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Home  >  Tamils - a Trans State Nation > Beyond Tamil Nation: One World  > Manufacturing Consent > Conflict Resolution > International Relations >The Strength of an Idea > Nations & Nationalism  > 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 > Secession would be legal if it worked: experts > Quebec: Right of Self Determination - Johan D Van Der Vyer

THE FOURTH WORLD
- NATIONS WITHOUT A STATE

The Territorial Integrity of Québec
in the event of the attainment of sovereignty

Thomas M. Franck, Rosalyn Higgins, Alain Pellet,
Malcolm N. Shaw, Christian Tomuschat
Translation by William Boulet.
Revised by J. Maurice Arbour, Professor, Faculty of Law, Laval University.


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:

Table of Contents

I. INTRODUCTION

A. Presentation of the Study

(a) The Questions and their Scope
1.01 The Questions
1.02 Juridical Perspective of the Study
1.03 Legitimacy and Legality
1.04 No Stand taken on Present Boundaries
1.05 Effect of Sovereignty on Nature of Boundary Dispute
(b) The Writing of this Study

B. The Facts of the Debate

1.11 Origin of the Debate
1.12 Arguments clouding the Issue
1.13 Most Common Misconceptions
(i) International Law and Municipal Law
1.14 Municipal Laws "Mere Facts" under International Law
1.15 Joint Application of International Law and Municipal Law
(ii) Right to Self-Determination and Right to Independence
1.16 Stating the Issue
1.17 Right to Self-Determination as a "Context-Dependent" Principle
(iii) Territorial Sovereignty and Ownership
1.18 The Notion of "Territorial Sovereignty"
1.19 Fullness and Exclusivity of Powers - Distribution of Powers in a Federal State
1.20 Right of Ownership
1.21 Conclusions

C. Outline of the Study

II. TERRITORIAL INTEGRITY OF QUEBEC

2.01 Outline of this Part

A. Before Independence

2.02 Justification of the Study
2.03 Irrelevancy of International Law
2.04 Outline of Section
(a) The Constitutional Protection of Provincial "Frontiers"
2.05 Section 43 of Constitution Act, 1982
2.06 Section 3 of Constitution Act, 1871
2.07 Revision of Constitution
(b) Scope of "Territorial" Constitutional Guarantees afforded Minorities
2.08 Linguistic Minorities - No Territorial Guarantees
2.09 Sections 25 and 35 of Constitution Act, 1982
2.10 No "Sovereignty" for Natives
2.11 Reservations are Part of Quebec Territory
2.12 Section 2(c) of Act of 1912
2.13 Territorial Rights of Natives and Inuit under James Bay Agreement
2.14 Conclusions to this Part

B. After Independence

2.15 Exclusive Relevance of International Law
(a) Principles of Territorial Integrity of States and Stability of Frontiers
2.16 Texts proclaiming Principles
2.17 Jurisprudence
2.18 Treaty Law
(b) Effect of Rules Governing State Succession
2.20 Definition of State Succession
2.21 General Principles Applicable
2.22 Succession to "regime of a boundary" and other "land regimes"
2.23 Particular Problems
(i) Federal Property
2.24 Different Categories of Federal Property
2.25 Principle of Devolution to Successor State and Scope
2.26 Land and Buildings in National Capital Region
2.27 Portions of Territory subject to Federal Jurisdiction - Reservations and Military Bases
(ii) Territories of Northern Quebec
2.28 Thesis of "Implied Condition" - Return to 1867 Boundaries?
2.29 Return to 1763 Boundaries?
2.30 Confusion between Public Law and Private Law
2.31"Territorial Snapshot" in Colonial Context
2.32... and in Non-Colonial Context
2.33 Irrelevancy of "Implied Condition"
2.34 Effect of James Bay Agreement

(iii) The Problem of Maritime Boundaries

2.35"The Land dominates the Sea"
2.36 Principles of State Succession not Applicable
2.37 Conclusions to this Part

C. At the Moment of Independence

2.38 "Transition Period" and Instantaneity of Independence
(a) The Fact of Secession and Absence of vacuum juris
2.39 No vacuum juris
2.40 Existence of State is a Question of Fact
2.41 Effectiveness as Criteria of Secession
2.42"Federal Factor"
2.43"Arctic Factor"
(b) Recent Strengthening of the Principle of Uti Possidetis
2.44 Subsidiary Nature of Argument
2.45 Definition and Origin of Principle
2.46 Generalization of Principle - Jurisprudence
2.47 Generalization of Principle - Practice
2.48 Customary Rule?
2.49 Scope of Rule
2.50 Conclusions to this Part

III. RIGHTS OF PEOPLES AND MINORITY GROUPS

3.01 Debate
3.02 Outline of this Part

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

3.03 Certainty and Imprecision of Juridical Principle
(a) Scope of Principle
3.04"All Peoples have Right to Self-Determination"
3.05 Rights of Colonial Peoples
3.06 Notion of "Colonial People"
3.07 Different Meanings According to Context
3.08 Right to Choose and Participate
3.09 Application to Quebec
(b) Territorial Integrity of States and Rights of Peoples
3.10 Apparent Contradiction
3.11 Superiority of Right to Self-Determination?
3.12 No Contradiction - Case of Colonial Peoples
3.13 No Contradiction - Case of Non-Colonial Peoples
3.14 Secession and Territorial Integrity
3.15 Conclusions of Section

B. No Right to Independence For Minority Groups

3.16 Minorities in Canada and Minorities in Quebec
(a) Minority Rights
3.17 Brief Definition
3.18 Application in Present Case
3.19 Substance of Minority Rights - Recent Tendencies
3.20 No Territorial Rights and No Right to Secession
3.21 Preservation of Territorial Integrity of Quebec
(b) Territorial Rights of Indigenous Peoples
3.22 Internal Recognition of Rights of Indigenous Peoples
3.22 No Internal Recognition of Right to Secede
3.23 Application to Indigenous Peoples of Article 27 of 1966 Covenant
3.24 Relationship of Indigenous Peoples to their Lands and Territories
3.25 Territorial Rights of Indigenous Peoples under International Law
3.27 No Right to Secede
3.28 Effect of Division of Indigenous Peoples
3.29 Indigenous "Populations" or "Peoples"?
3.30 Scope of Right to Self-Determination of Indigenous Peoples

IV. CONCLUSIONS

4.01 Summary of Main Conclusions of Study
4.02 Answer to Questions

Schedule I - Mandate of Group of Experts (letter of François 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

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