An analysis of the supreme court of canadas reasoning in reference re secession of quebec, 1998 november 28, 2016. Ottawa, 21 august 1998 rferl the supreme court of canada says the frenchspeaking province of quebec does not have the right to separate unilaterally under either canadian or international law. Pdf in 1998, the supreme court of canada delivered its now world famous decision concerning certain questions relating to the secession of quebec from. The unwritten limits of parliamentary sovereignty in canada vincent kazmierski more than a decade after the quebec secession reference, the issue of whether unwritten constitutional principles may be applied as free standing limits on legislation remains a. Rayfuse, rosemary reference re secession of quebec from. Escajedo san epifanio eds, claims for secession and federalism. The court must be guided by the values and principles essential to a free and democratic.
Landmark case reference re secession of quebec 2012 jen. Yet democracy in any real sense of the word cannot exist without the rule of law. In the matter of a reference by the governor in council pursuant to section 53 of the supreme court act, r. When asked whether quebec would have a right to secede unilaterally from canada under international law, the supreme court noted that only in exceptional circumstances might the. Reference re securities act, 2011 scc 66, 2011 3 s. The reference re secession of quebec, the kosovo advisory opinion and. Report submitted to the council of the league of nations by the commission of rapporteurs, league of. If negotiations fail, and quebec declares independence unilaterally, the international community would have to decide whether quebecs action was legitimate. Decision of the supreme court of canada in the quebec secession reference, hamline journal of public law and policy 23 2001, 185224 blay, s. The quebec secession reference and the proposed charter of. In the matter of section 53 of the supreme court act. Secession reference, handed down its decision on the canadian governments reference to the court concerning the legality of a future unilateral secession by the province of quebec from canada. Reference re secession of quebec reference re secession of quebec, 1998 2 scr 217.
Reference re secession of quebec university of windsor. Reference re assisted human reproduction act, 2010 part two. Leclair, jean, legality, legitimacy, decisionism and federalism. The canadian supreme court indicated that it may be possible to argue that international law recognizes the right to external selfdetermination for a people who has been blocked from the meaningful exercise of its right to selfdetermination internally. They are designed to provide a plain language summary of a. Reference re secession of quebec, 1998 york university. Quebec the right to effect the secession of quebec from canada unilaterally.
Pdf legality, legitimacy, decisionism and federalism. The increasing importance of reference decisions in canadian. C this article has been rated as cclass on the projects quality scale. Following the close referendum result in the 1995 referendum, government of canada initiated a reference to the supreme court to question the legal issues surrounding unilateral secession. Reference re secession of quebec, 1998 canlii 793 scc. S26 and in the matter of a reference by the governor in council concerning certain questions relating to the secession of quebec from canada, as set out in order in council p. Accordingly, quebec could not dictate the terms of secession, and one cannot assume that agreement would be reached. Reference re secession of quebec, 1998 case 48 teodora pop two conditions set by the liberal government of quebec. The possibility that the international law right of selfdetermination could entail secession as a last resort in cases of especially severe oppression, in which other channels for exercising internal selfdetermination had been totally frustrated is left open by the reference re secession of quebec. A summary and case brief of reference re secession of quebec, 37 i. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. Arguments in support of the existence of such a right were primarily based on the principle of democracy.
In reference re secession of quebec, 1998, the supreme court. Constitutional jurisprudence shows that democracy exists in the larger context. This book gathers a global array of canadian and european scholars to reflect on the quebec secession reference, delivered by the canadian supreme court in 1998 and its influence on laws of secession around the world like spain, scotland, the eu, eastern europe, ethiopia, and asia. The perceived need to provide an inducement to join the new ethiopian state by providing a bail out option may have been what led the transitional government of ethiopia to include a right to secede in both the transitional charter and the new constitution that followed it. Under international law, is there a right to selfdetermination that would give the national assembly, l. Scotland, catalonia and quebec, it describes the relationship between the claims for secession and federal systems. The court in this reference is required to consider whether quebec has a right to unilateral secession. Fifteen governments and interest groups intervened. Democracy, however, means more than simple majority rule. When a people is blocked from the meaningful exercise of its right to self determination internally, it is entitled, as a last resort, to exercise it by secession. Charter of quebec values its as if pauline marois and her government knew we would be discussing the quebec secession reference case in constitutional law this week when they finally released their plans for a charter of. The case of quebec by peter radan 69 on 20 august 1998 the supreme court of canada, in reference re.
Quebec wanted to split as a unilateral state from canada. It sometimes brings hope to minorities that are in despair and who feel permanently excluded from policy making. Pdf the reference re secession of quebec, the kosovo advisory. Reference re secession of quebec case brief quimbee. Nov 18, 2014 reference re secession of quebec reference re secession of quebec, 1998 2 scr 217. Faced with the question of whether quebec could make a unilateral declaration of independence, the supreme court declared unanimously in this reference 1998 that such a declaration would be unconstitutional both by canadian constitutional law and international law. References in this casenote are to paragraph numbers in the decision. Reference re secession of quebec case brief rule of law. Reference re seccession of quebec jurisdiction 1998 scc. This volume, incorporating the work of scholars from various parts of the globe, explains and discusses the most important current successional claims in western countries e. Selfdetermination and secession under international law.
The 1998 opinion rendered by the supreme court of canada concerning the reference on the secession of quebec could have a positive impact in this regard. Reference re seccession of quebec jurisdiction 1998 scc issues question 2. Yet democracy in any real sense of the word cannot. A udi followed by secession can be regarded as a breakdown of constitutionmaking in two ways. The canadian contribution to a comparative law of secession. The right of a people to selfdetermination cannot be said to ground a right to unilateral secession. Both the quebec government and the canadian government stated they were pleased with the supreme courts opinion, pointing. In reference re secession of quebec from canada,4 the supreme court of canada. It is a selfconscious and deliberate act to break from a constitutional order. High this article has been rated as highimportance on the project. Distinct society status veto power there were two attempts to achieve these rights. The unwritten limits of parliamentary sovereignty in canada vincent kazmierski more than a decade after the quebec secession reference, the issue of whether unwritten constitutional principles may be applied as free standing limits on legislation remains a contentious issue. This short article will address the two following issues. Under the constitution of canada, can the national assembly, legislature or government of quebec effect the secession of quebec from canada unilaterally.
Is there a right of selfdetermination granting such a power. Jul 07, 2014 for example, in 1998, the scc was asked by the federal government to opine on whether it was legal, under either canadian or international law, for quebec to unilaterally secede from canada reference re secession of quebec, 1998 2 scr 217. Under the constitution of canada, can the national 1. Article on the right to external self determination. The constitutional obligation to negotiate 1998 10. Constitutional principles in the secession reference ssrn. The canadian supreme court declined, however, to issue a definitive ruling on.
Reference re secession of quebec, 1998 2 scr 217 is a landmark judgment of the supreme court of canada regarding the legality, under both canadian and international law, of a unilateral secession of quebec from canada both the quebec government and the canadian government stated they were pleased with the supreme courts opinion, pointing to different sections of the ruling. Reference re secession of quebec up until the point of this case, there was no real rule on how to properly amend a piece of the constitution three questions under consideration o under the constitution, can the national assembly, legislature or government of quebec effect the secession of quebec from canada unilaterally. The consent of the governed is a value that is basic to our understanding of a free and democratic society. The quebec secession reference and the proposed charter of quebec values casepolicy considered. Reference re secession of quebec case brief wiki fandom. It may help the international community clarify under what circumstances, and by what means, could the delineation of new international borders between populations be a just and applicable. Claims for secession and federalism a comparative study.
Reference re securities act, 2011 scc 66 canlii, 2011. Does il give the national assembly the right to affect the secession of qc from canada unilaterally. Some people that are for secession want it so they can get rid of the french language all together. In the matter of section 53 of the supreme court act, r. Right to selfdetermination in in re secession of quebec.
Ojen produces landmark case packages on important and controver sial areas of canadian law. Secession and postsovereign constitutionmaking after 1989. The most often cited contemporary judicial reference to remedial secession concerns the canadian supreme courts decision in the reference re secession of quebec. Canlii connects reference re secession of quebec 1998 c. Editorial, court answe r s succeed the kitch e n e r. And in the matter of a reference by the governor in council concerning certain questions relating to the secession of quebec from canada, as set out in order in council p. Legal consequences for states of the continued presence of south africa.
Reference re secession of quebec, 1998 2 scr 217 is a landmark judgment of the supreme court of canada regarding the legality, under both canadian and international law, of a unilateral secession of quebec from canada. Reference re securities act, 2011 scc 66 canlii, 2011 3. Reference re secession of quebec the canadian encyclopedia. Sunstein does not distinguish between an explicit constitutional right to secede and a constitutional sanction for secession in the absence of an explicit constitutional right to secede, as when secession can be achieved through constitutional. Reference re secession of quebec case brief for law. The quebec government chose not to participate in the decision, so andre jolicoeur was assigned as an amicus curiae by the court. Meech lake accord 1987 charlottetown accord 1992 secession do you agree that quebec should become sovereign after having made a formal offer to canada for a new economic and political. Constitutional theory and the quebec secession reference. Dec 05, 2016 leclair, jean, legality, legitimacy, decisionism and federalism. The increasing importance of reference decisions in. This article is within the scope of wikiproject canada, a collaborative effort to improve the coverage of canada on wikipedia.
Each ojen landmark case includes a case summary, classroom discussion questions and activities that encourage students to explore both the legal and societal importance of the case. Secession and postsovereign constitutionmaking after. The same set of principles would govern the negotiations themselves. Charter of quebec values its as if pauline marois and her government knew we would be discussing the quebec secession reference case in constitutional law this week when they. The consent of the governed is a value that is basic to our understanding of a free. Reference re secession of quebec, 1998 2 scr 217 is a landmark judgment of the supreme court of canada regarding the legality, under both canadian. The question of quebec sovereignty reference re secession of quebec. Secession notes stanford encyclopedia of philosophy. The third part is practiceoriented and analyzes the status of the right to remedial secession in international law.