Advisory opinions, juridical mischief and Canada’s contribution to the law of statehood

Abstract

ABSTRACT Canada is one of the few counties where the use of advisory opinions approaches that of the international level. The country’s most famous advisory is the 1998 Quebec Secession Reference, which became an authoritative source for international law on statehood and secession. It also showcases the peculiarities of the practice and offers lessons about the operations of law at its conceptual extremes. Because it required Canada’s Supreme Court to recast the country’s history and constitutionalism it shows how juridical mischief can be the wellspring of creativity and why the advisory opinion is the instrument par excellence for its introduction. Martti Koskenniemi finds similar narratives of false coherence and unresolved resolution are a hallmark of international law, suggesting a transnational pattern. John Borrows believes these patterns already shape Canada’s unresolved colonial constitutionalism and suggests they can also rehabilitate it.