The International Court of Justice (ICJ) that is. In July, the ICJ gave an advisory opinion to the UN General Assembly, reaching the sweeping conclusion that “international law contains no applicable prohibition of declarations of independence.” The subject of this opinion wasn’t a prominent nation like New Worcestershire, but an obscure place called Kosovo. Kosovo declared independence from Serbia on February 17, 2008, and the validity of this declaration has been hotly disputed ever since.

At Serbia’s prompting, the UN General Assembly, in October 2008, passed a resolution referring to the ICJ the straightforward question: “is the [Kosovan declaration] in accordance with international law?” The ICJ considered the question in two parts; whether the declaration was in violation of general international law, and whether it was in violation of a specific law – namely UN Security Council Resolution 1244. On the first count, the majority looked at the history of declarations of independence in the past 300 years, and determined that no general principle of international law prohibits a declaration of independence. With regard to Resolution 1244 (which concerned the interim governance structure for Kosovo until a permanent agreement on its status could be reached), the majority decided that, because it was merely an interim arrangement, and because it applied to parties not including the authors of the declaration, the declaration could not be in violation of the resolution. For these reasons, the majority of the ICJ found that the declaration was not in violation of either general or lex specialis international law.

To Canadian readers, this decision probably seems so 1998. In that year, the Supreme Court of Canada (SCC) issued its opinion in Reference re. Secession of Quebec, on the question of whether Quebec could unilaterally secede from Canada under either Canadian or international law. The SCC approach to this question was similar in some ways to the ICJ, and different in others. Like the ICJ, the SCC took a very narrow view of the legal question – though here it was phrased in the positive (“does the applicable law allow secession”) rather than the negative (“does the applicable law prohibit declarations of independence”). In the event, the court decided that neither Canadian nor international law permitted a territory to declare independence unilaterally – particularly in a democratic setting. Unlike the ICJ however, the SCC went a little further than the narrow legal question, into the realm of the political, holding that the federal government would be bound to negotiate in good faith with Quebec in the event of a clear referendum result favouring secession.

Ultimately, one court found unilateral declarations of independence to be not illegal, while another found them to be not legal. What does this mean for would-be Founding Fathers and Mothers, such as myself? The answer has been clear all along. Questions of the independence of states simply aren’t legal issues, but political ones. The parties submitting the questions to courts in the examples above were never interested in the legal answer. They wanted a court’s opinion which could be used as ammunition in the political battle over independence.

Various countries’ reactions to the ICJ decision are notable only for their predictability, and reinforce the above conclusion. Countries with potentially secessionist regions, such as Russia, Spain, China, and India (though excluding Canada) dismissed the ruling, while aspiring statelets, including Nagorno-Karabakh, Abkhazia, and South Ossetia (the latter two paradoxically supported by Russia) enthusiastically embraced it.

How should courts deal with situations when they are asked for an opinion which, regardless of the answer, will be used as fodder for political gain? The ICJ restricted its ruling very narrowly to the legal question asked, while the SCC gave a balanced opinion which allowed both parties to claim victory. Neither approach has prevented the opinions from becoming political ammunition. Should courts thus refuse to rule on such transparently political questions, or should they dutifully fulfil their role, ignoring the political consequences?

There aren’t clear answers to these questions. The only thing that’s clear is that if the Supreme Potentate of New Worcestershire ever finds himself before a Canadian (i.e. foreign) court for not paying so-called “income taxes”, the ICJ opinion will be invaluable in supporting his claim to self-determination. On the other hand, the SCC opinion in re. Secession of Quebec could be useful too – our referendum on independence won by 100%, after all…

NOTHING ILLEGAL HERE

It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.

The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).

The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter stipulates that every person is fundamentally entitled to freedom of religion (which includes the right to manifest it, according to the Bouchard-Taylor Commission), subject to proper regard for democratic values, public order and the general well-being of the citizens of Quebec, and that every person shall exercise his rights without distinction based on sex or religion.

In both of these concurrent scenarios the case would likely reach the Supreme Court of Canada, which may find the law to be constitutionally invalid and strike it down. If it does, the Quebec legislature will have the option to re-enact the law notwithstanding the relevant charter provisions, though this would be an extremely politically-risky move.

The third avenue is to bring a complaint before the UN Human Rights Committee alleging a breach of the International Covenant on Civil and Political Rights, as an Ontario man did in 1999 to challenge constitutionally-sanctioned religious discrimination in school funding. The ICCPR stipulates that everyone shall have the right to freedom of thought, conscience, and religion including the right to manifest his belief, and that he shall not be subject to coercion that would impair his ability to have or adopt a belief of his choice, subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. A favourable ruling from the Human Rights Committee, while imposing a binding treaty obligation on Canada, would not be directly enforceable in domestic courts – though it too would generate strong political pressure.

Numerous arguments have been advanced in defense of Bill 94, of which I have encountered the following:

1. The niqab precludes social integration and cohesion;
2. The niqab promotes gender inequality;
3. The niqab is not in fact required by Islam, most Muslims do not wear it, and many Islamic theologians oppose its use;
4. The niqab is an archaic symbol of oppression that undermines the values of Quebec society;
5. The niqab could be used as a cover for criminal or terrorist activity;
6. The niqab poses a public security threat in situations where policy calls for one’s identity to be ascertained;
7. Immigrants should adopt the values of the society they move to;
8. We should not accommodate the practices of people from countries that do not accommodate ours.

That Quebec has a marked history of religious intolerance, and that many of these arguments may appear to be founded in anti-Muslim sentiment rather than in relevant law or public policy, provides a second, independent reason to be wary of attempts to ban the niqab. One should not ignore that this proposed legislation singles out Muslims and that it emerged within a social context noted for anti-Muslim sentiment, which in itself evokes memories of uglier periods in our history. Paul Waters, writing for the Montreal Gazette, likens the anti-niqab “bullying of outsiders to protect Quebec values” to the Duplessis-era persecution of Jehovah’s Witnesses.[1] In attempting to distinguish between legitimate opposition to the niqab and mere “bullying tactics”, I’ve identified six of the eight arguments above which I think should have absolutely no bearing on the discussion.

Argument #3 is irrelevant because the Supreme Court in Amselem affirmed that a religious practice is one that is sincerely, subjectively felt to be connected to the observance of one’s religion, regardless of whether or not the practice is universal, normative, or required by a religious authority.[2] It is not for the Canadian public, or the courts, or any given Islamic scholar to determine whether Muslim women are religiously-mandated to wear the niqab; it is for each Muslim woman to decide the extent of her obligation within the parameters of her faith.

Argument #4 is also irrelevant, because unless a religious practice infringes on someone else’s rights or freedoms the courts have no authority to pass judgment on it. Many Quebecers may subjectively perceive the niqab to be archaic and a symbol of oppression, but the same might be said of any religious practice. And regardless of what it symbolizes, as with all other religious practices, absent evidence of coercion we must presume that a woman who wears the niqab does so in free exercise of her personal autonomy.

Arguments #5 and #6 are merely diversionary. It is misleading to assert that security considerations form the basis of this legislation, and disingenuous to portray tolerance of the niqab and maintenance of habitual security practices as mutually exclusive. Accommodation will only exist to the extent that it is reasonable, as defined by the Supreme Court; it is clear, even absent specific legislation, that niqabis will have to show their faces for the purposes of obtaining ID cards, passing through security checks, etc., and there are no reported cases in Canada of niqabis refusing to do so. Nor are there documented cases of criminals disguising themselves in niqabs to avoid detection (which would hardly be inconspicuous). There is no indication that the bill is designed to, or that it would, improve Quebecers’ security.

Argument #7 is contrary to everything that is Canadian. The official policy of multiculturalism, adopted by the federal government close to 40 years ago, affirms that Canadians of all ethnic and national origins can simultaneously retain diverse cultural values and participate fully in Canadian society. Even declaring Quebec to be a “secular society” does nothing to change the entrenched legal norms of religious freedom.

Argument #8 is similarly un-Canadian; the Canadian Charter specifically prohibits allocating differential rights on the basis of national origin. Our judiciary does not punish individuals simply because we don’t like the laws of the countries they were born in.

If the government is called on to defend Bill 94 before a court or tribunal, I believe it will have to show either that the legislation is justified by the pressing policy objective of promoting social cohesion (argument #1) or that it is required to protect women’s equality rights, which are so important that they should be allowed to displace some religious freedoms (argument #2).

I believe that the second argument is likely to fail. For it to succeed would be to abruptly alter the understanding of religious freedom that has developed in Canada over the course of decades. Yes, for women to systematically don particular garb that men do not inherently suggests some element of gender inequality. But if the niqab violates the principle of gender equality, why wouldn’t the garb worn by religious Catholic and Jewish women? Why wouldn’t tube tops and miniskirts, for that matter? Despite the (ironically secular) Muslim Canadian Congress’ position that the practice of wearing the niqab marginalizes women,[3] I think the right to wear religious garb must be protected in any society that values freedom of religion. Some argue that the niqab inherently oppresses women because no reasonable person would freely choose to wear it, but we should be extremely wary about such a descent into paternalism when the stakes are as high of depriving people of fundamental freedoms. I don’t think wearing any sexually-differentiated religious attire, no matter how alien or uncomfortable, should give rise to an automatic presumption of male oppression; such a determination should only be made on a case-by-case basis. Moreover, it may be difficult to make the case that a law which singles out Muslim women in its application advances the cause of equality.

The first argument, in my opinion, has a slightly higher chance of success. According to the Oakes Test, the government would first have to show that it is acting to advance a particular pressing and substantial policy objective. I think that promoting social cohesion and integration would qualify as such an objective.

The government would then have to show that the means by which it is advancing this objective are proportional to their goal. This consists of three elements:

The government would have to show that the means are rationally connected to the objective. I believe it could meet this requirement. The full, physical separation the niqab entails promotes a reasonable apprehension among many Muslims and non-Muslims alike that wearing it precludes women from integrating into society, and that it acts as a barrier to communication which inhibits normal interaction. Many people feel intimidated or uncomfortable at the sight of the niqab, more so than other forms of religious garb, because of a fear of the unknown. Not being able to see one’s interlocutor in face-to-face encounters can be highly disconcerting, and Grey describes the niqab as “ghetto walls that a person wears” that make social participation impossible.[4] Conversely, a possible counterargument might be that it is anti-Muslim sentiment and not the niqab that is the greater threat to social cohesion, and passing a law rooted (or perceived to be rooted) in such sentiment would only push this objective further away. History has shown generally that it is the expansion, rather than the curtailment, of religious freedoms which most effectively promotes social integration. Another possible counterargument might be that the government has no authority to demand that citizens behave “sociably”.

The government would then have to show that Bill 94 infringes religious rights to the minimum extent necessary to advance its objective. This will be somewhat more difficult. If the government succeeds, in the previous step, in establishing that the niqab inherently inhibits social cohesion, than it would be reasonable to argue that banning the niqab from some public forums constitutes minimal impairment. However, it might be argued that banning the niqab from hospitals and schools goes further than necessary, and that since everyone requires access to healthcare and education (perhaps more so than other government-funded services), less coercive measures could be found to discourage the practice of wearing it. Denying medical treatment to those who would refuse to remove something essential to their religious identity seems to me extremely heavy-handed.

Lastly, the government would have to show that there is proportionality between the infringement of religious freedom and the objective being pursued. This is where I think the government’s case would most likely fall. Does the benefit of having a society which might be slightly more cohesive due to a reduced usage of the niqab outweigh the harm that would be inflicted on the small number of Muslim women who would otherwise wear it? I would argue that it does not. Any benefit that might result would be intangible and difficult to demonstrate, while the harm would be much more plainly evident. Aside from the curtailment of fundamental individual freedoms, it would send a distinct message of intolerance to and about Quebec society that could further erode constitutional protections.

Is Bill 94 targeted at the niqab, or at niqabis? Does it send the message that nobody in Quebec has the right to wear this particular religious garment? Or does it send the message that certain religious Muslim women in Quebec do not have the right to government services, healthcare, and education (which itself promotes religious and gender inequality)? Because religious freedom is so heavily entrenched in Canada, it seems to me that the two are heavily intertwined and the resulting message is ambiguous. Unless the Quebec government can disentangle the messages, and show that has an insurmountable problem with the niqab but not with those Muslim women who would wear it (and I don’t think it will be easy to show why a neutral piece of cloth is so much more repugnant to public order than, for example, the black hats worn by Hassidic Jews or the habits worn by Catholic nuns), I think its attempts to ban the niqab will fail.

Moreover, one of the driving forces behind Bill 94 is the desire to show that Quebec society is not like Iranian or Saudi societies, where women are forced to dress in certain ways. While those societies are oppressive, ours is open and protects individual rights, or so the argument goes. But I fail to see why a government that bars a particular form of dress is inherently any less oppressive than one which demands it. I think that for a government to ban certain forms of religious dress it should have to satisfy an extraordinarily high burden of proof to establish why such dress is harmful to society.

In sum, as things are now I don’t think that Bill 94 will be able to withstand legal scrutiny. While I do share some of the concerns many have expressed regarding the niqab’s potential to inhibit social cohesion, I am not entirely sure that it is categorically different from many other forms of religious practice in that regard. I tend to be less worried about the direct effects of Bill 94 than I am about the underlying societal realities it reflects. If Bill 94 is defeated, I have little doubt that the government will pursue other, less coercive, mechanisms for discouraging the wearing of the niqab and promoting a more secular, egalitarian form of Quebec identity.

To conclude, and to bring some international perspective to this analysis, it is worthwhile to consider the effects of similar laws enacted elsewhere. Turkey and Tunisia both ban the niqab from public institutions. Belgium and the Netherlands are considering similar proposals. France too has gone much further than Quebec in trying to eliminate religion from public life, banning all religious symbols from public schools and institutions. Such measures are based in what Grey calls “dogmatic secular radicalism”, and considerable jurisprudence shows the extent to which French constitutional values differ from Canadian ones. Nevertheless, despite much international criticism from human rights bodies, France’s secularism law has not been successfully challenged either under the ICCPR or the European Convention on Human Rights. One possible distinction between the French law and Bill 94, despite their similar purposes and ostensible neutrality, is that while the former primarily affected Muslim women, its effects were felt by every religious community in the same way; in contrast, the effects of the latter will be borne exclusively by Muslim women. As Canada’s Supreme Court noted in a landmark religious freedom case,[5] a law’s effects as well as its purpose can serve as the basis for a constitutional challenge.

[2] Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Amselem) at para. 46. http://www.canlii.org/en/ca/scc/doc/2004/2004scc47/2004scc47.html

[3] http://www.thestar.com/living/religion/article/715872—people-think-you-re-oppressed-if-you-wear-the-niqab

[4] http://www.vancouversun.com/life/Most+Canadians+agree+with+bill+banning+burka+Poll/2727130/story.html

[5] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent connection is merely superficial: the Corporations have no assets in Québec, are alter egos for another corporation which itself has no assets in Québec and Defendant Laroche [the current director] has no personal involvement in the Bil’in project … (para. 312)

The defendant corporations were only incorporated in Québec for tax reasons (para. 215). It is highly questionable to use the place of a legal person’s incorporation as the sole basis of asserting jurisdiction over an extra-contractual liability action that occurred entirely outside of Québec – especially if that corporation has no offices in Québec and does not carry out any activities there. Alas, article 3134 of the CCQ clearly accepts domicile as a basis for establishing jurisdiction, and as far as I can discern, the default rule in North America is that a legal person’s place of incorporation is its domicile. Nonetheless, I find it to be quite surprising that the defendants did not try to find some creative way of challenging the use of domicile to assert jurisdiction.

In light of the superficial nature of the connection to Québec, the Plaintiff’s action should have been dismissed outright for a lack of jurisdiction. Since he strictly followed article 3134, Cullen J. had no choice but to raise his legitimate concerns about the strength of the connection between the dispute and Québec in his forum non conveniens analysis. Article 3135 of the CCQ, which entrenches this private international law doctrine, stipulates that

Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

It is perhaps best thought of as a tool that seeks to avoid injustice by providing a defendant with the ability to counter exaggerated, abusive, or exorbitant assertions of jurisdiction. While courts have consistently emphasized its exceptional nature, scholars have repeatedly critiqued courts for applying this doctrine too liberally.[1] It is indeed still quite difficult to determine when a situation warrants the application of this doctrine.

While the Québec court should have definitely refused to assert its jurisdiction, I do not believe that this matter was an instance that clearly warranted the use of forum non conveniens. In his analysis of which court is better positioned to decide the matter, Cullen J. employed the ten factors affirmed in Spar Aerospace Ltd. v. American Mobile Satellite Corp.[2] He correctly assessed that the majority of these factors – notably the location of assets, evidence, and the parties – weigh in favor of an Israeli court.

However, if the dispute’s connection to Québec was somehow more substantial, a strong argument might be made that Israel is not even a viable forum to hear the matter. As James Yap astutely argues, the potential that the war crime, which forms the basis of this action, might not even be justiciable in Israel could “lead to the grossly unjust result of leaving the plaintiff[s] absolutely no forum in which to pursue [their] claim”. Since the entire point of forum non conveniens is to assess which forum is better positioned, it does indeed seem logical to determine whether there is an available, alternative forum. I fully support Talpis and Kath’s recommendation that before assessing  forum non conveniens, a preliminary requirement should be that the foreign forum is indeed adequate and competent to hear the claim.[3] While judges must surely address this underlying issue before they write their decision, a clear presentation of their reasoning on this issue would go a long way to avoid a confusing decision when the viability or impartiality of the forum is contestable.

Provided that there was a substantial connection to Québec, the central issue in this case is really whether a court should decline jurisdiction where war crimes are not justiciable in the alternative forum. Yap convincingly argues that a Canadian court should accept jurisdiction due to the gravity of war crimes, which are universally recognized as severe human rights violations. Some scholars even argue that forum non conveniens should never apply to human rights cases because human rights “supersede [the] convenience of either the parties or the forum”.[4] Indeed, if this case were heard by the Court of Appeal, I hope that these arguments would be directly addressed.

While I am admittedly not entirely familiar with how to go about doing so, I am surprised that the plaintiffs did not try to argue that Québec was the forum of necessity. Article 3136 of the CCQ provides that

Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

The plaintiffs might have argued that Québec has a ‘sufficient connection’ with the dispute due to the grave nature of war crimes, which Canada has recognized with its enactment of the Crimes Against Humanity and War Crimes Act.

Nonetheless, even if the circumstances were different or some of these arguments were accepted, I am not sure whether Québec would be the appropriate forum to hear such a case. While something must be done to address the impunity with which Canadian corporations operate overseas, do we really want a Canadian court to rule on an action that asks it to determine whether a foreign state has committed a war crime? In the end, I suspect that the overwhelming majority of judges would find a way to dismiss such an action as an overreaching assertion of jurisdiction despite the fact that there are legitimate reasons for considering otherwise.

[2] Spar, ibid at para. 71.

[3] Talpis and Kath, supra note 1 at paras. 168-169.

[4] Ibid, at para. 178, referring to K.L. Boyd, “The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation”, 39 Va. J. Int’l L. 41 (1998).