Author Interview: The Canadian Contribution to a Comparative Law of Secession

The Canadian Contribution to a Comparative Law of Secession: Legacies of the Quebec Secession Reference

Giacomo Delledonne and Giuseppe Martinico (eds)

Giacomo Delledonne and Giuseppe Martinico tell us about their recently published book, The Canadian Contribution to a Comparative Law of Secession: Legacies of the Quebec Secession Reference.

What is the book about?

This edited collection gathers together Canadian and non-Canadian scholars to reflect on and celebrate the 20th anniversary of the Quebec Secession Reference, delivered by the Canadian Supreme Court in 1998. It opens with two Canadian scholars exchanging thoughts on the legacy of the reference from a domestic perspective as one of the most questioned decisions of the Canadian Supreme Court. To follow, non-Canadian scholars discuss the impact of this reference abroad, reflecting upon its influence in European and non-European contexts (Spain, Scotland, the EU, Eastern European Countries, Ethiopia, and Asia). Two final chapters, one by a lawyer and one by a political scientist, explore the democratic theory behind that reference.

The readers could wonder why two non-Canadian scholars have decided to engage in an enterprise like this. There are several reasons of course, let us recall just three of them. First of all, the recent revival of secessionist movements in Europe and elsewhere has definitely given new lifeblood to a long-standing debate gathering the attention of scholars from all around the world. In some cases – the Catalan one perhaps being the most striking example – the secession strategy has been employed together with other arguments in order to present a broader identity question. This is nothing new; quite frequently secession has been invoked to address identity questions and indeed, as Susanna Mancini pointed out, “under prevailing circumstances, secessionist movements operate in the context of multinational states inhabited by autochthonous, territorially concentrated minorities which share a national or quasi-national identity”. In this, the Canadian Reference has represented a turning point thanks to the incredible effort made by the Supreme Court to frame secession from a legal point of view, showing in this way the added value of the legal dimension and the not-exclusively political flavour of secession.

Second, this Reference contains incredible anti-populist potential. As Giuseppe Martinico argues in his chapter, the Reference provided a series of guidelines that are very useful for governing the relationship between referendum and representative democracy; this is because of the complex notion of democracy put forward by the Reference. This should not come as a surprise, since generally speaking Canada has been traditionally seen as a laboratory for comparative lawyers and this Reference does not represent an exception.

Third, secession – or, better said, the fear of secession – is a typical concern in federal orders and poses a formidable intellectual and political challenge to their stability. The Reference was a turning point in framing the internal balance of a multinational federation which is also a well-established constitutional democracy.

We have structured the book in three parts, mixing domestic, comparative and theoretical approaches to this landmark opinion. The collection of essays is opened by a foreword by Richard Albert, who makes some relevant points about the enduring influence of the Reference in Canada, paving the way for the first part of the volume.

What inspired you to take up this project?

Both of us have extensively dealt with Canada-related issues in our research activity. The Canadian constitutional system – most of all, Canadian federalism – was an important reference in our comparative works.

More recently, we have co-edited a book (in Italian) celebrating the 150th anniversary of the Canadian Confederation , which was the follow up to an international conference on “The Constitution of Canada: History, Evolution, Influence and Reform” which was organised in Pisa within the Sant’Anna Legal Studies project, almost two years ago. The purpose of this book was not so much to address exhaustively all the main aspects of the Canadian constitutional system as to analyse some of its distinctive traits in comparative perspective. Basically, we aimed to take seriously the idea of Canada as a model for comparative constitutional studies.

In line with this, we have decided to consider retrospectively the influence of the Quebec Secession Reference, “which arguably represents the Court’s most significant contribution to contemporary global jurisprudence” (as Jean-François Gaudrealt-DesBiens defines it in his chapter). In our view, a work like this was even more necessary as the rise of secessionist movements has posed a number of formidable challenges for constitutional lawyers. 

Whose work was influential on you throughout the course of the project?

We would like to highlight three lines of scholarship that have provided us with useful interpretive tools.

First, the theoretical and comparative studies in secession have provided an apt conceptual framework. We think of the contributions by Cass Sunstein, Susanna Mancini, Costanza Margiotta, and David Haljan.

Second, we have obviously been influenced by the recent flourishing of comparative constitutional studies in federalism, e.g. the recent handbook by Francesco Palermo and Karl Kössler.

Third, we have carefully considered other works addressing the global influence of Canadian constitutionalism, e.g. Canada in the World: Comparative Perspectives on the Canadian Constitution (Richard Albert and David R. Cameron eds.).

Last, but not least, we were deeply inspired by the work of Peter Russell, in particular his masterpiece, the Canadian Constitutional Odyssey, which is still regarded as a benchmark in this field.

What challenges did you face in writing the book?

The greatest challenges were to select the relevant case studies and to strive for internal consistency within the book. The influence of the Quebec Secession Reference is not self-evident in all the legal orders that are analysed throughout the book. In fact, we were interested in stressing the existence of both explicit and implicit impact of the Reference, and the emergence, even independently of the Reference, of similar arguments and approaches to secession.

The chapter by Erika Arban offers a good example of this methodological choice. In fact, the Ethiopian Constitution, with which the chapter deals, predates the Secession Reference, yet its provisions regarding secession try to address similar problems and challenges.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

As mentioned before, the Reference has been a turning point in many respects. It made it possible to think of secession as a conceivable option within the legal order. Even if most constitutional systems in the world do not recognise a right to secession, the idea that constitutional law can and should confront secessionist claims has been gaining ground. Basically, the Reference was the starting point of a shift in the balance between law and politics. We think that the chapters of the book, for all their differences, testify to this ongoing evolution.

Furthermore, many chapters in the book underline the anti-populist flavour of the Reference and its difficult or selective reception in some countries (see for example the chapter by Josep Maria Castellà Andreu on Spain). In light of this, we think that the book can provide a contribution to the debate about the relationship between populism and constitutionalism, the role of referendums, and the concept of majority.

What’s next?

We are currently preparing a book proposal for a collective on the constitutional implications and ambitions of Italian populism. As suggested by Errol Mendes, we think that the Canadian scenario can offer important elements to challenge the constitutional counter-narrative advanced by populists. Europe can learn a lot from Canada in this respect, and this is the fil conducteur between our two projects.