Law of Quebec's Secession

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Introduction

The legal issues relating to Quebec's sovereignty and the United States will emerge, in theory, through the process described in Bill 1 tabled in the National Assembly in 1995. That bill, of course, initiated the process leading to the October 1995 Referendum. That this process is assumed will be evident in what follows.

The United States is not, for Quebec or for Canada, just an ordinary neighbor. As our closest ally and major economic partner, it has a paramount influence in all fields: international, strategic, political, economic, social, and cultural. Considering the intimacy and frequency of our relationships, if sovereignty is decided by a referendum, the consequences are bound to interest United States authorities, irrespective of area. They will want, first of all, to make sure that their northern neighbors' quarrel is not too loud and that any disputes are settled in an orderly fashion so as to be able to resume normal economic and political relationships as soon as possible, reduce any negative influences of Canadian political instability on the American economy and society and, thus, limit the costs of transition for everyone concerned.

The legal issues arising out of Quebec's accession to sovereignty, therefore, are to be seen in international law and in domestic law--that is, in both the relations between Quebec and Canada and the relations between Quebec and the rest of the world. Quebec's accession to sovereignty may attract the attention of the American government, either to protect its own interests or because it will be called to intervene unofficially or officially by one or both parties.

Clearly, in such an intricate political context, law would be of little help if it were to be considered in isolation. Political considerations have always to be intertwined with the enforcement of legal standards (when they do not directly contradict them). Moreover, much will depend on negotiations between Canada and Quebec, be it on the conditions for accession to sovereignty or on its modalities. Virtually everything is politically negotiable, legal standards serving here mostly as guidelines. The first considerations here are the legal conditions that must be met for Quebec to accede to independence; second, the legal modalities of Quebec's accession to sovereignty need to be outlined. (1)

The Legality of Secession: Constitutional Law

Legal issues arise in Canadian constitutional law as well as in international law. On the internal plane, three issues must be addressed: the legitimacy issue, the legality issue, and the possible conflict between legitimacy and legality.

The legitimacy of an accession of Quebec to sovereignty is clearly a political issue and will be resolved if the referendum question is generally considered to be clear and if a Yes vote obtains more than a marginal majority. Then, considering the intensity of the constitutional debate in Quebec over the past three decades, the population of Quebec will have clearly and knowingly chosen in favor of sovereignty and against remaining a part of Canada.

Although some will question the procedure or the consequences of such a vote, a vast majority will recognize that a popular will has been freely and democratically expressed, and that everyone is to act accordingly--that is, to recognize and confront this fact. For Canadian politicians outside Quebec, this will probably mean initiating negotiations as to the modalities of secession: a scenario "a la Czeckoslovakia" is, in this case, largely possible. But it could also mean making a last-minute offer of a constitutional deal in exchange for Quebec remaining part of Canada: then, an entirely new political dynamic may be created.

If the question is considered unclear by the federal authorities or if the Yes side obtains only a marginal majority (for example 50.6 percent, as was the vote for the No side in the 1995 Referendum), then a political conflict is probably unavoidable. …