In Canada, the negotiation, signature and ratification of international treaties are controlled by the executive branch of the federal government, while Parliament is responsible for the implementation of such treaties at the federal level. This paper explores Canada’s approach to the negotiation, signature, ratification and implementation of international treaties at the federal level, including a description of power over international affairs, the treaty-making process itself, various compliance mechanisms, and the federal-provincial/territorial relationship with respect to international treaties.
2 Authority Respecting International Treaties
Canada’s Constitution Act, 1867 does not explicitly delineate federal or provincial authority with respect to the conduct of international affairs. In 1867, Canada was still a colony of the British Empire, and the British Parliament delegated the power to represent the Dominion of Canada internationally to the British Crown. However, although the British Crown had the authority to enter into treaties with foreign countries on Canada’s behalf, the Canadian Parliament was granted responsibility for implementing those treaties in Canada under section 132 of the Constitution Act, 1867.
Over the years, Canada began to take increasingly independent action in its external affairs, the Government of Canada gradually intervening on its own initiative in discussions relating to the negotiation of international treaties and conventions. In 1926, Canada acquired power to establish foreign relations and to negotiate and conclude its own treaties through the Balfour Declaration, although some treaties still needed formal ratification by the British government. This power was incorporated into the 1931 Statute of Westminster and later confirmed in the 1947 Letters Patent Constituting the Office of Governor General of Canada. As the federal government gained full powers over foreign affairs, section 132 of the Constitution Act, 1867 became obsolete.
Although authority over international relations is not explicitly conferred on the executive branch of the federal government under any constitutional provision, it is broadly recognized that this power has devolved upon it. In countries like Canada that share the British tradition, international relations are a prerogative of the Crown, which, in Canada, is exercised by the federal executive branch of government as the Crown’s representative. As such, the executive branch is the only branch of government with the authority to negotiate, sign and ratify international conventions and treaties.
3 The Treaty-Making Process
The Department of Foreign Affairs and International Trade Act states that the Minister of Foreign Affairs is responsible for negotiating international treaties on Canada’s behalf. In practice, however, Foreign Affairs and International Trade Canada does not have a monopoly on negotiations with foreign states and international organizations, but rather plays a supervisory role, depending on the subject matter. For example, negotiations on the environment are generally conducted by Environment Canada, those on tax matters by the Canada Revenue Agency, etc. The people involved in negotiations can include ministers, deputy ministers, diplomatic representatives or other negotiators.
Treaty negotiations are often conducted behind closed doors. Little is revealed of the contents of treaties until the parties have reached an agreement in principle on content or wording.
Once treaty negotiators have agreed on the terms or text of an agreement, a minister (usually the Minister of Foreign Affairs) requests Cabinet’s approval and submits an explanatory document setting out the details of the agreement. The treaty can be signed when approval is granted. A signing order (Instrument of Full Powers) will designate one or more persons who have the authority to sign the treaty on behalf of Canada.
It is important to recognize that signature of an international treaty is only a first step in the treaty-making process, signifying a country’s agreement in principle with the terms of the treaty and an intent to become bound by it. Upon signing a treaty, Canada must refrain from actions that would defeat the object and purpose of the treaty, but is not officially bound by the treaty until ratification.
3.3 Ratification and Implementation
After signature of an international treaty, once Canada is ready to be bound by it, a document is prepared establishing that the formalities for the coming into force and implementation of the treaty have been completed and that Canada agrees to be bound by the treaty. More formally, Cabinet prepares an Order in Council authorizing the Minister of Foreign Affairs to sign an Instrument of Ratification or Accession. Once this instrument is deposited with the appropriate authority, the treaty is officially ratified. At this point, Canada is bound by the treaty as soon as it comes into force (if it is not already in force).
The ratification process is thus wholly controlled by the executive, although Parliament has had an ad hoc involvement in that process over the past 80 years. For example, between 1926 and 1966 only important treaties were submitted by the executive to Parliament for approval prior to ratification. Examples of the executive’s tabling treaties in Parliament following ratification were also relatively common until 1999.
In January 2008, the federal government announced a new policy to enhance parliamentary involvement in the process by ensuring that all treaties between Canada and other states or entities are tabled in the House of Commons before ratification. The Clerk of the House of Commons distributes the full text of the agreement accompanied by a memorandum explaining the primary issues at stake, including subject matter, primary obligations, national interests, policy considerations, federal-provincial/territorial considerations, implementation issues, a description of any intended reservations or declarations, and a description of consultations undertaken. The House of Commons then has 21 sitting days to consider the treaty before the executive takes action to bring the treaty into effect through ratification or other preliminary measures, such as introducing legislation. The House has the power to debate the treaty and to pass a motion recommending action, including ratification; however, such a vote has no legal force. Passing treaties through the House of Commons remains a courtesy on the part of the executive, which retains full authority to decide whether to ratify the treaty after the parliamentary review. The policy states clearly that in exceptional cases the executive may have to ratify treaties before they can be tabled in Parliament. To do this, the executive will seek approval from the prime minister for an exemption and inform the House of Commons of the treaty as soon as possible upon ratification.
Any discussion of ratification in Canada is incomplete without a discussion of implementation. Unlike some countries which operate according to a monist model (for example, in the United States, once Congress ratifies a treaty it is, in principle, enforceable in U.S. law), Canada operates according to a dualist model: a treaty that has been signed and ratified by the executive still requires incorporation through domestic law to be enforceable at the national level. Turning international law into domestic law is not a self-executing process in Canada. International law is entirely separate from domestic law and sometimes the two can conflict. Accordingly, Canada cannot ratify an international treaty until measures are in place to ensure that the terms of the treaty are enforceable in Canadian law.
There are two ways for this task to be accomplished. In some cases it is abundantly clear that domestic legislation must be put in place in order to implement the terms of an international treaty. If so, the ministers concerned give instructions for an implementation bill to be drafted. After receiving Cabinet approval, the bill is tabled in Parliament and goes through the parliamentary legislative process. The implementing legislation often contains a provision by which the treaty is approved. In most cases, this approval is stated very simply, for example by the expression “the agreement is approved.” Some examples of legislation directly implementing an international treaty include the Crimes Against Humanity and War Crimes Act, implementing the Rome Statute of the International Criminal Court; the Geneva Conventions Act, implementing the Geneva Conventions for the Protection of War Victims; and the North American Free Trade Agreement Implementation Act, implementing the North American Free Trade Agreement (NAFTA). Although it is rare for an implementing Act not to be passed by Parliament, this can happen. For example, in 1988 the Senate refused to pass the proposed Canada-United States Free Trade Agreement Implementation Act, thereby triggering an election. A similar bill was passed shortly afterwards by a new Parliament.
By contrast, many treaties and international conventions, particularly international human rights treaties and foreign investment promotion and protection agreements, do not necessarily require specific legislation for implementation. In such cases, the government will state that domestic legislation is already consistent with Canada’s international obligations or that the object of the treaty does not require new statutory provisions. Thus ratification can proceed without specific implementing legislation. In this case, prior to ratification, government officials will conduct a review of existing legislation to determine whether any amendments or new legislation are needed to comply with the treaty. In doing so, officials from the Department of Justice Canada consult with other federal departments and agencies, the provinces and territories, and non-governmental organizations to determine whether existing legislation is in conformity with the international treaty, as well as whether the government may have to enter a reservation or statement of understanding to the treaty to clarify Canada’s position on certain issues. Where provincial or territorial legislation is implicated, the executive will not ratify the treaty until all Canadian jurisdictions have indicated that they support ratification.
3.4 Coming into Force
Signature and ratification do not necessarily mean that an international treaty is in force. The date that a treaty comes into force, or the terms and conditions necessary for the treaty to come into force, are established in the treaty itself or in an agreement between the parties and is usually the date on which the ratification instruments are exchanged or tabled. Sometimes the treaty will establish a deadline for ratification. For example, the NAFTA required the three signatory countries to complete their ratification procedures and exchange ratification instruments by 1 January 1994. In other cases, the effective date is not a specified calendar date, but depends on the accomplishment of formalities specified in the treaty. For example, a treaty may provide that it will come into force once it has been ratified by a specific number of signatories. The United Nations Convention on the Law of the Sea had to be ratified by 60 signatory states in order to enter into force. Although it had been signed by 119 states in 1982, it did not become effective until 1994, 12 months after the 60th state had ratified it.
It should be noted that the effective coming into force date for a specific country may differ from the coming into force date of the treaty itself. In some cases a state may accede to a treaty after the treaty has come into force. In this situation, the effective coming into force date for that country follows the state’s ratification of the instrument.
4 Compliance and Enforcement Mechanisms
4.1 Enforcement on an International Scale
Compliance with and the enforceability of international treaties is a broad topic that cannot be dealt with in any comprehensive manner in a few paragraphs. Ultimately, there are multiple forms of international treaties, multiple levels of enforceability, and multiple mechanisms for enforcement. Various bodies are available to assist with the enforcement of international treaties and conventions at the international and regional levels. For example, trade treaties may be subject to enforcement under the NAFTA or through the World Trade Organization, which have various levels of tribunals to ensure compliance with their standards. Other trade treaties are subject to enforcement by arbitral tribunals that can impose financial penalties on parties to the agreement. By contrast, human rights treaties are often subject to some form of oversight through the United Nations treaty bodies. The Concluding Observations issued with respect to country compliance under these UN treaty bodies are not legally binding, but they do carry significant moral suasion. Breaches of humanitarian law, such as war crimes and crimes against humanity, are dealt with by the International Criminal Court, which has the power to sentence individuals to imprisonment. The International Court of Justice is also charged with settling legal disputes submitted to it by states in accordance with international law generally, and with giving advisory opinions on legal questions referred to it by UN organs and specialized agencies.
4.2 Federal Accountability
At the federal level there are few formal mechanisms to ensure the government’s compliance with the international treaties that it has signed. Between 1915 and 1995 the Department of External Affairs was required by statute to report annually to Parliament with an account of Canada’s treaty-making activities, including a list of agreements concluded in that year. This practice ended when legislation was passed in 1995 to change the department’s name and mandate. Today, statutory provisions implementing treaties occasionally require the government to table certain reports or documents in Parliament. For example, section 42 of the Old Age Security Act requires that social security agreements that Canada enters into with foreign countries be tabled in Parliament. These documents may subsequently be reviewed by parliamentary committees, which may comment or make recommendations on Canada’s status with respect to its international treaty obligations. Even without such provisions parliamentary committees have an important monitoring role to play, and can choose to follow up on federal government compliance with international obligations under specific treaties. For example, the Standing Senate Committee on Human Rights’ April 2007 report Children: The Silenced Citizens reviewed the government’s compliance with the UN Convention on the Rights of the Child.
Various non-governmental organizations across the country, from human rights advocacy groups to organizations monitoring Canada’s trade with other countries, also regularly comment on government compliance with international obligations. International human rights law itself seems to be evolving in a manner that encourages the creation of monitoring and accountability mechanisms under national law. While no such bodies have been established in Canada to date, the existence of the concept suggests that the federal government could one day be held to account in this way for treaty implementation.
Finally, Canada’s courts are beginning to play a more significant role in terms of ensuring that the federal government respects the terms of the treaties that it has ratified. Courts have increasingly begun to rely on the common law interpretive presumption that any legislation adopted in Canada is consistent with Canada’s international legal obligations, even if the international obligation has not been explicitly implemented in domestic law. The presumption is that Parliament intended to legislate in a manner consistent with its international obligations. Cases such as Baker v. Canada (Minister of Citizenship and Immigration) are a significant example of this interpretive presumption in action. In Baker, an illegal immigrant was ordered deported from Canada. She appealed the decision on humanitarian and compassionate grounds, arguing in part that deporting her would effectively abandon her Canadian-born children in Canada. Citizenship and Immigration Canada then affirmed the deportation decision without providing reasons, and the issue was ultimately appealed to the Supreme Court of Canada. The majority of the Supreme Court ruled that although Canada had not incorporated the Convention on the Rights of the Child into domestic law, the Convention’s guiding principle making the best interests of the child a primary consideration in decision-making concerning children should have played a role in the government’s decision-making process in this particular instance. The Court cited the important role of international human rights law as a critical influence on the interpretation of the scope of domestic legislation such as the Canadian Charter of Rights and Freedoms.
4.3 Working with the Provinces
No discussion of Canada’s compliance with its international treaty obligations is complete without an examination of the role of the provinces. Although the federal government has sole authority to negotiate, sign and ratify international treaties, many treaties nonetheless deal with matters that fall under provincial jurisdiction. In Canada, Parliament and the provincial legislative assemblies may pass legislation in areas where they have jurisdiction under the Constitution of Canada. This division of legislative power is provided for mainly in sections 91 and 92 of the Constitution Act, 1867. While provincial consent is not required for ratification, the federal government nonetheless has a policy of consulting with the provinces before signing treaties that touch on matters of provincial jurisdiction.
As well, although the federal government is the only level of government responsible to the international community for compliance with the treaties that it signs, it cannot enforce compliance with international treaties in areas beyond its jurisdiction. In the 1937 Labour Conventions Case the Privy Council held that the federal government cannot use the need to comply with international treaties as justification for encroaching on areas of provincial jurisdiction. Whenever a treaty concerns an area of provincial jurisdiction, the relevant provisions may be implemented only by the provincial legislative assemblies. Thus, treaty implementation and compliance are an area of federal, provincial and territorial responsibility.
Yet, despite Canada’s constitutional arrangement, articles 26 and 27 of the Vienna Convention on the Law of Treaties still hold the federal government accountable to the international community for making best efforts to implement international treaties in Canada. Once a treaty has been ratified, there is a presumption that Canada will comply with it in good faith. One example of the federal government’s ongoing obligation to comply with its international obligations arose in Ariel Hollis Waldman v. Canada. In this case, a UN treaty body criticized Ontario’s funding of a separate Catholic school system, turning to the federal government for this violation of the equality provision of the International Covenant on Civil and Political Rights - even though this preferential treatment is entrenched in section 93 of the Constitution Act, 1867. Another more recent example involves the NAFTA and the federal government’s obligation to pay compensation to forest products company AbitibiBowater due to actions taken by the Government of Newfoundland and Labrador.
In order to limit Canada’s liability where a treaty concerns an area of provincial legislative jurisdiction, some treaties contain a “federal state clause.” To varying degrees, depending on the purpose of the treaty and the wording of its articles, the clause informs all the parties that the Government of Canada may have certain difficulties in implementing the treaty because to do so it will have to secure the cooperation of the Canadian provinces. By including this clause the government commits itself to performing only those international obligations that come within federal jurisdiction, and to make best efforts to get provincial compliance. By contrast, some provinces have implemented legislation specifically intended to give some international treaties effect in provincial law.
The way in which Canada negotiates, signs, ratifies and implements international treaties is a constantly evolving process. Very little authority is explicitly laid out in the law or the Constitution - much relies on royal prerogative, tradition and policy. Today the House of Commons has been granted a louder voice prior to official ratification. This enhanced role for Parliament is an important one, although it must be remembered that this is a policy, not law, and can be easily revoked or bypassed when necessary. Parliamentary committees can also play an important role when it comes to monitoring compliance with the international treaties and conventions signed by Canada. This role may be carried out by listening to civil society, business, academic, government and international voices, and issuing recommendations to help Canada live up to its international obligations.
* An earlier version of this document, entitled International Treaties: Canadian Practice, was prepared by Daniel Dupras, formerly of the Library of Parliament. [ Return to text ]
† Library of Parliament Background Papers provide in-depth studies of policy issues. They feature historical background, current information and references, and many anticipate the emergence of the issues they examine. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]