Lessons learned from the Quebec Secession Reference before the Supreme Court of Canada

Abstract

This article deals with the legal aspects related to the most recent attempt (1995) by Quebec to secede from Canada. The reasoning of the Secession Reference (1998) before the Supreme Court of Canada (Canada’s highest court) will be explained and discussed critically from the perspective of international law, but bearing in mind the specificities of Canadian constitutional law. Issues examined in this article include the obligation of negotiation in cases of secession, the right to unilateral secession in the context outside of decolonisation, the application of the principles of effectivity and international recognition and the territorial integrity of an independent Quebec and the respect of aboriginal peoples’ rights. We will also deal with other cases before Quebec courts where the issue of the legality of secession was discussed. The article finally addresses the aftermath of the Reference and the enactment of legislations by the Canadian and Quebec parliaments, which both deal with the procedural aspect of secession under Canadian law: the federal Clarity Act and the Quebec Fundamental Rights Act.