In its constitutional application in Canada, the concept of sovereignty is addressed, first, to the relations between the different institutions of government - executive, legislative and judicial. The English constitutional theory, deriving historically from Coke but much refined and elaborated and elevated to constitutional dogma by the late-Victorian jurist, Albert Venn Dicey, proclaimed the sovereignty of Parliament. Literally, this meant that there was no law that Parliament could not make or unmake; hence, no distinction between the law of the constitution and any other law; and no power of the courts to refuse to apply any law on constitutional grounds. The political justification for Dicey's theory was the establishment of Parliament as the ultimate democratic institution through the progressive extension of the franchise and the eventual achievement of universal, adult suffrage.
While the sovereignty of Parliament was "received" or carried over, without any serious question, into Canadian constitutional theory after the enactment by the British Parliament of the British North America Act, 1867, there were some legal anomalies created by the fact that the new Canadian Parliament was still legally subordinate to the British (Imperial) Parliament and that Canadian courts were subject to review, on appeal, by an imperial tribunal, the JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, sitting in London. These contradictions were resolved, in legal terms, by the further notion of imperial (British) sovereignty and the consequent legal paramountcy of imperial (British) institutions in regard to the overseas British colonies of which Canada was, in 1867, a constituent part.
With the political changes within the British Empire in the 1920s and the 1930s, and the evolution of what was called Dominion status - legal sovereignty and self-government within the new British COMMONWEALTH - legal concepts marched in step with changing political realities. By 1949, when the British Commonwealth gave way to a plain, unprefixed Commonwealth of Nations, Canada had become fully independent in legal terms - sovereign - in relation to Great Britain. Henceforward, legal relations between Canada and Great Britain would be regulated by INTERNATIONAL LAW - the law between sovereign states - and not, as heretofore, by (imperial) CONSTITUTIONAL LAW. The Constitution Act, 1982 (the "patriation package," sponsored by the Trudeau government), for these purposes, simply swept away some final, vestigial footnotes remaining from the imperial constitutional-legal past.
In Canadian constitutional law today, the concept of sovereignty presents 2 distinct and different problems. The first relates to the federal character of the Canadian constitution and the division, for these purposes, of constitutional law-making competence between the central, federal government and regional, PROVINCIAL GOVERNMENTS. In theoretical terms, the notion of a divided sovereignty is represented by saying that within the respective powers allocated to them under the Constitution Act (the contemporary, renamed British North America Act), the federal legislature and the provincial legislatures each have plenary, sovereign law-making capacity, with the courts available, in case of conflicts over federal-provincial legislative jurisdiction, to arbitrate and rule on the ultimate location of sovereign power (federal or provincial, as the case may be).
A second problem relates to the continued legal applicability and relevance of the "received" English notion of the sovereignty of Parliament in an era when, with the enactment of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS in 1982, the constitutional charter now entrenches certain fundamental, "higher law," principles that are supposed to limit all law-makers. "Received" in the American colonies after their War of Independence against Great Britain - also from Coke, but by way of Sir William Blackstone's famous Commentaries - the notion of a Constitution itself as the "supreme law of the land" binding on executive and legislative authority alike, enters into the Constitution of the US adopted in 1787 and is proclaimed as constitutional truth by the Supreme Court of the US in Chief Justice John Marshall's celebrated judgement in Marbury v Madison at the opening of the 19th century. It may be suggested that Canadian constitutionalism, by the close of the 20th century, now essentially rejects the "received" English concept of the sovereignty of Parliament in favour of a "received" US concept of the supremacy (sovereignty) of the law (Constitution).
In international law terms, sovereignty denotes the international legal personality of a state. Only states are persons (legal actors) at international law; and the state's sovereignty, for these purposes, is projected in its legal control of territory, territorial waters and national air space, and its legal power to exclude other states from these domains; its legal power to represent and vindicate the claims and interests of its citizens with other states; and its own representation in international legal arenas such as the UNITED NATIONS and international diplomatic conferences, and before international tribunals such as the World Court.
These theories of state sovereignty in international law are the products of the period after the Thirty Years War, Westphalia peace settlement of 1648 and the emergence of the new nation state as the master institution of modern international relations, in displacement of the old, medieval theory of political and religious, and hence legal, unity in western Europe. State sovereignty is itself subject to challenge, at the close of the 20th century, as a viable theoretical base for international relations, when new concepts of supra-nationalism and world government are developing. It also poses problems of minimum correspondence to the ultimate realities of world public order today, as new trans-national political, social and economic actors, far more powerful, sometimes, than individual nation states (multinational corporations, international political parties and cultural or religious movements, even international terrorist organizations) emerge.
Yet these new actors have no legal status at international law, other than what they may wish to claim vicariously through attachment to or sponsorship by one or more nation state. We are, in this sense, in an era of transition in international relations and international law; and the notion of state sovereignty is under attack today and may be in a long-range decline, in both political and legal terms.
The strictly legal meaning of the term sovereignty should be differentiated from more popular usages which are sometimes employed out of intellectual fuzziness and sometimes to extract the extra public-relations mileage deriving from a presumedly ancient and hallowed concept like sovereignty. Recurring Canada-US differences over Canada's claims to sovereignty over the arctic waters and the Northwest Passage (see ARCTIC SOVEREIGNTY), and contentions that "economic sovereignty" or "cultural sovereignty" may be endangered in any Canada-US FREE TRADE negotiations, can be seen from this point of view to have a high rhetorical-political content.
Disputes over the legal extension of state sovereignty in territorial matters turn on issues of legal fact-finding that are most sensibly resolved by independent, third-party arbitration or judicial settlement. International diplomatic negotiations, on the other hand, are essentially exercises in political bargaining and give-and-take, with the dynamic factor in producing consensus being mutuality and reciprocity of interest and benefit: such matters turn, then, on political and not legal considerations, and the introduction of the abstract concept of sovereignty may bring confusion and not reason to the public dialogue involved.
The continuing debate, since the onset of the QUIET REVOLUTION in the early 1960s, over Québec's distinctive constitutional role within Canada, and the historical progression from Québec demands for a "special constitutional status" within the federal system to SOVEREIGNTY-ASSOCIATION as proposed in the two failed Québec provincial referenda votes, in 1980 and 1995, evidences a similar, no doubt contrived, confusion between political goals and legal reality which the normative ambiguity of the referendum question served to veil. Political follow-up action, normally involving direct, bilateral negotiation between the Québec government and the federal government, would have been required to give legal expression and status to any affirmative referendum vote. This could be by way of a constitutional amendment re-allocating federal-provincial competences (change in the content, but not the substance, of sovereignty within the existing federal system); or by way of federal government acquiescence in the establishment of a new political fact or starting point for a new state (emergence of a new, sovereign entity).
Author EDWARD WATSON MCWHINNEY
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