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Home > Fourth World > Self Determination: International Law & Practice > The Territorial Integrity of Québec in the event of the attainment of sovereignty - Preface & Table of Contents >Part 1 Introduction > Part 2 Territorial Integrity of Quebec > Part 3 Rights of Peoples and Minority Groups > Part 4 Conclusions
Thomas M. Franck, Rosalyn Higgins, Alain Pellet,
Malcolm N. Shaw, Christian Tomuschat
A. Limited Relevance of Principle of Equal Rights and Self-Determination of Peoples
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 ILC(103) as forming part of the jus cogens and was recently recognized by the Arbitration Committee on Yugoslavia(104).
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 principle(106), 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 peoples(108).
"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 States(112).
"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 way(117) : 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 peoples(119). 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 indentity, 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 defined(122).
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 independence(123).
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 itself(125) . The same dichotomy can be found in Resolutions 1514 (XV)(126) and 2625 (XXV)(127) or in the Helsinki Final Act(128).
3.11 Numerous authors regard this simultaneous affirmation of seemingly incompatible principles as a fundamental contradiction(129), 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 entities(131): 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 powers(133) 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 entity(134), it has never been without reluctance nor without resistance(135). 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 independence (137a).
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 attempts(138): 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 assistance(141).
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 force(144), 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 independence(145), 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 minority(146);
(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 inspiration(150) - 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 itself(151).
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 minorities(152); 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 instruments(156) contain, as a kind of leitmotiv, a reservation concerning the respect of the territorial integrity of States(157), 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 others(160) - , "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 peoples(162). 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 peoples(164).
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 law(165). 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 issue (166) 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 claims(167). Furthermore, in its review of the reports submitted by the States, the Commission examines the protection afforded minorities(168) and Canada spontaneously includes indigenous peoples among its minorities(169) .
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 rights(170).
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 secede(178).
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 instuments.
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 instruments(181);
- the subjection of the rights of indigenous peoples to the fundamental rights of the State(182);
- 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 contacts(183).
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 affirmed(184).
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 insignificantly(185), 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 Canada(186) 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.
Notes:
101 Cf. Jacques Brossard, op. cit., note 5, particularly pp. 182 ff.| back |
102 Article 53 of the Vienna Convention on the Law of Treaties of May 23, 1969.| back |
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".| back |
104 Opinion No. 1, supra, at note 8.| back |
105 Opinion No. 2, January 11, 1992, supra, at note 8.| back |
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.| back |
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.| back |
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.| back |
109 Resolution 1514 (XV)(para. 2).| back |
110 Ibid., para. 4.| back |
111 Resolution 1541 (XV) adopted by the General Assembly on December 15, 1960. See also Resolution 2625 (XXV).| back |
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. | back |
113 Malcolm N. Shaw, "The Definition of Minorities in International Law", Israel Yb. on Human Rights, 1991, p. 19.| back |
114 I. Brownlie, "The Rights of Peoples ..." op. cit., note 103, p. 6.| back |
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.| back |
116 J. Crawford, ibid., pp. 169-170.| back |
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. | back |
118 See, supra, at note 8.| back |
119 See, supra, at note 102.| back |
120 1975 Reports, p. 33.| back |
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".| back |
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. | back |
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.| back |
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.| back |
125 Cf. article 1(32) and 55, on the one hand, and article 2(4), on the other.| back |
126 Paragraph 6 refers to the territorial integrity of "countries" whereas paragraph 7 refers to that of "all peoples".| back |
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".| back |
128 Cf. principles III and IV, on the one hand (see, supra , para. 2.17), and VIII, on the other.| back |
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.| back |
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.| back |
131 See notes 123 and 124 above.| back |
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".| back |
133 E.g., France in the Sahara at the time when Resolution 1514 (XV) was adopted.| back |
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.| back |
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.| back |
136 Judgment cited, supra, at note 56, p. 567.| back |
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.| back |
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.| back |
139 Nguyen Quoc Dinh et al., op. cit., note 11, p. 467.| back |
140 Ibid.| back |
141 This is the case of the "Turkish Republic of Northern Cyprus". See particularly Resolutions 541 (1983) and 550 (1984) of the Security Council.| back |
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.). | back |
143 See Ch. Tomuschat, op. cit., note 119, pp. 958-960.| back |
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.| back |
145 This premise is defensible, though not inescapable (see, supra, para. 3.04 ff.).| back |
146 See Ch. Tomuschat, op. cit., note 119, p. 957. | back |
147 For a much more detailed analysis, see M.N. Shaw, op. cit., note 110, pp. 13-43 passim.| back |
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.| back |
149 J. Crawford, op. cit., note 111, p. 161. See also Ch. Tomuschat, op. cit., note 119, pp. 950-951.| back |
150 See J. Woehrling, op. cit., note 20, p. 73.| back |
151 See the exhaustive study by Ch. Tomuschat, op. cit. , note 119, pp. 949-979, passim.| back |
152 Para. 30 to 40.| back |
153 See, supra, at note 8.| back |
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 [...]". | back |
155 Ibid., Art. 2(5).| back |
156 With the notable exception, however, of the 1966 Covenant, but the date of its adoption sufficiently explains this silence.| back |
157 Cf. para. 37 of the Copenhagen Document of the CSCE, or Article 8(4) of the draft United Nations Declaration.| back |
158 Opinion No. 2, supra, at note 8. See also Opinion No. 3, passim (supra, para. 2.46).| back |
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.| back |
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.)| back |
161 G. Nettheim, ibid., p. 12.| back |
162 Cf. Le Devoir, March 16, 1992.| back |
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. | back |
164 At least not within the meaning of international law. | back |
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).| back |
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.| back |
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).| back |
168 See e.g. Ch. Tomuschat, op. cit., note 119, p. 963.| back |
169 See ibid., or Hurst Hannum, op. cit., p. 63.| back |
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.| back |
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. | back |
172 J. Ciaccia, supra, at note 33, p. XVI.| back |
173 Ibid., p. XXII.| back |
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).| back |
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.| back |
176a Convention No. 169 has, to date, been ratified by four States only: Mexico, Norway, Bolivia and Colombia.| back |
177 Report of the Algonquin Nation to the Commission.| back |
178 See, however, the hesitations of Gudmundur Alfredsson, "Indigenous Peoples, Treaties with...", Encyclopedia of Public International Law, p. 315.| back |
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).| back |
180 Draft Declaration, para. 23 and 24 (formerly 21 and 22) (emphasis added).| back |
181 See for examples Articles 2 or 5 of Convention No. 107, or Articles 2, 6 or 7(3) of Convention No. 169.| back |
182 See Art. 8(2) of Convention No. 169.| back |
183 See Art. 32 of Convention No. 169 (emphasis added) and draft Declaration, draft para. 28 (formerly 26) (emphasis added).| back |
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. | back |
185 See M.N. Shaw, op. cit., note 110, p. 28.| back |
186 See, supra, at note 114.| back |
187 Grand Council of the Crees of Québec, Submission cited, supra, at note 51, p. 60.| back |
188 See also 13th and 14th preambular paragraph.| back |
189 Report cited, supra, at note 155, para. 579 and 580. See also G. Nettheim, op. cit. note 156, p. 120.| back |
