LETTER TO MR. JACQUES BRASSARD IN RESPONSE TO HIS MINISTERIAL STATEMENT ON
THE TERRITORIAL INTEGRETY OF QUEBEC

Translation

November 19, 1997

Monsieur Jacques Brassard
Ministre délégué aux affaires intergouvernementales canadiennes
875, Grande-Allée est
Bureau 3.101
Québec, Québec G1R 4Y8

Dear Mr. Brassard:

The difficulties in dealing with secession within a democracy are real and serious. They require a respectful and thorough discussion which your government has postponed for too long. For this reason, I was pleased that you volunteered to pick up this debate which your Deputy Premier, Mr. Bernard Landry, started last summer.

You have chosen to raise only one aspect of the problem, namely the delineation of borders, so it is on this that I will respond. This issue is, perhaps, the most difficult, sensitive and troubling of all those raised by the prospect of Quebec's secession. It requires careful examination.

Your are pursuing a line of reasoning that seems on its face to be self-contradictory, namely that Canada's territory is divisible while Quebec's is not. In so doing, you advance both legal and moral considerations which are questionable or erroneous. Let us begin with the legal aspect.

You are right that a province's borders cannot be modified without its legislative consent under Canadian law. This protection originated in the Constitution Act, 1871, and was carried over into the amending procedures contained in Part V of the Constitution Act, 1982. Nor are you mistaken in saying that the borders of an independent Quebec would be protected by international law. You neglect to mention, however, that they would be as protected "as Canada's are today", as is made clear on page 385 of the official French version of the report written by the five experts on whom you base yourself almost exclusively.

You seem to believe that the borders of Canada as an independent state are not protected because it is a federation of which one of its components, Quebec, could be described as a "people". A federation is no less an independent state because it gives wide autonomy to its component parts. International law provides the same guarantee for the external borders of a federation as it does for those of unitary states. Canada is no more divisible than is France under international law. As we have indicated in our factum in the Reference before the Supreme Court, international law does not provide a right of unilateral secession to a "people", except in cases of colonies and possibly cases of extreme human rights abuses. In other cases, there is no right at international law for constituent parts of a state to secede without the consent of that state.

The critical question, then, is how Quebec could be transformed into an independent state while respecting the right of Canada to maintain its territorial integrity. Your government persists in claiming for itself the right to effect such a change unilaterally, even though you are contradicted by the vast majority of experts, including those whom you quote.

Your claim is so contrary to what the Government of Canada believes to be established law that one can only assume that it is your awareness of this weakness that lies behind your refusal to test its validity before the Supreme Court. Yet, recourse to the courts is a legitimate means to resolve questions of law in a democracy. The country's highest court is not being asked whether or not secession has political merit, but rather whether your government has the right to effect secession unilaterally.

You believe that you would be able to obtain international recognition without Canada's consent. Since the Charter of the United Nations was signed in 1945, many new countries have been admitted to the United Nations but no country outside the colonial context has become a member against the will of the state from which it separated. Unless a reason can be found which would render this state practice applicable to all countries except Canada, we can reasonably predict that the international community would not recognize your government as an independent state until after Canada had given its consent.

On November 12, you suggested that it would be enough for your government to exercise "effective authority over the territory of Quebec" after a unilateral declaration of independence to achieve international recognition. You advance a very troubling scenario which is fraught with risk and is almost certainly doomed to fail.

First of all, even the "effective control" of territory by a secessionist regime does not in itself lead to recognition by the international community. The "Turkish Republic of Northern Cyprus", Chechnya and Katanga are all examples of unilateral declarations of independence that were effective on the ground but that failed to receive the support and recognition of the international community.

Second, what does your talk of "effective control" mean? How would you exercise such control following a unilateral declaration of independence which was not accepted by the Government of Canada? What would you do faced with the many citizens who would claim their right not to lose Canada on the basis of such a procedure? If they chose to respect existing laws and contest unconstitutional ones, you could not accuse them of civil disobedience because your government itself would be outside the legal framework. The prospect of even a secession which conforms with international practice and Canadian law is difficult and agonizing enough for Quebec society, without having your government exacerbate matters by threatening to act in such an irresponsible manner. And yet you know full well that democracy and the rule of law go hand in hand.

You invoke the collapse of Yugoslavia as a valid precedent to provide a legal argument for your proposed unilateral declaration of independence. However, in so doing, you confuse secession and the total disintegration of a state. Yugoslavia was a case of disintegration, in which the state itself had ceased to exist. The Arbitration Commission which you quote reached this conclusion only after finding that the Yugoslav governmental institutions no longer met the minimum requirements for participation and representation inherent in a federal state, that four of the six constituent republics had expressed a desire to become independent, and that the central authorities had proven themselves to be incapable of ending the civil war. It was in those extreme circumstances that a principle of the inviolability of borders, uti possidetis, was invoked in relation to Yugoslavia's constituent republics.

Take the example dear to your Deputy Premier, that of the former Yugoslav republic of Slovenia. From the day that Slovenia was recognized as independent, its borders were as protected by international law as Canada's. But Slovenia became independent through the disintegration of the state to which it belonged, which has nothing to do with the secession that you are contemplating. As long as Canada exists as a state, its Constitution, which represents the source of legal authority for both our governments, applies.

The Government of Canada accepts the possibility of Quebec's becoming independent. But such a break-up of the country could only occur after Quebecers had very clearly expressed their desire to renounce Canada and after the conditions of secession had been established. You cannot predict the results of any negotiations any more than I can. However, it can be predicted with certainty that they would raise difficult issues for Quebecers and other Canadians, including, perhaps, the issue of territory. Canada would be legally entitled to withhold its consent to secession until it was satisfied with the conditions of this secession.

Let me turn now to the moral dimension of the boundaries issue.

Clearly, a proposal to partition a country gives rise to moral problems, because it invites its citizens to break their ties of solidarity. Once engaged, there is always the risk that a break-up may be done according to bonds of race, language or religion. That is one reason why many very respectable democracies have explicitly or implicitly prohibited secession in their constitutions.

In Canada, we see things differently. We believe that our country would no longer be the same if it were not based on the voluntary adhesion of all its components. That is why there is no major political party, either in Quebec or in the country as a whole, that says it is prepared to keep Quebecers in Canada against their will.

But nor would Quebec be the same if its unity were based on coercion. Just as it would be difficult to hold populations in Canada against their will, it would also be difficult to oblige them to renounce Canada against their will. That is why Quebec's territory cannot be considered to be sacred once it is accepted that Canada's territory is divisible. And that is why you, Mr. Brassard, should clearly disavow the statements you have made on at least three occasions with respect to the use of the police as a means to subject populations to your secession against their will (1).

You argue that Quebec's territory is indivisible because it is inhabited by only one people. There is a sense in which Quebecers constitute a people, but there is also a sense in which there are several peoples in Quebec or only one people in Canada. It is better to reject exclusivist definitions of who we are and see our multiple identities as an incomparable collective richness. Above all, we need to remember that it is always dangerous to attach greater importance and moral weight to the collective representations one gives oneself, such as the notions of "people" and "nation", than to flesh-and-blood citizens. As Renan wrote, "Man belongs neither to his language nor to his race; he belongs to himself above all, because he is above all a free and moral being."

I entered public life to help Quebecers and other Canadians remain united and not to negotiate their break-up. But if it were ever to come to that, the universal democratic values that we hold dear would have to continue to guide us all. In such difficult circumstances, we could not then exclude the possibility that modifying borders might appear as the least undesirable democratic solution. Borders sometimes change when new states are born. Since 1945, such changes have occurred peacefully following referenda (e.g., The British Cameroons, The Federal Islamic Republic of the Comoros) or negotiations (e.g., Zambia, Czechoslovakia).

The highly democratic country of Switzerland adopted a series of referenda to resolve the difficult issue of determining the borders of the new canton of Jura which was being created out of the existing canton of Bern. The procedure that Switzerland followed was by no means a simple one, but no one can describe it as undemocratic. On the contrary, it attests to Switzerland's desire to satisfy as many of its citizens as possible.

Our governments too, like Switzerland, could be obliged to find arrangements that would not impose secession on populations that do not want it. If you had won the last referendum, we would have been forced to deal with this issue when no one was prepared. You are certainly aware of the three referenda held in Northern Quebec just prior to October 30, 1995, in which over 95% of those Aboriginal voters who were consulted opposed Quebec secession or rejected having their territories removed from Canada.

The surest way to divide Quebecers among themselves is to ask them to renounce Canada. No one has a clear understanding of what would have to be done to overcome those divisions in the case of a negotiated secession, including whether we would have to modify borders. You say that this would risk dividing Quebec along ethno-linguistic lines. But it is your proposal of secession that is creating that problem, with its focus on taking the only province with a francophone majority out of Canada. In Quebec itself, separation is massively rejected by non-Francophones, while Francophones are deeply divided by it. Your proposal of secession is the only issue that is creating a deep ethno-linguistic division in Quebec. It is depriving our society of all of the cohesive force it would otherwise have.

It is precisely because the territorial issue raises a sensitive and difficult problem that you cannot continue to invent rules of law that do not exist. Of course, there may be good reasons against moving borders, and especially against creating enclaves. I underscored these arguments each time I met with groups and citizens who call for their municipalities to remain in Canada under all circumstances. I asked them to redirect their energies toward promoting the advantages of a united Canada. But other arguments based on solid democratic underpinnings can be made to support changes to borders. Therein lies a dilemma which merits a substantive debate and which ought to be taken seriously.

In summary, if ever Quebec were to separate from Canada, modifying its borders would assuredly pose real problems, but that does not mean to do so would be excluded a priori. Your government is mistaken in claiming that the law protects Quebec's territory but not Canada's and commits a moral error when it proposes to force populations to renounce Canada against their will.

Your government should pursue the debate on the various difficulties in reconciling secession with democracy. And you should do so in full respect of the democratic values of those who disagree with you, without questioning their loyalty to Quebec.

Yours sincerely,

Stéphane Dion

(1) Le Devoir, April 31, 1994, p. A4, Le Soleil, February 15, 1996, p. A1, The Globe and Mail, January 30, 1997, p. A4

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