“The Québécois Form a Nation within a United Canada”: No Help from International Law

Editor’s Note: Professor Scott’s article was written the day the Canadian Federal Government voted to recognize the Quebecois as a “nation” (for the Parliamentary debate that set out the motion, see Hansard). It considers the background and meaning of terms such as “nation,” “state” and “Québécois” and the possible implications in international law of recognizing the Québécois as a “nation.” A valuable resource for anyone seeking to understand the historical and legal implications of this Parliamentary vote, available to the public at large for the first time here on The Court. This article is also helpful for anyone seeking a deeper understanding of the Reference re Secession of Quebec, [1998] 2 SCR 217.

Does International Law Have Anything to Do With It?

Various journalists have been asking whether there are any implications in international law of Parliamentary recognition of the Québécois’ nationhood. Rather than attempt a sound bite, I thought the following would be of greater assistance, not least because it can be made available to anyone who seeks to grapple with that question as this debate progresses.

I must first emphasize that there seems to be no indication that the Government intends this to be a Parliamentary statement of, about or having legal effects under international law. At the same time, the Bloc Québécois supported the Government motion and it may in fact be partly because it intended its own initial motion to have a connection of some sort to international law.

The most obvious question is whether recognition as a “nation” triggers any particular rights of a collectivity, and especially whether status as a “nation” has any legal relationship to the right to form an independent state through secession from a current state.

“Peoples,” Self-Determination, and Secession

In international law, there are many terminological quagmires (and much potential for sterile, tail-chasing debates) surrounding the labels for different collectivities and the consequences of those labels. But, put at it most essential, the turf on which the word games of international secessionist politics is played relates not to the term “nation” but to the term “people” and the correlate right of “all peoples” to “self-determination,” whereby “self-determination” may be realized through formation of a new state in very limited circumstances. And, since the advent of the United Nations Charter, it has not been necessary for a “people” to be co-terminous with an existing state nor has it ever been the case that, simply by dint of being a “people,” there is a right to form a state over its territory.

The Charter itself starts out with the words, “We the Peoples of the United Nations…” but it is important to note that “peoples” and “nations” are used in different ways in the Charter. For example, later in the Charter, there is reference to “peoples” of “non-self-governing territories” (colonialist code for “colonies”) who are entitled to “self-government” (understood at the time as something falling short of “independence”). “Peoples,” like the population of India governed by the UK at the time of the UN Charter, were included as part of the founding collectivities even if these “peoples” did not have their own “nation” (i.e. state) and even if the UN Charter itself did not provide such colonized peoples, other than a small sub-categories of peoples in “Trusteeship” territories, with any right to be decolonized.

With time, new instruments generated by the UN’s General Assembly partially re-interpreted the UN Charter such that colonized peoples became the paradigm case of a people entitled to opt for statehood (to replace colonial governance). They also became the reference point (by analogy) for any extension of the situations within which other “peoples” may choose to form a state.

As we have moved beyond one colonial paradigm, another group of polities that were colonized have been quite successful in seeking recognition as “peoples” within the compendious phrase “indigenous peoples.” But, as a general matter, there is not much consensus over exactly what kind of shared practices, traditions, and history go into defining a “people.” There are different views on whether a “people” can exist simply on the basis of cultural and sociological commonalities, on whether peoplehood is something generated by situations of oppression (and collective will to resist that oppression), and whether elements of shared political governance are also crucial.

On the latter issue, there is no firm consensus on whether historical polities can claim to be current peoples versus having the territorial scope of contemporary governance structures serve as the reference point for the scope of a people (e.g. African and Asian colonies were treated as colonized “peoples” on the basis of the administrative boundaries drawn by the colonizing powers and not on basis of pre-colonial communities, whether ethnic or political). The favoured approach tends to be that of looking to the most recent political formation as a reference point for simultaneously identifying a people and its associated territorial scope, such that, for example, the population of the Province of Quebec (call this group Québécois I) is more likely to be considered a “people” than are French-speaking Quebeckers as a cultural or linguistic sub-group (call this group Québécois II).

“Nation” in International Law

In international law usage, the term “nation” on the other hand has generally been employed as a synonym for “state,” and more particularly, for state that is recognized to exist currently. Non-legal discourses have almost certainly influenced this linguistic convention, although the idea of “nation” within this state = nation equation has shifted in its primary meaning over the past couple hundred years.

There is little doubt that such co-terminous usage (of “nation” and “state”) stemmed historically from a combination of factors. Firstly, there has been the historical reality of some states forging themselves around the idea that a state should govern a population with a shared ethnic identity (formed around common language, religion, and so on) – witness France’s and Turkey’s projects of internal linguistic domination as state-building projects. Secondly, there was and continues to be the aspiration of ethnic nationalists to have a state they can call their own. Thus, we find many examples of the notion of the “nation-state” being promoted in political discourse at different junctures and in different places as if as the ethnic nation and the state governing the nation must be co-defining.

But this partial reality and this ethnic ambition always came up against a counter-reality and have increasingly come up against a counter-ambition. The counter-reality is that there are also a significant number of historical examples of states forming around multilinguistic, multiethnic socities, where the need for a single nation is avoided either by various forms of power-sharing politics (perhaps underpinned by the domination of one group) or allegiance to some other common bond (e.g. a monarch or perhaps even to a tradition of pluralism itself).

The counter-ambition is that of political and intellectual leaders seeking to make the notion of the non-ethnic, political state the reference point for not only legal obedience but also loyalty and ultimately even identity. Some have termed the sort of nation that follows from or is forged by a focus on common politics within a state the “civic” nation versus the “ethnic” nation. That said, there are many who question the usefulness of retaining “nation” outside its ethnic associations and who would prefer more neutral terms like “community,” “polity,” “society” or even “people,” rather than constantly risking the confusion with nation as an ethnic idea.

Returning to international law’s historical and still-lingering tendency to refer to “nations” as “states” and vice versa – or at least to use “nation” as identical to the community governed by a state – the very term “international law” refers to “interstate” law. Whatever the underlying notion of “nation” (tending to the ethnic or tending to the civic), this terminological overlap hearkens back to an age when it was much more common to refer to “nations” interchangeably with “state,” in large part because the state was thought of as an organic outgrowth of the existence of a nation. Indeed, a traditional name for international law used to be the “law of nations.”

In this sense, whether “nation” was at one point a pure synonym of “state” or whether nation was always implicitly understood within international legal discourse as referring to an underlying human community (distinct from but mirrored by the state), international law has clearly opted for the vocabulary of a nation being identical to the community within a given – existing – state. Thus, between the two world wars, states formed the League of Nations.

After World War II, the United Nations (referring initially to the Allied states united together in the war against the Axis powers) emerged as an organization of which only existing states can become members (through ratification of the treaty called the United Nations Charter). There are other linguistic traces in international law of the notion of nation as coterminous with the state (either as a synonym for “state” or as a reference to the people within the same state). Thus, for example, international law speaks of “nationality” as the link between a person and a state.

Much usage of “nation” thus clearly has historical linguistic roots, and in that sense there is an archaic quality about it as a legal term of art. But, even where more modern phenomena are being discussed, the pull of the “nation” as the analogue to the “state” continues to exert a linguistic power. So, for example, terms like “supranational” law or “transnational” law have been employed in recent decades to describe law beyond the state that has different features from traditional international (i.e. interstate) law. These newer words are to some degree simply piggybacking on an older linguistic convention that employs “nation” or “national” as stand-ins for “state,” but they also speak to an underlying premise that, in general international law usage, the “nation” is not an ethnos but, rather, is the political community of a state, whether there is low or high ethnic homogeneity within that community.

“National Minorities”

But “nation” continues also to have residual ethnic associations in some parts of international law, although, significantly, as an adjective – “national” – to describe a collectivity – “minority” – that, on no current account of international law, has any rights to separate statehood from the existing state in which the minority finds itself. Thus it is that we see the term “national minority” in some international instruments and processes – from a 1992 United Nations General Assembly declaration, to the mandate of a High Commissioner on National Minorities within the Organization of Security and Cooperation in Europe, to the 1995 Council of Europe Framework Convention for the Protection of National Minorities.

Amongst the “national minority” rights various international instruments acknowledge, “self-determination” is not one, let alone any recognition of statehood as a remedy for a serious breach of the right of self-determination. Instead, as already noted, the discourse of self-determination and its contingent relationship to formation of a new state is very much contained by international law in a discourse centred on the rights of “peoples.”

Apart from this substantive limitation, there is the unhelpfulness of “national minority” as a highly ambiguous term in international legal discourse. In the various international instruments in which “national minority” rights appear, diplomatic compromise led to no definition of “national minority” due to states having different conceptions and agendas. Some states required a certain historical longevity of a group within the state so as to exclude new immigrant communities, while others thought in terms of minorities sharing key ethnic attributes with the majority population in a neighbouring (or, at least, nearby) state, while still others thought of “national” in terms of such variables as religion, ethnicity and language.

Despite not having a definition given in his mandate, the OSCE High Commissioner on National Minorities in 1994 gave a speech that in effect gave a definition even while diplomatically characterizing it as a non-definition:

The existence of a minority is a question of fact and not of definition. (…) First of all, a minority is a group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity.

This has tended to be the general working understanding of “national minority” within the OSCE, an understanding that corresponds generally with other usage in institutions like the Council of Europe. In any case, for present purposes the essential aspect of this use of “nation” in an ethnic or in ethnic-associated sense is that none of the frameworks for giving content to protections for national minorities even flirt with secession as one possible outcome. Where “nation” is used other than as co-terminous with “state,” it is not used as a stand-alone term but rather as an adjective within a term, “national minority,” that emphasizes that the minority is part of, and has no right to secede from, the state in which it is located.

Implications under International Law?

So, in light of the above, what implications could the November 27, 2006, House of Commons resolution have for the status of Quebec and the “Québécois” under international law? I approach this question in terms of possible arguments that the Bloc Québécois may seek to make after adoption of the resolution.

I start with the least likely tack that the Bloc might wish to pursue. With respect to the notion of “national minority,” it could be that the Bloc Québécois feels that the evolving rights of “national minorities” to cultural and linguistic protection, equality rights of minority persons, and so on go further than what Canadian Confederation currently provides either to Québécois understood in a cultural or linguistic sense or to Québécois defined in the civic sense of all the people of Quebec – depending on how the Bloc might read the idea of “national minority.” This may well be so and, if so, it would be a healthy outcome if we were to debate in Canada whether we fall short of international legal standards – although the view of many commentators is that protections in Canada generally outstrip that which is required under current international law.

That said, any attempt by the Bloc to debate on those terms comes at the price of saying that the Parliamentary resolution in effect means “the Québécois form a national minority within a united Canada” – an interpretive concession that would be a huge reversal of years of careful development by various politicians, lawyers and academics that the entire population of Quebec constitutes a “people” under international law, with a right to self-determination. We have more or less gotten to the point that the main issue is not whether the population of Québec are a people – this is often conceded, if only implcitly or sometimes arguendo – but, rather, what the law of self-determination says about the conditions for opting for statehood and also the issue of the significance of contending rights to self-determination of other “peoples” on the territory of Quebec (e.g. the Cree). For these reasons, it seems unlikely the Bloc is seeking to equate “nation” with “national minority.”

With respect to “nation” as a free-standing term, it could be that the Bloc feels they can hit a semantic home run by invoking the use of “nation” as synonymous with “state” or with the population of a state. The argument that they might run could be that:

a) we Québécois [bracketing for the moment which “we” is referred to by the term “Québécois”] are currently within a united Canada;
b) but the resolution did not say that we must always be within a united Canada;
c) the resolution also says we are a “nation,” which term is used in international law to refer to a state or its population;
d) thus, this resolution is actually saying “the Québécois form a state within a united Canada” and, as such, Parliament has voted to recognize an inconsistency that also amounts to a fundamental illegality to the extent we do not wish to be controlled by another state; and
e), if we choose to reject this control (e.g. through a referendum), it is would be illegal for a “united Canada” to compel us to remain part of that Canadian state.

Just to set out the argument is enough to show how its formalism also amounts to an inane form of contrived pleading, so much so that it seems highly unlikely this is a tack the Bloc would take. In the face of such a nonsensical result – that the federal Parliament have recognized “the Québécois” as a state – it makes far more sense to think that all parties, including the Bloc, are instead using “nation” in a non-legal sense and certainly not in any legal sense that is meant to trigger an international law Trojan horse in the middle of Canadian language politics. The Prime Minister seems to have said he is using “nation” in a cultural and sociological sense and, as we have seen, that factual use of “nation” at most gives rise to the ambiguous entity known as the “national minority” and has no relationship in international law to current statehood, to self-determination, or to rights to become a state.

All that is left, strategically, for the Bloc Québécois in its embrace of the “nation” resolution is an argument that recognition by Canada of the nationhood of “the Québécois” will assist in making the case for the Québécois also being a “people,” with a right to self-determination. It could perhaps be that the argument will be made that “nation” is really the direct analogue in the Canadian context for “people” in international legal discourse, and thus that Canada has in essence recognized “the Québécois” as a people. At least one Quebec-based theorist of self-determination has argued in the past that the right of self-determination triggers a full choice of governance structure, with no qualifications on whether the people can choose statehood for itself.

Thus, it could be that some Bloc advisers feel that the simple recognition of “peoplehood” validates a Quebec-wide referendum result of 50% plus one, with there being no other substantive fetters on the right to secede. However, as already said, most legal scholars do not see the modern right of self-determination as creating anything resembling such an automatic right to secede unilaterally, and tend to hedge the triggering of a right to secede with various tests for significant oppression taking place against the people in question (a people that must also happen to have a territory that is sufficiently identifiable to be the subject of the secession).

And increasingly, acceptance of a group’s status as a “people” is less and less resisted in direct proportion to the growing understanding that self-determination is essentially about an ongoing process of negotiation and periodic decision about the necessary protections and institutions for a distinct group wishing to govern its own affairs to the extent feasible and reasonable in light of the needs and wishes of other groups and peoples. Thus it is that the first point is that even if “nation” adds something to the quest for recognition of “peoplehood,” contemporary international law does not attach to this status a right to secede.

“Les Québécois”

In any case, whether “nationhood” assists in making the claim that one is a “people” is unclear, not least because the very idea of a “people” has been left to be debated rather than defined in international politics. Much ink has been spilled on what “people” means, beyond being another term for the population of an existing state (including societies under foreign occupation) and beyond the accepted category of colonized societies. But, in whatever debate were to follow any attempts to leverage “nationhood” in the Canadian constitutional context into “peoplehood” in the international context, what seems clear is that we may rapidly discover how the word “nation” may be least of the time bombs in the resolution.

This is because the Primer Minister’s resolution identifies “the Québécois” as the nation, without any textual clue as to what that term refers to other than the decision to use a French word in the English version of the resolution rather than the English word “Quebeckers.” This term is perfectly compatible with meaning (all) the people of the province of Quebec (Québécois I) and also with meaning those who live (or lived) in Québec and have French as their mother or (as between French and English) their primary tongue (Québécois II). It could also be read in the more exclusionary sense of French-speaking Quebeckers who also have some kind of ancestral linkage to the original French settlers of Quebec – les Québécois de souche, as it is sometimes put (Québécois III).

As already noted near the start of this document, whether and in what ways any one of these groups could constitute a “people” varies significantly, just as the available avenues for exercising the right of self-determination would vary as between the “Québécois” understood as all Quebeckers with French as their mother or primary tongue or “Québécois” understood as the population of the province of Québec. Again, as already indicated, contemporary international law would be more inclined to treat Québécois II or III as minorities in Canada while Québécois I would be more likely to be receive recognition as a people.

Whether Hansard’s record of debate will shed any light on any consensus amongst MPs on what was understood by “les Québécois” when they voted for the resolution is highly unlikely in light of statements made before and after the vote. The Government’s Transport Minister, Mr. Cannon, seemed to have said that it meant “les Québécois de souche” (he used the expression “pure laine” instead of “de souche” but it amounts to the same concept). And the Government’s Intergovernmental Affairs Minister Chong resigned, it seems, because he too reads it in this way. Meanwhile, Mr. Duceppe was quoted as saying after the vote that “les Québécois” meant all Quebeckers (which is consistent with the view that the Bloc will wish to map the resolution’s “nation” onto international law’s “people”), and that it was the Transport Minister’s “problem” if he thought otherwise.

Ultimately, I suspect that the problem will not be simply one for Mr. Cannon or for the Government but for all of us. This particular ambiguity is not likely to go away in a hurry.

A Road Not to Travel

All this said, the only thing that is really clear is that Mr. Ignatieff, Mr. Duceppe and Mr, Harper have collectively managed to toss a can of muddy worms into the political playpen of the Canadian … nation. Let’s keep it there and not think anything useful or edifying can come out of dragging international law into the picture.