Territorial integrity of Quebec in the event of the attainment of sovereignty

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The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty
Report prepared for Québec's Ministère des relations internationales, 1992

(Translation by William Boulet. Revised by J. Maurice Arbour, Professor, Faculty of Law, Université Laval.)



We, the undersigned, Thomas M. Franck, Becker Professor, School of Law, Director, Center for International Studies, New York University, Rosalyn Higgins, Q.C., Professor, London School of Economics, member of the Human Rights Commission, Alain Pellet, Professor of Public Law at the University of Paris X - Nanterre and at the Paris Institut d'Études politiques, member of the International Law Commission of the United Nations, Malcolm N. Shaw, Professor, Faculty of Law, University of Leicester, and Christian Tomuschat, Professor, Institut für Völkerrecht, Bonn University, President of the International Law Commission of the United Nations, having been consulted by the Committee to examine matters relating to the accession of Québec to sovereignty on various legal questions relating to the territorial integrity of Quebec in the event of the attainment of sovereignty, do hereby render the following opinion:

Contents

Introduction

I. INTRODUCTION

A. Presentation of the Study

(a) The Questions and their Scope

1.1 By letters dated March 4, 1992 drafted in identical terms, Mr. François Geoffrion, Secretary of the Commissions on the Process for Determining the Political and Constitutional Future of Québec, constituted under An Act respecting the process for determining the political and constitutional future of Québec (Bill 150)1, which was passed on June 20, 1991 by the National Assembly of Québec, put the following questions to the five authors of this study:

1. Assuming that Quebec were to attain sovereignty, would the boundaries of a sovereign Quebec remain the same as its present boundaries, including the territories attributed to Quebec under the federal legislation of 1898 and 1912, or would they be those of the Province of Quebec at the time of the creation of the Canadian Federation in 1867?


2. Assuming that Quebec were to attain sovereignty, would international law enforce the principle of territorial integrity (or uti possidetis) over any claims aiming to dismember the territory of Quebec, and more particularly:

(a) claims of the Natives of Quebec invoking the right to self-determination within the meaning of international law;

(b) claims of the anglophone minority, particularly in respect of those regions of Quebec in which this minority is concentrated;

(c) claims of the inhabitants of certain border regions of Quebec, regardless of ethnic origin?2a


1.2 These questions are posed strictly from a legal point of view and it is from the sole standpoint of the law that this study intends to consider them. Furthermore, this study does not in any way reflect the political preferences that its authors may have, none of whom, moreover, has ever been involved in the affairs of Canada or Quebec (though Professor Malcolm Shaw, one of the authors, has already been consulted by the Commission on matters which do not directly relate to the subject of this study).


1.3 Yet one cannot close one's eyes to the fact that purely legal considerations are only one aspect of the issues involved, which, as we have seen from the debates they have engendered to date (see, infra, B), are charged with great emotion. Law can be but one of the elements of the answer to questions whose political, social and human implications cannot be neglected. Legality does not necessarily mean legitimacy.


1.4 From a strictly legal point of view, answering the above questions does not imply taking a stand on the exact configuration of the present territory of Quebec and the demarcation of its external boundaries.3 The undersigned are aware that certain portions of these boundaries are the subject of contestations, particularly in respect of the border with Labrador, the possible apportionment of the Gulf of St. Lawrence and, more generally, the maritime territory adjacent to Quebec4 . But it is not necessary to address these issues for the purposes of this study. Whatever its present territorial limits may be, and they are legally correct, the question remains the same: whether Quebec is entitled under international law to retain these limits in the event of its independence or whether independence would - or could - ipso facto entail an alteration of these limits.


1.5 However, it should be noted that if independence did occur, the nature of the dispute would be transformed - from a purely internal matter it would become an international one and would have to be resolved by peaceful means pursuant to the rules of the law of nations.

(b) The Writing of this Study

1.6 This study was written by Professor Alain Pellet in close collaboration with the other four undersigned.

1.7 At a meeting held in Paris on March 15, 1992, François Geoffrion, Secretary of the Commission, and André Binette, Coordinator of Legal Research, provided the authors with supplementary information, thus enabling them to conduct an initial exchange of views on how to address the questions put to them.


1.8 Following these discussions, Professors Thomas Franck, Rosalyn Higgins, Malcolm Shaw and Christian Tomuschat provided Alain Pellet with notes summing up various aspects of the problem and the supplementary documents. On this basis, the writer of this study prepared a "Tentative Consultation Plan" and a questionnaire to which the above-named authors responded.

1.9 The preparation of this study was made easier by the copious documentation gathered by the Secretariat of the Commission and provided to all the authors5.

1.10 A first draft was prepared by Alain Pellet and submitted to the other four for criticism, then corrected and completed on the basis of their response.

B. The Facts of the Debate

1.11 It was only fairly recently, it seems, that the Committee to examine matters relating to the accession of Québec to sovereignty became aware of any possible threats to the territorial integrity of Quebec. True, the debate, though launched some fifteen years ago6, did not regain its intensity until after the enactment of Bill 1507.


1.12 Based on considerations that were often more emotional than rational, the debate formed a mixture of legal arguments (or arguments purporting to be) and other arguments having only the remotest connection with the law. As a result, the issues became clouded.


1.13 From a strictly legal point of view, the most common misconceptions pertain to:

- the respective places of Canadian municipal law and international law;

- the scope of the right to self-determination equated solely with the right to independence; and

- the unclearly perceived distinction between the notion of territorial sovereignty and the right of ownership.


1.14 (i) International Law / Municipal Law

Leaving aside doctrinal quarrels8, international law and municipal law have clearly distinct functions. As pointed out by the Permanent Court of International Justice, and recently echoed by the Arbitration Committee of the European Conference on Peace in Yugoslavia9:

"From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts..."10 .

It follows that the same situations can be governed at once by international norms and municipal rules, which do not necessarily coincide, and it is crucial to know which vantage point one intends to adopt: - an argument that is well-founded under Canadian constitutional law may not be from the viewpoint of the law of nations, and vice-versa.


1.15 Moreover, these rules are often superposed and, within a State, the same situation can quite easily be governed by internal as well as international rules. For example, present-day international law prescribes minimum rules for the protection of minorities (see, infra, III B(a)), leaving it to the States to implement and, if need be, complete these rules in their national legal system. This protection is internationally guaranteed regardless of the State concerned, and the sovereignty of Quebec would not, in this regard, effect any changes to the rules respecting minorities, though the "consistence" of such minorities would be considerably affected: now a minority in Canada, francophones would form the majority in an independent Quebec that would become directly subject to international law which it would have to respect as regards its anglophone minority.

1.16 (ii) Right to Self-Determination / Right to Independence

The principle of the right to self-determination has been and remains at the heart of the debate. For the supporters of sovereignty, this principle forms the basis of the right of the Quebec people to create a separate State. Many of their opponents, however, including spokespersons for most of the indigenous peoples, maintain, following the same rationale,

that "if Quebec can opt out of Canada, then obviously sections of Quebec that preferred to remain part of Canada could opt out of Quebec"11.


1.17 Both sides of the debate base their arguments on the - we believe - erroneous assumption that the right to self-determination is the equivalent of, or at least implies, the right to independence. While the ability to exercice a choice undoubtedly lies at the very heart of the principle of the right to self-determination, it does not at all follow that sovereignty constitutes in every case one of the elements of this choice. In fact, as will be established later (III A), the right to self-determination is a very general, "context-dependent" principle the implications of which are, always and everywhere, that a community has the right to participate in its future, but which, except in colonial situations, is an inadequate basis on which to found the right of a people to achieve independence to the detriment of the State to which it is joined.


1.18 (iii) Territorial Sovereignty / Ownership

Leaving aside some rare and very particular situations that have no bearing on the matter at hand, all land surfaces of the globe are divided between States that exercise over them their "territorial sovereignty": an expression that is more convenient than accurate and which designates all the powers that a State is entitled to exercise over its territory under international law12.


1.19 As a general rule "territorial sovereignty" is characterized by "fullness" and "exclusivity" in that it:

"acts as a presumption. It must bend before all international obligations, whatever the origin, but it bows to no other" [translation]13.

The problem is somewhat more complex in a federal State in that (regulatory as well as executive) powers over the territory are actually allocated between the federal government, on the one hand, and the federated authorities, on the other. Thus in Canada, s. 91 of the Constitution Act, 1867 allocates to the federal Parliament the right to legislate in a certain number of areas, notably in respect of beacons, buoys, and lighthouses (s. 91(9)), fisheries (s. 91(12)) or ferry services (s 91(13)), all matters of obvious territorial implication, whereas under ss. 92 ff. the provincial Legislatures, for example, exercise exclusive powers over non-renewable natural resources, forestry resources and electrical energy (s. 92A) or agriculture (s. 95). As for the indigenous peoples, s. 91(24) attributes to the federal jurisdiction legislative power over "Indians, and Lands reserved for the Indians". Since 1867, however, the provinces - and Quebec in particular under the James Bay and Northern Quebec Agreements and the North-Eastern Quebec Agreement - have acquired certain rights in this area. Yet this is of little consequence from the viewpoint of international law: the distribution of powers between the federal State and the federated entities is purely a matter for municipal law (see, supra, para. 1.14), to be resolved freely by the Federation. Only the federal State is bound by international obligations that can restrict its territorial powers and it alone is liable in the event of a violation14.


1.20 Among the powers exercised by the State over its territory is the right to determine the regime of property in land. This is but a consequence of territorial sovereignty which can and must be dissociated from the issue of legislative or regulatory power: land can be the property of a province but come under the federal jurisdiction, or conversely, belong to the Federation but be subject to provincial regulation. A fortiori, therefore, an individual or an aboriginal band can own immovable property without this having the least effect on the applicable legal system nor on the fact that the property forms part of the territory of the State or province. Furthermore, as has already been stated before the Commission, the legal system of ownership falls within the civil law while the allocation of territory among the provinces is a question of constitutional law: "This is not a question of land or ownership but of territory and sovereignty"15. To determine whether a particular portion of territory belongs to Quebec, one cannot look to the rules of private law: constitutional rules alone are relevant.


1.21 In brief,

- ownership in land is a matter which is entirely separate from that of the consistence of the provincial territory;

- the former falls within the civil law while the latter comes under constitutional law;

- the fact that a particular portion of Canadian territory belongs to a particular province is immaterial in the eyes of international law, which sees in this a "mere question of fact";

- just as any alteration of this belongingness is also a fact (at least so long as Quebec remains an integral part of Canada);

- as is also a fact the distribution of powers between the federal and provincial authorities over this territory;

- so long as Quebec remains a federated entity, international law recognizes only the territorial sovereignty of Canada, with all the attendant consequences.

C. Outline of the Study

1.22 From their very wording (see, supra, para. 1.1) the questions which the authors are faced with view independence "after the fact": independence is assumed and it remains to be determined how international law will react to this event.

1.23 However, we feel that placing too much importance on the letter of the questions distorts the nature of the spirit. Clearly, if Quebec were to attain sovereignty, then the territorial integrity of the new State would be guaranteed by international law, just as international law now guarantees the territorial integrity of Canada (see, infra, II B). But the real issue is whether Quebec is entitled to achieve independence within the configuration of its present boundaries as a Canadian province or whether such boundaries, having become international frontiers, can (or must) undergo a modification as a consequence of independence.

1.24 In fact, it appears that no principle of international law prescribes an alteration of existing territorial limits (though none prohibits one either), and this fundamental fact is contradicted by none of the circumstances specific to this case, be it the historical context in which Quebec progressively acquired its present configuration (II) or the presence on its territory of minority groups whose rights, though protected by international law, do not include the guarantee of the possibility of sovereignty under such law (III).

Territorial integrity of Quebec

2.1 Before independence, the territorial integrity of Quebec is guaranteed by the rules of Canadian constitutional law (A). After independence, assuming it occurs, it would be guaranteed by the principles of public international law, and more particularly by those principles governing the territorial integrity of States and the stability of frontiers and the rules applicable in matters of State succession (B). From a strictly legal perspective, since the attainment of independence is an instantaneous occurrence, there can be no intermediate situation in which other rules would apply. Furthermore, recent precedents have demonstrated that the principle of uti possidetis juris can be transposed to the present case (C).

A. Before Independence

2.2 As we have already mentioned (para. 1.22), the questions put to us are predicated on the attainment of sovereignty by Quebec16; it may, therefore, seem pointless to explore the situation existing prior to independence. But the problem cannot be ignored: if the territorial limits of Quebec were to be altered between now and the date of any future sovereignty, the answer to the first question would inevitably be that the borders of a sovereign Quebec would not be its present boundaries (nor would they inevitably be those prevailing at the time of the formation of the Canadian Federation in 1867).


2.3 International law does not protect the present boundaries of Quebec, which flow from internal legal instruments that, whatever their nature (be it constitutional or legislative), produce no legal effect in the international order. As was recently noted in respect of Yugoslavia by the Arbitration Committee of the European Conference on Yugoslavia17: "...the form of internal political organisation and the constitutional provisions are mere facts"18.

This is a consequence of the "fundamental principle of the sovereignty of States, on which all international law is founded", the result of which, notably, is "the freedom of choice of the political, social, economic and cultural system of a State"19. As a result, the effect of this principle is the indifference of international law to the internal political organization of a State20, which is then free to choose a unitary or federal form and, a fortiori, freely determine its internal territorial districts and their limits.

In the absence of specific international commitments which, to our knowledge, do not exist in the present case, the territorial limits of a federated State are not, as such, guaranteed by international law. And even though francophones within Canada as a whole constitute a minority within the meaning of international law (see, infra, para. 3.17), no obligations of a strictly territorial nature are incumbent upon Canada as a consequence thereof.


2.4 But the problem takes on an entirely different complexion from the perspective of Canadian constitutional law.

This law, in fact, guards Quebec against any changes to its present territorial limits, changes which cannot be imposed either by the Federation nor by Quebec's own minorities.

(a) The Constitutional Protection of Provincial "Frontiers"

2.5 Under s. 43 of the Constitution Act, 1982:

"An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

(a) any alteration to boundaries between provinces [...]

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies."

Clearly, then, no alteration of the "boundaries" separating Quebec from the other Canadian provinces can be imposed upon the former against the will of its National Assembly.

But this guarantee is doubly qualified: on the one hand, it applies only to boundaries established by a text of a constitutional nature (since the above section refers expressly to the "Constitution of Canada"); on the other, it relates only to the "boundaries between provinces", which would appear to exclude boundaries between the provinces and the territories, so that according to the letter of s. 43, a portion of Quebec could be severed from it in favour of the federal territories (or, in reverse, Quebec could be increased to their detriment! ... since s. 42(1) includes "the extension of existing provinces into the territories" in the amending procedure provided under s. 38(1), which requires only a majority of two-thirds of the legislative assemblies of the provinces representing at least fifty per cent of the total Canadian population, and excludes the right of dissent provided under s. 38(3)).


2.6 However, this double qualification has no practical effect.

In fact, the Constitution Act, 1982 neither expressly nor tacitly21 repeals the Constitution Act, 1871, which provides at s. 3 that:

"The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby."

Consequently, unless otherwise agreed to by its Legislature, the territorial integrity of Quebec is guaranteed by the Constitution of Canada22, a guarantee which extends as much to interprovincial boundaries stricto sensu as it does to the boundaries separating Quebec from the territories. Conversely, and for the same reasons, Quebec could not unilaterally demand its extension into the territories23.

Though the cession of certain territories by the Federation in 1898 and 1912 (and the corresponding severance in 1898) may be the result of ordinary federal laws24, this does not affect the guarantee (for the territories concerned) which protects the boundaries resulting therefrom25; such boundaries have been "constitutionalized" by the relevant provisions of the Constitution Act, 1871 and the Constitution Act, 1982 respectively.


2.7 Of course, like any other legal instrument, the Canadian Constitution is not immutable. Nonetheless, assuming that no revolutionary transformation occurs, it can be amended only on the conditions provided therein.

These conditions are very clear as regards the amending of s. 43 of the Constitution Act, 1982 since, under s. 41(e), the amendment of Part V relating to the "procedure for amending the Constitution of Canada" must be "authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province"26. This provision, therefore, gives Quebec the assurance that its boundaries with the other provinces cannot be altered against its will by means of an amendment to the Constitution, and the same would apply in respect of its extension into territories not forming part of other provinces (by a combination of ss. 41(e) and 42(e) of the Constitution Act, 1982).

Theoretically, this might not hold true for possible territorial alterations not provided for under the Constitution Act, 1982, particularly those which could be based on s. 3 of the Constitution Act, 1871 (see, supra, para. 2.06). Yet this hypothesis seems so abstract and contrary to the spirit of the constitutional provisions in force that it is difficult to conceive seriously.

(b) The Scope of "Territorial" Constitutional Guarantees afforded Minorities

2.8 Regardless of any considerations as to the application of international law (see, infra, III), the Canadian Constitution guarantees extensive protection to minority groups.

As regards linguistic minorities, this protection is so manifestly devoid of territorial implications that it seems pointless to dwell on the fact. The same cannot be said, however, of aboriginal rights.


2.9 According to s. 25 of the Constitution Act, 1982, as amended by the Constitution Amendment Proclamation, 1983:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. Similarly, according to s. 35:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

Certain of the rights recognized by these provisions as belonging to aboriginal peoples are clearly territorial in nature.

However, they must be analyzed in the light of s. 91(24) of the Constitution Act, 1867 which allocates to the "exclusive Legislative Authority of the Parliament of Canada", "Indians, and Lands reserved for the Indians."


2.10 It does not fall within our mandate nor within our competence to provide a detailed analysis of the exact significance of these constitutional provisions, which have given rise to numerous and often highly subtle doctrinal quarrels27. It seems, however, that the very coexistence of these provisions establishes that the territorial rights of the aboriginals28 are not at all "sovereign" rights. To conclude otherwise would, moreover, hardly be consistent with the terms of the Royal Proclamation of 1763, which constitutes the first legal recognition of the "Indian title" and according to which the lands belonging to the aboriginals are placed under the "sovereignty", the "protection" and the "authority" of the British Crown. Nor would it be consistent with the dominant jurisprudence in Canada, under which "The ultimate title is in the Crown in the right of the Dominion"29.


2.11 But the question is whether the "Lands reserved for the Indians" do not, in a manner of speaking, constitute "federal enclaves" within Quebec, to be considered as extraneous to the territory of the province.

That, however, is not the case. Section 91 of the Constitution Act, 1867 falls within the general problem of the division of powers between the federal State and the provinces, but does not affect the consistence of the territory of such provinces, which is the subject of further provisions of the British North America Act30. It has been remarked that "there is abundant case-law to the effect that [..]. reservations belong publicly to the Crown in the right of the province and not to the Crown in the right of the federal State"31.


2.12 A particular problem arises in respect of the territories ceded to Quebec by the Federation in 1912. In fact, under s. 2(c) of An Act to extend the Boundaries of the Province of Quebec, 1912: "the Province of Quebec will recognize the rights of the Indian inhabitants in the territory above described to the same extent, and will obtain surrenders of such rights in the same manner and the said province shall bear and satisfy all charges and expenditures in connection with or arising out of such surrenders".

Thus the cession appears to be conditional32: it is effected on the condition that Quebec recognize the rights of the aboriginals and obtain surrenders.

It is far from certain that a breach of this condition would have resulted in an avoidance of the cession. Much more likely, it would have raised the issue of liability on the part of Quebec. Be that as it may, the problem can no longer be stated in these terms as a result of the execution of the James Bay and Northern Quebec Agreement on September 12, 1975 and the enactment of the federal and Quebec legislation approving the same33.

Indeed, under section 2.5 of the Agreement, Canada and Quebec:

"agree to recommend that the federal and provincial legislation approving, giving effect and declaring valid the Agreement will provide for the repeal of Sub-Sections c), d) and e) of Section 2 of the federal Québec Boundaries Extension Act, 1912, and of the same Sub-Sections of Section 2 of the Schedule to the provincial Québec boundaries extension act, 1912."

The federal and provincial statutes, dated July 14, 1977 (s. 7) and 1976 (s. 3) respectively comply with this "recommendation"(34a) . Thus, whatever its initial scope, the condition set in 1912 no longer exists legally and the territories ceded at the time now form, without limitation, an integral part of the Province of Quebec.


2.13 Furthermore, under s. 2.1 of the James Bay Agreement:

"the James Bay Crees and the Inuit of Québec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Québec, and Québec and Canada accept such surrender."

This clause resolves, in respect of a vast territory, the problem of the nature of the traditional rights of the indigenous peoples in the land (see, supra, para. 2.36), such rights having been waived in favour of Quebec (and Canada), both of which have accepted, each according to its own interest.

Moreover, such waiver was effected "in consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Québec" (s. 2.1). But, while some of these new rights are territorial in character, their nature is unambiguous, despite the relative complexity of their articulation:

- the Crees and the Inuit have a full right of ownership in Category I lands;

- they enjoy exclusive hunting, fishing and trapping rights in Category II lands; and

- they enjoy certain preferential, non-exclusive rights in Category III lands.

Extensive though they may be, these rights can be regarded at the very most as rights of ownership (Category I) or rights of use (Categories II and III). And it is not insignificant to note that, even in respect of lands falling within Category I, Quebec reserves the right to use such lands "for public purposes" and retains the ownership of mineral and subterranean rights (though the indigenous populations must consent to mining operations) and "certain expropriation rights"(35).


2.14 Thus a cursory study of Canadian constitutional provisions enables us to consider that:

(i) the territory of Quebec is comprised of all lands contained within the administrative limits (and international frontiers) of the Province;

(ii) including those in which the indigenous peoples have rights;

(iii) and those ceded to the Province by the federal State in 1912;

(iv) the constitutional rules in force guarantee that the territorial limits so defined cannot be altered without the consent of the National Assembly of Quebec;

(v) whose participation is also essential to amend the relevant provisions of the Constitution itself.

The territorial integrity of Quebec, therefore, is firmly secured by constitutional principles in force and the demarcation of its present boundaries cannot be altered against the will of its Legislature before the attainment of a possible sovereignty.

B. After Independence

2.15 Assuming that Quebec attained independence, its territorial integrity would be no less well-protected, though the nature of this protection would change: in lieu of the guarantee afforded by the rules of constitutional law, territorial integrity would be guaranteed by the rules of international law, and compliance with these rules would no longer be assured by internal mechanisms such as the Supreme Court, but by the more uncertain rules that prevail in the international order.

The fundamental principles of the territorial integrity of States and the stability of frontiers would ensure that an independent Quebec would maintain its boundaries and that the present situation would not be called into question, at least not negatively (see, infra, para. 2.36), merely on the grounds that independence has occurred.

(a) Principles of the Territorial Integrity of States and the Stability of Frontiers

2.16 Few principles in present-day international law are so firmly established as that of the territorial integrity of States. Though it is an ancient principle, linked to the notion of the State itself, it has been solemnly and particularly forcefully reaffirmed in the last fifty years.

Article 2(4) of the Charter of the United Nations makes it one of the principles of the Organization, linking it to the ban on the threat or use of force in international relations, and the principle is set forth in the same terms under the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations36, which regards it as one of the elements of the principle of sovereign equality.

Similarly, regional organizations have all stressed the fundamental importance of territorial integrity, a principle frequently set forth in their own charters. Thus article 12 of the Charter of the Organization of American States specifies that "...Even before its recognition a State is entitled to defend its integrity and independence..."; and "respect of the sovereignty and territorial integrity of each State..." constitutes one of the seven "principles" set forth in the Charter of African Unity37.

The Helsinki Final Act adopted on August 1, 1975 by the Conference on Security and Cooperation in Europe goes one step further, distinguishing between the principle of the inviolability of frontiers and that of the territorial integrity of States:

"III. Inviolability of Frontiers

The participating States regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers.

Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State.

IV. Territorial Integrity of States

The participating States will respect the territorial integrity of each of the participating States.

Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force.

The participating States will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.

These commitments are reiterated in the Paris Charter for a New Europe of November 21, 1990.


2.17 Jurisprudence, for its part, establishes the principle and the World Court has on numerous occasions insisted on the "permanence and stability of land frontiers"38.

According to the Court of Arbitration constituted in the Beagle Channel case opposing Argentina and Chili: it is simply that "a limit, a boundary across which the jurisdictions of the respective bordering States may not pass, implies definitiveness and permanence"39.


2.18 The principle of the stability of frontiers is so firmly rooted in present-day international law that it carries with it particular consequences even into the realm of the law of treaties.

Thus Article 62(2) of the Vienna Convention on the Law of Treaties of May 23, 1969 excludes the possibility that a fundamental change of circumstances could:

"be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary"40.

And Article 11 of the Vienna Convention on the Succession of States in Respect of Treaties provides that:

"A succession of States does not as such affect:

(a) a boundary established by Treaty; or

(b) obligations and rights established by a Treaty and relating to the régime of a boundary."

In both cases, Canada voted in favour of these provisions upon their adoption41.

The application of these principles which, no one denies, come under general international law would have a considerable impact in the present case. Indeed, it follows that if Quebec were to achieve sovereignty its borders would be secure against any challenge on the part of Canada or any other State.

However, one should not misinterpret the exact implications of this principle. It does not at all imply that, once established, these boundaries would be immutable: they may be altered, but only by agreement between the States concerned. The merging of the "two Germanies" provides a recent and striking example of this phenomenon: though the principles of territorial integrity and the inviolability of frontiers were particularly forcefully affirmed in the Helsinki Final Act and in the subsequent commitments of the CSCE (see, supra, para. 2.16), no one questioned the validity of German reunification, which was both desired by the German people and agreed to by both States. Furthermore, "respect of the inviolability of territorial limits which can be altered only by peaceful means and by agreement" was one of the conditions set out by the twelve member States of the European Community for the recognition of new States in Eastern Europe and the Soviet Union42, a formula which excludes the alteration of boundaries by force but not, in future, by agreement.

Therefore, if nothing can compel a future independent Quebec to agree to the possible alteration of its boundaries, neither is alteration as such prohibited by any principle of international law and Quebec would be entirely at liberty to conduct negotiations with Canada to review existing boundaries or determine a special regime for border zones.

(b) Effect of the Rules Governing State Succession

2.20 Whatever the circumstances in which Quebec attained sovereignty, its independence would ipso facto give rise to the application of the rules governing State succession, which is defined in Article 2 of both Vienna Conventions on the Succession of States as:

"the replacement of one State by another in the responsibility for the international relations of a territory"43.


2.21 Despite the universally recognized term: "State succession", it is the principle of sovereignty which must govern the regime of "succession", i.e. the notion of a break. The successor State is not a continuation of the predecessor State: each has its own particular international legal personality. Henceforth, the successor State, as a sovereign and independent State, exercises full powers over its territory and is not, in this regard, bound by former decisions44.

One should particularly guard against any misleading analogy with the rules of private law (see, supra, para. 1.18 ff.). Sir Robert Jennings, the incumbent President of the International Court of Justice, wrote:

"What we are dealing with here is not mere changes in the occupation of territory but changes in the right to territorial sovereignty. Therefore, the persistent analogy with the beneficial enjoyment of land in private law, as important as it is in the shaping of international law, is also misleading unless this vital difference is kept constantly in mind"45.

Yet, if only for obvious and practical reasons, the break with the pre-existing legal order cannot be absolute. Not only can the new State ensure a certain continuity but, in certain cases, it may be compelled to do so. In the words of M. Bedjaoui, Special Rapporteur of the United Nations International Law Commission on the Succession of States in Respect of matters other than Treaties:

"[...] the competence of the successor State is clearly not unlimited. Its actions should always be consistent with the rules of conduct that govern any State; for it is, first and foremost, not a successor State but a State, in other words, a subject having, in addition to its rights, international obligations the violation of which would engage its international responsibility"46.

Once the principle of the break as a necessary corollary of sovereignty is assumed, the real problem then consists in determining which obligations the new State is nonetheless bound by. The question is extremely difficult and remains controversial, as the solutions proposed by the two Vienna Conventions of 1978 and 1983, especially the latter, are challenged by numerous States. For the purposes of this study, however, we need not review all problems that remain outstanding: it will suffice to mention briefly those susceptible of having territorial implications.


2.22 There is an initial, undisputed and, in the present context, fundamental exception to the notion of break, one that relates directly to the "regime of a boundary" and the "other land regimes" referred to in Articles 11 (supra, at para. 2.18) and 12 of the 1978 Convention. State succession does not affect these regimes and the new State is bound to respect the boundaries and obligations set forth by treaty in respect of its territory. Jurisprudence has consistently and firmly applied this principle47.

As a result, if Quebec were to attain sovereignty, neither it nor the United States could challenge the boundaries resulting from agreements entered into between Canada (or Great Britain, in the name of Canada) and the United States, in particular the Ashburton-Webster Treaties of 1842 and the Canadian-American Treaty of 1908 relating to the demarcation of the international frontier.

As for the "periclaves", particularly that of Saint-Régis, i.e. those small territories belonging to Quebec but accessible only by way of the United States, or vice-versa, the present right of passage would continue to be claimable48, it being understood that nothing would prevent the two States concerned from seeking an agreement "for the purpose of making adjustments to the international border, particularly with the intention of eliminating periclaves susceptible of causing communication problems", as recommended in 1971 by the Study Commission on the Territorial Integrity of Quebec49.


2.23 The rules set out above apply only to the relations between the successor State, in this case Quebec, assuming it attained sovereignty, and third-party States. They do not concern the relations between the new State and the predecessor State, namely Canada.

For reasons that will be explained in greater detail in section C below, we are firmly convinced that, in the eyes of international law, a sovereign Quebec would succeed to the Province, pursuant to the rules of public international law, within the configuration of its present boundaries. But this conclusion does not resolve all issues pertaining to the territorial integrity of the future State. Three questions must be distinguished in this regard:

- the takeover by an independent Quebec of land and immovables belonging to or under the jurisdiction of the federal authorities;

- the fate of certain specific territories which - it has been claimed for various reasons - should be detached from Quebec were Quebec to withdraw from the Federation;

- conversely, the question is raised whether Quebec as a sovereign State could be deprived of all jurisdiction over the maritime territory adjacent to its coastline, as the present demarcation of its provincial boundaries prima facie would appear to imply.

(i) Federal Property

2.24 Canadian federal authorities exercise a particular authority over certain property and special categories of land situated in Quebec. On the one hand, they have a full right of ownership in immovable property located for the most part around Ottawa, more particularly on the territory of the City of Hull, though, contrary to the solution adopted by many federal States, a "federal district" has never been created. In addition, certain federal parks appear to belong to the federal State. On the other hand, the federal State administers and controls certain portions of territory, among which are most of the ports and airports, canals, railway lines, navigation, La Mauricie National Park, Indian reservations and military camps and bases.


2.25 As a general rule, pursuant to the principle set forth in Article 15 (1)(a) of the Vienna Convention of April 8, 1983: "immovable State property of the predecessor State situated in the territory to which the succession of the State relates shall pass to the successor State".

This principle is a customary rule that the Convention merely codifies50.

But this rule is only a supplement to the will of the parties and can be departed from by agreement. Clearly, nothing would prevent Canada and a future independent Quebec from deciding otherwise. If so, Canada would retain ownership of certain immovable property which would, nonetheless, form an integral part of the territory of Quebec.


2.26 However, immovable property belonging to the Federation but located in Quebec and used exclusively for federal administrative or governmental purposes poses a particular problem. Indeed, the rule set out above (para. 2.25) is based on "the criterion of the linkage of property to the territory"51. Yet in the present case no such link exists. The law, therefore, is uncertain on this point and though Canada might possibly retain ownership of this immovable property, it could hardly continue to use them for public service purposes without the consent of the Quebec government. Be that as it may, property is not sovereignty and were the Canadian government to continue using these immovables for their present purposes, they would nevertheless form an integral part of the territory of Quebec, whatever privileges or immunity they might enjoy52.


2.27 The same would hold true a fortiori for those portions of territory in which the federal authorities have no right of ownership, strictly speaking, but over which they have exclusive jurisdiction. The very principle of sovereignty implies full and exclusive powers of the new State over its entire territory. The independence of Quebec would cause ipso facto, without the requirement of any special agreement, the transfer to the Quebec authorities of powers, in particular legislative powers, allocated to the federal Parliament or government by the Canadian Constitution.

This is particularly true of Indian reservations which, even in the present situation, form an integral part of the territory of Quebec (see, supra, para. 2.11).

This would also apply, and for the same reasons, to military bases and camps, in respect of which, it should be noted, Article 12(3) of the Vienna Convention of August 23, 1978 expressely provides that the "successor" State does not succeed to "treaty obligations of the predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates".

This provision then is an exception to the "objective" nature of "territorial regimes" and to the principle according to which the new State is bound to respect the obligations pertaining to the use of its territory (see, supra, para. 2.18 and 2.22). The considerations underlying this provision are derived from the desire to maintain freedom of action for the new State in the particularly sensitive area of national defence and they apply with at least equal force to its relation with the predecessor State. However, it is understood that, here again, nothing would prevent Quebec and Canada from agreeing otherwise.


(ii) Territories of Northern Quebec

2.28 According to one argument that is sometimes put forward, the Northern territories ceded by Canada to Quebec in 1898 and 1912 should, in the event of the independence of Quebec, revert back to Canada:

"Quebec gained legal title to the territory formally comprising a portion of Rupert's land only and solely because it was a Canadian province (...) Its administrative jurisdiction, therefore, is contingent upon its remaining a province of Canada. In other words, Quebec gained jurisdiction over these lands by virtue of its being part of Canada and on the assumption that the land would remain Canadian territory (...). When Quebec leaves Canada it surrenders all territory it gained while it was part of Canada"53.

If we understand correctly, this would mean that if Quebec were to achieve independence it would have to "restore" to Canada the territories it acquired after 1867, the year in which the Federation was created, on the grounds that such cessions were conditional upon Quebec remaining in the Federation.


2.29 Some authors go even further in affirming that Quebec can attain sovereignty only within the confines of the pre-1763 boundaries of French Canada54.

Besides the fact that it would probably be difficult to determine today the exact territorial limits of French Canada before the Treaty of Paris, and that such reasoning, moreover, would justify Quebec's claim to a substantial portion of the territory of the United-States55, it should be noted that this argument is totally inconsistent with the preceding one, which is based on the idea that, upon withdrawing from the Federation, Quebec could not recover more than it brought into the Federation: therefore the only relevant "critical date" would be that of the creation of the Federation in 186756 .

Be that as it may, it does not seem necessary to concern ourselves any further with this extreme view, which is not only unsupported by serious legal argument but also raises the same objections as those relating to the "sole" territories of Northern Quebec.

2.30 That argument stems from a fundamental confusion between the rules of public law, on the one hand, and those of private law, on the other, even though the latter, in fact, are not at all applicable to the question of territorial sovereignty (see, supra, para. 1.18 ff. or 2.21).

In this regard, we espouse the views expressed by Professor Henri Brun before the Commission:

"This whole notion that Quebec should forfeit part of its territory if it does not comply with certain conditions stems, in fact, from the application of civil law notions, designed to govern private law relations between individuals, to a situation which, by its very nature, falls exclusively within the realm of constitutional law. In this case, the supporters of this theory speak as if, between the federal government and Quebec, it were a question of loan agreements or mandates between private individuals, i.e. as if we were dealing with lands or other property made available by one person to another for the latter's use on certain conditions and for a certain time, when in fact we are dealing with a legal phenomenon of an entirely different nature.

It is not a question of lands and property, but essentially of territory and sovereignty. What Quebec received in 1898 and 1912 is, first and foremost, the constitutional power to legislate in respect of these territories"57.

The cessions of 1898 and 1912 must be regarded as a new allocation of territorial powers within the Federation between the federal authorities and the Province respectively: they should not be regarded as a sale or a lease agreement.


2.31 The administering powers in a colonial setting frequently altered the administrative boundaries separating their various possessions. Yet no one has ever claimed that these possessions should attain independence within their former boundaries. The critical date is the date on which sovereignty is attained: this is the primary meaning of the principle uti possidetis juris (see, infra, para. 2.45).

The matter of the Frontier Dispute which pitted Burkina Faso against Mali before the International Court of Justice provides a striking illustration of this principle. The Division of the Court adjudicating upon the claim recalled the innumerable changes which the territories of the parties underwent prior to independence58. Nonetheless, the Court considered that:

"By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession. International law (...) applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e. to the "photograph" of the territorial situation then existing"59.


2.32 Admittedly, the context in which this judgement was rendered differs from that of the present case. Yet the Court does not base its ruling on contingent considerations: at the core of its reasoning lies not the phenomenon of decolonization as such, but the more general phenomenon of the attainment of independence. It is therefore unnecessary to invoke the principle of uti possidetis, whatever its implications may be (see, infra, para. 2.44 ff.), to support the claim that historical considerations are irrelevant to the determination of the boundaries of the new State. Whatever the circumstances and reasons for which territorial limits, as they exist at the moment of independence, were established, independence "stops the clock without setting it back in time"60a.

This, moreover, is attested by the recent practice followed in cases of the attainment of independence outside colonial settings: all new States born of the secession from a pre-existing State have retained their pre-existing administrative boundaries, be it Singapore, the Yugoslav Republics or the States issuing from the dismemberment of the Soviet Union. And in the last two cases, the international community very firmly demonstrated its conviction that this was a rule to be complied with(61).

2.33 It should further be noted that neither the Act of June 13, 1898 nor that of April 1, 1912 makes any allusion to a resolutory clause in the event of the sovereignty of Quebec. Admittedly, the supporters of the theory of conditional cession do not claim otherwise. But what they do claim is that the continuation of the Province in the Federation constituted an "implied condition of transfer"62.

Indeed, this could be said of any alteration of the administrative boundaries of territorial districts in any State. Readjustments are always effected with a view to their maintenance in the national community, be it federated States, provinces, regions or, mutatis mutandis, colonial territories. But this has never altered the fact that the only consideration is the "territorial snapshot" at the time of independence (see, supra, para. 2.31 and 2.32).

Furthermore, if this "implied condition" were to be taken into consideration, it would cut both ways: if independence eliminated any territorial gains realized by the successor entity within the framework of the predecessor State, it would also compel the restitution to this entity of any territories severed from it. This is not a purely academic hypothesis, since "in 1898, the considerable extension of Quebec into the North-West was offset by a not insignificant amputation in the North-East"63 . If the "implied condition" is to have any effect, it would clearly bring about the return of this lost territory to Quebec.

But this is not law: history has no place here. And this indifference of positive law to history is understandable: if we did not confine ourselves to the "territorial snapshot", we would be forced to go back in history and there is not a single State but whose boundaries would be threatened.


2.34 The same reasoning applies to the effect and scope of the James Bay and North-Eastern Quebec Agreements, in respect of which one author claims that "the existence of the federal duty [of protection] and the institutional framework for the performance of such duty are (...) a condition" of their validity"64.

This is not quite true.

These two Agreements effected the transfer to Quebec of the traditional rights of indigenous peoples in exchange for new rights (see, supra, para. 2.13) and they are at the root of a new division of powers between the federal and provincial authorities. Quebec sovereignty would, in effect, concentrate all such powers in the hands of the Quebec government, just as it would all powers now shared between the federal and provincial authorities. This is the fundamental implication of independence and the Crees, Inuit or Naskapis would be no more justified in opposing this than would, for example, any property owner who, as a result of independence, could no longer apply to the federal courts in all instances where he is now entitled to do so.


(iii) The Problem of Maritime Boundaries

2.35 It is not, we think, within our mandate to treat the issue of maritime boundaries in detail; moreover, this issue was the subject of an exhaustive exposition before the Commission65.

However, we think it necessary to point out that the rules governing State succession as they apply to the land frontiers of Quebec are not necessarily transposable to the demarcation of maritime boundaries. One must, in fact, consider that "in theory, all coastal States have the inherent right to territorial seas, contiguous zones and continental shelves"66 as well as to an exclusive economic zone. According to a traditional - and often repeated67, maxim: "the land dominates the sea". "Thus it is the sovereignty that a State exercises over its terrestrial territory that determines the title it holds to maritime territory"68.


2.36 Therefore, it is not at all certain that, even if the waters immediately contiguous to the Quebec coastline were, at present, considered to be Canadian inland waters, the principles applicable to State succession would defeat the universally recognized rules governing the allocation of maritime territory. On the contrary, it seems to us that Quebec, like any other State, could, in the event of sovereignty, demand the application of these rules and assert its "inherent right" to territorial sovereignty or sovereign rights over the sea adjacent to its coastlines, it being understood:

- that if Hudson Bay and Hudson Strait, or even the Gulf of St. Lawrence, were deemed to be historical bays, classified as inland waters, the question would arise whether they should be apportioned between the coastal States or whether it would be appropriate to consider them as historical bays falling under the joint jurisdiction of such States, in the manner of the legal regime that probably governs the Gulf of Fonseca;

- and that the rights of passage or fishing rights acquired by third-party States should in all cases be respected69.


2.37 It seems, therefore, that no particular circumstance is likely to defeat the well-established principle of international law according to which, once Quebec has achieved independence, the new State is entitled to the respect of its territorial integrity within its present boundaries. The immovable property and portions of territory presently belonging to, or administered by, the Canadian federal authorities would be included in these boundaries and form part of this territory, just as would the lands ceded to Quebec in 1898 and 1912, though Quebec would not be entitled to claim the territories allegedly severed from it in the past.

These conclusions are not applicable to the maritime territories adjacent to its coastlines, over which an independent Quebec could, despite the present situation, claim "inherent rights" which the rules governing State succession do not appear susceptible of preventing.

C. At the Moment of Independence

2.38 According to certain assertions, it does not suffice to explore the law that would apply before, or after, independence: the question of the "transitional period" should also be raised. Thus during the February 11, 1992 session of the Commission, Mr. Cameron, member of the National Assembly for the Jacques Cartier Riding, pointed out that the experts, unanimously:

"have argued that Québec's territorial integrity cannot be compromised as long as Québec is a province of Canada, nor would it be compromised once it is safely out and away, and is seen as a sovereign State. It could, at that point, firmly declare that its boundaries were what they were. The trouble is, that leaves out the whole point that is of interest to everyone (...) which is what we do in between"70.

In fact there is no doubt that, if Quebec did attain sovereignty, there would be, for all intents and purposes, a necessary transition period before and after the fact to establish the actual modalities of independence and settle the many problems that would arise and which the - on the whole - rather vague and incomplete principles of the law of State succession could not resolve. Negotiations would be needed to supplement this deficiency. In this regard, then, we can speak of a "transition period" as regards this negotiation phase or any period of tension which could precede or accompany it, should any of the "parties" (Canada, indigenous peoples, linguistic minorities, even foreign investors) exert pressure on Quebec in order to obtain concessions.

But from a legal viewpoint, this is not how the problem should be stated: the attainment of independence does not occur within a "period" of time: it is instantaneous. It may be difficult to ascertain the precise moment when it occurs, but there is no doubt that this moment exists. Beforehand, Quebec will remain a Canadian province whose relations with the rest of Canada are governed by constitutional law. Afterwards, the relation will be as between sovereign States, subject to the application of international law. Sovereignty is the very condition of the State and, as pointed out by Professor Jacques-Yvan Morin before the Bélanger-Campeau Commission: "You either have it or you don't"71. But there is no possible intermediate situation and, therefore, no transition period either.

As a result, there is no room for the implementation of rules other than those described above and applicable before (A) or after (B). In any event, the recent reinforcement of the principle of uti possidetis juris leaves no doubt as to its applicability in matters similar to the one presently under study.


(a) The Fact of Secession and the Absence of a Vacuum Juris

2.39 According to Professor Jacques Brossard:

"in order to alter the boundaries of Quebec before it attains sovereignty, (...) the consent of the provincial State must be obtained under the present Constitution of Canada; and any attempt to alter these boundaries subsequently without the consent of the State of Quebec would be a violation of international law"72.

The reasoning set out supra sub litt. A and B confirms the validity of this view: before independence, the present boundaries of Quebec are guaranteed by the Constitution (essentially by s. 43 of the Constitution Act, 1982 and s. 3 of the Constitution Act, 1871). After independence, these boundaries will be secured by the principles governing the territorial integrity of States and the stability of frontiers. Between these two situations there is no room for a vacuum juris and one can hardly see at what moment this protection would cease. If Canada were to take advantage of the period preceding sovereignty to alter the existing boundaries, it would be in violation of its own Constitution. If, after independence, it intended to alter unilaterally the demarcation of such boundaries, it would come up against the interdicts of international law (territorial integrity, non-interference, non-use of force).


2.40 As will be established below (see para. 3.09), it is highly doubtful in the present case that a possible sovereignty of Quebec could be founded on the principles of equal rights and self-determination of peoples. But this is of little consequence for the purposes of the question under review: the existence of a State is not a question of law but of fact.

"The State is an extra-legal phenomenon whose existence the jurist merely notes"73. This principle was recently remarkably illustrated in Opinion No. 1 rendered on November 29, 1991 by the European Arbitration Committee on Yugoslavia, which considered that: "the existence or disappearance of the State is a question of fact", to be appreciated "based on the principles of public international law which serve to define the conditions on which an entity constitutes a State"; to this end it should be determined whether the collectivity in question "consists of a territory and a population subject to an organized political authority" and if it is "characterized by sovereignty"74 .

"What is clear is that the essence of the framework revolves around territorial effectiveness"75.

"Secession is a political fact and international law is content merely to accept the consequences when it brings about the installation of effective and stable State authorities" controlling the territory and the population established on it.76


2.41 Applied to Quebec, these considerations signify that:

"[t]he secession would be considered successful if, for a sufficient period of time, the Quebec authorities managed to exclude the application of Canadian law on their territory and, on the contrary, succeeded in establishing a legal order derived from their own laws and decisions"77 .

Compliance with this sole condition would pose no particular problem if Canada expressly agreed to the sovereignty of Quebec or resigned itself to its secession. However, it seems, in the light of recent statements uttered by certain high officials78, the legal implications of which are unclear from the viewpoint of constitutional law as well as that of international law, that things could turn out differently, assuming that the federal authorities decided to counter a secessionist attempt by force.

One author writes that, in this case:

"[i]f secession gave rise to hostilities and if the federal government forcibly gained control over part of the territory of Quebec, the secessionist government managing to retain control of the rest, at the end of the hostilities the territory would have to be divided between the former surrounding State and the new State born of the secession"79.

This is highly debatable. Such an outcome would be inconsistent with the principles in force in constitutional law as well as international law. And from the viewpoint of the former as well as of the latter, it is the territory - provincial or State - in its entirety and integrity which must be taken into consideration80 - unless otherwise agreed between the parties themselves, of course. What matters, therefore, is the overall effectiveness of the State's power over the entire territory of Quebec. Certainly, this effectiveness is susceptible of degrees and, in extreme cases, its appreciation can be subjective, whereupon the recognition (or refusal) of third-party States would take on great importance, though it is generally agreed "that the effects of recognition by other States are purely declaratory"81.

It should further be noted that, in order to appreciate this effectiveness, all relevant factors must be taken into account, particularly the federal form of organization of powers in Canada, on the one hand, and the sparsely-populated and inhospitable character of certain parts of Quebec, on the other.


2.42 As to the first point, it is implicit in Opinion No. 1 of the Arbitration Committee on Yugoslavia which considered, in order to determine whether the Socialist Federal Republic of Yugoslavia still enjoyed a legal existence:

"that in the case of a federal-type State, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the State implies that the federal organs represent the components of the Federation and wield effective power"82 .

Non-participation by Quebec in the federal institutions would be a sign of its secession.

However, compared to the unitary State, the federal State is characterized by a very broad decentralization of powers, which in fact is quite extensive in Canada. Quebec could not be regarded as having achieved independence until it prevented the Canadian authorities from exercising control over its territory: the mere reinforcement of provincial powers would not produce this effect.


2.43 Moreover, the degree of effectiveness of the exercise of State powers cannot be determined in the abstract: the consistence of the territory, its geographic location, its accessibility, its climate, the density of its population are so many factors the reality of which must be taken into account. Jurisprudence, supported by a unanimous doctrine, has consistently done this83.

In his famous arbitral award relating to the Island of Palmas, the Swiss arbitrator Max Huber noted that:

"Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point in territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved..."84.

And in the matter of Eastern Greenland, the Permanent Court of International Justice likewise concluded that:

"bearing in mind the absence of any claim by another Power, and the Arctic and inaccessible character of the uncolonized parts of the country, the King of Denmark and Norway displayed (...) his authority to an extent sufficient to give his country a valid claim to sovereignty, and that his rights over Greenland were not limited to the colonized area"85 .

These elements should also play a role in the appreciation, if and when the time comes, of the effectiveness of Quebec (or Canadian) State powers over the territory of Quebec, particularly the northern part which is also an arctic zone, not easily accessible and sparsely populated.

Only in the light of all of these factors, applied to the whole of Quebec territory, will it be possible to determine the effective existence of the new State. In the absence of an agreement between Canada and Quebec, the success of the process leading to sovereignty "would rest on the ability of Quebec's political institutions to establish and maintain exclusive public authority over the territory of Quebec"86. But once this effectiveness is recognized as existing, independence would extend to the whole of this territory.


(b) Recent Strengthening of the Principle of Uti Possidetis

2.44 Reinforcing this conclusion is another argument which, though it has played a very important role in the debate on sovereignty, we consider to be no more than subsidiary in nature. It supports the argumentation based on a combination of constitutional law rules and the other applicable principles of international law. But this argumentation is sufficient in itself and there is no need to invoke that other principle of the law of nations: the rule "uti possidetis, ita possideatis" ("as you have possessed, so you shall continue to possess").


2.45 "It is generally admitted in international law that the successor State is bound by the frontiers established by the ceding State - i.e. the former colonial power in the case of decolonization. The territory passes to the new State on the basis of the pre-existing boundaries, regardless of the procedure by which these boundaries were established, be it by international treaty, municipal law or a unilateral act"87.

Such is the definition and scope of the principle.

Derived from the practice established by the former Spanish colonies of Latin America, whence its traditional title: uti possidetis of 181088, the principle was extended to Africa and affirmed not in the Charter of African Unity but in the famous Cairo Declaration adopted in July 1964 by the first Conference of Heads of States and Governments of the O.A.U. Moreover, it acquired on this occasion a broader meaning than it had hitherto possessed in its Latin-American context, since, as noted by the Court of Arbitration called upon to determine the Guinea-Bissau/Senegal maritime boundary, the principle:

"concerns not only the limits between countries born of the same colonial empire but also those which in a colonial era were already possessed of an international character because they separated colonies belonging to different colonial empires"89[translation].


2.46 Although it had been applied in very diverse circumstances90 and, to a certain extent, enjoyed the sanction of jurisprudence91, doctrine long hesitated in regarding uti possidetis as a universally applicable principle that could be asserted outside the context of decolonization92. There can no longer be any doubt today.

In its Judegment of December 22, 1986, the Division of the I.C.J. adjudicating upon the question of the frontier dispute between Burkina Faso and Mali noted that, although it had appeared in Spanish America, this principle:

"is not a special rule which pertains solely to one specific system of international law. It is a general principle which is logically connected with the phenomenon of the obtaining of independence wherever it occurs (...)

The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope"93.

Yet because of the numerous allusions made by the Court to the specific problem of decolonization, and because of the object of the dispute itself, some doubt remained as to the applicability of the principle outside the colonial framework. This cannot be said of Opinion No. 3 rendered by the Arbitration Committee on Yugoslavia on January 11, 1992. Basing itself "on the principles and rules of public international law", the Committee took the view that if the dissolution of Yugoslavia:

"leads to the creation of one or more independent States, the issue of frontiers (...) must be resolved in accordance with the following principles:

First - All external frontiers must be respected in line with the principle stated in the United Nations Charter, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV) and in the Helsinki Final Act, a principle which also underlies Article 11 of the Vienna Convention of 23 August 1978 on the Succession of States in Respect of Treaties.

Second - The boundaries between Croatia and Serbia, between Bosnia-Hercegovina and Serbia, and possibly between other adjacent independent States may not be altered except by agreement freely arrived at.

Third - Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, [1986] I.C.J. Reports 554 at 565 (...)).

Fourth - According to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect. This principle is to be found, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV) and in the Helsinki Final Act; it was cited by the Hague Conference on 7 September 1991 and is enshrined in the draft Convention of 4 November 1991 drawn up by the Conference on Yugoslavia"94.


2.47 This is not merely a judicial interpretation.

The affirmation of the applicability of the principle of uti possidetis to all cases of independence, even outside the context of decolonization, is founded on a practice which, owing to recent events, has become fairly common: whether it be the States of the Community of Independent States or those issuing from the dismemberment of Yugolsavia, all have attained independence within the configuration of their former administrative boundaries, recognized by third-party States as their new borders.

But even more so, the reactions of the international community reflect the generalized conviction that, in the case of the secession or dissolution of States, pre-existing administrative boundaries must be maintained to become the borders of the new States and cannot be altered by the threat or use of force, be it on the part of the seceding entity or the State from which it breaks off. Thus in the case of the Yugoslav crisis:

- in its very first Declaration on Yugoslavia on August 27, 1991, the European Community and its member States declared their determination "never to recognise changes of any borders95 which had not been brought about by peaceful means and by agreement"96;

- on September 3, 1991, the CSCE declared that "no territorial gain or change brought about by force within Yugoslavia is acceptable" and the Security Council of the United Nations took note of this declaration in Resolution 713 (1991) of September 25th; on November 29th the Committee of Senior Officials of the CSCE reiterated this position;

- on December 16, 1991, the Twelve, in a further Declaration on Yugoslavia, made any future recognition of the Republics as independent States contingent upon the latter's acceptance of the commitments contained in the Guidelines on the recognition of new States in Eastern Europe and the Soviet Union, adopted the same day; among these conditions is "the respect of the inviolability of territorial limits which can only be altered by peaceful means and by agreement" (see, supra, para. 2.19);

- the United States and Canada expressed the same concerns; thus Ms. McDougall, Canadian Secretary of State for External Affairs declared on October 7, 1991 that "No territorial gains or border changes within Yugoslavia brought about by force are acceptable"97.

The same positions were adopted upon the dissolution of the Soviet Union.


2.48 It is therefore not unreasonable to consider that "a general practice accepted as law" - which is the very definition of an international custom98 - has crystallized. Admittedly it is based on relatively rare precedents, essentially concentrated over brief periods of time; but "the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law"99. And we can hardly expect abundant practice in an area as exceptional as that of the creation of new States. Moreover, this customary rule must be linked to a chain of many more precedents in the context of decolonization, and the principle from which it draws its inspiration is "logically connected with the phenomenon of the obtaining of independence, wherever it occurs" (see, supra, para. 2.46).


2.49 There are two aspects to this rule.

On the one hand, when a new State achieves sovereignty, this phenomenon must occur within the configuration of the administrative boundaries in which it was contained prior to independence. Such a rule could be difficult to implement in the case of the breakup of a unitary State, and might even be inapplicable in such a context since the territorial districts are less clearly individualized than in the framework of a federation. Indeed, this individualization of federal States is, no doubt, both cause and consequence of their greater propensity for independence. Be that as it may, Canada being a federal State and Quebec a federated entity, the rule would undoubtedly apply if Quebec achieved independence: its territory would have to be identical to that of the Province.

On the other hand - and here the rule is more recent and, no doubt, less well established - use of force in a secessionist attempt aimed at altering the existing territorial boundaries, be it by the secessionist entity (a federated State, for example) or by the pre-existing State, must it seems be condemned by the international community. This, in any case, is what can be deduced from the reaction of the United Nations Security Council to the events in Yugoslavia, and more particularly from Resolution 713 (1991) of September 25, 1991 which states that continued fighting, though purely internal, constituted a threat to international peace and security, thus justifying a recourse to the provisions of Chapter VII of the Charter and the imposition of economic sanctions. In this, international law reinforces Canadian constitutional law in its exclusion of the use of force to alter the boundaries of a province.


2.50 "The essence of the principle [of uti possidetis juris] lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved"100.

In this respect it merely confirms the conclusions drawn from an examination of the general rules of international law and the principles of constitutional law, namely that Quebec cannot be forced against its will to surrender any portion of its present territory: before independence, such forcible amputation is excluded by the Constitution of Canada; after sovereignty, it would be precluded by the fundamental requirements of the stability of international borders reflected in the principle of the territorial integrity of States. Between these two situations, there is no solution of continuity, no legal interstices, no instant when a territorial transformation could - lawfully - be imposed on Quebec without its consent.

Rights of peoples and minority groups

3.01 The controversy which has been engendered by the possible sovereignty of Quebec has focused largely on the right to self-determination which, paradoxically, is invoked both by supporters of independence as well as by its adversaries. The former regard the right to self-determination as the very foundation of the right to sovereignty of the Quebec people (or the French-Canadian people - the distinction being often blurred or confused)101; the latter see it as an impediment to independence itself or, as the case may be, to the territorial integrity of Quebec in the event of sovereignty.

Though they are not always perfectly clear, the following arguments have been put forward in the course of the debate:

(i) pursuant to the right to self-determination, the Quebec people has the right to claim and obtain its independence while minority groups inside Quebec - be they anglophones or aboriginal populations - who are not peoples within the meaning of international law, cannot stake such a claim;

(ii) because identical causes must produce identical effects, the right to secede enjoyed by French-Canadians (or French-Quebecers) also belongs to other peoples such as Canadian (or Quebec) anglophones and the First Nations;

(iii) under international law, neither Quebecers nor any other minority group within Quebec or Canada constitute a people having the right to self-determination or, alternatively, if they are a people, they have forfeited such right by participating freely in the democratic institutions of Canada and can no longer claim the exercise thereof;

(iv) while Quebecers cannot claim the status of a people under international law, the same does not hold true for Natives who, because of the colonial situation in which they exist, are entitled to claim the benefit of the principle of equal rights and self-determination of peoples, including, if need be, its ultimate consequence which is independence.


3.02 Given the role that the principle of the right to self-determination has played and continues to play in the present debate, and given the differing and irreconcilable views thereof, we cannot avoid a discussion of its scope and its relation to that other fundamental principle of international law, which is the territorial integrity of States and "countries".

This discussion, however, can be fairly brief. In fact we believe that the right to self-determination as contemplated by positive law is of limited relevance to the issues (A) and that, in any case, minority groups, regardless of their composition, cannot legally base their claim to independence (B) on this right.


A. Limited Relevance of the Principle of Equal Rights and Self-Determination of Peoples

3.03 The principle of "equal rights and self-determination of peoples" is one of the great "legal myths" of the second half of the twentieth century.

Proclaimed by Article 1(2) and Article 55 of the Charter of the United Nations, there can no longer be any doubt that it is not a mere "rule of politics" but that it has real legal substance. Even more so, it is certainly one of the rare peremptory norms of general international law, "accepted and recognised" as such by "the international community as a whole"102. It has long been accepted by the ILC103 as forming part of the jus cogens and was recently recognized by the Arbitration Committee on Yugoslavia104.

However, that particular authority, though it recognized the superior normality of the principle, considered "that international law as it currently stands does not spell out all the implications of the right to self-determination"105.

While few notions have been the subject of as much debate as the scope of this principle106, there can be no doubt as to its content: it implies that every people has the right to participate in the definition of its political, economic, social or cultural future. The extent of this choice, however, varies according to the circumstances, but, because of the necessary reconciliation of the principle of self-determination with that of territorial integrity, it rarely extends so far as to include secession.


(a) The Scope of the Principle

3.04 Central to the debate - which we do not claim to resolve - on the scope of the principle of the right to self-determination is the fact that, though there is no doubt that "all peoples have the right to self-determination"107, there is no universally accepted definition of the word "peoples" nor of the notion of self-determination.

A dispassionate study, however, will serve to clarify the debate - at least to a certain extent. In fact, the whole debate is little more than a semantic quarrel.

By simplifying somewhat - and leaving aside the "negative" arguments that wrongly contest (see, supra, para. 3.03) the positiveness of the principle, two - apparently irreducible - positions are opposed:

- for some, the right to self-determination always includes the right to form a State, even where the people that enjoys such right could be content with other political structures (e.g. association or even amalgamation with another State);

- for others, this right has a much broader scope and implies that any human collectivity which defines itself as such has the right to be recognized, to chose its future and to participate in the democratic expression of the political will within the State to which it is joined.

In fact, whichever of these two arguments one adheres to (and the majority of the undersigned are inclined towards the latter), both of them rule out any right to secede in a non-colonial situation.

3.05 Certainly we must recognize that if all peoples theoretically enjoy the right to self-determination (see, supra, para. 3.04), international practice since 1945 has applied this principle predominantly, if not exclusively, in favour of colonial peoples, at least since the adoption by the United Nations General Assembly on December 14, 1960 of the famous Resolution 1514(XV) containing the Declaration on the granting of independence to colonial countries and peoples108.

"By virtue of that right", colonial peoples and those who, in very rare cases are classified as such (see, supra, para. 3.04) - "freely determine their political status and freely pursue their economic, social and cultural development"109,

which includes the "right to complete independence"110, it being understood that this is not an obligation but a possibility which is open to them. For colonial peoples, independence is a right, not a duty:

"A Non Self-Governing Territory can be said to have reached a full measure of self-government by:

(a) Emergence as a sovereign independent State;

(b) Free association with an independent State; or

(c) Integration with an independent State"111.


3.06 In Resolution 1541 (XV) of December 15, 1960, the United Nations listed the signs by which a territory could be described as "non self-governing". But as these are not clearly defined criteria and as their application has been uneven, evidently dictated by political and contingent considerations, the only conclusion that can be drawn from an analysis of the practice is that the General Assembly reserves the right to classify: a colonial people is any people defined as such by the General Assembly (on the proposal of the Decolonization Committee).

It follows from this brief analysis that, as regards colonial peoples defined as the entire population of a non-self-governing territory recognized as such by the United Nations, the right to self-determination comprises the right to independence, should they so wish. Once exercised, this right ceases to exist and the sole function of the right to self-determination thereafter consists in protecting the people concerned from foreign interference.

Obviously, this is not the case as regards the people of Quebec, nor of the various - in particular indigenous or anglophone - minorities that exist on its territory.


3.07 But, in fact, independence is not the sole objective of the right to self-determination, and in its broadest meaning this principle signifies that, after attaining sovereignty, all peoples and parts of peoples are entitled to the recognition of their identity and to participate in the expression of the political will within the State. This has been the consistent position of the Human Rights Commission and this is what the States - including Canada - intend, confirming by their attitude the validity of this interpretation.

The generalization of the right to self-determination understood to mean the right of a people to found a State would have a profoundly destabilizing effect, which is obviously inconceivable for an international community comprised first and foremost of sovereign States112.

"It can be concluded that the view that all peoples in the sociological sense are entitled under international law in the last resort to create independent States is clearly unacceptable as a matter of practice"113.

But restricting the notion of peoples is not the only rational legal response to this practical objection. On the contrary, one could think that the equation: "people = population of a colonial territory" is a grossly oversimplified, even simplistic, equation. Not only does the claim to self-determination "in practice [...] not necessarily involve a claim to Statehood and secession"114, but, legally speaking, the principle of the right of peoples to self-determination "does not imply that the category of "peoples' rights" requires that the term "peoples" should have the same meaning for the purposes of all rights accepted as falling within the category"115.

In fact, as we have indicated above (para. 1.17), the right to self-determination is context-dependent in that it signifies, always and everywhere, that all peoples have the right to participate in the political, economic, social or cultural choices that concern them, though it very rarely gives rise to the right to independence.

"There is no reason to suppose that what constitutes a "people" for the purpose of one right necessarily satisfies the requirements of another. In other words, the definition of "people" could well be - indeed having regard to the breadth of the claims to peoples' rights, is likely to be - context-dependent (...). Peoples' rights embodies a category, not a definition. What constitutes a people may be different for the purposes of different rights"116.

More so than the preceding one (see, supra, para. 3.06), this approach is susceptible of reconciling the legitimate desire of States to preserve their integrity with the recognition of the right to self-determination of all peoples, even as the "terminological barriers" in which the States have attempted to contain this notion give way117: the expression "indigenous peoples" (and not "populations") has become progressively established (see, infra, para. 3.29); minorities are increasingly defining themselves as "peoples" (as overabundantly illustrated by the Canadian example), and the very fact that the right to self-determination, in the sense of "independence", has been recognized solely in "colonial" peoples is an indication that this right takes on or can take on different meanings for other categories of peoples.


3.08 The European Arbitration Committee on Yugoslavia has drawn a lesson from all this. In Opinion No. 1 it refers in the same breath to the "rights of peoples and minorities" described as "peremptory norms of general international law"118, but in Opinion No. 2 it determines with greater precision the consequences of this right: it entails the right of minorities "to recognition of their identity", and because "the right to self-determination serves to safeguard human rights", it also comprises the right of each member of a minority to be recognized as belonging to that minority. The Committee also excludes - albeit impliedly, but nevertheless quite clearly - any right to independence of minority peoples119. This is not to say, however, that independence is not open to them; simply it is a question of fact, not of law (see, infra, para. 3.13).

Viewed in this way, the right to self-determination has real substance without being limited to a particular category of peoples. Though the exact consequences may vary according to the circumstances, it still retains, always and everywhere, a modicum of meaning: the ability of every people to "choose" its destiny. In fact, such is the very essence of the principle elaborated by the International Court of Justice in its Advisory Opinion of October 16, 1975 rendered in the Western Sahara case, i.e. in a colonial context in which it was long meant to be confined: it satisfies the need "to pay regard to the freely expressed will of peoples"120.

For colonial peoples, this choice includes the possibility of independence; for others, that possibility is precluded, but at the same time it implies the right to one's own identity, the right to choose and the right to participate: "It also, at least for now, stopped being a principle of exclusion (secession) and became one of inclusion: the right to participate. The right now entitles peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each State"121. Identity and democracy are its two essential components, but not independence except - according to certain authors who express this view with caution - in the case of an extremely serious and continued denial of the right so defined122.


3.09 One can hardly seriously maintain that this is the case of Quebec.

Some authors have attempted, not without talent, to establish the existence of a "Quebec people" or, alternatively of a "French-Canadian people". Thus Professor Jacques Brossard has asserted that the Québécois constituted a people and that this people enjoyed the right to self-determination, as it fulfilled all of the - in his view - required conditions:

- a "political dimension", a territory and its own structures;

- a viable future as a State;

- acceptance of the principles of the Charter of the United Nations and international law;

- a desire for independence123.

One can harbour certain doubts as to the validity of some of these criteria(124). Nevertheless, one cannot reasonably maintain that the Quebec people is a colonial people, nor that it is deprived of the right to its own existence within Canada as a whole or to participate in the democratic process. The very existence of the - hardly debatable - first criterion isolated by Professor Brossard is sufficient proof of the contrary.

Consequently, the Quebec people effectively exercises its right to self-determination within the whole of Canada and is not legally justified in invoking such right to found a possible independence. Yet, once again, this does not prevent it from claiming or obtaining or imposing such right: only, this is purely a question of fact which international law neither supports nor reproves. It merely takes note of it (see, supra, para. 2.29 ff. and, infra, 3.14).


(b) Territorial Integrity of States and the Rights of Peoples

3.10 One could ask of course if, conversely, international law does not exclude secession because of the importance it places on the principles of the territorial integrity of States and the stability of frontiers (see, supra, para. 2.16 to 2.19).

On the face of it there is a striking contradiction between these two principles, on the one hand, and the right to self-determination - at least when understood to mean the right to independence - and the very fact of secession, on the other. But this contradiction is not insurmountable and, in its two branches, international law overcomes it.

Substantially all international instruments affirming the right to self-determination also emphasize the principle of the territorial integrity of countries and States.

This begins with the Charter of the United Nations itself125. The same dichotomy can be found in Resolutions 1514 (XV)126 and 2625 (XXV)127 or in the Helsinki Final Act128.


3.11 Numerous authors regard this simultaneous affirmation of seemingly incompatible principles as a fundamental contradiction129, a fact that was abundantly emphasized in the debates before the Commission. If there is a contradiction, a first reflex would be to attempt to determine which of the two principles prevails. But this would lead to an impasse: the superiority of either of these supposedly contradictory rules would be upheld according to the aspirations or presuppositions of one group or another, without any determining factor to decide between the proponents of either of these irreconcilable arguments.

A more subtle way of stating the problem would consist in asserting that the principle of territorial integrity and its extension uti possidetis juris merely constitute a rebuttable "presumption"130, which yields to the right to self-determination. But this is little more than just another way of affirming the superiority of one (the right to self-determination) of these fundamental rules over the other (territorial integrity).

In fact, there appears to be a simpler solution to the problem, though it may not be immediately obvious: the alleged contradiction simply does not stand up to a correct analysis of the two principles involved.

For this purpose, one must again distinguish between colonial and non-colonial situations.


3.12 In the first case, close scrutiny of the United Nations resolutions shows that, in actual fact, the principle of territorial integrity involves two very different entities131: States - i.e. administering powers - on the one hand, and "countries" - i.e. non-self-governing territories - on the other.

The United Nations rightly considers that, according to an often repeated formula: "The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it"132.

Hence, should the people of this territory decide, pursuant to its right to self-determination, to become independent, the territorial integrity of the colonial power, which is separate, would not be affected.

The concern for the simultaneous preservation of the territorial integrity of "countries", i.e. the colonies themselves, can be explained by the desire of a majority of the member States of the United Nations to defeat attempts by certain colonial powers133 to carve up, for their own benefit, the territories in their care. The General Assembly has always proved itself to be very particular in this regard, and on those rare occasions when it has resigned itself to the breakup of a non-self-governing territory administered before independence as a sole entity134, it has never been without reluctance nor without resistance135. What we must see in these few hypotheses is not the application of a rule of law, but the mere observation of a fact imputable to the populations in question themselves. Hence, the phenomenon must be analyzed in the same manner as the "classic" cases of secession, without taking account of the colonial context (see, infra, para. 3.14).

In fact, such cases are extremely rare. In the great majority of cases, the independence of the former colonial territories was achieved within their pre-existing borders or administrative boundaries according to the principle of uti possidetis. As remarked by the I.C.J., "At first glance (...) this principle collides head-on with another, which is the right to self-determination".

But, in actual fact, the contradiction is only apparent: uti possidetis is the extension of the right to self-determination.

"The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers and to take account of it in the interpretation of the principle of self-determination of peoples.136

There is no contradiction here: compliance with the principle of uti possidetis is a modality of the exercise of the right to self-determination when it leads to the independence of colonial peoples.


3.13 Nor is there any contradiction between the right to self-determination of non-colonial peoples, on the one hand, and the principle of the territorial integrity of States, on the other. But this time for a very simple reason: as has been established above (para. 3.08), the right to self-determination, in this hypothesis, does not at all translate into the right to independence. Therefore, it cannot by itself be the cause of the breakup of a pre-existing State.

3.14 The right to secede does not exist in international law: from a legal point of view the creation of a new State in a colonial context is not, strictly speaking, a secession (see, supra, para. 3.12) and, in any case, the right to self-determination does not mean that the peoples who enjoy such right are recognized as having a right to independence137a.

Is this to say that secession is prohibited under international law? Such a solution would be quite disconnected from reality and hardly in keeping with the cold realism of law...

It is perfectly clear that the community of States has serious reservations when it comes to secessionist attempts138: the initial reaction of third-party States to the threatened dissolution of the USSR and Yugoslavia was - to say the least - reserved, and the admission of Bangladesh to the United Nations was initially blocked by China's veto. Nonetheless, in these cases - and in other less recent ones (Belgium, Panama, etc.) - the States eventually accepted the fait accompli.

Though it is difficult to synthesize, owing to a great variety of situations, the following proposals can be put forward:

(i) international law does not provide for the right to secede and, more particularly, one would search in vain "for a text or practice in positive law enabling us to deduce a right to secede from the right to self-determination"139;

(ii) when faced with secessionist attempts, third-party States generally manifest great reservations (except when they are particularly interested in the successful outcome of the attempt);

(iii) however, there is no legal rule precluding secession; the principle of territorial integrity appears to be strictly an inter-State rule whose effect is partially confused with the principle of non-intervention;

(iv) once secession has succeeded, the effective exercise of State powers by the new authorities is sufficient to establish the existence of the new State (see, supra, para. 2.39 ff.); secession also appears to be "a political fact from which international law is content to draw conclusions when it leads to the establishment of effective and stable State authorities"140;

(v) however, third-party States reserve a right of control by affording the new State recognition, or withholding recognition where its existence is doubtful or brought about by armed force, especially where such force stems too obviously from outside assistance141.


3.15 The foregoing can be summarized easily enough:

- except in colonial situations, the right to self-determination does not confer the right to independence;

- however, international law and, in particular, the principle of territorial integrity does not preclude non-colonial peoples from gaining independence.

As for Quebec, it follows that the Quebec people could not found a possible claim to sovereignty on the right to self-determination, but, on the other hand, would not be precluded on legal grounds from achieving sovereignty. Canada, for example, can assert the principle of its territorial integrity against other States (just as Quebec, in turn, could assert such principle against Canada), but this does not protect Canada from the opposability of a possible effective secession of Quebec which, in fact if not in law, would be considerably strengthened by the prompt recognition of numerous third-party States.

B. The Absence of Any Right to Independence For Minority Groups

3.16 Today's minority can become tomorrow's majority.

"Such is the ambiguity of a people-minority relation: the terms are inversed according to territorial divisions and, particularly, according to the autonomy exercised by each collective entity on the territory assigned to it.142

Within Canada as a whole, Quebecers (and/or francophones) are a minority. In Quebec, francophones are in the majority whereas anglophones form one minority while Natives and Inuit form others. Leaving aside the extremely complex problem of the rights of "regional minorities" as opposed to "national minorities"143, it seems, prima facie, that the rules that govern the relation between the Quebec people and Canada would also apply, mutatis mutandis, to the relation between a sovereign Quebec and those groups that would then constitute its own national minorities.

However, if, for the reasons expounded in the previous section, the right to self-determination does not constitute a legal basis for justifying the independence of such groups, the question is whether the status of minority, or that of indigenous people, might not justify such a claim.


(a) Minority Rights

3.17 The notion of "minority" has no more been the subject of a generally accepted definition, let alone an official one set forth in a legal instrument in force144, than has the notion of peoples (see, supra, para. 3.4).

For the purposes of this study, suffice it to say that:

(i) numerous authors who generally, but not always, start from the premise that a people "by definition" has the right to independence145, are careful to distinguish between minorities and peoples;

(ii) though, paradoxically, the contrary view has been held, the very word "minority" precludes that a group whose members are numerically superior within a State be classified as a minority146;

(iii) the legal definition of the notion of minority is narrower than the sociological concept that one may have of a minority; the protection provided by international law is essentially aimed at ethnic, religious or linguistic minorities;

(iv) any definition calls at once upon objective and subjective criteria (the feeling of belonging)147.

Pursuant to the proposal of the Special Rapporteur of the Human Rights Sub-Commission on the Prevention of Discrimination and the Protection of Minorities regarding the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, we can agree with Professor F. Capotorti that the term "minority", at least as used in Article 27 of the International Covenant on Civil and Political Rights, refers to:

"A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, tradition, religion or language".148


3.18 There is no doubt that this definition presently applies to French-Canadians and could, in future, apply to anglophone Quebecers in an independent Quebec, at least if they acquired the Quebec nationality and manifested the feeling of belonging to a particular community whose culture, traditions, language and even religion they intended to preserve.

It could also apply to the First Nations - now, within the Canadian framework, as well as later in a Quebec that has achieved independence. However, this point is of limited practical interest in that indigenous peoples, whether considered as minorities or not, enjoy specific and more extensive rights (see (b) below).


3.19 Though the international community has, since World War II, been greatly concerned with the right to self-determination of colonial peoples, by the same token it has equally neglected the protection of minorities:

"minority guarantees were regarded with great suspicion, and the principle of minority rights, to the extent that it found expression at all, was regarded as a consequence of individual rights rather than of the rights of particular communities or groups.149

The silence of the 1948 Universal Declaration of Human Rights on this point is eloquent.

For a long time the only legal instrument dealing with the question was Article 27 of the 1966 Covenant on Civil and Political Rights, pursuant to which:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

This text - from which Article 43 of the Quebec Charter of Human Rights and Freedoms manifestly drew its inspiration150 - presents two very striking characteristics:

- only by inference can the rights that it recognizes acquire a territorial scope (see, infra, para. 3.24);

- and such rights are recognized as belonging to persons who belong to a minority, not to the minority itself151.

However, new tendencies are emerging:

(i) the CSCE Copenhagen Document on the Human Dimension adopted on June 29, 1990 devotes eleven paragraphs to the question of national minorities152; however, they do not radically change the general conception, although the (legally non-binding) "undertakings" appearing therein are much more precise and detailed than those (binding on the parties) resulting from Article 27 of the 1966 Covenant;

(ii) the report of the CSCE experts' meeting on national minorities adopted in Geneva in July 1991 innovates timidly in that, for the first time:

"the participating States note with interest "the positive results" obtained by some of them, inter alia: (...)

- by elected organs and assemblies in charge of the affairs of national minorities;

- by a local, autonomous administration as well as by autonomy on a territorial basis (...);

- by the autonomous management, by a national minority, of the aspects relating to its identity in cases where territorial autonomy is not applicable; etc.

Thus is partially revealed the perspective of a collective autonomy of minorities presented as an "interesting" possibility, though not at all as a right;

(iii) more timidly still, the draft Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the United Nations Human Rights Commission on February 21, 1992, imposes, in Article 1, an obligation on the States to protect the identity of minorities within their respective territories;

(iv) finally, in Opinion No. 2 the Arbitration Committee on Yugoslavia invokes the rights which must be afforded to "[t]he Serbian population in Bosnia-Hercegovina and Croatia"153.

In all of these texts, there is the germ of a - reluctant and self-conscious - evolution towards the recognition of the collective rights of minorities.


3.20 However, it cannot be inferred from this that these minorities enjoy territorial rights, let alone the right to secede.

Remarkably, all of the relevant texts - regardless of their legal effect - situate the minorities "in the State"154 and many provide that persons belonging to minorities have the right to maintain "contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties"155...

Above all, though, all of these instruments156 contain, as a kind of leitmotiv, a reservation concerning the respect of the territorial integrity of States157, thus clearly excluding any secessionist implication for the minority rights recognized therein, be they collective rights. This emerges just as clearly from Opinions 2 and 3 of the Arbitration Committee on Yugoslavia which, though they take a broad view of the rights of minorities, - relating them to the right to self-determination - insist on the fact that:

"whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise".158


3.21 With these words the Committee excluded all possibility for the "Serbian population in Bosnia-Hercegovina and Croatia" to demand the annexation to Serbia of the territories inhabited by it. This conclusion can be transposed to the hypothetical situation in which the anglophone population of a sovereign Quebec would demand either its independence or that portions of territories inhabited by it be annexed to Canada. Besides the fact that the relative dispersal of this population - with the exception of certain border areas - makes any such perspective fairly unrealistic, such demands would have no basis in positive law, though nothing would preclude the two States, or Quebec, on the one hand, and the minorities, on the other, from agreeing otherwise.

It stands to reason that the francophone population in Canada would also not be justified in demanding its annexation to Quebec, should they so desire.

(b) Territorial Rights of Indigenous Peoples

3.22 There is no more of a general agreement on a definition of "indigenous peoples" than there is of minorities (see, supra, para. 3.17) or peoples (see, supra, 3.04)159.

But, for the purposes of this study, the question can remain in suspense since there is no doubt that the Natives and Inuit of Canada constitute indigenous peoples, whatever definition is applied.

Moreover, the fact is unequivocally recognized by Canadian as well as Quebec positive law. This could not emerge more clearly, for example, from s. 35(2) of the Constitution Act, 1982.

"In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada."

As provided by the above text - and others160 - , "Canada's aboriginal peoples have constitutional recognition, not just as the objects of legislative power but as the possessors of rights worthy of recognition at a constitutional level"161. During the last thematic constitutional conferences in the winter of 1991-92, the Federal Government declared its readiness to recognize a very broad "inherent right" to governmental autonomy in its peoples162. As for Quebec, it has recognized, by resolution of the National Assembly dated March 20, 1985, the existence of ten aboriginal "nations" and, though it fails to use the term "peoples", the preamble to the 1990 Act establishing the Commission on the Political and Constitutional Future of Quebec provides that "Québec recognizes the rights of the Amerinds and the Inuit of Québec to preserve and develop their specific character and to assure the progress of their communities"163a.


3.23 As we have already seen (see, supra, para. 2.08), this does not lead to the recognition of a right to secede nor of a right to territorial sovereignty for such peoples164.

Furthermore, these rights, some of which have obvious territorial implications, are exclusively founded on Canadian (or Quebec) municipal law, including, where the indigenous peoples hold such rights from "treaties", i.e. sui generis instruments which, despite their

name, are not agreements within the meaning of international law165. However, it does not follow that international law does not guarantee indigenous peoples the right to secede where municipal law does not.


3.24 The very controversial issue166 whether indigenous peoples constitute minorities under international law is apparently of little interest for the purposes of the question under review: minority status does not, in any case, confer a right to secede upon the group possessed of such status (see (a) above).

It should be noted, however, that in this regard persons belonging to indigenous peoples avail themselves, before the Human Rights Commission instituted by the Optional Protocol annexed to the 1966 Covenant on Civil and Political Rights, of the rights guaranteed to minorities by Article 27 of this Covenant and that the Commission accepts to hear their claims167. Furthermore, in its review of the reports submitted by the States, the Commission examines the protection afforded minorities168 and Canada spontaneously includes indigenous peoples among its minorities169.

One can expect that, based on this jurisprudence, the Commission would enforce, in accordance with the minority rights protected under Article 27, the respect of ancestral rights of a territorial nature belonging to the Indians and Inuit of Canada and that these would be considered as acquired rights in the event of the independence of Quebec: they are in fact connected to the way of life and the feelings of these peoples (see, supra, para. 3.25) and can, as such, be regarded as forming part of their culture and, in certain cases no doubt, as indispensable to the practice of their religion.

For all that, this would not give rise to a right to secede which the rules applicable to minorities in no way impose (see, supra, para. 3.20).


3.25 Nevertheless, should they be considered as minorities, indigenous peoples would be minorities with sufficiently specific traits to enable them to claim special rights - including, particularly, territorial rights170.

Besides the fact that they were the first occupants of the territory, their most characteristic trait consists in the spiritual relationship which ties them deeply to their lands:

"It must be understood that, for indigenous populations, land does not represent simply a possession or means of production. It is not a commodity that can be appropriated, but a physical element that must be enjoyed freely. It is also essential to understand the special and profoundly spiritual relationship of indigenous peoples with Mother Earth as basic to their existence and to all their beliefs, customs, traditions and culture"171.

This also holds true for the Indians and Inuit of Quebec: "The needs and interests of the native peoples are closely tied to their lands; their lands are at the very centre of their existence"172; they "have a mystique about the land, and what it contains. They have a special relationship with the land that their ancestors inhabited, a link, something indefinable but real and genuine nevertheless"173.

3.26 This special relationship of indigenous peoples with the land is taken into consideration by certain legal instruments recognizing certain rights of a territorial nature which other minorities cannot claim. Thus Article 11 of ILO Convention No. 107 guarantees to members of indigenous populations a collective or individual right of ownership in their traditional lands. Articles 13 and 14 of Convention No. 169 adopted in 1989 and effective September 5, 1991, which replaces the previous Agreement, provide:

"Article 13

1. In applying the provisions of this Part of the Convention [relating to land], governments shall respect the special importance for the cultures and spiritual values of the peoples concerned, of their relationship with the lands and territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship (...).

Article 14

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities (...)."

The draft Universal Declaration on the Rights of Indigenous Peoples adopted in its first reading in October 1991 by the members of the Working Group of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities likewise provides that:

"Indigenous peoples have the right to recognition of their distinctive and profound relationship with the total environment of the lands, territories and resources which they have traditionally occupied or otherwise used;

Indigenous peoples have the collective and individual right to own, control and use their lands and territories(...)"174 175.

These texts produce only a relative legal effect: the ILO Conventions are binding only on the States which are party thereto(176a) , which excludes Canada. The draft Declaration, which has not been adopted to date, reflects a tendency and will not have a binding effect in any case, even if eventually adopted. One is, therefore, hard put to regard these as documents "embodying minimum principles of customary international law that are binding on all countries"177.


3.27 However, this is of little consequence for the purposes of this study: even these texts, which represent the broadest view of the rights contemplated in favour of indigenous peoples, do not at all provide for the right to secede178.

Not only does this emerge negatively from the very wording of the above-mentioned provisions in which reference is made to "ownership", "possession", "right of use", etc., but not to territorial sovereignty or independence - in contrast to those provisions which apply to colonial peoples (see, supra, para. 3.05) - but the very opposite, in fact, is expressly stated in these instruments.

A striking example of such a precaution is provided both by International Labour Conventions Nos. 107 and 169 and the draft Declaration of the Sub-Commission, all such documents specifying that they are empowered to govern the relationship of indigenous peoples "with States in which they live"179. Other provisions are along the same lines:

- the fact, for example, that the participation of indigenous peoples "in the political, economic, social and cultural life of the State"180 is provided for;

- the responsibility of Governments in the implementation of these instruments181;

- the subjection of the rights of indigenous peoples to the fundamental rights of the State182;

- or the "right to maintain and develop traditional contacts, relations and co-operation (...) with their own kith and kin across State boundaries and the obligation of the State to adopt measures to facilitate such contacts183.


3.28 This last principle further establishes that the division of indigenous peoples between two or more States is not, in itself, contrary to international law. Therefore, this perspective cannot legally preclude a possible sovereignty of Quebec, contrary to that which is sometimes affirmed184.

3.29 The fundamental conclusion that neither Canadian constitutional law nor international law confer upon indigenous peoples the right to form a distinct State does not at all imply that they are not "peoples" in the eyes of these two legal systems, nor that they do not enjoy the right to self-determination.

It is true that, on these points, international law has shown a certain reluctance. Initially, the common term was "indigenous populations". It has recently been replaced by "indigenous peoples". Thus, in 1988, the Working Group on Indigenous Populations of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities became the Working Group on Indigenous Peoples. Similarly, whereas ILO Convention No. 107 was devoted to indigenous populations, Convention No. 169 pertains to "Indigenous and Tribal Peoples in Independent Countries".

However, Article 1(3) of this Convention specifies, not insignificantly185, that "[t]he use of the term "peoples" in this Convention shall not be construed as having any implication as regards the rights which may attach to the term under international law".

This "precautionary provision" is obviously designed to reassure States such as Canada186 which fear that the same rights as are afforded colonial peoples would, by successive classifications, be recognized in indigenous peoples, including the right to independence should they so wish (see, supra, para. 3.05).

The incoherence of a position which consists in recognizing the existence of indigenous peoples on an internal level, but which rejects such recognition on an international level has been rightly pointed out: "It has never been demonstrated by the Canadian government why indigenous peoples would not constitute "peoples" under international law"187.


3.30 Like any other people, the indigenous peoples enjoy the right to self-determination (see, supra, para. 3.04), proclaimed with force by the draft Universal Declaration on the Rights of Indigenous Peoples: "Indigenous peoples have the right of self-determination, in accordance with international law"188.

But whether or not this is a reflection of the present state of positive law, the scope of this right is immediately specified:

"Indigenous peoples have the right freely to determine their relationships with the States in which they live, in a spirit of coexistence with other citizens (...) and freely pursue their economic, social and cultural development".

Certainly, if this text reflects positive law - a point which need not be elucidated here - this would result in the existence of extensive rights in favour of indigenous peoples; but these rights exist within the State, as confirmed by the other provisions of the draft declaration (see, supra, para. 3.27) which in fact is very favourable to such peoples.

J. Martinez Cobo writes:

"Self-determination, in its many forms, must be recognized as the basic precondition for the enjoyment by indigenous peoples of their fundamental rights and the determination of their own future. It must also be recognized that the right to self-determination exists at various levels and includes economic, social, cultural and political, factors. In essence, it constitutes the exercise of free choice by indigenous peoples who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the state in which they live and to set themselves up as sovereign entities. This right may in fact be expressed in various forms of autonomy within the same state, including the individual and collective right to be different and to be considered different".189

3.31 Thus, contrary to the situation which applies to non-indigenous minorities, present-day international law tends to recognize in indigenous peoples extensive rights over their ancestral lands and territories. But whatever the legal effect of the texts reflecting this tendency, they do not extend to the recognition of a status for these lands and territories which is separate and distinct from that of the territory of the State, - and these rights do not at all resemble the right to sovereignty.

Certainly, if one or more indigenous peoples succeeded in imposing the effective existence of a State within a determined territorial configuration, to the detriment of Canada (or Quebec, were it to attain independence), this State could acquire a legal existence. But it would derive its existence from its effectiveness, strengthened, possibly, by the recognitions which it would enjoy, but not from a pre-existing right belonging to the people or peoples concerned. In principle, the question would then be the same as for Quebec itself (see, infra, para. 2.41), but could, in practice, be complicated by the difficulty of determining the exact boundaries of the indigenous territories.

Conclusions

4.01 At the conclusion of this study, it may be useful to summarize the principal observations to which we have come in the course of our examination of the questions put to us:

(i) On a legal level, a possible sovereignty of Quebec cannot be founded on the principle of equal rights and the self-determination of peoples, which allows independence for colonial peoples or only for those whose territory is the subject of foreign occupation.

(ii) Nor do linguistic, ethnic or religious minorities enjoy such right; present-day international law ensures such minorities the extensive protection of their culture, broadly defined, but does not guarantee any specific territorial rights.

(iii) The same does not hold true for indigenous peoples whose special relationship with their ancestral territories and lands are taken into account by international law, which increasingly guarantees them greater territorial rights. Nevertheless, whatever the exact substance of these rights the extent of which is, at present, difficult to ascertain, they do not translate into the recognition of a right to independence.

(iv) Therefore, in a non-colonial context, the attainment of sovereignty by a territory is merely a question of fact in the eyes of international law: the new State is considered as such if its existence is effective. The recognition by third-party States (and by the State from which the territory concerned was severed) is a test of this effectiveness.

(v) Moreover, in the case of Canada and Quebec, the territorial integrity of the latter is guaranteed before independence by the constitutional rules of Canada, and would be after a possible sovereignty by the well-established and peremptory principles of general international law. There is no room for any intermediate situation in which different rules would apply.

(vi) When secession occurs within the framework of a well-defined territorial district, the former boundaries of this district become the borders of the new State (principle of uti possidetis juris). Recent international practice leaves no doubt as to this fact where the predecessor State is a federation, and reflects the existence of a generalized opinio juris along these lines.

(vii) These rules are not defeated by the circumstances in which certain territories were attached to Quebec. The only consideration is the "territorial snapshot" at the time of sovereignty.

(viii) If sovereignty occurs, Quebec will "inherit" the integrity of the territory which now belongs to it and all the powers over this territory now exercised by the federal authorities, including notably powers over Indian reservations.

(ix) The succession to existing territorial limits probably does not extend to the maritime realm, as no State can be deprived of its inherent rights over the maritime territory adjacent to its coasts.

(x) No principle of international law would prevent Canada and an independent Quebec from amending the foregoing rules by treaty as they see fit.


4.02 Based on these conclusions, we answer as follows the questions put to us:

Question No. 1

If Quebec were to attain independence, the borders of a sovereign Quebec would be its present boundaries and would include the territories attributed to Quebec by the federal legislation of 1898 and 1912, unless otherwise agreed to by the province before independence, or as between the two States thereafter.

Question No. 2

If Quebec were to attain independence, the principle of legal continuity (absence of a vacuum juris) would allow the territorial integrity of Quebec, guaranteed both by Canadian constitutional law and public international law, to be asserted over any claims aimed at dismembering the territory of Quebec, whether they stem from:

- the Natives of Quebec, who enjoy all the rights belonging to minorities, in addition to those recognized in indigenous peoples by present-day international law, but without giving rise to the right to secede;

- the anglophone minority for whom the protection provided by international law has no territorial effect; or

- persons residing in certain border regions of Quebec, who, as such, enjoy no particular protection under international law.

These conclusions are reinforced by the applicability of the principle of the succession to the existing territorial limits at the time of independence.

We certify that, based on the information now available to us, the arguments and conclusions expounded above reflect our sincere and real beliefs. In witness whereof, we have signed below for all legal purposes.

Paris, May 8, 1992,

Thomas Franck, Rosalyn Higgins, Alain Pellet

Malcolm Shaw, Christian Tomuschat

Schedules to the study

Schedule I

Mandate of the Group of Experts

Quebec City

March 4, 1992

Alain Pellet

Malcolm N. Shaw

Christian Tomuschat

Rosalyn Higgins

Thomas Franck

I should first like to thank you for having accepted to be a part of a group of international law experts called upon to render an opinion to the Committee to examine matters relating to the accession of Québec to sovereignty, of the National Assembly of Quebec.

I should also like to provide you with a few details on the context of your mandate.

The Committee is one of two parliamentary committees set up last year as a result of the enactment of An Act respecting the process for determining the political and constitutional future of Québec (a copy of which will be forwarded to you). The work of the Committee started last Fall and will continue until April. Its report, which will be filed sometime in the Spring, will constitute an important step towards the holding of a referendum on the sovereignty of Quebec, as provided by section 1 of the Act. Section 1 provides that the referendum will be held in June or October of 1992.

It very quickly became apparent that the question of the territorial integrity of Quebec at the moment of attaining a possible sovereignty was one of the more sensitive and important questions raised before the Committee.

There are different aspects to this question. Some people maintain that Quebec could not attain sovereignty within its present territory, but only within the territory which it possessed in 1867 at the time of the creation of the Canadian federation. In fact, Quebec's boundaries were altered twice by federal legislation subsequent to this date. These alterations, which occurred in 1898 and 1912, substantially extended the northern territories of Quebec. The federal Act of 1912, moreover, contained conditions respecting the relations between the government of Quebec and the aboriginals which inhabited the northern part of its territory. These conditions were repealed by a federal Act enacted in 1977, which put into effect the James Bay and Northern Quebec Agreement. Nevertheless, some people continue to maintain that these conditions would be breached if Quebec became a sovereign State. Others consider that the territories which are the subject of the 1898 and 1912 legislation were granted to Quebec as a province within the framework of the Canadian federation and that Quebec could not retain them in the event of any change of status.

Furthermore, some indigenous peoples of Quebec claim a right to self-determination, and consider that the democratic decision of the Quebec people to choose political sovereignty would not apply to their territories without their consent. The National Assembly recognized by resolution adopted in 1985 that the indigenous populations of Quebec form nations. Also, the government of Canada would be prepared to see the Constitution of Canada recognize, pursuant to terms and conditions yet to be determined, an inherent right of the aboriginal peoples of Canada to governmental autonomy, within the framework of the Constitution. However, neither the government of Canada nor the government of Quebec or of any other province nor the parliaments of any of these governments has recognized a right to self-determination in the aboriginal peoples.

Other groups of Quebec inhabitants could demand the dismemberment of the territory of Quebec subsequent to a referendum whose outcome would be favourable to sovereignty. Since Canada would be divided in two if Quebec seceded, certain inhabitants have expressed the wish to see Canada maintain a territorial corridor through Quebec linking Ontario and New-Brunswick. Certain members of the anglophone minority of Quebec have asked that the regions where such minority is concentrated remain a part of Canada. Finally, certain inhabitants of border regions, regardless of ethnic origin, could demand that these regions be joined to Canada.

The questions we are putting to you are intended to address all of these concerns as a whole. These questions relate to the application of the principle of uti possidetis assuming Quebec were to attain sovereignty.

The Questions

1. Assuming that Quebec were to attain sovereignty, would the boundaries of a sovereign Quebec remain the same as its present boundaries, including the territories attributed to Quebec under the federal legislation of 1898 and 1912, or would they be those of the Province of Quebec at the time of the creation of the Canadian Federation in 1867?

2. Assuming that Quebec were to attain sovereignty, would international law enforce the principle of territorial integrity (or uti possidetis) over any claims aiming to dismember the territory of Quebec, and more particularly:

(a) claims of the Natives of Quebec invoking the right to self-determination within the meaning of international law;

(b) claims of the anglophone minority, particularly in respect of those regions of Quebec in which this minority is concentrated;

(c) claims of the inhabitants of certain border regions of Quebec, regardless of ethnic origin?

You may of course count on the collaboration of the Legal Department of our Secretariat. You will find attached hereto a list of the documents which will be forwarded to you immediately.

We would appreciate receiving the opinion you will be writing with the other members of the group by the beginning of April. Some time later, some of the group could appear before the Committee. In the meantime, I look forward to meeting you in Paris on Sunday, March 15. I shall be accompanied by Mr. André Binette, legal counsel for the Secretariat. We shall advise you by fax of the time and place of such meeting.

I have also been informed that a draft agreement will be forwarded to you in the next few days consistent with the provisions agreed to between yourselves or your representative and Mr. Binette.

I hope that these terms are satisfactory to you. Please be assured of the importance with which we regard your contribution in this matter.

Yours truly,

FRANÇOIS GEOFFRION

Secretary of the Committees

on the process for determining the political

and constitutional future of Quebec


Schedule II

Summary of the Authors' Resumés

(prepared by the Secretariat)

FRANCK, THOMAS

Professor Thomas Franck, a graduate of Harvard Law School, is presently Becker Professor and Director of the Center for International Studies of the Faculty of Law of New York University. He is also Editor-in-Chief of the American Journal of International Law.

Three of the 22 works published by Professor Franck have been awarded prizes.

Professor Franck has also acted as a constitutional advisor for various African countries and as the delegate of the Solomon Islands to the United Nations General Assembly.

HIGGINS, ROSALYN

Professor Rosalyn Higgins Q.C. is a graduate of Cambridge University and teaches public international law at the London School of Economics. Professor Higgins has been a member of the United Nations Human Rights Commission since 1984 and has advised the government of the United Kingdom and various foreign governments before the International Court of Justice.

Professor Higgins has written many books and dozens of articles on international law and was awarded the Wolfgang Friedmann Medal by Columbia University for her contribution to international law.

PELLET, ALAIN

Professor Alain Pellet is a docteur d'État in public law and senior fellow of the Law Faculties. He presently teaches public international law at the University of Paris X - Nanterre and at the Institut d'Études politiques de Paris.

Professor Pellet is a member of the United Nations International Law Commission and a substitute member of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Human Rights Commission. He has argued a number of cases before the International Court of Justice, notably assisting Burkina Faso in the matter of the Frontier Dispute with Mali. He is presently Counsel and lawyer for Australia and Chad, and for the latter he is Assistant Agent in the matter of the territorial dispute between Chad and Libya. He is also a consultant to the Arbitration Committee of the European Conference on Peace in Yugoslavia.

Professor Pellet is the Director of the series entitled "Droit international" published by Éditions Economica and has published numerous articles and many books on international law, notably co-directing with Professor Jean-Pierre Cot the article by article commentary on the Charter of the United Nations (for which he was awarded the Prix Lemonon by the Institut de France).

SHAW, MALCOLM N.

Professor Malcolm N. Shaw teaches law at the University of Leicester, Great-Britain. From 1983 to 1986 he was Dean of the Faculty of Law of the University of Essex.

In 1990, he represented Great-Britain at the United Nations conference on Human Rights in Kiev. He has also advised the Hungarian government on the question of the protection of minority rights.

Professor Shaw is the author of two books, International Law and Title to Territory in Africa - International Legal Issues. He has also written numerous articles, including on the issues of territorial disputes in international law.

TOMUSCHAT, CHRISTIAN

Professor Christian Tomuschat is a graduate of the University of Heidelberg and director of the International Law Institute and the Faculty of Law and Economics in Bonn, Germany. He teaches public international law and constitutional law.

Professor Tomuschat was a member of the Human Rights Commission of the United Nations from 1977 to 1986. He is presently President of the International Law Commission of the United Nations. He is now investigating the human rights situation in Guatemala, including the rights of the indigenous Guatemalan peoples, for the United Nations Human Rights Commission. He is also a member of the Board of Editors of many European public international law reviews.


Schedule III

List of documents provided to the authors by the Secretariat of the Committees on the Process for Determining the Political and Constitutional Future of Québec.

First List

1. Legislation

- Constitution Act, 1867 (British North America Act)

- Constitution Act, 1871 (excerpts)

- Constitution Act, 1982 (excerpts)

- An Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1991, c. 34.

2. Journal des Débats (Hansard)

- Committee to examine matters relating to the accession of Québec to sovereignty- Tuesday, February 4, 1992 - No. 24 (presentation by the Algonquin Nation).

- Committee to examine matters relating to the accession of Québec to sovereignty- Thursday, February 6, 1992 - No. 26 (presentation by the Huron-Wendat Nation).

- Committee to examine matters relating to the accession of Québec to sovereignty- Tuesday, February 11, 1992 - No. 27 (presentation by the Assembly of First Nations).

- Committee to examine matters relating to the accession of Québec to sovereignty- Tuesday, February 25, 1992 - No. 31 (presentation by the Grand Council of the Crees of Québec).

3. Documents prepared by the Secretariat of the Committee to examine matters relating to the accession of Québec to sovereignty.

- L'avenir politique et constitutionnel du Québec - La démarche du Québec (November 20, 1991)

- L'avenir politique et constitutionnel du Québec - La déclaration de souveraineté - Les frontières d'un Québec souverain (October 11, 1991)

- L'avenir politique et constitutionnel du Québec - Les relations entre l'État et les nations autochtones (February 7, 1992)

- Les frontières de la Province de Québec, document prepared by the Secretariat of the Committee and referring to the following legislation:

- Royal Proclamation (1763)

- The Quebec Act (1774)

- An Act for establishing Courts of Judicature in the Island of Newfoundland and the Islands adjacent; and for re-annexing Part of the Coast of Labrador and the Islands lying off the said Coast to the Government of Newfoundland (1809)

- An Act to provide for the Extinction of Feudal and Seignioral Rights and Burthens on Lands held à Titre de Fief and à Titre de Cens, in the Province of Lower Canada; and for the gradual Conversion of those Tenures into the Tenure of Free and Common Soccage; and for the other Purposes relating to the said Province (1825)

- An Act for the Settlement of the Boundaries between the Provinces of Canda and New Brunswick (1851)

- An Act respecting the north-western, northern and north-eastern boundaries of the province of Quebec (1898)

- An Act respecting the extension of the boundaries of Quebec by annexation of Ungava (1912)

- An Act to approve, give effect to and declare valid certain agreements between the Grand Council of the Crees (of Quebec), the Northern Québec Inuit Association, the Government of Quebec, la Société d'énergie de la Baie James, la Société de développement de la Baie James, la commission hydro-électrique de Québec and the Government of Canada and certain other related Agreements to which the Government of Canada is party (1977)

4. Other

- Assembly of First Nations - Memorandum addressed to the National Assembly - Parliamentary Committee to examine matters relating to the accession of Québec to sovereignty - February 11, 1992

- Status and Rights of the James Bay Crees in the context of Quebec's secession from Canada submitted by the Grand Council of the Crees (of Québec) to the Commission on Human Rights of the United Nations - February 1992

- Henri Brun - Le territoire du Québec, six études juridiques - Les Presses de l'Université Laval, Québec, 1974 (excerpts)

- Video Cassette - 02/19/92 - CBC TV Network - 22:10 The Journal. Second in a series of reports on Quebec's possible separation.

- Le Québec Statistique, Les Publications du Québec, 59e édition, 1989.

03/05/1992

Second List

1. Journal des Débats (Hansard)

- Committee to examine matters relating to the accession of Québec to sovereignty- Wednesday, October 9, 1991 - No. 5 (presentation by Mr. Daniel Turp)

- Committee to examine matters relating to the accession of Québec to sovereignty- Thursday, October 17, 1991 - No. 6 (presentation by Mr. Henri Dorion)

- Committee to examine matters relating to the accession of Québec to sovereignty- Tuesday, October 22, 1991 - No. 7 (presentation by Mr. Henri Dorion)

- Committee to examine matters relating to the accession of Québec to sovereignty- Thursday, November 7, 1991- No. 8 (presentation by Mr. André Patry)

- Committee to examine matters relating to the accession of Québec to sovereignty- Tuesday, November 26, 1991- No. 10 (presentation by Mr. Stephen Scott and Mr. Henri Brun)

03/11/1992

Third List

1. Legislation

- Constitution Act, 1982 - Constitution Amendment Proclamation, 1983

- Indian Act, 1989

- James Bay and Northern Quebec Agreement and Complementary Agreements (1991 Edition)

- An Act approving the agreement concerning James Bay and Northern Quebec, R.S.Q. 1978 c. 67

- North-East Quebec Agreement (Naskapi)

2. Bélanger-Campeau Commission

- Report

- José WOEHRLING

- Les aspects juridiques de la redéfinition du statut politique et constitutionnel du Québec

- Jacques-Yvan MORIN

- Réflexions sur l'avenir culturel, économique et constitutionnel du Québec et du Canada (November 1990)

Summary of the Memorandum

Presentation by Jacques-Yvan Morin to the Committee on the Political and Constitutional Future of Québec (Thursday, December 13, 1990)

- Daniel TURP

Exposé-réponse (November 1990)

Presentation by Daniel Turp to the Committee on the Political and Constitutional Future of Québec (Tuesday, December 18, 1990)

3. Documents presented before the Committee to examine matters relating to the accession of Québec to sovereignty

- Jacques-Yvan MORIN

La constitution d'un Québec souverain

Presentation by Jacques-Yvan Morin (Tuesday, December 17, 1991)

- Jean-Jacques SIMARD

Développement et auto-détermination autochtones : l'expérience de la Baie James et du Nord québécois

- Algonquin Nation

- Council of the Huron-Wendat Nation

- Grand Council of the Crees of Québec

- Brad MORSE

Comparative Assessments of Indigenous Peoples in Québec, Canada and Abroad

4. Report of the Committee to examine the Territorial Integrity of Québec (1971)

- Canadian Capital Region (vol. 1.1, excerpts)

- The Québec-Ontario Border (vol. 2.1, excerpts)

- The Border with Labrador (vol. 3.1, excerpts)

- The Indian Domain (vol. 4.1, excerpts)

- The Northern Borders (vol. 5.1, excerpts)

- The Southern Borders (vol. 6.1, excerpts)

5. Committee on the Negotiation of Indian Affairs (1973)

- The Problem of the Indian Reservations in Québec (general conclusion)

6. Press Clippings

- "No Troops against Quebec, Clark says", Vancouver Sun, Thursday, November 28, 1991)

- "Mulroney se défend de vouloir "faire peur au monde", La Presse, Monday, December 2, 1991

- "Le rôle de l'armée n'est pas de se battre pour l'unité du pays, soutient Chastelain", La Presse, Saturday, December 7, 1991

- "Le général De Chastelain invite l'armée au calme", La Presse, Thursday, December 19, 1991

03/20/1992

Fourth List

1- BOOKS

David J. BERCUSON and Barry COOPER, Deconfederation - Canada without Quebec, 1991, Key Porter Books.

David L. VARTY, Who gets Ungava?, 1991, Varty & Company Printers

William F. SHAW and Lionel ALBERT, Partition - The Price of Quebec's Independence, 1980, Thornhill Publishing Montreal

Henri BRUN, Le territoire du Québec, 1974, Les Presses de l'Université Laval

Jacques BROSSARD, L'accession à la souveraineté et le cas du Québec, 1976, Les Presses de l'Université de Montréal.

2- Documents submitted to the Committee to examine matters relating to the accession of Québec to sovereignty

Henri BRUN Les conséquences territoriales de l'accession du Québec à la souveraineté

Stephen A. SCOTT Observations préparées à l'intention de la Commission d'étude des questions afférentes à l'accession du Québec à la souveraineté

3. Documents submitted to the Committee to examine any offer of a new constitutional partnership

Gordon ROBERTSON Submission to Committee to examine any offer of a new partnership

Presentation of January 22, 1992.

03/26/1992

Schedule IV

Abbreviations

A.F.D.I. Annuaire français du droit international

A.J.I.L. American Journal of International Law

Can. Y.B. Int'l L. Canadian Year Book of International Law

ILC Year Book International Law Commission Year Book

Can. Bar. Rev. Canadian Bar Review

ILC International Law Commission

I.C.J. International Court of Justice

P.C.A. Permanent Court of Arbitration

P.C.I.J. Permanent Court of International Justice

CSCE Conference on Security and Cooperation in Europe

I.D.I. Institut de droit international

I.L.R. International Law Reports

OAS Organization of American States

ILO International Labour Organization

OAU Organization of African Unity

Reports Internatioanal Court of Justice Reports

R.G.D.I.P. Revue générale de droit international public

R.I.A.A. United Nations Reports of International Arbitral Awards

Notes

1. S.Q., 1991, c-34..

2a. This letter is attached hereto as Schedule I..

3. On the general problems of the demarcation of Quebec, see Rapport de la Commission d'étude sur l'intégrité du territoire du Québec, 6 vols., 1971; Henri Brun, "L'évolution du territoire du Québec", Le territoire du Québec - six études juridiques, Presses de l'Université Laval, Québec, 1974, pp. 9-31; or Mr. Henri Dorion's presentation before the Committee to examine matters relating to the accession of Québec to sovereignty, National Assembly, Journal des débats, Oct. 17, 1991, pp. 147-158. .

4. On the question of maritime territory, see, infra, para. 2.36. .

5. These documents are listed in Schedule III attached hereto.

6. See, supra, note 2 and, for examples, Jacques Brossard, L'accession à la souveraineté et le cas du Québec , Presses de l'Université de Montréal, 1976, 800 pages, particularly pp. 478-521; or William F. Shaw and Lionel Albert, Partition: The Price of Quebec's Independence, Thornhill Publishing, Montreal, 1980, 204 pages..

7. In particular, see David J. Bercuson and Barry Cooper, Deconfederation - Canada without Quebec, Key Porter, Toronto, 1991, 180 pages; or David L. Varty, Who Gets Ungava, Varty and Co. Printers, Vancouver, 1991, 104 pages..

8. Between the supporters of juridical "monism" and those advocating "dualist" theories.

9. Opinion No. 1 of November 29, 1991. The Opinions rendered by the Arbitration Committee and reproduced herein were provided to the translator in typewritten form by the European Commission Directorate General - External Political Relations, Brussels.

10. Judgment of 25 May 1926, Certain German Interests in Polish Upper Silesia, Series A, No. 7, p. 19.

11. William F. Shaw and Lionel Albert, op. cit., note 5, p. 29. For examples of concurring views, see the presentations of Daniel Turp (Journal des Débats, Oct. 9, 1991, pp. 136-137), Gordon Robertson (Jan. 22, 1992, pp. 448 and 491), or the Algonquin Nation (Feb. 4, 1992, pp. 703 or 705), the Assembly of First Nations (Feb. 11, 1992, p. 813), or the Grand Council of the Crees of Québec (Feb. 25, 1992, pp. 1026 or 1031) before the Commission..

12. Cf. Nguyen Quoc Dinh, Patrick Daillier et Alain Pellet, Droit international public, L.G.D.J., Paris, 3rd ed., 1987, p. 415.

13. Arbitral Award rendered in the Lac Lanoux case (Spain v. France, November 16, 1957), R.I.A.A., XII, p. 301.

14. See article 7 of the ILC draft articles on State responsibility (Part 1) (ILC Year Book, 1980, vol. II, Part 2, p. 30). In fact, Canada has refused to ratify certain international conventions falling within provincial jurisdiction to avoid incurring international liability in the event of non-application (cf. the decision of 22 January 1937 rendered by the Judicial Committee of the Privy Council, A.-G. Ontario v. A.-G. Canada, [1937] A.C. 326).

15. Cf. presentation by Henri Brun before the Commission (Journal des Débats, November 26, 1991, p. 264). See also his written opinion, Les conséquences territoriales de l'accession du Québec à la souveraineté, p. 7.

16. "Sovereignty in the relation between States signifies independence" (Arbitral award by Max Huber, in the Island of Palmas case, PCA, April 4, 1928, R.I.A.A II, p. 838). Both terms are used synonymously herein.

17. Comprised of the Presidents of the German, Belgian, Spanish, French and Italian constitutional courts, and presided over by the former French Minister of Justice Robert Badinter, this Commission was established by the Council of Ministers of the European Communities on August 27, 1991. To this day, it has rendered seven advisory opinions.

18. See Opinion No. 1, supra, note 8.

19. I.C.J. Judgment rendered on June 27, 1986, Case concerning military and paramilitary activities in and against Nicaragua, 1986 Reports, p. 133.

20. Cf. I.C.J. Advisory Opinion of October 16, 1975, Western Sahara, 1975 Reports, pp. 43-44.

21. Cf. José Woehrling, Éléments d'analyse institutionnelle, juridique et démolinguistique pertinents à la révision du statut politique et constitutionnel du Québec, Commission on the Political and Constitutional Future of Québec, working document No. 2, pp. 58-59.

22. It has been written, not entirely without reason, that "of all federative constitutions, that of Canada is the most scattered and the most confused" (J. Brossard, op. cit., note 5, p. 250). See also the presentation by Jacques-Yvan Morin before the Commission referring to "a jumble of disparate texts" (Journal des Débats, Dec. 17, 1991, p. 441).

23. Contra: Henri Brun, Les conséquences territoriales de l'accession du Québec à la souveraineté , a written exposition to the Commission, Nov. 23, 1991, p. 12.

{{Refa|24 An Act respecting the north-western, northern and north-eastern boundaries of the province of Quebec, 1898 and An Act respecting the extension of the boundaries of Quebec by annexation of Ungava, 1912. It should be noted, however, that Quebec, for its part, agreed to the cession by enacting provincial laws (see references in H. Brun, op. cit. , note 2, p. 20, notes 15 and 16).

25. Contra: D.L. Varty, op. cit., note 6, p. 28.

26. Emphasis added.

27. See in particular: Henri Brun, Les droits des Indiens sur le territoire du Québec", op. cit., note 2, 33-95, particularly pp. 58-85; K.M. Lysyk, "The Unique Constitutional Position of the Canadian Indian", Can. Bar Rev. 1967, pp. 513 ff.; Brian Slattery, "Understanding Aboriginal Rights", ibid, 1987, pp. 727-783, particularly pp. 772 ff.; or Maurice Torrelli, "Les Indiens du Canada et le droit des traités dans la jurisprudence canadienne", A.F.D.I. 1974, pp. 227-245.

28. For the purposes of s. 91(24) of the Constitution Act, 1867, the term "Indian" includes the Inuit. See for example C. Chartrier, "Indian": An Analysis of the Terms as Used in Section 91(24) of the British North America Act, 1867", Sask. L. Rev., 1978-1979, pp. 37 ff., or P.W. Hogg, Constitutional Law of Canada, 2nd ed., 1985, pp. 552-553.

29. Supreme Court of Canada in the St. Catherine's Milling case, 1887, 13 S.C.R. 577, p. 612.

30. See in particular Part II.

31. J. Brossard, op. cit., note 5, p. 507.

32. This part of the study deals exclusively with the express condition referred to in s. 2(c) of the Act of 1912. The question of an alleged implied condition flowing from the linkage between the cession and participation in the Federation is examined, infra, in para. 2.34.

33. See also the North-Eastern Quebec Agreement dated January 31, 1978, which, though drafted in different terms, calls for the same legal analysis. For the purposes of this study, we have confined ourselves to the James Bay Agreement.

34a. An Act to approve, give effect to and declare valid certain agreements between the Grand Council of the Crees (of Quebec), the Northern Québec Inuit Association, the Government of Quebec, la Société d'énergie de la Baie James, la Société de développement de la Baie James, la commission hydro-électrique de Québec and the Government of Canada and certain other related Agreements to which the Government of Canada is party, S.C., 1977, c-32 and An Act approving the agreement concerning James Bay and Northern Québec, R.S.Q., 1977, c-67.

35. See opening remarks by John Ciaccia, special representative of the Premier of Quebec in the James Bay negotiations, to the standing Parliamentary Committee of the National Assembly of Quebec on Natural Resources and Lands and Forests, on November 5, 1975 in James Bay and Northern Quebec Agreement and Complementary Agreements, Les Publications du Québec, 1991 Edition, pp. XV-XVII.

36. Resolution 2625 (XXV) of the General Assembly, October 24, 1970.

37. See also the second of the ten principles adopted by the Afro-Asian Conference of Bandung on April 24, 1955.

38. I.C.J. Judgment of February 24, 1982, Continental Shelf Tunisia/Libya, 1982 Reports, p. 66; for other examples, see also P.C.I.J. Advisory Opinion of December 6, 1923, Jaworzina, Series B, No. 8, p. 23; I.C.J. Judgment of June 15, 1962, Temple of Preah Vihear, 1962 Reports, p. 34 or Judgment of December 19, 1978, Aegean Sea Continental Shelf, 1978 Reports, p. 36.

39. Arbitral Award of April 22, 1977, I.L.R., vol. 52, p. 131.

40. On the origin of this provision, see in particular the position adopted before the ILC by Sir Humphrey Waldock, Special Rapporteur (ILC Year Book, 1963, vol. 2, p. 35 and 1966, vol. 2, pp. 44-45), Manfred Lachs ( ibid. 1963, vol. 1, p. 140) or Roberto Ago, (ibid. p. 134 and 1966, vol. 1, pp. 75-97 and vol. 2, pp. 39-44).

41. See United Nations Conference on the Law of Treaties, 2nd Session, Official Records, 22nd plenary meeting, May 13, 1969, p. 129 and Report of the United Nations Conference on the Succession of States in Respect of Treaties, 1972, A/Conf. 80/15, Schedule 11, p. 21 and A/Conf. 80/31.

42. Guidelines on the recognition of new States in Eastern Europe and the Soviet Union adopted at a Special Ministerial Meeting of the Twelve on December 16, 1991.

43. Convention on the Succession of States in Respect of Treaties, August 23, 1978, Article 2(1)(b) and Convention on the Succession of States in Respect of State Property, Archives and Debts, Article 2(1)(a). Though neither of these Conventions is in force, this definition is generally accepted (cf. Opinion No. 1 of the Arbitration Committee on Yugoslavia, supra, at note 8).

44. Nguyen Quoc Dinh et al., op. cit., note 11, p. 478.

45. R.Y. Jennings, The Acquisition of Territory in International Law, Manchester U.P., 1963, p. 14.

46. ILC Year Book 1969, vol. II, p. 100.

47. For examples, see: P.C.I.J. Judgment of June 7, 1932, Free Zones Of Upper Savoy and the District of Gex, Series A/B, No. 46, pp. 144-145; I.C.J. Judgment of June 18, 1962, supra, note 36, pp. 6-16, 33 and 34; or Arbitral Award rendered on February 14, 1985 in the case concerning the Maritime Boundary between Guinea and Guinea-Bissau, R.G.D.I.P., p. 503.

48. Cf. I.C.J. Judgment of April 12, 1960, Right of Passage over Indian Territory, 1960 Reports, p. 6.

49. Commissioners' Report, vol. 6, Dec. 1971, p. 165, No. 14.

50. See P.C.I.J. Judgment of December 15, 1933, Peter Pázmány University, Series A/B, No. 61, pp. 237-238.

51. Commentary of the ILC on draft Article 14 (later to become Article 15) of the Convention, ILC Year Book, 1981, vol. II. 2nd part, p. 38.

52. In this regard, one could conceivably draw a parallel with diplomatic missions, which, contrary to the traditional theory, are no longer regarded as extraterritorial in nature. Cf. Charles Rousseau, Droit international public, tome IV, Les relations internationales, Sirey, Paris, 1890. pp. 174-176.

53. D.J. Bercuson and B. Cooper, op. cit., note 6, pp. 151-152. See also: W.F. Shaw and L. Albert, op. cit., note 5, passim; D.L. Varty, op. cit., note 6, p. 23 ff., Grand Council of the Crees of Quebec, Submission to the Human Rights Commission, Status and Rights of the James Bay Crees in the Context of Quebec's Secession from Canada, Feb. 1992, p. 83; for a more moderate view, see: Allen Buchanan, "La sécession du Québec et les droits territoriaux des autochtones", le Réseau, 3 mars 1992, p. 2-4. v

54. For examples, see D.J. Bercuson and B. Cooper, ibid. , pp. 149 or 155, or W.F. Shaw and L. Albert, ibid., p. 803.

55. These claims would clearly be totally inconsistent with the principles of territorial integrity and the stability of frontiers, see (a) above.

56. For examples, see W.F. Shaw and L. Albert, who compare the cessions of 1898 and 1912 to a "wedding gift", op. cit., note 5, p. 71.

57. Op. cit., note 22, pp. 7-8.

58. Judgment of December 22, 1986, 1986 Reports, p. 569.

59. Ibid, p. 568 - emphasized in the text.

60a. Ibid.

61. For more details, see, infra, para. 2.47.

62. D.L. Varty, op. cit., note 6, p. 29.

63. H. Brun, op. cit., note 2, pp. 19-20.

64. A. Buchanan, op. cit., note 51, p. 3.

65. See the written exposition of Professor Jonathan I. Charney, The Maritime Boundaries of Quebec, March 9, 1992, 100 pages.

66. Ibid., p. 7.

67. Cf. I.C.J. Jugment of February 20, 1969, North Sea Continental Shelf, 1969 Reports, p. 51; or the February 24, 1982 Judgment Continental Shelf Tunisia/Libya, 1982 Reports, p. 61.

68. Laurent Lucchini et Michel Voelkel, Droit de la mer , t. I, Pédone, Paris, 1990, p. 133.

69. Cf. the rule set forth in article 12 of the Vienna Convention of August 23, 1978 on the Succession of States in Respect of Treaties.

70. Journal des Débats, Tuesday February 11, 1992, p. 828. See also the comment by M.G. Robertson, ibid., January 22, 1992, p. 488.

71. Commission on the Political and Constitutional Future of Quebec, Journal des Débats, December 13, 1990, p. 1438.

72. Op. cit., note 5, p. 485.

73. Nguyen Quoc Dinh et al., op. cit., note 11, p. 456. See also Rosalyn Higgins, The development of International Law through the Political Organs of the United Nations, Oxford. U.P., 1963, pp. 11 ff., or Malcolm N. Shaw, International Law, Grotius Publ., Cambridge, 3rd ed., 1991, pp. 138 ff.

74. See note 8.

75. M.N. Shaw, op. cit., note 70, p. 138.

76. Nguyen Quoc Dinh et al., op. cit., note 11. But it should be noted that recent precedents - Yugoslavia - suggest that Canada could be obliged to ensure that Quebec will respect fundamental human rights before accepting the secession and, in particular, that the new State will comply with the 1966 Covenant on Human Rights to which Canada is party. Though this would have no territorial impact, Quebec's undertaking to respect human rights, minority rights and Canada's present commitments with respect to non-proliferation would certainly constitute a fundamental factor of its recognition by third-party States.

77. J. Woehrling, op. cit., note 20, p. 101.

78. For examples, see remarks made by the Constitutional Affairs Minister (Vancouver Sun, November 28, 1991), the Prime Minister (La Presse, December 2, 1991) or the Chief of Defence Staff (La Presse, December 7, 1991). vv

79. J. Woehrling, op. cit., note 20, p. 102.

80. See for example: Opinions 2 and 3 of the Arbitration Committee on Yugoslavia dated January 11, 1992, supra, at note 8 and, infra, para. 3.20.

81. Opinion No. 1 of the Arbitration Committee on Yugoslavia, supra, at note 8. See also the Brussels Resolution of the I.L.I. (1936) or Article 12 of the Charter of the OAS.

82. Ibid.

83. For examples, see Roberto Ago, Il requisito d'effettività dell'occupazione in diritto internazionale, Fratelli Palombi, Roma, 1934, pp. 108-110; Sir Hersch Lauterpacht, The Development of International Law by the International Court, Stevens, London, 1958, pp. 240-242; Charles de Visscher, Les effectivités en droit international public, Pédone, Paris, 1967, pp. 104-107.

84. Award of April 4, 1928, in R.Y Jennings, The Acquisition of Territory in International Law, supra, at note 43, p. 93.

85. Judgment of April 5, 1933, Series A/B, No. 53, pp. 50-51; see also the arbitral award of January 28, 1931 rendered by the King of Italy in the Clipperton Island case, 2 R.I.A.A., pp. 1010-1111.

86. Report of the Commission on the Political and Constitutional Future of Quebec, March 1991, p. 60.

87. Mario Bettati, "Souveraineté et succession d'États, in R.J. Dupuy et al., La souveraineté au XXe siècle , coll. U, Armand Colin, Paris, 1971, p. 66.

88. Nguyen Quoc Dinh et al., op. cit., note 11, p. 431.

89. Arbitral award of July 31, 1989, R.G.D.I.P. 1990, p. 251; see dissenting opinion by M. Bedjaoui, I.L.R., vol. 83, p. 158.

90. Professor J. de Pinho Campinos noted in 1979 that the principle "appears to have been applied not only in the case of South-American republics, but also at the time of the independence of the United States of America, Belgium, Poland, Czechoslovakia, Finland, the Irish Free State, the Baltic States, Panama, Pakistan, Angola, etc.", "L'actualité de l'uti possidetis", in S.F.D.I., Colloque de Poitiers, La frontière, Pédone, Paris, 1980, p. 105.

91. Cf. P.C.I.J., supra, at note 45, p. 96, or I.C.J. Judgment of June 15, 1962, supra, at note 36, p. 6. 92 See in particular: J. de Pinho Campinos, op. cit., note 87, pp. 104-105 or Nguyen Quoc Dinh et al., op. cit., note 11, p. 433.

93. See Judgment, supra, at note 18, p. 565.

94. See, supra, note 8.

95. The term "borders" referred to the boundaries between the various Yugoslav Republics.

96. See Opening Declaration of September 7, 1991 of the European Conference on Yugoslavia.

97. Press release of Secretary of State for External Affairs, October 7, 1991. See also Declaration of Ms. McDougall dated November 18, 1991 and White House press release of April 7, 1992: "The United States accepts the pre-crisis republic borders as the legitimate international borders of Bosnia-Hercegovina, Croatia, and Slovenia" (Statement by the President: "U.S. Recognition of Former Yugoslav Republics").

98. Article 38(1)(b) of the Statute of the I.C.J.

99. I.C.J. Judgment of February 20, 1969, North Sea Continental Shelf, 1969 Reports, p. 43.

100. I.C.J. Judgment of December 22, 1986, cited, supra , at note 56, p. 566.

101. Cf. Jacques Brossard, op. cit., note 5, particularly pp. 182 ff.

102. Article 53 of the Vienna Convention on the Law of Treaties of May 23, 1969.

103. See in particular the list of examples of peremptory norms drawn up by the ILC in its report on the draft Convention on the Law of Treaties, among them "the right to self-determination", ILC Year Book 1966, vol. II, p. 270). Futhermore, Article 19 of the first part of the draft articles of the Commission on State Responsibility lists among international wrongful acts a "serious breach of an international obligation of essential importance for safeguarding the right to self-determination".

104. Opinion No. 1, supra, at note 8.

105. Opinion No. 2, January 11, 1992, supra, at note 8.

106. For examples, see Ian Brownlie, Principles of International Law, Clarendon Press, Oxford, 4th ed., 1990, p 597, or "The Rights of Peoples in Modern International Law" in James Crawford ed., The Rights of Peoples, Clarendon Press, Oxford, 1988, p. 5; Michla Pomerance, Self-Determination in International Law and Practice, Nijhoff, 1982, p. 18 or Danilo Türk, "Minority Protection in Human Rights Conventions", Communità Internazionale, 2nd Quaderni no. 4, 1991, p. 37.

107. Article 1(1) of the 1966 International Covenants on Economic, Social and Cultural Rights and Civil and Political Rights respectively, ratified by Canada in 1976; see also e.g. Resolutions 1514 (XV) (para. 2) and 2625 (XXV) (5th principle, para. 1) of the General Assembly of the United Nations, or Principle No. VIII(2) of the Helsinki Final Act of August 1, 1975.

108. Among an extremely abundant literature, see particularly: Hector Gros-Espiell, The Right to Self-Determination - Implementation of United Nations Resolutions, Report to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, New York, 1979, E/CN. 4/Sub. 2/405/Rev. 1; Aureliu Cristecu, The Historical and Current Development of the Right to Self-Determination on the basis of the Charter of the United Nations and other instruments, id., 1981, E/CN.4/Sub. 2/404/Rev. 1, IV - 121 pages); Antonio Cassese, "Commentaire de l'article 12" in J.-P. Cot and A. Pellet, eds. La charte des Nations Unies, Economica, Paris, 2ième éd., 1991, pp. 39-55.

109. Resolution 1514 (XV)(para. 2).

110. Ibid., para. 4.

111. Resolution 1541 (XV) adopted by the General Assembly on December 15, 1960. See also Resolution 2625 (XXV).

112. For examples, see Lee C. Buchheit, Secession: The Legitimacy of Self-Determination, Yale U.P., New-Haven, 1978, pp. 20-30, or Alexis Heraclides, The Self-Determination of Minorities in International Politics, Frank Cass, 1991, p. 28.

113. Malcolm N. Shaw, "The Definition of Minorities in International Law", Israel Yb. on Human Rights, 1991, p. 19.

114. I. Brownlie, "The Rights of Peoples ..." op. cit., note 103, p. 6.

115. James Crawford, "The Rights of Peoples: Some Conclusions" in J. Crawford, ed., op. cit., note 103, p. 166. See also Hurst Hannum, Autonomy, Sovereignty, and Self-Determination - The Accommodation of Conflicting Rights, University of Pennsylvania Press, 1990, p. 74.

116. J. Crawford, ibid., pp. 169-170.

117. In this respect, Canada's ambiguity is quite remarkable: on the domestic level, it recognizes the existence of "aboriginal peoples" (see, infra, para. 3.22), but has, nevertheless, vigorously opposed the use of this terminology by ILO Convention No. 169 (see Russel Lawrence Barsch, "Revision of ILO Convention No. 107", A.J.I.L., 1987, p. 760; H. Hannum, op. cit., note 112, p. 96, at note 389; see also the Canadian argument in the Lake Lubicon case before the Human Rights Commission, infra, at note 162, para. 6.1 and 6.2.

118. See, supra, at note 8.

119. See, supra, at note 102.

120. 1975 Reports, p. 33.

121. Thomas M. Franck, "The Emerging Right to Democratic Governance", A.J.I.L., 1991, p. 59. See also the Copenhagen (June 1990) and Moscow (October 1991) documents of the CSCE on the "human dimension".

122. Ibid. See also Luigi Condorelli, "Droit des minorités et garantie des droits des peuples" in A. Cassese and E. Jouve eds., Pour un droit des peuples, Berger-Levrault, Paris, 1978, p. 131, or Christian Tomuschat, "Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights", Festschrift für Hermann Mosler, Springer, Berlin, 1983, p. 975.


123. Op. cit., note 5, p. 191. See also Daniel Turp, "Le droit de sécession en droit international public", Can. Y.B. Int'l L., 1982, p. 47.

124. The absence of viability as a future State is certainly not a condition upon which independence is legally predicated (cf. Resolution 1514 (XV)(para. 3)), and acceptance of the principles of the Charter is rather a condition for admission to the United Nations.

125. Cf. article 1(32) and 55, on the one hand, and article 2(4), on the other.

126. Paragraph 6 refers to the territorial integrity of "countries" whereas paragraph 7 refers to that of "all peoples".

127. The last paragraph of the 5th principle reads as follows: "Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country".

128. Cf. principles III and IV, on the one hand (see, supra , para. 2.17), and VIII, on the other.

129. For examples, see Michla Pomerance, op. cit., note 103, pp. 46-47 or for a more moderate view: Gudmundur Alfredsson, "Human Rights, Fundamental Freedoms and the Rights of Minorities, Essential Components of Democracy", European Council, Strasbourg Conference on Parliamentary Democracy, doct. SXB. CONF (III) 8, 16-18 Sept. 1991, pp. 1 or 14; or Garth Nettheim, "Peoples" and "Populations - Indigenous Peoples and the Rights of Peoples", in James Crawford ed., op. cit., note 103, pp. 118-119, or J. Woehrling, op. cit., note 20, pp. 83-86.

130. For examples, see the presentation by M.G. Robertson before the Commission, supra, at note 10, p. 491; the memorandum of the Grand Council of the James Bay Crees, supra, at note 51, pp. 79-80, or A. Buchanan, op. cit., note 51, p. 3.

131. See notes 123 and 124 above.

132. Resolution 2625 (XXV), 5th principle, par. 6. This formula is justified by the existence, in the Charter, of Chapter XI entitled "Declaration regarding Non-Self-Governing Territories".

133. E.g., France in the Sahara at the time when Resolution 1514 (XV) was adopted.

134. Cf. its intransigence as regards the "Comoro Island of Mayotte". See e.g. Resolutions 3161 (XXVIII) of December 14, 1973 or 46/9 of October 16, 1991.

135. As witnessed, for example, by its strong resistance to the creation of two States in the former Rwanda-Urundi. See Resolutions 1579 (XV), 1605 (XV), 1743 (XVI) and, finally, 1746 (XVI) of June 27, 1962.

136. Judgment cited, supra, at note 56, p. 567.

137a. One of us believes that the right to self-determination is the equivalent of the right to independence (see, supra, para. 3.04); nevertheless, despite this difference of opinion, he arrives at the same conclusions as the majority.

138. Especially if there are doubts as to the real aspirations of the people slated for independence or where independence is brought about by outside assistance. Cf. the cases of Katanga, Biafra or Cyprus. As to the first two: see e.g.: Jean Salmon, La reconnaissance d'État, coll. U, Armand Colin, Paris, 1971, pp. 91-200; as to the latter: Maurice Flory, "La partition de Chypre", A.F.D.I., 1984, pp. 177-186.

139. Nguyen Quoc Dinh et al., op. cit., note 11, p. 467.

140. Ibid.

141. This is the case of the "Turkish Republic of Northern Cyprus". See particularly Resolutions 541 (1983) and 550 (1984) of the Security Council.

142. François Rigaux, "Minorités - Quelles chances pour l'Europe?", L'événement européen - Initiatives et débats, Oct. 1991, no 16, Le Seuil, Paris, p. 40. The opposition of the terms "people" and "minority" is debatable (see, supra, para. 3.04 ff.).

143. See Ch. Tomuschat, op. cit., note 119, pp. 958-960.

144. See the great number of proposed definitions compiled by the Secretariat of the United Nations Human Rights Commission, E/CN. 4/1987/WG.5/WP.1.

145. This premise is defensible, though not inescapable (see, supra, para. 3.04 ff.).

146. See Ch. Tomuschat, op. cit., note 119, p. 957.

147. For a much more detailed analysis, see M.N. Shaw, op. cit., note 110, pp. 13-43 passim.

148. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, United Nations, New York, 1979 (Doc. E/CN.4/Sub.2/384/Rev.1) par. 568, p. 96.

149. J. Crawford, op. cit., note 111, p. 161. See also Ch. Tomuschat, op. cit., note 119, pp. 950-951.

150. See J. Woehrling, op. cit., note 20, p. 73.

151. See the exhaustive study by Ch. Tomuschat, op. cit. , note 119, pp. 949-979, passim.

152. Para. 30 to 40.

153. See, supra, at note 8.

154. Cf. Article 1 of the draft United Nations Declaration: "States shall protect the existence and (...) identity of minorities within their respective territories ..." or Section I(6) of the CSCE Geneva Report: "[...] national minorities form an integral part of the States in which they live [...]".

155. Ibid., Art. 2(5).

156. With the notable exception, however, of the 1966 Covenant, but the date of its adoption sufficiently explains this silence.

157. Cf. para. 37 of the Copenhagen Document of the CSCE, or Article 8(4) of the draft United Nations Declaration.

158. Opinion No. 2, supra, at note 8. See also Opinion No. 3, passim (supra, para. 2.46).

159. Cf. Russel Lawrence Barsh, "Indigenous Peoples: an Emerging Object of International Law", A.J.I.L. 1986, p. 374 or H. Hannum, op cit. note 112, p. 88. However, see definitions suggested by José R. Martinez Cobo, Study of the problem of discrimination against indigenous populations, vol. V, Conclusions, Proposals and Recommendations, United Nations, 1986, E/CN.4/Sub.2/1986/7 Add. 4, para. 379, or Articles 1(1) and 1(2) of ILO Convention No. 169 of June 27, 1989.

160. See in particular the Indian Act, 1985 or even the James Bay or North-Eastern Quebec Agreements, because: "Even a term that extinguishes prior rights recognizes the existence of those rights." (Garth Nettheim, op. cit., note 126, p. 113.)

161. G. Nettheim, ibid., p. 12.

162. Cf. Le Devoir, March 16, 1992.

163a. An Act to establish the Commission on the Political and Constitutional Future of Québec, L.Q., 1990, c-34 and L.Q., c-45.

164. At least not within the meaning of international law.

165. See M. Torrelli, op. cit., note 126; Daniel Turp, exposition before the Bélanger-Campeau Commission, Journal des débats , Dec. 8, 1990, p. 1646; see also the famous case of R. v. Sioui , [1990] 1 S.C.R. 1025 (The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has instructed a Special Rapporteur, Mr. Miguel Alfonso Martinez, to conduct a "study on the treaties, agreements and other arrangements between the States and indigenous populations", now in its preliminary stages (see E/CN.4/Sub.2/1991/40/Rev.1, schedule III, p. 38).

166. As a rule, the representatives of indigenous peoples seem to refuse any classification as a minority. See Russel Lawrence Barsh, op. cit., note 155, p. 375-376.

167. See the Lovelace case (Communication No. 24/1977, Report of July 30, 1981, particularly para. 9.2 and 15 to 19), the Kitok case (Communication No. 197/1985, Report of July 23, 1988, particularly para. 6.3, 9.1, 9.2, 9.4 and 9.8) or the Ominayak case (Lake Lubicon Band) (Communication No. 167/1984, Report of March 26, 1990, particularly para. 13.4, 32.2 or 33).

168. See e.g. Ch. Tomuschat, op. cit., note 119, p. 963.

169. See ibid., or Hurst Hannum, op. cit., p. 63.

170. See the above-mentioned report of F. Capotorti (note 144), para. 50, Gudmundur Alfredsson, "Indigenous Populations, Protection", Encyclopedia of Public International Law, vol. 8, p. 311 or J. Brossard, op. cit., note 5, pp. 174-175.

171. J. R. Martinez Cobo, op. cit. note 155, para. 5.09. See also the reports of th World Conferences to Combat Racism and Racial Discrimination of 1978 and 1983 or H. Hannum, op. cit. note 112, p. 91.

172. J. Ciaccia, supra, at note 33, p. XVI.

173. Ibid., p. XXII.

174. Para. 15 and 16. See also para. 7(c) (ban on cultural genocide, which includes dispossession of lands) and para. 17 (right to restitution of lands or indemnification).

175. In 1989, the General Assembly of the OAS instructed the Inter-American Human Rights Commission to prepare an Inter-American instrument for the protection of the rights of indigenous peoples. This instrument, slated to be presented to the General Assembly in Nassau, appears far from completed. Cf. the annual Report of the IHRC of March 30, 1992.

176a. Convention No. 169 has, to date, been ratified by four States only: Mexico, Norway, Bolivia and Colombia.

177. Report of the Algonquin Nation to the Commission.

178. See, however, the hesitations of Gudmundur Alfredsson, "Indigenous Peoples, Treaties with...", Encyclopedia of Public International Law, p. 315.

179. Para. 13 of the preamble to the draft Declaration (emphasis added). See also para. 7 of the preamble to Convention No. 107 (integration in their respective national communities); para. 15 of the preamble and Art. 1(1) of Convention No. 169: Implementation of the Program of Action for the Second Decade to Combat Racism and Racial Discrimination, Report of the Meeting of Experts to Review the Experience of Countries in the Operation Schemes of Internal Self-Government for Indigenous Peoples, Nuuk, 26-28/9/91, E/CN.4/1992/42, Experts' Conclusions, p. 12, para. 3, p. 13, para. 11).

180. Draft Declaration, para. 23 and 24 (formerly 21 and 22) (emphasis added).

181. See for examples Articles 2 or 5 of Convention No. 107, or Articles 2, 6 or 7(3) of Convention No. 169.

182. See Art. 8(2) of Convention No. 169.

183. See Art. 32 of Convention No. 169 (emphasis added) and draft Declaration, draft para. 28 (formerly 26) (emphasis added).

184. See for examples the presentation of Richard Falk before the Commission, Journal des débats, Feb. 4, 1992, p. 705, and the written exposition of the Algonquin Nation, p. 40. On the general problem of minorities in this regard, see, supra, para. 3.20.

185. See M.N. Shaw, op. cit., note 110, p. 28.

186. See, supra, at note 114.

187. Grand Council of the Crees of Québec, Submission cited, supra, at note 51, p. 60.

188. See also 13th and 14th preambular paragraph.

189. Report cited, supra, at note 155, para. 579 and 580. See also G. Nettheim, op. cit. note 156, p. 120.

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