LES ASPECTS JURIDIQUES D'UNE EVENTUELLE SECESSION DU QUEBEC

Authors

  • JOSE WOEHRLING

Keywords:

Constitutional Law

Abstract

The author begins by analyzing Quebec's Draft Bill on Sovereignty tabled at the end of 1994 by the Parti Quebecois Government. The Bill provides for Quebec's secession one year after its approval by Quebeckers in a referendum that should be held before the end of 1995. It also provides for negotiations between the Quebec and Canadian governments concerning economic association and all questions raised by the succession ofStates, notably those relative to the sharing of the debt and public services. Obviously the Draft Bill contradicts constitutional law as the latter does not permit unilateral secession of a member State. The author, in the second part of the article, examines the constitutional amending procedure contained in sections 38 to 49 ofthe Constitution Act 1982 to establish the conditions under which Quebec could legally secede. He notes that two theories can be argued, the first under the normal unending formula (requiring the consent of both federal chambers and two-thirds of the provinces representing fifty per cent of the population), and the second under the unanimity formula. Regardless of the theory chosen, Quebec secession with Canadian approval is not very likely. That is why, in the third section, the author explores the possibility of Quebec's unilateral secession in terms of public international law. He concludes that international law does not confer the right to independence on a population that is neither colonial nor a victim of a discriminatory regime; however, international law does not impede a population from claiming and obtaining independence. In Quebec's case, this means that the Quebec people would not have a claim to sovereignty based on the right to self-determination but that they are not precluded from seceding by legal means. Two political factors would override all legal considerations : the willingness of the people of Quebec who, by clearly and democratically expressing their intention, would confer an unarguable popular legitimacy to unilateral separation; and the efficiency and effectiveness of the secession, that is to say, the capacity of Quebec authorities to exercise exclusive public control over Quebec's territory. In effect, such a situation would guarantee the success of Quebec secession on the internal front. On the international plane, this situation would inevitably convince other States, or at least a number of them, to eventually recognize Quebec as a sovereign state. Finally, the author examines territorial issues raised by Québec's unilateral secession. A serious question could be raised by the aboriginal peoples who live in the Québec's northern region. These peoples, who are the first occupants of these territories, could claim to exercise their own right to self-determination by remaining in Canada and separating from Québec if it decided to leave the Canadian federation.

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Published

1995-06-01

Issue

Section

Legal Commentary