Succeeding in Seceding?: Internationalizing the QuEbec Seccession Reference under NAFTA
Dodge, William J., Texas International Law Journal
It is proposed that Quebec become a sovereign country through the democratic process. (. . . ) An economic association with Canada would be maintained in order to preserve and further develop the free circulation of goods and services, of capital and of persons that is currently prevailing. To the same end, Quebec would continue to adhere to the North American Free Trade Agreement.1
On August 20, 1998, the Supreme Court of Canada handed down its decision on the question of whether Quebec can achieve independence from Canada through unilateral declaration. The seventy-eight page ruling is known as the Quebec Secession Reference (QSR).2 As many had predicted,3 the Supreme Court established guidelines under which the government of Quebec may legitimately pursue secession from Canada.4 In the wake of this decision, the Canadian government's future dealings with a separate Quebec, including for purposes of state recognition and economic trade, will be based primarily on whether the government of Quebec complies with the Supreme Court's secession guidelines.
Although the Canadian government hoped that the case would dissuade soft-nationalist voters in Quebec from supporting independence,5 the QSR may have only aggravated the situation.6 Separatist politicians have begun to "appropriate" the decision by emphasizing that the Court ultimately recognized the possibility of separation, even though it rejected the validity of unilateral secession under Canadian and international law.7 Separatist leaders have boasted that the Quebec government, unlike the federal government, does not officially recognize the judgment; consequently, it is not bound to its dictates.8 Therefore, there are no guarantees that Quebec's actions with respect to future referendum campaigns will be consistent with the Supreme Court's prescription.
This note proposes a new prong to the Canadian government's strategy of ensuring compliance with the QSR. One crucial issue that the Supreme Court did not address is whether, in order to join the North American Free Trade Agreement (NAFTA)9 as a separate country, Quebec can succeed-i.e., automatically join NAFTA-or whether it must accede-i.e., petition to join NAFTA as a new country.10 Practically speaking, as long as Quebec's leaders convince voters that an independent Quebec will maintain its membership in NAFTA, and thus remain economically buoyant, they can effectively reinforce their claim that Quebec need not recognize the Supreme Court's opinion in order to become a new nation.11 Furthermore, if Quebec attempts to secede from Canada "illegally"-i.e., in a manner inconsistent with the terms established in the QSR-succession to NAFTA would legitimize Quebec's actions.12
This note advances the proposition that the determination of whether Quebec should succeed or accede to NAFTA following independence should be made by an international tribunal established under Chapter 20 of NAFTA.13 The Government of Canada should convince the tribunal to condition Quebec's succession to NAFTA upon compliance with the principal mandates found in the QSR: secession only after a majority of Quebecers vote on a clearly-worded question, with full respect given to all minorities within its boundaries. If Quebec complies with these mandates and subsequently begins negotiations over secession with Canada in good faith, the tribunal should allow it to succeed to NAFTA; if Quebec ignores the guidelines, the tribunal should require it to accede.
The authority for this solution rests on two premises found in international law: first, there is no definitive international rule governing succession of breakaway states to treaties, and second, judgments involving constitutional and international law from the Supreme Court of one country should be recognized by foreign courts and international tribunals. Justifications for the second premise include respect for the right to self-determination and the furtherance of a peaceful secession settlement. …