Cazul secesiunii Quebecului a fost o decizie a Curtii Supreme a Canadei privind legalitatea,

atat sub aspect de drept intern, cat si de drept international, a unei secesiuni unilaterale a
Quebecului de Canada.
In 1994, the Parti Qubcois was elected, formand Guvernul Quebecului, and announced
that it would be initiating a referendum to take place in 1995. The government of Quebec
asked the province's population if it should seek a mandate to negotiate sovereignty for
Quebec coupled with the establishment of a new political and economic optional partnership
with Canada. The "no" side won by only a narrow margin. Prior to this referendum,
the National Assembly of Quebec adopted a bill relating to the future of Quebec which laid
out the Quebec's plan for secession in case of a winning referendum.
Following the close referendum result in the 1995 referendum, the Government of
Canada initiated a reference to the Supreme Court to question the legal issues
surrounding unilateral secession. The Quebec government chose not to participate
in the decision, so Andr Jolicoeur was assigned as an amicus curiae by the Court
(An amicus curiae (literally "friend of the court") is someone who is not a party to a case,
who offers information that bears on the case but who has not been solicited by any of the
parties to assist a court. This may take the form of legal opinion, testimony and is a way to
introduce concerns ensuring that the possibly broad legal effects of a court decision will not
depend solely on the parties directly involved in the case. The decision on whether to admit
the information lies at the discretion of the court).
Cazul secesiunii Quebecului din 1998 priveste articolul 53 din Actul Curtii Supreme,
R.S.C.,

1985, c. S-26, precum si 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.C. 1996-1497, dated the 30th day of September,
1996
Pursuant to s. 53 of the Supreme Court Act , the Governor in Council referred the
following questions to this Court:
1.

Under the Constitution of Canada, can the National Assembly, legislature or

government of Quebec effect the secession of Quebec from Canada unilaterally?

2.

Does international law give the National Assembly, legislature or government of

Quebec the right to effect the secession of Quebec from Canada unilaterally? In

this regard, is there a right to self-determination under international law that

would give the National Assembly, legislature or government of Quebec the
right to effect the secession of Quebec from Canada unilaterally?
3.

In the event of a conflict between domestic and international law on the right of
the National Assembly, legislature or government of Quebec to effect the
secession of Quebec from Canada unilaterally, which would take precedence in
Canada?

The federal government's submission argued that the only way a province could secede
from Canada would be through a constitutional amendment. Only an amendment through
section 45 would allow for unilateral amendments. However, that section does not apply
here. To attempt to secede unilaterally would violate the constitution on two grounds. First, it
would violate the rule of law by ignoring the authority of the constitution as supreme law of
the country, and second, it would violate Canadian federalism by acting with powers only
allocated to the federal government.
The amicus curiae's submission argued several points. First, they argued that the reference
was invalid; the question is purely a political one and thus is outside the authority of the
Court to answer under section 52 of the Supreme Court Act. They attempted to analogize
the use of the US political question doctrine to the Canadian constitution. Furthermore, the
question is speculative and premature as there are no substantive facts at question.
Second, they focused on the second question, claiming that the ability to separate comes
from international law. They argued that the "peoples of Quebec" had a right to selfdetermination under the Charter of the United Nations and thus can secede given the
consent of a majority of the Quebec peoples. They further claimed that since there is no
international law barring separation then by convention there must be an implied right to do
so. Their primary argument was that the doctrine of effectivity gave them authority to
secede. That is, recognition of a new state by other countries would validate the separation.
They further claimed that the doctrine of effectivity is part of the constitutional convention
through its practice in other parts of the commonwealth.
Deciziile (opinions?) Curtii in legatura cu cele trei intrebari:

Right to secede under Canadian law [edit]

The court addressed the three questions in order. First, they stated that under the Canadian
Constitution (and with Quebec being a party to it since its inception), unilateral secession
was not legal. However, should a referendum decide in favour of independence, the rest of
Canada "would have no basis to deny the right of the government of Quebec to pursue
secession." Negotiations would have to follow to define the terms under which Quebec
would gain independence, should it maintain that goal. In this section of the judgement they
stated that the Constitution is made up of written and unwritten principles (based on text,
historical context, and previous constitutional jurisprudence) and that there are four
fundamental tenets of the Canadian constitution. Those 4 interrelated and equally important
principles or values are:
1. Federalism the principle that seeks to reconcile diversity with unity by giving
federal authority over only those issues of common interest amongst culturally
diverse and politically independent provinces. The purpose of Canadas federalism
is not only to create a loose association amongst provinces, but a true national unity.
2. Democracy the principle that seeks to promote participation in effective
representative self-government, which respects and responds to all voices in a
marketplace of ideas.
3. Constitutionalism and the Rule of Law the principles that protect citizens from state
actions by forcing governments to act under the rule of law, the constitution of
Canada being the supreme law. The constitutions entrenched protections of
minorities ensures that the country does not operate simply on majority rule, and
enables a true democracy in which minority voices are fairly considered.
4. Protection of Minorities the principle that guides the other principles, but one which
is also independent and fundamental because of its uniqueness to Canada relative
to other federal, constitutional democracies.
They held that these pieces cannot be viewed independently but all interact as part of the
Constitutional framework of Canada.

Rights to secede under international law and self-determination [edit]

The answer to the second question, which concerned Quebec's right under international law
to secede, gave the opinion that the international law on secession was not applicable to
the situation of Quebec. The court pointed out that international law "does not specifically
grant component parts of sovereign states the legal right to secede unilaterally from their
'parent' state."
The Supreme Court of Canada's opinion stated that the right of a people to selfdetermination was expected to be exercised within the framework of existing states, by
negotiation, for example. Such a right could only be exercised unilaterally under certain
circumstances, under current international law. The court held that:
The various international documents that support the existence of a people's right to
self-determination also contain parallel statements supportive of the conclusion that
the exercise of such a right must be sufficiently limited to prevent threats to an
existing state's territorial integrity or the stability of relations between sovereign
states.
and that
A state whose government represents the whole of the people or peoples resident
within its territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its own internal arrangements, is entitled to the
protection under international law of its territorial integrity.
The court stated in its opinion that under international law, the right to secede was
meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as
a people has the meaningful exercise of its right to self-determination within an
existing nation state, there is no right to secede unilaterally.
For close to 40 of the last 50 years, the Prime Minister of Canada has been a
Quebecer. During this period, Quebecers have held from time to time all the most
important positions in the federal Cabinet. During the 8 years prior to June 1997, the
Prime Minister and the Leader of the Official Opposition in the House of Commons
were both Quebecers. At present, the Right Honourable Chief Justice and two other
members of the Court, the Chief of Staff of the Canadian Armed Forces and the
Canadian ambassador to the United States, not to mention the Deputy SecretaryGeneral of the United Nations, are all Quebecers. The international achievements of

Quebecers in most fields of human endeavour are too numerous to list. Since the
dynamism of the Quebec people has been directed toward the business sector, it
has been clearly successful in Quebec, the rest of Canada and abroad.
The Supreme Court further stated that: Quebec could not, despite a clear
referendum result, purport to invoke a right of self-determination to dictate the
terms of a proposed secession to the other parties to the federation. The
democratic vote, by however strong a majority, would have no legal effect on its
own and could not push aside the principles of federalism and the rule of law,
the rights of individuals and minorities, or the operation of democracy in the
other provinces or in Canada as a whole.

Which law applies in Canada?[edit]

Since the court saw no conflict between Canadian law and International law on
the question (neither would allow Quebec to secede unilaterally), it considered it
unnecessary to answer the question.

Decision asta e rezumatul la ce e scris mai sus

Quebec cannot secede from Canada unilaterally; however, a clear vote on a clear
question to secede in a referendum should lead to negotiations between Quebec
and the rest of Canada for secession.
International law does not specifically grant component parts of sovereign states
the legal right to secede unilaterally from their parent state.
There is no conflict between domestic and international law, so there was no need
to answer this question.