Territorial Integrity of Quebec & Sovereignty

தமிழ்த் தேசியம்

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

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

I. INTRODUCTION

I. Introduction

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

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

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

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

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

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

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

1.4 From a strictly legal point of view, answering the above questions does not imply taking a stand on the exact configuration of the present territory of Quebec and the demarcation of its external boundaries.(3) The undersigned are aware that certain portions of these boundaries are the subject of contestations, particularly in respect of the border with Labrador, the possible apportionment of the Gulf of St. Lawrence and, more generally, the maritime territory adjacent to Quebec (4) . But it is not necessary to address these issues for the purposes of this study. Whatever its present territorial limits may be, and they are legally correct, the question remains the same: whether Quebec is entitled under international law to retain these limits in the event of its independence or whether independence would - or could - ipso facto entail an alteration of these limits.

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

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

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

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

1.9 The preparation of this study was made easier by the copious documentation gathered by the Secretariat of the Commission and provided to all the authors (5).

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

1.11 It was only fairly recently, it seems, that the Committee to examine matters relating to the accession of Québec to sovereignty became aware of any possible threats to the territorial integrity of Quebec. True, the debate, though launched some fifteen years ago (6), did not regain its intensity until after the enactment of Bill 150 (7).

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

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

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

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

Leaving aside doctrinal quarrels (8), international law and municipal law have clearly distinct functions. As pointed out by the Permanent Court of International Justice, and recently echoed by the Arbitration Committee of the European Conference on Peace in Yugoslavia (9):

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

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

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

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

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

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

Leaving aside some rare and very particular situations that have no bearing on the matter at hand, all land surfaces of the globe are divided between States that exercise over them their "territorial sovereignty": an expression that is more convenient than accurate and which designates all the powers that a State is entitled to exercise over its territory under international law (12).

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

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

The problem is somewhat more complex in a federal State in that (regulatory as well as executive) powers over the territory are actually allocated between the federal government, on the one hand, and the federated authorities, on the other. Thus in Canada, s. 91 of the Constitution Act, 1867 allocates to the federal Parliament the right to legislate in a certain number of areas, notably in respect of beacons, buoys, and lighthouses (s. 91(9)), fisheries (s. 91(12)) or ferry services (s. 91(13)), all matters of obvious territorial implication, whereas under ss. 92 ff. the provincial Legislatures, for example, exercise exclusive powers over non-renewable natural resources, forestry resources and electrical energy (s. 92A) or agriculture (s. 95). As for the indigenous peoples, s. 91(24) attributes to the federal jurisdiction legislative power over "Indians, and Lands reserved for the Indians". Since 1867, however, the provinces - and Quebec in particular under the James Bay and Northern Quebec Agreements and the North-Eastern Quebec Agreement - have acquired certain rights in this area. Yet this is of little consequence from the viewpoint of international law: the distribution of powers between the federal State and the federated entities is purely a matter for municipal law (see, supra, para. 1.14), to be resolved freely by the Federation. Only the federal State is bound by international obligations that can restrict its territorial powers and it alone is liable in the event of a violation (14).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE FOURTH WORLD
- NATIONS WITHOUT A STATE

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

I. INTRODUCTION

I. Introduction

Table of contents

Table of contents

Table of contents

Table of contents

Table of contents

Table of contents

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Table of contents

Table of contents

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Table of contents

Table of contents

THE FOURTH WORLD- NATIONS WITHOUT A STATE

The Territorial Integrity of Québecin the event of the attainment of sovereignty

I. INTRODUCTION

I. Introduction

THE FOURTH WORLD
- NATIONS WITHOUT A STATE

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