The Effect of the Independence of Quebec upon Treaties and Agreements with the United States of America

Abstract

Introduction Following the very close results of the 1995 Referendum on Quebec's independence, and with the expectation of another referendum to be held within the next few years, a practical and informed consideration of the effect that independence would have on the 272 bilateral treaties and other international agreements between Canada and the United States of America and the many multilateral conventions binding the two countries is necessary and desirable. (1) Those supporting independence have been asserting the view that an independent Quebec certainly would succeed, as a matter of international law, more or less automatically to such agreements. Such a view, however, fails to reflect how difficult it is for new states to cope with hundreds, even thousands, of treaties to which their predecessor states were parties. (2) Those offering assurances of certain mistakenly rely upon inapposite international law principles of state in respect of treaties and misapprehension of United States practice in this regard. In fact, an independent Quebec would face a clean slate as regards all Canadian treaties and other international agreements; that is, the continuation of such instruments in force in respect of an independent Quebec would be an issue in virtually each case, and hence subject to discussion at the political level with the other State Party or States Parties (and, in many cases, to legislative action). Specifically, such important agreements as the North American Free Trade Agreement (NAFTA), (3) the Agreement Concerning Automotive Products (Auto Pact), (4) the 1994 General Agreement on Tariffs and Trade (1994 GATT) and the World Trade Organization (WTO), (5) the United States-Canada Tax Treaty, (6) the North American Aerospace Defence Command (NORAD) Agreement, (7) and the Boundary Waters Treaty, (8) to note only the most prominent, all would require political negotiations and action in order for them to be applied to an independent Quebec. Moreover, of those six agreements two might well require United States Senate advice and consent to ratification (the United States-Canada Tax Treaty and the Boundary Waters Treaty), two definitely would require approval of both Houses of Congress (NAFTA and the Auto Pact), and one definitely would require an affirmative vote of an international organization (WTO and GATT). The Applicable International Law Principles The customary international law principle as regards of States to treaties that is applicable to an independent Quebec is that When part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was party, unless, expressly or by implication, it accepts such agreements and the other party or parties thereto agree or acquiesce. (9) The applicability of this principle to an independent Quebec is underscored by supporting authoritative commentary to the effect that this clean-slate theory applies both to newly independent states and to a state separated from another by secession or other circumstances. (10) Thus treaties and other international agreements apply in respect of the new State only if there is mutual agreement. Some have argued that a presumption of succession would be applied to treaties between a sovereign Quebec and the United States. That position, insofar as it would be relevant to an independent Quebec, appears to be derived from Article 34(1) of the Vienna Convention On Succession Of States In Respect Of Treaties, which provides that, in principle, When a part... of the territory of a State separate[s] to form [a] State [], whether or not the predecessor State continues to exist... any treaty in force at the date of the of States in respect of the entire territory of the predecessor State continues in force in respect of [the] successor State so formed. …