The Grand Council of the Crees

Section 11, Sovereign Injustice - Grand Council of the Crees

11 Responsibilities of the International Community in the Aboriginal/Qu?bec Context

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11.1 Appropriate Measures to be Taken by the International Community 11 Responsibilities of the International Community in the Aboriginal/Qu?bec Context "THAT United Nations intervention be actively sought, should Quebec continue its attempts to secede from Canada in a manner that violates the rights of self-determination and treaty rights of the indigenous peoples in Quebec."{1301} Indigenous Peoples' Preparatory Meeting, Geneva, 1991 Having established the nature of obligations owed by the governments of Canada and Qu?bec, the question remains as to what are the responsibilities of the international community, if any, in relation to the present Aboriginal/Qu?bec context. In general terms, C. Tomuschat cautions that there is a real need for the international community to deal with secessionist claims and not simply react on an ad hoc basis: "...the international community cannot afford to simply ignore demands by ethnic groups pressing for self-determination. At their initial stage, such claims may not affect other States. However, as the many tragedies unfolding in the territories of the former USSR and the former Yugoslavia amply demonstrate, the confrontation of demands for self-determination and attempts to suppress such moves, is capable of generating such a climate of violence that international peace and security are put in jeopardy...Secession is an explosive issue. It should not be dealt with only in an ad hoc manner, when an actual need arises, but some forward-planning should take place." {1302} [Emphasis added.] Recently, Edward Schevardnadze, the President of Georgia (part of the former Soviet Union), reproached the West and Russia for portraying an inconsequential policy towards separatism: "Les m?tastases du s?paratisme peuvent appara?tre demain sur d'autres territoires... Les s?paratistes du monde entier doivent sentir que leurs demandes sont ill?gitimes et vou?es ? l'?chec. Cela ne doit pas d?pendre de l'attitude des grands ?tats envers les intentions et les projets des s?paratistes mais du respect des principes de la justice et du droit international." {1303} In addition, A. Eide provides: "If we are to hope for a return to peaceful and constructive solutions of situations in multi-ethnic States along the lines of standards adopted on the basis of the United Nations Charter, the international community will have to develop more deliberate and systematic responses to potential and actual conflicts." {1304} Also M. Weller notes: "Neither the EC nor the CSCE was ready for the crisis in Yugoslavia...Nevertheless, the [European] Community immediately involved itself in the crisis, despite the fact that Yugoslavia was not one of its members." {1305} In addition, H. Hannum observes: "The misapplication of...geopolitical principles in Yugoslavia underscores the impossibility of finding an appropriate response in the heat of the moment; more definite criteria must be agreed to in advance...Indeed, the failure of the international community to articulate acceptable, objective criteria, and the recognition of some post-Yugoslavia entities but not others, may have helped foster the violence that followed recognition of the seceding republics." {1306} [Emphasis added.] A. Cassese cautions: "It is well known that in Croatia and Bosnia-Herzegovina, as well as in a few former Soviet republics, secession has rekindled old hatreds and led to loathsome bloodshed...The existing body of law on self-determination cannot be held responsible for these frightening consequences...Nevertheless, it cannot be denied that international law rules could prove more helpful, were they more alert to modern exigencies..."{1307} K. Valaskakis and A. Fournier underline that the international community would not wish to create a dangerous precedent by according quick recognition to a secessionist Qu?bec: "La communaut? internationale ne veut pas cr?er un pr?c?dent trop dangereux et a tir? les le?ons d'une reconnaissance trop h?tive par l'Allemagne de la Croatie dans l'ex-Yugoslavie, qui a pr?cipit? la guerre civile. Si donc Ottawa d?cidait de ne pas reconna?tre la validit? de cette s?paration, la communaut? internationale pourrait d?cider de consid?rer cette situation comme '_une affaire int?rieure canadienne'..." {1308} [Emphasis added.] In regard to Aboriginal peoples, it has been suggested that the international community would not wish to recognize an independent Qu?bec if the rights of self-determination of Aboriginal peoples have not been resolved. In this regard, J. Webber (McGill University) highlights the importance of resolving Aboriginal self-determination in the context of international recognition: "There are extremely important issues that are not getting the attention they deserve ? issues which Canada or other countries might well insist on resolving before accepting Quebec's independence. This is especially true of aboriginal self-determination." {1309} [Emphasis added.] Also, D. Turp cautions that satisfaction of Aboriginal self-determination claims could be a pre-condition for international recognition of an independent Qu?bec state: " demeure que la satisfaction de certaines revendications d'autod?termination des nations autochtones du Qu?bec pourrait ?tre, pour les autres membres de la communaut? internationale, une condition de reconnaissance de l'?tat qu?b?cois souverain." {1310} It is clear that the right to self-determination of Aboriginal peoples in the context of Qu?bec secession merits more than the passive attention of the international community. Should this right to self- determination fail to be respected by a seceding Qu?bec, the United Nations and its members should take affirmative measures to protect Aboriginal peoples in Qu?bec and encourage respect for their status and rights. As described in this Study, the human right to self-determination under international law must be applied equally to Aboriginal peoples, as with other peoples, without adverse discrimination. This alone justifies the international community to take appropriate measures, should Aboriginal peoples and their territories be forcibly included in a secessionist Qu?bec. However, there are additional factors that suggest compelling reasons for the international community to act. Generally, Aboriginal peoples are among the most vulnerable peoples in the world. To ignore the democratic will of Aboriginal peoples to remain in Canada and for such peoples to be forcibly included in a secessionist Qu?bec would constitute an unacceptable act of colonialism. As C. Iorns highlights, indigenous peoples have been the victims of colonialism both externally (as part of overseas colonies) and internally (as part of independent states): {1311} "...the interests of indigenous peoples should not be automatically outweighed by the...interests of states, and indigenous peoples should be accorded the same legal status as colonized peoples presently enjoy. The reasons for this are that indigenous peoples have actually been colonized and subjugated by foreign peoples, both in the traditional sense (externally) as well as in a not-so-traditional sense (internally)." {1312} [Emphasis added.] C. Iorns adds that colonialism against indigenous peoples is contrary to international law: "Today we would regard such colonialism as contrary to notions of human dignity and to international law because of the breach of fundamental human rights that it entails." {1313} E.-I. Daes notes that the standards of "classic colonialism" should be applied in the post-colonial era to indigenous peoples if so justified by the circumstances: "Self-determination has consequently taken on a new meaning in the post- colonial era. Ordinarily it is the right of the citizens of an existing, independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences." {1314} [Emphasis added.] S.J. Anaya, R. Falk, & D. Pharand also conclude: "The history and experience of Aboriginal peoples resembles that of colonial peoples in most crucial respects, and international law is moving toward more extensive and formal acknowledgement of this status..."{1315} P. Russell describes the need in Canada for "a fundamental reconsideration of [Aboriginal peoples'] colonized status": {1316} "The top priority, needing immediate attention, is the position of Canada's Aboriginal peoples. In socio-economic terms, it is the Native component of the population...that suffers the greatest deprivation of equality and the continuing imposition of non-Aboriginal rule over the Aboriginal peoples constitutes Canada's most serious constitutional injustice." {1317} [Emphasis added.] Further, it can be argued that the situation of indigenous peoples today is analogous to some degree to the situation of peoples in non-self-governing territories. In the latter case, members of the United Nations are said in the Charter of the United Nations to "accept as a sacred trust the obligation to promote to the utmost...the well-being of the inhabitants of these territories". Although no "sacred trust" has been declared to exist in regard to indigenous peoples, the United Nations is in recent years increasingly addressing the same type of economic, cultural, social, economic, and political issues that it addressed in relation to non-self-governing territories under the U.N. Charter. In regard to recent standard-setting processes, the International Labour Organization (ILO) has adopted the Indigenous and Tribal Peoples Convention, 1989 (No. 169). {1320} This Convention includes numerous provisions that suggest that states have fiduciary-type obligations in regard to indigenous peoples {1321} and, in particular, provides: "1. Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination... 2. No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the peoples concerned..." {1322} This provision makes clear that all human rights, including self-determination, are to be enjoyed by indigenous peoples and no force or coercion can be used in this regard. In addition, an accompanying Resolution {1323} was adopted by the General Conference of the ILO that calls for action by states {1324} at the national level. Moreover, the Resolution urges international organizations such as the United Nations {1325} and the ILO {1326} to take specific measures. In the draft United Nations Declaration on the Rights of Indigenous Peoples, emphasis is placed on recognition of the fundamental rights of indigenous peoples, including the right to self-determination. At the same time, however, states are required to "take effective and appropriate measures, in consultation with the indigenous peoples concerned, to give full effect to the provisions of this Declaration." {1327} Also, organizations and specialized agencies of the U.N. system, {1328} as well as the United Nations itself, {1329} are required to contribute to the implementation of and respect for the provisions of the Declaration. These and other actions at the international level demonstrate that indigenous peoples are increasingly being treated as subjects of international law {1330} and as an important responsibility of the international community. This international duty appears to have elements of a fiduciary obligation. However, whatever its nature, the responsibility of the international community to respond to denial of indigenous peoples' rights to self-determination in the context of Qu?bec secession is increasingly compelling. 11.1 Appropriate Measures to be Taken by the International Community [Top] As this Study has elaborated, Qu?becers as a people currently enjoy self-determination within Canada {1331} and Qu?bec as a province has no legal right to secede under Canadian constitutional law or international law. {1332} Yet, the Parti Qu?b?cois government believes that it can deny Aboriginal peoples in Qu?bec the right to self-determination in the process of seeking to establish an independent state. In particular, the PQ government seeks to deny Aboriginal peoples the right to hold their own referendums and choose to remain with Canada. {1333} Rather, the PQ government believes that, if it demonstrates to the international community that a secessionist Qu?bec will treat Aboriginal peoples well (even through unilateral action), Qu?bec will attain the recognition it seeks as an independent state. Yet, whatever promises the PQ government may make, its record to date is unconvincing. After holding the Aboriginal affairs portfolio since his election in September 1994, Premier Parizeau has failed to attend a single meeting with Aboriginal leaders in Qu?bec to discuss secession-related issues. At the end of May 1995, Premier Parizeau refused to show up for a pre-scheduled meeting with these leaders, since he could not be assured of a successful meeting {1334} and his government did not agree to the questions to be discussed at the meeting. {1335} It would appear that the PQ government presumes that, if it (i) shows a general willingness to respect the Charter of the United Nations and major international human rights instruments; (ii) provides protections for the rights of minorities; and (iii) recognizes {1336} minimal self-government rights of Aboriginal peoples within a secessionist Qu?bec, the international community will overlook fundamental violations and problems and recognize Qu?bec as an independent state. However, the violations and problems associated with the PQ government's secessionist actions are extremely serious and include: intention to unilaterally declare Qu?bec an independent state, {1337} without reasonable justification {1338} and in violation of Canada's Constitution, {1339} in the event of an affirmative simple majority vote in the upcoming Qu?bec referendum denial of Aboriginal peoples' human right to self-determination, {1340} including the democratic right to hold their own referendums {1341} and to choose to remain in Canada forcibly {1342} including Aboriginal peoples and their territories within an independent Qu?bec, should the 1995 Qu?bec referendum affirm majority support for secession deprivation, or fundamental alteration of, Aboriginal peoples' nationality {1343} as it currently exists unilateral alteration of existing treaty rights and obligations under the James Bay and Northern Quebec Agreement, which guarantees a permanent federalist arrangement {1344} generally, undertaking a process of UDI that is illegal under Canadian {1345} and possibly international {1346} law and that is undemocratic and lacks legitimacy (especially in regard to Aboriginal peoples). {1347} In the case of Qu?bec secession, the rule of law is generally being violated as well as the human rights of Aboriginal peoples in the province. As described in this Study, the PQ government cannot ignore the rights of Aboriginal peoples to self-determination and to respect for their treaties, as well as their entitlements to democracy and, at the same time, insist that the Qu?bec process towards UDI is legitimate and democratic. To allow such violations could create most unfavourable precedents internationally, in regard to indigenous peoples worldwide. Moreover, such actions by the separatist government in Qu?bec would make a mockery of the standard-setting processes pertaining to indigenous peoples taking place in Geneva. {1348} In addition, in view of the firm resistance of Aboriginal peoples and their territories to their inclusion without consent in a separate Qu?bec state, it is likely that Qu?bec's strategy of acquiring effective control could lead to the use of force and violence. {1349} Not only would such threat or use of force by Qu?bec be illegal, it could also pose a threat to international peace and security. Furthermore, under the present circumstances, a UDI in Qu?bec could prove to be a most destabilizing precedent for the international community. This would be the case if Quebecers as a minority, enjoying an impressive degree of internal self-determination, could violate the territorial integrity of an existing state and choose to secede unilaterally. The alleged rationale for such radical action by Qu?bec would be an affirmative simple majority vote in a provincial referendum. Would the precedent of Qu?bec secession signify that any people, or any region, exercising internal self-determination within an existing state could unilaterally declare independence, after receiving 50% plus one in a referendum vote in its own region? {1350} Could Vermont, California or Florida each claim it could do likewise, based on a simple majority vote within its own state? Would the same be true for minority peoples in France, Belgium or any other country? In view of all of the above, it is respectfully submitted that the international community has an important role to play in the current debate concerning Qu?bec secession. In particular, there is a compelling need to ensure full respect of the right of Aboriginal peoples to self-determination. The responsibility of the United Nations and its member states to insist on respect for the fundamental human rights of indigenous peoples in Qu?bec is further reinforced by the fact that the U.N. General Assembly has proclaimed an International Decade of the World's Indigenous People. {1351} While article 2(7) of the Charter of the United Nations provides for the principle of non interference by the U.N. in "matters essentially within the domestic jurisdiction of any state", state sovereignty no longer shields countries from transgressions of human rights. As T. Franck indicates, international scrutiny is permitted in cases of denial of self-determination: "...state sovereignty, by operation of technological advances as much as of heightened humanistic sensitivity, is not what it used to be. Even those who defend the vitality of the principle [of state sovereignty] would probably concede that genocide does not fall essentially' within the ambit of protected domestic' government activity. Nor, certainly, do egregious racism and, at least since the 1960s, denials of self-determination." {1352} [Emphasis added.] In regard to monitoring respect for the right of self-determination in independent states, it is worth noting that the Human Rights Committee under the International Covenant on Civil and Political Rights addresses such matters in reviewing the periodic reports submitted by states. {1353} Therefore, the right to self-determination of Aboriginal peoples in Qu?bec in the context of Qu?bec's current secessionist attempts can and should be examined by the Committee through the reporting process. Moreover, the participating states (including Canada and the United States) in the Conference on Security and Cooperation in Europe {1354} have adopted guidelines distinguishing indigenous peoples from minorities. {1355} In addition, the guidelines provide that CSCE commitments concerning human rights apply fully and without discrimination to indigenous peoples. {1356} Consequently, the participating states should respect their own guidelines (as well as their duties under the international human rights covenants {1357} ) and ensure that the human right to self-determination of indigenous peoples in Qu?bec is fully respected. Further, at their Moscow Meeting in October 1991, the participating states of the CSCE unequivocally indicated that matters pertaining to human rights, democracy and the rule of law are of "international concern" and "do not belong exclusively to the internal affairs of the State concerned": "The participating States emphasize that issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes one of the foundations of the international order. They categorically and irrevocable declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned." {1358} [Emphasis added.] Also, in 1994, the European Parliament adopted a resolution concerning indigenous peoples that highlights their "right to choose" in determining their own destiny, namely: "the right to determine their own destiny by choosing their institutions, their political status, and the status of their territory". {1359} [Emphasis added.] Therefore, it is incumbent on the states in the European Parliament to ensure that any future request for international recognition by a secessionist Qu?bec be made conditional on full compliance with this resolution of Parliament. In addition, where territorial acquisitions are obtained by a secessionist group through armed force or other coercive measures contrary to international law, there is a compelling obligation that third party states refuse recognition to the aspiring state. In particular, the Convention on Rights and Duties of States {1360} (Montevideo Convention) provides: "The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists of employment of arms, in threatening diplomatic representations, or in any other effective coercive measure." {1361} [Emphasis added.] Also, Nguyen Quoc Dinh, P. Daillier, & A. Pellet provide that there is now a "duty of non- recognition" of a new state resulting from an illegal use of force: "Il n'est plus possible de mettre en doute l'existence actuelle d'un devoir de ne pas reconna?tre un ?tat nouveau, ou toute autre situation, provenant d'un usage illicite de la force. Les textes les plus solennels affirment ce principe." {1362} [Emphasis added.] Further, as S. Himmer describes: "The repeated use of of nonrecognition by the United States and many other countries arguably evinces that the use of force to obtain territory violates a current norm of international law...Additionally, the UN's support for the territorial integrity of states in various resolutions further demonstrates that the norm against the use of aggression to obtain territory arguably has become a part of customary international law." {1363} [Emphasis added.] Moreover, in relation to unilateral declarations of independence contrary to international law, the United Nations has intervened in the past to advise against recognition by member states. In this regard, Himmer states: "In the past, after determining that a particular declaration was not in accordance with international law, the UN has requested that member states not recognize certain self-proclaimed independent states." {1364} In reference to the collective use of force by the United Nations against an aggressor, there have been only three occasions in which this has occurred ? the Korean War in 1950, the Gulf War in 1990, and the Somalian Civil War in 1992. {1365} Although article 2(4) {1366} of the Charter of the United Nations is quite restrictive in regulating the use of force by states, {1367} state practice in the post-Charter period has differed considerably. For example, while there is no consensus among commentators as to what conditions would justify the use of force, it has been supported by some state governments and jurists that use of force may be used to support efforts of self-determination. {1368} However, as A. Arend & R. Beck recommend, any forcible action to "correct an injustice" or to "promote self-determination", should require prior U.N. Security Council endorsement. {1369} In regard to Qu?bec secession, unless extraordinary events of coercion and civil war were to occur, military intervention by the United Nations would be neither appropriate nor necessary. Rather, consistent with a peaceful approach, serious violations of Aboriginal peoples' right to self- determination can be dealt with effectively through a wide range of non-military measures. The nature and scope of the measures that might be taken would be dependent on existing circumstances and could possibly include: international supervision of referenda; {1370} international mediation of disputes; {1371} possible trade and other economic sanctions; {1372} refusal to recognize the secessionist state; and {1373} refusal of membership in the United Nations and its specialized international agencies. {1374} Any international action taken, if appropriate, should be balanced and commensurate with the degree of any future violations by a secessionist Qu?bec. As J. Frowein provides, "peaceful reprisals" are permitted in cases of complete denial of self- determination: "...third States may apply peaceful reprisals in cases where there exists a pattern of complete denial of the right to self-determination, especially on racial grounds. In that respect South Africa has created a rule of international law." {1375} [Emphasis added.] Footnotes {1301} Indigenous Peoples' Preparatory Meeting, Threat of Quebec Secession From Canada, Resolution, Geneva, July 31, 1991 (on file with the Grand Council of the Crees). The Preparatory Meeting is held each year at the same time as the U.N. Working Group on Indigenous Populations. {1302} C. Tomuschat, "Self-Determination in a Post-Colonial World" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23,1662, supra, at 18. {1303} "Une avertissement ? tous les s?paratistes' du monde", Le Devoir, January 20, 1995, at A7. Unofficial English translation: "The metastasis of separatism could appear tomorrow on other territories...[new para.] The separatists of the entire world must feel that their demands are illegitimate and bound to fail. This should not depend on the attitude of the large States towards the intentions and plans of the separatists but on respect for the principles of justice and international law." {1304} A. Eide, "In Search of Constructive Alternatives to Secession" in C. Tomuschat, (ed.), Modern Law of Self-Determination, note 23, 1662, supra, at 174. {1305} M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, (1992) 86 Am. J. Int'l L. 569 at 570-571. {1306} H. Hannum, Rethinking Self-Determination, note 133, 1662, supra, at 48. {1307} A. Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), at 273. {1308} K. Valaskakis & A. Fournier, Le pi?ge de l'ind?pendance [:] Le Qu?bec sera-t-il affaibli par la souverainet??, note 299, 1662, supra, at 171. Unofficial English translation: "The international community does not wish to create a too dangerous precedent and has learned the lessons of a too hasty recognition by Germany of Croatia in former Yugoslavia, which precipitated civil war. If therefore Canada decided to not recognize the validity of this separation, the international community could decide to consider this situation as an internal Canadian affair'..." [Emphasis added.] See also R. Young, The Secession of Quebec and the Future of Canada (Montreal/Kingston: McGill - Queen's University Press, 1995), at 105: "The [European Union] would be unlikely to grant quick recognition to Quebec, partly because of its experience with the former Yugoslavia." {1309} J. Webber, "Repression is not the solution to unity crisis", The Gazette, Montreal, December 4, 1991, at B3. {1310} D. Turp, "L'?tude des questions aff?rentes ? la souverainet?", Le Devoir, August 29, 1991, at 15. Unofficial English translation: "It remains that the satisfaction of certain claims of Aboriginal peoples to self-determination could be, for other members of the international community, a condition for recognition of the sovereign Qu?bec state." {1311} A brief discussion of Aboriginal peoples as "colonized peoples" is also found in the text accompanying note 834, supra. {1312} C. Iorns, Indigenous Peoples and Self-Determination: Challenging State Sovereignty, note 194, 1662, supra, at 296-297. {1313} Id. at 297. {1314} E.I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, note 22, 1662, supra, at 8. The same view is expressed in E.-I. Daes, Explanatory note concerning the draft declaration on the rights of indigenous peoples, U.N. Doc. E/CN.4/Sub.2/1993/26/Add.1, at 5, paras. 24 & 25. {1315} S.J. Anaya, R. Falk, & D. Pharand, "Conclusions on Canada's Fiduciary Obligations To Aboriginal Peoples in Quebec under International Law", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 98. {1316} P. Russell, "The End of Mega Constitutional Politics in Canada?" in K. McRoberts & P. Monahan, (eds.), The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: Univ. of Toronto Press, 1993) 211 at 219. {1317} Id. {1318} In regard to U.S. commitments on non-self-governing territories, see E. Laing, The Norm of Self-Determination, 1941-1991, (1991- 92) 22 Calif. Western Int'l L. J. 209 at 267 et seq. {1319} Charter of the United Nations, art. 73. {1320} See S.J. Anaya, "Canada's Fiduciary Obligation Toward Indigenous Peoples in Quebec under International Law in General", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 23-24: "The convention was approved by consensus by the conference committee that drafted it and adopted by the full conference by an overwhelming majority of the voting delegates, including the Canadian delegation. The vote was 328 in favour and 1 against, with 49 abstentions." In this regard, see International Labour Organization, Provisional Record, International Labour Conference, 76th Sess., Geneva, 1989, No. 32, at 32-17 ? 32-19. {1321} See, for example, art. 2, para. 1: "Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity." {1322} Art. 3. {1323} Resolution on ILO action concerning indigenous and tribal peoples, reprinted in International Labour Conference, Provisional Record, 76th Sess., Geneva, 1989, No. 25, at 32. {1324} Id., paras. 1-4. {1325} Id., paras. 5. {1326} Id., paras. 6. {1327} Art. 37. {1328} Art. 40. {1329} Art. 41. {1330} See, for example, R. Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, (1994) 7 Harvard Human Rts. J. 33; P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 146 et seq. {1331} See discussion under sub-heading 3.2 supra. {1332} See discussion under headings 2 & 3 supra. {1333} See generally heading 9 supra. {1334} See "Aboriginal leaders furious after premier cancels meeting", The Gazette, Montreal, May 31, 1995, at A5, where it is reported "...Ghislain Picard, regional chief for Quebec, said the premier wanted a guarantee of success' in his meeting with chiefs." {1335} Id. See also "Hopes for harmony fade", The Gazette (editorial), Montreal, June 1, 1995, at B2, where it is surmised that Premier Parizeau did not want to "focus attention ? especially international attention ? on the continuing contradictions between his independence plans and the aboriginal rights claimed by Qu?bec natives." {1336} In the PQ government's Bill 1 entitled An Act respecting the future of Qu?bec, s. 8 provides in part: "[The constitution of a sovereign Qu?bec] shall...recognize the right of the aboriginal nations to self-government on lands over which they have full ownership...[S]uch recognition shall be exercised in a manner consistent with the territorial integrity of Qu?bec." [Emphasis added.] However, the phrase "lands over which they have full ownership" is highly restrictive and unacceptable, particularly since the Qu?bec government does not consider the traditional lands of Aboriginal peoples as fully owned by them. Even in regard to many Indian reserves, the government views such lands as owned by the federal or Qu?bec government. Moreover, Aboriginal territories often transcend the current provincial boundaries of Qu?bec. It is unclear how self-government jurisdiction of Aboriginal nations would be exercised outside of an independent Qu?bec (especially with the additional qualifying phrase "consistent with the territorial integrity of Qu?bec"). Further, s. 8 of the draft Act repeatedly uses "recognition" in regard to the rights of Aboriginal nations, but "guarantee" in the case of the English-speaking community in Qu?bec. The right of self-government referred to in s. 8 above appeared in virtually the same terms in s. 3 of the prior draft Bill, An Act respecting the sovereignty of Qu?bec. For criticism of s. 3 of Parizeau's draft Bill, see generally P. Hutchins, "And do the Indians Pass With It ? Quebec Sovereignty, Aboriginal Peoples and the Treaty Order", paper presented at the Canadian Bar Association Seminar on The Act Respecting the Sovereignty of Quebec: Legal Perspectives, Montreal, May 6, 1995. {1337} See the draft Act respecting the future of Qu?bec (Bill 1), Qu?bec National Assembly, First Sess., 35th Legisl., tabled by Premier Jacques Parizeau on September 7, 1995. {1338} See discussion under heading 3 supra. {1339} See discussion under sub-heading 3.1 supra. {1340} See generally headings 1 & 2 supra. {1341} See discussion under sub-heading 9.2 supra. {1342} See discussion under heading 4 supra. {1343} For a discussion of this issue, see text accompanying notes 1379 et seq., infra. {1344} For a discussion of this issue, see text accompanying notes 1410 et seq., infra. {1345} See discussion under sub-heading 3.1 supra. {1346} Should a secessionist Qu?bec use or threaten to use force in denying Aboriginal peoples their right to self-determination, including the right to choose to remain in Canada, then Qu?bec would be acting illegally under international law. {1347} In regard to legitimacy and democracy, see discussion under heading 9 supra. {1348} Reference is especially being made here to the draft United Nations Declaration on the Rights of Indigenous Peoples, which was formulated during the past ten years through the annual sessions of the U.N. Working Group on Indigenous Populations in Geneva. This draft Declaration explicitly recognizes the right of indigenous peoples to self-determination (art. 3) and will, in the not-too- distant future, be reviewed by the U.N. Commission on Human Rights. {1349} See discussion under heading 4 supra. {1350} See discussion under sub-heading 3.4 supra of this Study, where key distinctions between the situation of Qu?bec and that regarding former Yugoslavia or the Baltic states are highlighted. See also sub-heading 9.3 supra, where it is demonstrated that exceedingly high supramajorities were obtained in referendums prior to the establishment of various new independent states. In none of the international situations discussed in this Study was it found that the seceding entity or other third party states recognized a simple majority vote as the single and sole criterion for unilateral secession. Consultative referendums have often been held in non-colonial secessionist situations, but the basis for secession has generally arisen from oppressive political situations, persistent violation of human rights or severe discriminatory treatment by the parent state. None of these extreme circumstances have any application or relevance to the situation concerning Qu?bec. {1351} G.A. Res. 163, U.N. GAOR, 48th Sess., Agenda Item 114(b), at 2, preambular para. 8, U.N. Doc. A/C.3/48/163 (1993). See also International Decade of the World's Indigenous People, Comm'n on Hum. Rts. Resolution 26, U.N. ESCOR, Comm'n on Hum. Rts., (March 4, 1994). {1352} T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int'l L. 46 at 78. At 85, the author adds: "It is no longer arguable that the United Nations cannot exert pressure against governments that oppress their own peoples by egregious racism, denials of self-determination, and suppression of freedom of expression." [Emphasis added.] {1353} R. Higgins, "Postmodern Tribalism and the Right to Secession [:] Comments" in C. Br?lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, note 46, supra, at 31: "...the Committee addresses the matter [of self-determination] in virtually every single examination of a state upon the report that it is required periodically to submit." {1354} The Conference's new name is Organization on Security and Cooperation in Europe (OSCE). {1355} Helsinki Document 1992 ? The Challenge of Change, reprinted in U.N. GAOR, 47th Sess., U.N. Doc. A/47/361 (1992), at 65, para. 6(29): "[participating states] noting that persons belonging to indigenous populations may have special problems in exercising their rights, agree that their CSCE commitments regarding human rights and fundamental freedoms apply fully and without discrimination to such persons." [Emphasis added.] {1356} Id. {1357} See, for example, the International Covenant on Civil and Political Rights, art. 1, para. 3: "The State Parties to the present Covenant...shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations." {1358} Conference on Security and Co-operation in Europe, Document of the Moscow Meeting on the Human Dimension, Emphasizing Respect for Human Rights, Pluralistic Democracy, the Rule of Law, and Procedures for Fact-Finding, October 3, 1991, (1991) 30 I.L.M. 1670, at 1672. {1359} Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples, Eur. Parl. Doc. (PV 58) 2, (1994), at 3, para. 2. {1360} Convention on Rights and Duties of States (Montevideo Convention), 49 Stat. 3097, T.S. 881, 165 L.N.T.S. 19. Done at Montevideo, Uruguay, on December 26, 1933; entered into force on December 26, 1934. Aside from the United States, the parties to this Convention include states from Central and South America. Canada is not a party to this Convention. {1361} Id., article 11. {1362} Nguyen Quoc Dinh, P. Daillier, & A. Pellet, Droit international public, 5th ed. (Paris: L.G.D.J., 1994), at 537. Unofficial English translation: "It is no longer possible to put into doubt the actual existence of a duty to not recognize a new State, or any other situation, resulting from an illicit use of force. The most solemn texts affirm this principle." [Emphasis added.] {1363} S. Himmer, The Achievement of Independence in the Baltic States and Its Justifications, (1992) 6 Emory Int'l L. Rev. 253 at 272. {1364} Id. at 255. {1365} A. Arend & R. Beck, International Law and the Use of Force (New York: Routledge, 1993), at 52-56. {1366} Article 2, para. 4 provides: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." {1367} See, for example, J. Mrazek, Prohibition of the Use and Threat of Force: Self-Defence and Self-Help in International Law, [1989] Cdn. Yrbk. Int'l L. 81, at 83, where it is said that art. 2(4) only permits use of force in the case of enforcement measures of the Security Council or in implementation of the right of individual or collective self-defence. For a slightly different interpretation of art. 2(4), see A. Arend & R. Beck, International Law and the Use of Force (New York: Routledge, 1993), at 84. {1368} A. Arend & R. Beck, International Law and the Use of Force (New York: Routledge, 1993), at 40: "In the post-Charter period, many states have made a claim that force may be used under circumstances other than self-defense if its purpose is to promote self-determination." Similar statements are made at 92, 179 and 186, in terms of a new hierarchy of values that include use of force to promote self-determination. {1369} Id. at 202. {1370} United Nations organization or supervision of referenda is discussed under sub-heading 9.2 supra. {1371} In regard to international dispute resolution mechanisms concerning indigenous peoples, see draft United Nations Declaration on the Rights of Indigenous Peoples, art. 39: "Indigenous peoples have the right to have access to and prompt decision through mutually acceptable and fair procedures for the resolution of conflicts and disputes with States, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall take into consideration the customs, traditions, rules and legal systems of the indigenous peoples concerned." [Emphasis added.] In relation to disputes concerning Aboriginal peoples' treaties and other constructive arrangements with states, art. 36 of the draft Declaration provides: "Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned." [Emphasis added.] {1372} See, for example, W. Webb, The International Legal Aspects of the Lithuanian Secession, (1991) 17 J. of Legislation 309, at 323: "In the absence of military force, many countries ? especially the United States ? have resorted to applying economic sanctions against other states in order to influence events abroad." {1373} I. Brownlie, Principles of Public International Law, note 203, 1662, supra, at 92: "Recognition, as a public act of state, is an optional and political act and there is no legal duty to act in this regard." [Emphasis in original.] See also Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union", adopted by the Council of the European Community on Dec. 16, 1991, reprinted in (1992) 31 I.L.M. 1486: "The Community and its Member States will not recognise entities which are the result of aggression. They would take account of the effects of recognition on neighbouring states." {1374} Id. at 98, where Brownlie characterizes non-recognition by the United Nations or other such organ as "collective non-recognition" (based on a determination that an illegal act has occurred). See also T. Franck, The Emerging Right to Democratic Governance, (1992) 86 Am. J. Int'l L. 46 at 91: "...compliance with the democratic entitlement should also be linked to a right of representation in international organs, to international fiscal, trade and development benefits, and to the protection of UN and regional collective security measures." {1375} J. Frowein, "Self-Determination as a Limit to Obligations Under International Law" in C. Tomuschat, (ed.), Modern Law of Self- Determination, note 23, 1662, supra, at 215.