Letter to Premier Lucien Bouchard concerning his position on a unilateral declaration of independence


August 11, 1997

Mr. Lucien Bouchard
Premier of Québec
Edifice J, 3e étage
885, rue Grande-Allée est
Québec (Québec)
G1A 1A2

Dear Premier:

The open letter you recently sent to the Premier of New Brunswick, Mr. Frank McKenna, was brought to my attention, and I read it with interest. I will consider it as a contribution to public debate about the procedure by which Quebec might eventually become an independent state, an issue of great importance to Quebecers and other Canadians.

Your argument is based on three rules that you claim are universally accepted: that a unilateral declaration of independence is supported by international law; that a majority of "50% plus one" is a sufficient threshold for secession; and that international law rejects any changes to the borders of the entity attempting to secede. We are convinced that such assertions are contradicted by international law and state practice.

Let me start with the question of a unilateral declaration of independence. The Government of Canada has always maintained that if Quebecers expressed very clearly a desire to secede from Canada, then their will would be respected. As you know, this position is highly unusual in the international community. Most countries do not allow constituent parts to secede under any circumstances. For example, the constitution of the French Fifth Republic, that of General de Gaulle, provides that "La France est une République indivisible," while the United States Supreme Court has found that our neighbour forms an "indestructible union."

The Government of Canada has never contested the right of the Government of Quebec to consult Quebecers on their future, but it has affirmed that the provincial government cannot have a monopoly on the establishment of a fair process that might lead to secession. There is no democratic country in the world where the government of a province or other constituent entity has been allowed to determine these procedures unilaterally.

The vast majority of international law experts, including the five experts consulted by the Bélanger-Campeau Commission, believe that the right to declare secession unilaterally does not belong to constituent entities of a democratic country such as Canada. If you believe otherwise, then I invite your government to ask the Supreme Court of Canada for the opportunity to submit your arguments on these questions as part of the present reference.

Turning to the "50% plus one" rule, it should be noted that it is customary in a democracy to require a consensus for serious, virtually irreversible changes that deeply affect not only our own lives but also those of future generations. Secession, the act of choosing between one's fellow citizens, is one of the most consequence-laden choices a society can ever make.

It is no accident that all instances of secession effected through referenda have been supported by a clear consensus. It would be too dangerous to attempt such an operation in an atmosphere of division, on the basis of a narrow, "soft" majority, as it is commonly called, which could evaporate in the face of difficulties.

If I had enough space, I would cite a series of examples from other countries in which a referendum verdict that was too uncertain was not acted on, for decisions much less important than the break-up of a country. But let us confine ourselves to your secession project.

In the white paper that led up to Quebec's Referendum Act, it is noted that, because of the consultative - and not decisive - nature of referenda, "it would be pointless to include in the law special provisions requiring a certain majority vote or rate of participation." When the bill was tabled on April 5, 1978, its sponsor, Mr. Robert Burns, spoke of the "moral weight" of a referendum won on the basis of "a clearly and broadly expressed popular will." You yourself acknowledged on June 15, 1994 that an attempt at sovereignty with a slim  majority would adversely affect "the political cohesion of Quebec." And on September 12, 1992, in the case of a simple constitutional referendum (on the Charlottetown Accord), Mr. Bernard Landry linked the legitimacy of a "yes" vote to obtaining a substantial majority in Quebec.

As to the question of territorial integrity, there is neither a paragraph nor a line in international law that protects Quebec's territory but not Canada's. International experience demonstrates that the borders of the entity seeking independence can be called into question, sometimes for reasons based on democracy. For example, you are no doubt aware that France insisted on partitioning the island of Mayotte from the Comoros at the time the latter gained independence because the residents of Mayotte unequivocally expressed their desire to maintain their link with France.

Even the most prominent secessionists do not agree that Quebec's borders would be guaranteed if secession were being negotiated. When he was a professor of international law, Mr. Daniel Turp stated his belief that, in the event of Quebec separation, Quebec's Aboriginal peoples would have the right to remain in Canada if they so chose. During the recent federal election campaign, Mr. Gilles Duceppe also pointed to the special geographic position of Quebec territory occupied by Aboriginal peoples and suggested the issue might be referred to an international tribunal.

Neither you nor I nor anyone else can predict that the borders of an independent Quebec would be those now guaranteed by the Canadian Constitution.

These are crucial questions which, so that they can be better debated on their substance, require your government to choose between two contradictory positions. In effect, you are saying simultaneously: 1) that the procedure leading up to secession is a purely political matter, in which case the established law is not relevant; and 2) that the established law demonstrates you are right and those who contest the procedure you intend to follow are wrong.

If you hold the first assertion, you must alert our fellow citizens that you are prepared to plunge them into a situation of anarchy, outside the legal framework, which is not done in a democracy. If, on the contrary, you hold the second assertion, you must produce the rules of law that support your position and agree that our reference to the Supreme Court is a constructive and necessary exercise of clarification, whether or not its outcome is in your favour. One thing is certain: you cannot continue to deny the relevance of law while invoking it when it suits you.

The Government of Canada is convinced that Quebecers will never choose to renounce the deep-rooted solidarity that unites them with other Canadians within this great federation, which we must always strive to improve. Our being together gives us one of the best qualities of life in the world. We acknowledge, however, that the spirit and practice of democracy must be respected in all circumstances, even the very unlikely and sad prospect of Canada's partition.

Reconciling secession with democracy is such a difficult undertaking that no well-established democracy has yet attempted to do so. These grave questions cannot be avoided if you persist in your project of secession. Our fellow citizens expect their elected representatives to debate these issues in a calm and level-headed manner. This debate on the procedures that would apply concerns us as Quebecers first and foremost, because an attempt at secession in an atmosphere of confusion would profoundly divide our society; but it also concerns Canadians as a whole, all of whom would be affected by the break-up of their country.

Yours sincerely,

Stéphane Dion