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Secession would be legal if it worked: experts

Paul Wells - The Gazette Ottawa Bureau, 1995

When federal Justice Minister Allan Rock said, in December 1994, that the Quebec government's draft bill on sovereignty was unconstitutional, Quebec sovereignists accused him of interfering. But Rock also got in trouble with some Canadian federalists for declaring, almost in the same breath, that constitutionality was a mere "technical detail" compared with the will of Quebecers to decide their own future.

It was an uncomfortable moment for Rock, but on Sept. 8 a Superior Court judge said the same thing. The Quebec government's plan is clearly illegal, declared Justice Robert Lesage, in a case brought by former separatist Guy Bertrand. But trying to stop a referendum, the judge also said, could cause even greater damage to Bertrand's civil rights: this is essentially a political matter, the judge said in effect.

Indeed, if Quebec attempts to secede without Canada's co-operation, it will find nothing in Canadian law - and little in international law - to support the move. But as Professor Henri Brun of Universit� Laval puts it, the test of Quebec's right to separate is "whether it works."

Welcome to the complex, and seemingly contradictory, debate over whether Quebec could pull off a unilateral declaration of independence (UDI) - that is, become a new country without the legal sanction of Canada.

It's not just a theoretical debate, because Premier Jacques Parizeau's sovereignty plan is a recipe for a UDI. It says Quebec would become "a sovereign country" a year after a majority Yes in a referendum.

It also provides for negotiations on an "economic and political partnership" with Canada during that year. But the one-year deadline would not be conditional on the outcome of the negotiations. Deal or no deal, Quebec would be out.

Parizeau understands that with a UDI Quebec would, in the words of University of Western Ontario professor Robert Young, "step outside the existing constitutional order."

Last December, when Rock and Prime Minister Jean Chr�tien were telling interviewers Parizeau's draft bill didn't obey the constitution, Parizeau's reaction was as telling as it was contemptuous:

"Well, they're discovering that a little late. The legitimacy that these people in Ottawa are questioning is drawn from the people itself.

"It is the Quebec people, by virtue of their own laws," Parizeau went on, who "will decide their own future."

To which a reasonable observer might respond: Hey, can he do that?

Maybe. UDIs are nothing new. The term came into the lexicon on Nov. 11, 1966, when Ian Smith declared Rhodesia's independence from British colonial rule and installed a whites-only government in that African country (now Zimbabwe).

Several former Soviet republics declared their independence from the Soviet Union at the beginning of the 1990s, some with overwhelming support in referendums, some without even bothering to hold referendums.

Not all secessions have been preceded by UDIs, however. Austria and Hungary separated by mutual accord in 1867. In 1992, the Czech and Slovak republics were created by an act of the Czechoslovak federal government, after the Slovaks had threatened to secede unilaterally.

But it's not clear what lessons any of these events has for Canada. Rhodesia's secession was a version of decolonization. Austria-Hungary and Czechoslovakia had been looser federations than Canada. As Young has written, "there has never been a case of secession in an advanced, capitalist, democratic country."

Neither of Canada's main constitutional documents, the Constitution Acts of 1867 and 1982, contains provisions for the departure of a province or territory. It might be tempting to say that's enough to end this: separation isn't in the constitution, so it's unconstitutional, so it can't happen.

This sort of reasoning would bring airplanes crashing to the ground, because the constitution is mute about air travel, too. The real utility of a constitution is in adapting to new situations. If the constitution doesn't fit a new situation, it can be amended, as things change.

Several scholars have suggested Canada's constitution could be amended to allow for Quebec to secede constitutionally. In effect, the parts that mention Quebec would be deleted, and other parts, such as those dealing with the distribution of seats in Parliament, would be modified to reflect a smaller, reshaped Canada.

These changes would take the approval of the House of Commons, the Senate and the legislatures of at least seven provinces, seven which have half of Canada's population. Osgoode Hall law school's Patrick Monahan argues that secession would require other amendments - about the offices of governor-general and lieutenant-governor, for instance - that need unanimous approval of all provincial legislatures.

And because the constitution gives Ottawa responsibility over native populations affected by Quebec secession, Monahan thinks native groups would have to be at the table.

There is no guarantee that a workable set of amendments could get unanimous agreement - especially since no government outside Quebec has a mandate from its voters to discuss such matters.

Hence, the temptation not even to bother trying. With a UDI, a separatist government attempts to set up a new legal regime on its territory to replace the old set of laws.

"This is a very serious act," Western's Young writes. Indeed, it fits the strict legal definition of a revolutionary act.

"Whether this kind of legal revolution occurs," Monahan writes, "depends ultimately on whether the new regime can successfully oust the old one." This can happen with little conflict, if Canada simply accepts the UDI and recognizes Quebec sovereignty. Or it can happen with more conflict if Canada rejects the UDI and competes with the Quebec government to see whose legal regime can prevail on Quebec soil.

The result of a contested UDI is "a contest of national will, possibly through forceful means," Young writes. Such a contest can lead to a whole spectrum of results. At one end of the spectrum is a never-ending series of tedious legal battles between governments and individuals. Lawyer Bertrand has already threatened to launch a new court case the day after a Yes vote. It is reasonable to expect such court action to be multiplied several times over, as upset federalists test Quebec's legal authority to secede. At the other end of the spectrum of conflict, at least in theory, is civil war - which just about nobody predicts for Quebec.

What does international law say about Quebec's right to secede unilaterally? Nothing conclusive. Historically, the world has welcomed secessions that worked and condemned failed ones.

Those who support a UDI generally make a three-part argument: that Quebecers constitute a people; that the Quebec people have a right to self-determination; and that that right includes a right to secede. There's room to argue about each point.

What defines a people? Most obvious answers - language, race, religion - clearly don't apply to the entire Quebec population. Or they describe groups that spill across Quebec's borders, such as francophone Canadians.

Daniel Turp, the Bloc Qu�b�cois's constitutional adviser, has suggested Quebecers define themselves through the expression of a "vouloir-vivre collectif," a collective will to exist.

But how is that will expressed? In a referendum? Then people who vote against the majority have apparently opted out of the collective will. Are they still part of "the Quebec people?"

Still, let's assume Quebecers constitute a people, and move on.

Some observers have argued that only people experiencing foreign oppression, or living in racist regimes that deny them rights enjoyed by others, have a right to self-determination. This is the opinion of five international legal experts hired by the B�langer-Campeau commission in 1991 to study Quebec's right to secede. Parizeau often quotes other parts of this opinion, but he never mentions this part.

Canadian politicians, though, have often acknowledged Quebec's right to self-determination. Progressive Conservatives, for instance, overwhelmingly endorsed that right at a 1991 policy convention. But does that right include the right to secede without Canada's legal sanction?

The 1970 Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations says self-determination doesn't include the right to "dismember or impair ... sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples."

In sum, international law gives Quebec the right to secede if Quebecers are oppressed. This gives rise to some fascinating arguments. The Bloc's Turp, for instance, has suggested that if Canada didn't co-operate with Quebec's attempt to secede, Quebecers would thus become oppressed - and therefore have the right to secede. Who said constitutional law is no fun?

The success of a secession comes down to two tests: recognition of the new regime by other countries, and the regime's ability to exert legal control throughout its territory. And foreign recognition often hinges on demonstrated control of the territory.

So Quebec's secession would be endorsed by international law if other countries began to believe the Quebec government could govern all of Quebec's territory, all by itself. "The test of Quebec's ability to become sovereign is whether it works," as Henri Brun says.

But Canada might contest Quebec's secession. It could do this in all kinds of ways. Jos� Woehrling, a sovereignist Universit� de Montr�al law professor, expects the federal government would reject the use of armed force but use other methods: "organization of a pan-Canadian referendum to consult the population of the other provinces on the departure of Quebec; systematic court challenges of all acts passed by the secessionist government; ... the Emergency Measures Act, suspension of civil liberties ..."

As long as this contest between governments continued, other countries would hesitate to recognize Quebec sovereignty, for fear of taking sides in what Canada would regard as an internal matter.

Would Canada try to block Quebec's unilateral secession? Again, nobody agrees. As University of British Columbia professor Alan Cairns has pointed out, it's not even clear what "Canada" would be in this case. (See Who Could Speak for Rest of Canada.)

Would Canada's interest lie in stretching out the confrontation, prolonging the devastating economic effects of uncertainty on both sides? Or in cutting a deal fast?

Here are two possible futures: Monahan says a UDI, because it would include no guarantee from Quebec about sharing Canada's huge debt, would be unacceptable to Canada. Ottawa would be forced into "a high-stakes game of constitutional chicken" until the flight of international investment capital from both sides forced one side to give in. Quebec would stay in Canada, broken and, for once, truly humiliated. Or Canada, bled dry, would let Quebec go.

Young expects it would never get to a UDI. Immediately after a vote for sovereignty, he says, Canada's government would be forced into talks.

The negotiations would go rapidly, impose severe short-term costs on both sides, but allow a viable sovereign Quebec and a viable rest-of-Canada to emerge. (Young sees not the slightest chance, though, of the political-economic "partnership" proposed by the sovereignists.)

Why would Ottawa bargain, and why would Canadians let it? To avoid the bottomless uncertainty of confrontation. Until Quebec's future was settled, nobody in Canada could be sure of the value of their bank deposits, pensions, passports, stocks, or contracts. Their legal rights would be in question - which police forces would they obey?

"This is uncertainty," Young writes. "People will pay a lot to avoid it ... this price includes ... political costs - the distaste of having matters handled by a government that one did not support, the frustration of having decisions made without participating in them, and the irritation of one's leaders making deals with separatists."

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