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Home> Struggle for Tamil Eelam > Fourth World - Nations without a State > The Territorial Integrity of Qu�bec in the event of the attainment of sovereignty >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
Schedule I - Mandate of Group of Experts (letter of Fran�ois Geoffrion, Secretary of Committees on the process for determining the political and constitutional future of Quebec to each of the experts)
Schedule II - Summary of Authors' Resumes (prepared by Secretariat)
Schedule III - List of documents sent to experts by Secretariat of Commission
Schedule IV - List of Abbreviations
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 precedessor 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
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 Qu�bec 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 Qu�bec (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. Andr� 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,
FRAN�OIS GEOFFRION
Secretary of the Committees
on the process for determining the political
and constitutional future of Quebec
Summary of the Authors' Resum�s
(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'�tat 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'�tudes 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 �ditions 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.
List of documents provided to the authors by the Secretariat of the Committees on the Process for Determining the Political and Constitutional Future of Qu�bec.
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 Qu�bec, S.Q. 1991, c. 34.
2. Journal des D�bats (Hansard)
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Tuesday, February 4, 1992 - No. 24 (presentation by the Algonquin Nation).
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Thursday, February 6, 1992 - No. 26 (presentation by the Huron-Wendat Nation).
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Tuesday, February 11, 1992 - No. 27 (presentation by the Assembly of First Nations).
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Tuesday, February 25, 1992 - No. 31 (presentation by the Grand Council of the Crees of Qu�bec).
3. Documents prepared by the Secretariat of the Committee to examine matters relating to the accession of Qu�bec to sovereignty.
- L'avenir politique et constitutionnel du Qu�bec - La d�marche du Qu�bec (November 20, 1991)
- L'avenir politique et constitutionnel du Qu�bec - La d�claration de souverainet� - Les fronti�res d'un Qu�bec souverain (October 11, 1991)
- L'avenir politique et constitutionnel du Qu�bec - Les relations entre l'�tat et les nations autochtones (February 7, 1992)
- Les fronti�res de la Province de Qu�bec, 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 � Titre de Fief and � 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 Qu�bec Inuit Association, the Government of Quebec, la Soci�t� d'�nergie de la Baie James, la Soci�t� de d�veloppement de la Baie James, la commission hydro-�lectrique de Qu�bec 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 Qu�bec 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 Qu�bec) to the Commission on Human Rights of the United Nations - February 1992
- Henri Brun - Le territoire du Qu�bec, six �tudes juridiques - Les Presses de l'Universit� Laval, Qu�bec, 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 Qu�bec Statistique, Les Publications du Qu�bec, 59e �dition, 1989.
03/05/1992
Second List
1. Journal des D�bats (Hansard)
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Wednesday, October 9, 1991 - No. 5 (presentation by Mr. Daniel Turp)
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Thursday, October 17, 1991 - No. 6 (presentation by Mr. Henri Dorion)
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Tuesday, October 22, 1991 - No. 7 (presentation by Mr. Henri Dorion)
- Committee to examine matters relating to the accession of Qu�bec to sovereignty- Thursday, November 7, 1991- No. 8 (presentation by Mr. Andr� Patry)
- Committee to examine matters relating to the accession of Qu�bec 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. B�langer-Campeau Commission
- Report
- Jos� WOEHRLING
- Les aspects juridiques de la red�finition du statut politique et constitutionnel du Qu�bec
- Jacques-Yvan MORIN
- R�flexions sur l'avenir culturel, �conomique et constitutionnel du Qu�bec et du Canada (November 1990)
Summary of the Memorandum
Presentation by Jacques-Yvan Morin to the Committee on the Political and Constitutional Future of Qu�bec (Thursday, December 13, 1990)
- Daniel TURP
Expos�-r�ponse (November 1990)
Presentation by Daniel Turp to the Committee on the Political and Constitutional Future of Qu�bec (Tuesday, December 18, 1990)
3. Documents presented before the Committee to examine matters relating to the accession of Qu�bec to sovereignty
- Jacques-Yvan MORIN
La constitution d'un Qu�bec souverain
Presentation by Jacques-Yvan Morin (Tuesday, December 17, 1991)
- Jean-Jacques SIMARD
D�veloppement et auto-d�termination autochtones : l'exp�rience de la Baie James et du Nord qu�b�cois
- Algonquin Nation
- Council of the Huron-Wendat Nation
- Grand Council of the Crees of Qu�bec
- Brad MORSE
Comparative Assessments of Indigenous Peoples in Qu�bec, Canada and Abroad
4. Report of the Committee to examine the Territorial Integrity of Qu�bec (1971)
- Canadian Capital Region (vol. 1.1, excerpts)
- The Qu�bec-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 Qu�bec (general conclusion)
6. Press Clippings
- "No Troops against Quebec, Clark says", Vancouver Sun, Thursday, November 28, 1991)
- "Mulroney se d�fend de vouloir "faire peur au monde", La Presse, Monday, December 2, 1991
- "Le r�le de l'arm�e n'est pas de se battre pour l'unit� du pays, soutient Chastelain", La Presse, Saturday, December 7, 1991
- "Le g�n�ral De Chastelain invite l'arm�e 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 Qu�bec, 1974, Les Presses de l'Universit� Laval
Jacques BROSSARD, L'accession � la souverainet� et le cas du Qu�bec, 1976, Les Presses de l'Universit� de Montr�al.
2- Documents submitted to the Committee to examine matters relating to the accession of Qu�bec to sovereignty
Henri BRUN Les cons�quences territoriales de l'accession du Qu�bec � la souverainet�
Stephen A. SCOTT Observations pr�par�es � l'intention de la Commission d'�tude des questions aff�rentes � l'accession du Qu�bec � la souverainet�
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
Abbreviations
A.F.D.I. Annuaire fran�ais 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 g�n�rale de droit international public
R.I.A.A. United Nations Reports of International Arbitral Awards
