Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.

Supreme Court of Canada, August 20, 1998.

In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.

In pursuing a consistent policy of peaceful coexistence of states with different social systems, proletarian internationalism, and strengthening relations with socialist and developing countries of Asia, Africa, and Latin America, the Soviet State concludes over 400 treaties and agreements a year.

International law concerns itself so largely with a state of war that the present world-conflict has necessarily had an important bearing upon many of its usages and principles and the opinion has been freely expressed, by some whose views are entitled to respect, that the events of this war have placed the science itself in jeopardy. Without attempting to express an opinion on that point, it is clear that when the war is over, one of the first tasks to be undertaken must be the readjustment of the dislocated parts of the system to the new conditions which have arisen. In doing this we shall probably be led to trace the development of the principles of international law from their earliest formulation up to the present day; but quite outside of this practical object, the accomplishment of which must be left to the future, it may not be without interest at the present time, from the purely historical point of view, to recur to some of the circumstances in which the science came into existence, by calling attention to a much neglected book which shows us in the making some of the important principles of international law which are at issue today, a book written by a man who introduced the modern method of studying that subject. The writer to whom reference is made is Alberico Gentili, and the work in question is his Advocatio Hispanica or the Pleas of a Spanish Advocate.

No exhaustive study has, as yet, been made of the Napoleonic era with a view of determining the exact legal status of the blockades established by the British orders in council and the French decrees. It is the purpose of this work to point out the more salient features embodied in the principles of blockade during this period as set forth and laid down by the statesmen of the United States, Great Britain and France, together with their relations to the principles of international law. With this end in view, the treaties, conventions and diplomatic intercourse between the United States and these two foreign countries have been carefully studied. The opinions of statesmen and official legal counsel, as well as the diplomatic correspondence and the decisions of the admiralty courts must be accepted as, in a large measure, establishing the international principles upon which the legality of the various acts may be determined. Court decisions during this period, however, are too much influenced by expediency, made necessary by the demands of the times, to be unconditionally accepted as the last word on the legality of the points in question; but they will nevertheless be freely used.

Over a quarter century after most of them arose, an agreement settling claims of the United States against Hungary was signed at Washington on March 6, 1973. Under its terms Hungary will pay a lump sum of $18,900,000 in settlement of the claims of the United States and its nationals arising out of war damage, nationalization of property, and certain financial debts. Like the Rumanian and Bulgarian lump sum agreements of 1960 and 1963, upon which it is modeled, the Hungarian Agreement constitutes a unique development in international claims practice, for it follows the “preadjudication” of most of the claims by the Foreign Claims Settlement Commission (FCSC), a U.S. national claims commission acting pursuant to Title III of the International Claims Settlement Act. Although the claims against the three former Axis satellites now have been settled internationally, other preadjudicated claims under Titles III (Soviet Union), IV (Czechoslovakia), and V (Cuba and China) of the same act still remain outstanding. The present agreement, therefore, merits analysis not only in its own right, but also for what it reveals about the technique of preadjudication and the international claims settlement process generally.

During the year which has elapsed since the writer first devoted attention to some of the legal aspects of aerial navigation, very material progress has been made in the art itself. Longer and more regularly controlled nights have been recorded by both the dirigible balloon and the aeroplane type of aircraft, between stated localities on land, over territorial waters and even over lanes of commercial importance upon the high seas. A great number and variety of aircraft are being built for state as well as. private uses in large establishments erected in many countries for that particular purpose. The field of experiment and demonstration has constantly broadened. Great nations have established a special aeronautic service for use in conjunction with both the army and the navy. So great is the importance ascribed to the function of aircraft in the next great war that much attention is already directed toward the construction of special means for effectual defense. Indeed, an entirely new type of ordnance has resulted, having, as we shall see, a notable influence upon some questions of international law.