Wednesday, August 25, 2010

Spector on Quebec & unilateral declarations of independence

Norman Spector wrote this in his blog Tuesday and it deserves some attention for its over-indulgence of the Kosovo unilateral declaration of independence as being relevant in Quebec's case:
No one should have any doubt about the agenda of a PQ government. And, notably, the recent decision of the International Court of Justice in the matter of Kosovo confirmed the view that there is nothing in international law that would make a unilateral declaration of independence illegal.

In referring the question of secession to the Supreme Court, the Chr├ętien government made precisely the opposite case — but it’s view was rejected by the Court in it’s 1998 decision. Tellingly, over the weekend, Bob Rae conceded the legal point in an interview with the Montreal Gazette, though the admission was buried in the overall message in which he quite rightly rejected the notion that Kosovo would serve as a precedent for international recognition. That said, those who’ve been comfortably assuming that the Clarity Act had resolved the issue of Quebec separation may want to re-think their assumptions before resuming their slumber on the unity issue. (emphasis added)
Spector leaves you with the impression that we should be worried about Quebec possibly aspiring to that same sort of unilateral declaration of independence ("UDI"). We shouldn't be worried about that. It's OK to recognize that there can be UDIs in international law. But it's not an applicable notion for Canada & Quebec's circumstance.

The Supreme Court has said that our Constitution doesn't permit unilateral secession and international actors would recognize that if the time ever came when Quebec decided to issue a UDI:
"Where, as here, unilateral secession would be incompatible with the domestic Constitution, international law is likely to accept that conclusion subject to the right of peoples to self-determination, a topic to which we now turn." [para. 112]
That is, the international community would defer to our own domestic processes, which we have clearly laid out in the Clarity Act. Then, on that right of peoples to self-determination, Quebec just doesn't qualify:
138 In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterized in terms of "people" or "peoples", nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right, under international law, to secede unilaterally from Canada.
So godspeed to Kosovo, a situation of notable oppression and with its case now affirmed by the ICJ, but Quebec is no Kosovo and the legal arguments just aren't there.

Not to be too critical of Spector's blog item, as I do agree with ringing the alarm about Gilles Duceppe's travels and meetings on the subject of Quebec independence, especially within the context of a possible PQ majority government on the horizon. But the hint that there's an opening to be had by separatist advocates was just a bit too much.