rest o Canadawould have a moral obligation to negotiate the division o the territory” (Le Soleil , 27-01-1996).

Te Court’s opinion o August 20, 1998 conrmed that this obligation to negotiate canbe precipitated only by “a decision o a clear majority o the population o Quebec on aclear question to pursue secession” (para. 93). It does not exist i the expression o thedemocratic will is “itsel raught with ambiguities. Only the political actors”, says theCourt, “would have the inormation and expertise to make the appropriate judgment asto the point at which, and the circumstances in which, those ambiguities are resolved one

way or another” (para. 100).

Te Court does not encourage us to try setting the threshold o this clear majority inadvance: “it will be or the political actors to determine what constitutes ‘a clear majorityon a clear question’ in the circumstances under which a uture reerendum vote may betaken” (p. 5). In other words, examination o the clarity o a majority has a qualita-tive dimension which requires a political evaluation in ull knowledge o the concretecircumstances.

Te Court conrms that “the secession o a province rom Canada must be considered, inlegal terms, to require an amendment to the Constitution, which perorce requires nego-tiation” (para. 84) “within the existing constitutional ramework” (para. 149). All o theparticipants would be required to negotiate secession in conormity with our constitu-tional principles identied by the Court: “ederalism, democracy, constitutionalism and the rule o law, and the protection o minorities” (para. 90). Te government o Quebeccould not determine on its own what would and would not be negotiable. It “could not purport to invoke a right o sel-determination such as to dictate the terms o a proposed secession to the other parties” (para. 91). It would have “the right … to pursue secession” (para. 92) via these negotiations ounded on the above-mentioned principles.

Such negotiations would inevitably touch upon “many issues o great complexity and

diculty” (para. 96). In particular, the Court mentions economic issues, debt, minority rights, Aboriginal peoples and territorial boundaries: “Nobody seriously suggests that our national existence, seamless in so many aspects, could be eortlessly separated along what are now the provincial boundaries o Quebec” (para. 96).

“In the circumstances,” says the Court, “negotiations ollowing such a reerendum would undoubtedly be dicult. While the negotiators would have to contemplate the possibilityo secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached.



It is oreseeable that even negotiations carried out in conormity with the underlying constitutional principles could reach an impasse. We need not speculate here as to what would then transpire. Under the Constitution, secession requires that an amendment benegotiated” (para. 97).

Te Court does not dismiss the possibility that the government o Quebec might makean attempt at unilateral secession. But the scenario it describes has little in common

with the one contemplated by the Parizeau government in 1995. Such an attemptwould have no “colour o a legal right” (para. 144), and would take place in a contextwhere Quebec’s governing institutions “do not enjoy a right at international law to eect the secession o Quebec rom Canada unilaterally” (para. 154).

Tus no rule o law would be available to this government that would permit it to im-pose unilateral secession on persons who did not want it.

Could the Government o Quebec then try to obtain international recognition? TeCourt weighed the probabilities in that respect very prudently and realistically. “AQuebec that had negotiated in conormity with constitutional principles and values in

the ace o unreasonable intransigence on the part o other participants at the ederal or provincial level would be more likely to be recognized than a Quebec which did not itsel act according to constitutional principles in the negotiation process” (para. 103).

Tis prudence o the Court is understandable in light o the topic that I addressed ear-lier: the international community’s extreme reluctance to recognize unilateral seces-sion. Tere are, unortunately, many populations in the world who desire their inde-pendence to an almost unanimous degree, that are victims o unimaginable exactionsby the States to which they belong, and yet do not succeed in obtaining internationalrecognition as independent States.

And so we Quebeckers should not opt or secession by counting on international sup-port exercised against the will o the Canadian State. Instead, we should count onthe honesty o other Canadians. We should rely on the values o tolerance that we allshare in Canada, and which would be essential to the conduct o those painul and di-cult negotiations. And therein lies a contradiction o the secessionist project: sinceother Canadians are good and reasonable people, why should we want to separate romthem?

In summary, secession is a perilous and dicult enterprise that ushers in “a period o considerable upheaval and uncertainty” (para. 96). Tere is every interest in resolvingthis matter within the general ramework o the rule o law, conducting negotiations

based on the principles that dene a country, which in our case are: ederalism, de-mocracy, constitutionalism and the rule o law, and the protection o minorities. Tetrigger or such negotiations would be an expression o clear support or secession.

Tese are the simple principles set orth by our Supreme Court. Tanks to its 1998opinion, these principles are being increasingly discussed, and sometimes even takeninto account, by other countries and by the international community.



Te Court’s opinion is part and parcel o what can be called the Canadian approach.Tat approach consists o ocusing, rst o all, on the need to continuously improvea country o which all citizens can be proud, a democratic and prosperous country whose highly diversied populations develop and fourish with their own cultures andtheir own institutions, while working together toward common objectives.

I, in spite o this type o understanding that a ederation such as Canada aords, a

population should clearly express its desire to separate, then a negotiation on secessionshould be undertaken within the legal ramework and with a concern or justice or all,no matter how numerous the diculties inherent in such a negotiation.

Tis approach appears daring and liberal in the ace o the internationally abhorredphenomenon o secession. It rejects the use o orce, o any orm o violence. It em-phasizes clarity, legality, negotiation and justice or all. While it may appear idealisticto many nations, this is precisely because it seeks to address in an ideal manner situ-ations o break-up which are always complex and delicate. I am convinced that it isgoing to contribute to peace and to enlightened State practice.

3. Scope and signifcance o the Supreme Court o Canada’s opinion on secessionin Canada today

But what about here at home? Given that Quebec’s separatist leaders reject the opiniono the Supreme Court, and even more so the Clarity Act which gives it eect, are we toconclude that we are little urther ahead than in 1995? Tat is the opinion o observerssuch as University o Ottawa proessor Michael Behiels (Ottawa Citizen, September 3,2010) and journalist William Johnson (Globe and Mail , October 30, 2010).

On the contrary, I believe that in Quebec and across Canada, we have taken giant stepstoward a better understanding o the irresponsible and unrealistic character o an at-tempt at unilateral secession. However we must guard against any complacency andcontinue the debate.

I believe there is a growing realization in Quebec that an attempt at secession madewithout clear support and without the saeguard o a legal right would divide the Que-bec population in a dangerous and unacceptable ashion. It has become clearer that asecessionist government acting outside the law would have no way to compel obedi-ence and would conront the entire society with dangers that are unacceptable in ademocracy. An attempt at the unilateral secession o Quebec rom Canada would be

an irresponsible act and would be perceived as such by the international community.

I believe there is a growing realization in Quebec, including in the sovereignist move-ment, that the Parliament and Government o Canada could not, outside the law andwithout the clear support o Quebeckers or secession, proceed with the break-up o Canada and put an end to their constitutional obligations toward almost a quarter o the country’s population. In act, such a break-up would require not only the consentbut also the active involvement o the Government o Canada, i only or practicalreasons.



Ways would have to be ound to transer tens o thousands o public servants romederal departments and Crown corporations to the Quebec public service, millions o tax returns, tons o laws and regulations... Te break-up o a modern State like Canadacould turn into an administrative nightmare. Obviously, such a huge operation couldnot happen without the assent and active participation o the Government o Canada.

But this level o participation by the Government o Canada would not be secured

through a unilateral declaration o independence. On the contrary: not only wouldunilateral secession be without legal oundation, it would also be a practical impos-sibility.

O course, the separatist leaders are not admitting that their belie in the legality o unilateral secession was wrong, that the questions asked in 1980 and 1995 were conus-ing, and that it would be irresponsible and unrealistic to attempt to secede without thesupport o a clear majority. But it was precisely because Mr. Bouchard’s governmentengaged in a selective reading o the Supreme Court opinion, and did not consideritsel bound by it, that Mr. Chrétien’s government had the Clarity Act passed, obligingthe Government o Canada to give eect to the Supreme Court’s opinion. Tat Act

requires the Government o Canada to negotiate secession only when there is clearsupport or secession. Negotiate i it is clear, and do not negotiate i it is not clear. Nonegotiation, no secession.

I am convinced that this clarication initiative has changed the separatist leaders’ out-look on another reerendum should the Parti Québécois return to power, even i they will not admit it.

For example, you will surely have noticed that no one is now talking about linking aquestion on secession with a possible political and economic association or partner-ship with Canada. Tat is a huge gain rom the standpoint o clarity. Remember that in

1995 one elector in two, according to surveys, mistakenly believed that the conclusiono a partnership was a prerequisite or sovereignty.

O course, the leaders o the Bloc and the Parti Québécois maintain that 50 percentplus one o votes cast in a reerendum would be a clear majority, sucient to give e-ect to secession. But it is doubtul whether they believe this themselves. As evidence,consider their internal debate on the appropriate time to hold a reerendum. More andmore o their voices can be heard deending the only responsible point o view: holdanother reerendum only when they have a reasonable assurance o clear victory.

Note that rom a strictly partisan point o view, it would be preerable, or those o us

who are Liberals, or the Parti Québécois to announce that a reerendum would inevi-tably and immediately ollow its election to government. Tat way, the Liberal Party o Quebec would have better chances o winning upcoming elections and continuing toorm the government. But it is in the interest o Quebec society and o all Canadiansthat the voices o responsibility should carry the day, and that there be general agree-ment that a uture reerendum should be held only upon the assurance that a clearmajority o Quebeckers are in avour o secession.



It is encouraging, or example, that a noted separatist, Mr. Joseph Facal, has recently written that, or sovereignty to be possible, it would be necessary to have “[RANSLA-ION] a clear, stable and solid majority … which will not vary quantitatively rom weekto week, as the mood dictates”. “Te decision o whether to leave Canada is a solemn and serious decision”, he goes on; “we cannot take advantage o an infamed climate to hold arush reerendum”. What is more, “the reerendum timetable paralyzes the machinery o government on virtually all other issues. You cannot really govern and prepare a reeren-

dum at the same time. Anyone who has tried it will tell you so” (“Le respect du peuple”,September 27, 2010, and: “Discours à l’Action Nationale,” October 29, 2010). Onewould hope or the same candour rom Mr. Duceppe and Ms. Marois.

Similarly, the immense diculties that the recognition o unilateral secession wouldcause are much better understood in Quebec today than they were in 1995. Natu-rally, the separatist leaders will not acknowledge that it would be totally unrealistic andcontrary to State practice or such recognition to be obtained against the will o theGovernment o Canada. But even Mr. Jacques Parizeau has agreed that recognitionwould be ar rom guaranteed (La Presse, November 24, 2009). What a change romthe assurance displayed in 1995!

In act, the best way to measure the progress o the debate is to compare the Parizeaubill o 1995 (the Act respecting the uture o Québec tabled by the government o Que-bec in the National Assembly prior to the 1995 reerendum) with the Facal bill o 2000(the Act respecting the exercise o the undamental rights and prerogatives o the Québec people and the Québec State which the government o Quebec passed in 2000 in re-sponse to the ederal Clarity Act ).

Te Parizeau bill o 1995 clearly announced a unilateral secession. Its Clause 2 statedthat the declaration o sovereignty contained in the Preamble would take eect andthat Quebec would become independent on a date determined by National Assembly proclamation.

In comparison, the Bill o 2000 lists a series o principles which does not include ex-ternal sel-determination or the right to secede, according to what the sponsoringMinister o the Bill declared in the National Assembly: “[RANSLAION] there is noquestion o Clause 1 conerring a right to secession upon the Quebec people” (statementby Minister Joseph Facal, May 30, 2000). Counsel or the Attorney General o Que-bec repeated the same argument in order to convince the Quebec Superior Court o the constitutionality o this Bill: “[RANSLAION] Tere is nothing there either that would allow one to claim that this Bill takes on any semblance o an unilateral declara-

tion o sovereignty” (Henderson vs. Quebec, deendant’s oral plea, March 13, 2002, p.63). Tey prudently argued that the motion was based on a actual vacuum, and orthat reason did not require substantive examination1 . Such prudence contrasts withthe above-cited pontications by the Attorney General o Quebec beore the SuperiorCourt in April 1996, to the eect that Canadian law has no jurisdiction in matters o secession!

1 Te Court o Appeal rendered a ruling on August 30, 2007 declaring receivable the most importantpart o the motion or a declaratory judgment by appellant Keith Henderson.



Conclusion

Quebec’s sovereignist movement has given itsel a huge task: to convince us Quebeck-ers to make Quebec an independent country, and in order to do that, give up Canada,the country we have built with other Canadians and which is the envy o the world. Farrom making secession less onerous, attempting to achieve this objective unilaterally would put it out o reach.

Whether one is or or against Quebec’s secession, one has to admit that unilateral se-cession would be doomed to ail. It would be bad or everyone concerned. It wouldnot lead to independence and it would be very disruptive or all.

And the reason is simple: a unilateral secession would have no legal oundation. Itwould contravene Canadian law and would have no legal standing in international law.In clariying this point o law, the Supreme Court has done to everyone a great service.

It has also done us service by conrming that secession is possible within the legalramework. A separation agreement would have to be duly negotiated within the Ca-

nadian constitutional context, and on the basis o a clear expression o the will o Que-beckers to leave Canada in order to make Quebec an independent State.

Te diculties that the separatist leaders are having in convincing Quebeckers toclearly give up on Canada do not authorize them to resort to conusion to achieve thatend. Clarity has virtues or everybody.

Te break-up o a modern state such as Canada would be a very dicult goal to at-tain – and an unreachable one i pursued without clarity and outside the rule o law.Tis is a lesson o value or Canada, and certainly not or Canada only. It highlightsthe universal scope and signicance o the opinion o the Supreme Court o Canada.



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In the global think-tank world, MLI has emerged quite suddenly as the “disruptive” innovator, achieving a well-deserveprole in mere months that most o the established players in the eld can only envy. In a medium where timely, relevanand provocative commentary denes value, MLI has already set the bar or think-tanks in Canada.”

Peter Nicholson, former senior policy advisor to Prime Minister Paul Mar

Winner, Sir Antony Fisher International Memorial Award

Best Tink ank Book in 2011as awarded by the Atlas Economic Research Foundation

“op 20 New Tink ank” in the world for 2010as rated by the University of Pennsylvania

Where you’ve seen us:

secession and the virtues of clarity

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