Saturday, April 13, 2013

Quebec and its Territory

Canada's annexation of the Sudetenland

The integrity of Québec's territory has never been a particular subject of debate, either here or in the rest of Canada. Until recently, it was accepted that if Quebecers were to democratically decide their accession to sovereignty, Québec would keep its present territory and would be recognized within its existing borders.

This assumption was buttressed by the cases of dozens of countries that have come into existence since the creation of the United Nations in 1945. 

Now, suddenly, a strange debate has erupted over carving up or dividing the territory of a sovereign Québec. Québec's borders would no longer be based on geography but rather on ethnic or linguistic considerations. This is what the “partitionists” are proposing. What first appeared a ludicrous idea, a sort of utopia of the desperate, has spread like wildfire, fed by misinformation and exaggeration. 

Yet the partitionists' claims have no basis in law or historical precedent. The idea that parts of Québec's territory could remain under the administration of the federal government or another province after Québec achieves sovereignty is contradicted both by international law and by recent history. 

We must resume a more level-headed discussion. Citizens of good will may sometimes allow themselves to be swept along unconsidered directions, inevitably without any possible positive outcome. There are excesses in which responsible men and women should not indulge and which they must not encourage. The debate on Québec's future must be conducted on the basis of reason, truth and fact. 

To be sure, one may defend or oppose sovereignty with passion and conviction, but it is vital that we continue to uphold the democratic values we all cherish. Whatever the result of the next referendum may be, Quebecers will continue to maintain civilized and cordial relations with each other and with their Canadian neighbours.

In response to the partitionists' arguments, the government of Québec must set the record straight and explain, on the basis of objective, internationally-recognized information, why it would be impossible to carve up Québec's territory.

As we shall see, the argument that if Canada is divisible so is Québec is without legal basis. Québec is a State with a distinct people, political institutions and a precise territory; it existed well before the creation of the Canadian federation, of which it is a member. Québec represents one of the two peoples who created this federation, the founding principles of which have, regrettably, been modified without Québec's agreement and despite Québec's formal opposition.

Jacques Brassard (Minister for Canadian Intergovernmental Affairs), 1997

A Sovereign Québec Will Keep Its Borders

Before Sovereignty

As long as Québec is part of Canada, its territory cannot be modified without the consent of the National Assembly. The Canadian constitution is very clear on this point: this guarantee was enshrined in the Constitutional Act of 1871 and has never been challenged since.

This guarantee would obviously continue to hold during the transition period following a “Yes” victory in a referendum, while the Québec government would seek to reach a partnership agreement with Canada. During this negotiation phase, Québec would still be part of Canada and the Canadian constitution would apply as before.

After Sovereignty

At the end of the transition period set by the National Assembly, when Québec would become sovereign, the Canadian constitution would cease to apply within Québec's territory. Québec's territorial integrity would then be guaranteed by well-established principles of international law.

According to these principles, Québec's borders as they were before it became sovereign would be the borders of the new state. The established rule in international law is uti possidetis juris, which basically means “You keep what you already have.

This rule has been rigorously applied in all recent cases in which states have attained sovereignty. For example, when the republics of the former Soviet Union became sovereign states, they kept their territory; indeed, respect for established borders was one of the international community's main criteria for recognizing the new states.

In short, neither the other provinces nor the federal government could use the opportunity to reduce or modify Québec's territory without its consent.

Québec Is Indivisible

Could parts of Québec decide to remain in Canada?

There is no rule of international law that supports this possibility. The idea that, once Québec becomes sovereign, foreign enclaves could be created or parts of its territory could be attached to another country, against Québec's will, is contradicted by international law. This would be equivalent to modifying Québec's boundaries, which is entirely contrary to the rules that have been applied on numerous occasions in comparable situations.

Québec will become a country embracing all its citizens within its present territory or remain a province of Canada. There can be no in-between situation.

Would a municipality or group of municipalities have the right to remain in Canada?

This is totally impossible.

The partition resolutions passed by some municipalities have no legal force. Cities and towns are administrative entities that exist by the will of the National Assembly and the Québec government. They have no power to decide whether they want to be part of Québec or not. The Québec State exercises its sovereignty over the entirety of its territory. Québec's borders are geographical, not linguistic or ethnic.

The question of the rights of Aboriginal peoples

Given their recognized rights, could the aboriginal peoples of Québec decide to remain in Canada?

Aboriginal peoples have rights which are recognized by the international community and under international law.

All international legal texts agree that the rights of aboriginal peoples are exercised within sovereign states. The recognized rights of aboriginal peoples do not in any way call into question a country's territorial integrity, whether the case in question is Québec, Canada or any other State. According to experts on international law, whatever the exact scope of these rights, which are still being defined in various countries and by the United Nations, may be, they cannot be interpreted as including a right to sovereignty.

However, aboriginal peoples must be given an explicit guarantee that their existing rights will be entrenched in the constitution of a sovereign Québec and that these rights could not be modified without their consent. The bill on the future of Québec published before the October 1995 referendum contained a provision to this effect.

As far as Québec's northern regions are concerned, it should be recalled that those lands which were not already recognized as part of Québec under the Québec Act of 1774 were annexed to Québec by constitutional amendments in 1898 and 1912.

Moreover, Section 2.1 of the James Bay and Northern Québec Agreement stipulates that “In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Québec, the James Bay Crees and the Inuit of Québec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Québec, and Québec and Canada accept such surrender”. The Northeastern Québec Agreement contains a similar provision.

These agreements were approved by Acts of the federal Parliament and the Québec National Assembly. Consequently, Québec has full jurisdiction over northern Québec.

Opinions of Five International Experts

In 1991, a special commission of the National Assembly solicited the opinions of five international experts on issues related to Québec's accession to sovereignty. The opinion written by these experts, entitled The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty. These eminent jurists, who are experts on international law, unanimously agreed that:
  • As long as Québec is part of Canada, the integrity of its territory is guaranteed by Canadian constitutional law;
  • Québec's accession to sovereignty would immediately bring the principles of international law into play and would not lead to any change in Québec's borders;
  • The Québec people could not base its claim to sovereignty on its right to self determination, but neither would it be prevented by law from achieving sovereignty. Accession to sovereignty is a de facto situation of which international law neither approves nor disapproves: it simply recognizes its existence;
  • The extensive rights recognized to aboriginal peoples cannot be interpreted as including a right to sovereignty;
  • The protection provided to the anglophone minority under international law has no territorial effect;
  • Residents of Québec's border regions do not, as such, enjoy any special protection under international law.

The five experts

Thomas M. FRANCK, Becker Professor and Director of the Centre for International Studies at the New York University School of Law (United States);

Rosalyn HIGGINS, Q.C., Professor, London School of Economics (Great Britain), member of the United Nations Committee on Human Rights;

Alain PELLET, Associate Professor of public law at the Université de Paris X-Nanterre and the Institut d'études politiques de Paris (France), member of the United Nations International Law Commission;

Malcolm N. SHAW, Professor, Faculty of Law, Leicester University (Great Britain);

Christian TOMUSCHAT, Professor, Institute of International Law, University of Bonn (Germany), Chair of the United Nations International Law Commission.

This is an edited version of a statement by the Government of Québec made in 1997 on the question of partition.


  1. I'm afraid we must think of the possibility of separing at least the Crees and the Inuits from Quebec. From what I understand, both Cree and Inuits prefer to stay in Canada because :
    - They are economically dependant, as a result of the colonization policy of the canadian government. They seem to have accepted this situation. They believe it's better to be dependant of Canada than Quebec.
    - The majority of the Cree and Inuit population is outside of Quebec. Perhaps they prefer to fall under the same juridiction than the others.

    Whatever the international law says about Quebec's borders, I think it's much important to discuss these issues with the aboriginal peoples, because they are concerned.

  2. I think it's improtant to make people realize we're not conquerors. If we have the right of auto-determination, so have the other peoples. I think we're fully aware of that. Quebec independance is not a project that aims to control the aboriginal nations against their consent, it's not the purpose.

  3. Many of the separatists are disingenuous towards the Quebec public. They often say that they (the separatists) want something called "sovereignty-association", meaning that Quebec would keep the Canadian currency, Canadian institutions (such as the Canadian army and the RCMP/GRC), Canadian employment (such as people in Hull who work in Ottawa) and even the Canadian passport. Uh-uh, it wouldn't work that way. It would be a complete split. In the aftermath, tons of anglophones and other minorities in Quebec would leave, and there would indeed be issues of internal separation (such as First Nations peoples such as the Mohawk, Cree and Inuit who would prefer to stay in Canada).

    1. Faced with a winning referendum on sovereignty, the hard-liners in Ottawa will become much more pragmatic. Why would Canada insist on a complete break over partial integration? You are simply parroting the usual doomsday propaganda.

    2. I think that you underestimate the level of acrimony that there would be amongst most (anglophone) Canadians if the separatists won a referendum by a very thin margin, especially if they (the PQ) had accomplished it via a "sovereignty association" platform. There would definitely be a lot of pressure on Ottawa to take a hard-line approach to the new Quebec state.

      re: The First Nations peoples. Regardless of the opinions of experts concerning international law, the Inuit, Cree and Mohawk tribes have made it clear that they would prefer to remain in Canada than join an independent Quebec. As others have noted, they (the FN peoples) are wards of the Canadian federal government.

      Suppose that Quebec claimed independence, but the Amerindian tribes then declared separation from Quebec. If the Quebec army then used force against them (the FN tribes), then Ottawa might be obliged to send troops to defend, which in trun could trigger a civil war within Canada. It has happened in a number of other countries; there is nothing so unique and civil about Canadians that it couldn't happen there as well.

    3. Really?You think Quebec should be worst than Canada for First Nations?You don't think a better situation for amerindians in Quebec?

  4. "Yet the partitionists' claims have no basis in law or historical precedent."

    That's a silly argument. Recent documents concerning the 1995 referendum point towards Canada potentially unraveling had Quebec voted to seperate. Several provinces were considering seperating themselves from Canada if the Yes vote had won. What's left of Canada would be Ontario, the territories and Atlantic Canada. Probably less then that.

    They too would be looking for a better deal. Ontario would probably join the US, the territories could self-govern and Atlantic Canada would form a union or join the US as a single entity. Northern territories of Quebec that belong to the Cree were assigned to Quebec by Canada, not ceded to Quebec. In the settling of accounts and scores, had Quebec seperated Canada had legal basis to retain the land over the objection of the Quebec Assembly. Starting a shooting war over land they mostly can't legally or physically use anyway would be disastrously stupid... and dare I say very French.