Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697645457543.pdf (Canada)
Canada’s Approach to the Treaty-Making Process Publication No.

2008-45-E 24 November 2008 Revised 8 May 2018 Laura Barnett Legal and Social Affairs Division Parliamentary Information and Research Service 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 to parliamentarians and Senate and provides House of Commons committees and parliamentary associations in an objective, impartial manner.

information and analysis © Library of Parliament, Ottawa, Canada, 2018 Canada’s Approach to the Treaty-Making Process (Background Paper) Publication No.

2008-45-E Ce document est également publié en français.
CONTENTS 1 2 3 INTRODUCTION ....................................................................................................... 1 AUTHORITY RESPECTING INTERNATIONAL TREATIES .................................... 1 THE TREATY-MAKING PROCESS .......................................................................... 2 3.1 Negotiations ........................................................................................................... 2 3.2 Signature ................................................................................................................ 2 3.3 Ratification and Implementation ............................................................................. 2 3.3.1 Ratification ....................................................................................................... 2 Implementation ................................................................................................ 3 3.3.2 3.4 Coming into Force .................................................................................................. 4 4 COMPLIANCE AND ENFORCEMENT MECHANISMS ........................................... 5 4.1 Enforcement on an International Scale .................................................................. 5 4.2 Federal Accountability ............................................................................................ 6 4.3 Cooperation with the Provinces ............................................................................. 7 5 CONCLUSION .......................................................................................................... 8 LIBRARY OF PARLIAMENT i PUBLICATION NO.
2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 1 INTRODUCTION 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 Background 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, 18671 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,2 the federal government gradually intervening on its own initiative in discussions relating to the negotiation of international treaties and conventions.3 In 1926, Canada acquired the power to establish foreign relations and to negotiate and conclude its own treaties through the Balfour Declaration,4 although some treaties still needed formal ratification by the British government.
This power was incorporated into the 1931 Statute of Westminster 5 and later confirmed in the 1947 Letters Patent Constituting the Office of Governor General of Canada.6 As the federal government gained full powers over foreign affairs, section 132 of the Constitution Act, 1867 became obsolete.7 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.8 In countries like Canada that have inherited 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.9 LIBRARY OF PARLIAMENT 1 PUBLICATION NO.
2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 3 THE TREATY-MAKING PROCESS 3.1 NEGOTIATIONS The Department of Foreign Affairs, Trade and Development Act states that the Minister of Foreign Affairs is responsible for negotiating international treaties on Canada’s behalf.10 In practice, however, Global Affairs 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 and Climate Change 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.

While multilateral treaty negotiations may be transparent and open to civil society input, bilateral and plurilateral11 treaty negotiations are often conducted behind closed doors.
Little may be revealed of the contents of treaties until the parties have reached an agreement in principle on content or wording.12 Nevertheless, civil society and Parliament can ensure that their perspectives are heard during the negotiating process by issuing reports with specific recommendations.13 3.2 SIGNATURE 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.14 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.15 It is important to recognize that signature of an international treaty is not the last step in the treaty-making process; it only signifies 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.16 3.3 RATIFICATION AND IMPLEMENTATION 3.3.1 RATIFICATION Once Canada is ready to be bound by an international treaty it has signed, 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.17 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).18 The ratification process is thus wholly controlled by the LIBRARY OF PARLIAMENT 2 PUBLICATION NO.
2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS executive branch, although Parliament has had an ad hoc involvement in that process over the past 90 years.
For example, between 1926 and 1966 only treaties of sufficient importance were submitted by the executive to Parliament for approval prior to ratification.19 Examples of the executive branch tabling treaties in Parliament following ratification were also relatively common until 1999.20 In January 2008, the federal government announced a new policy21 to enhance parliamentary involvement in the process by tabling all treaties between Canada and other states or entities 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 branch may take action to bring the treaty into effect through ratification at the international level or via preliminary domestic measures, such as introducing legislation.

The House of Commons has the power to debate the treaty and to pass a motion recommending action, including ratification; however, such a vote has no legal force.
Tabling treaties in 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 branch 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.22 3.3.2 IMPLEMENTATION 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 (U.S.), 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 branch 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.23 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 minister concerned gives 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 treaty itself may be included as a schedule to the bill in some cases;24 however, neither the treaty itself nor its principle or scope can be amended during the legislative process.25 LIBRARY OF PARLIAMENT 3 PUBLICATION NO.

2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS Furthermore, 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.”26 In addition to (or in lieu of) stand-alone implementing legislation, previously existing legislation may need to be amended.
For example, trade treaties are generally implemented through amendments to the Customs Tariff.27 Examples of federal stand-alone legislation implementing an international treaty include the following: • • • • the Crimes Against Humanity and War Crimes Act,28 implementing the Rome Statute of the International Criminal Court; the Geneva Conventions Act, implementing the Geneva Conventions for the Protection of War Victims; the North American Free Trade Agreement Implementation Act, implementing the North American Free Trade Agreement (NAFTA); and the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act,29 implementing the agreement of the same name.
Although it is rare for an implementing bill 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,30 thereby triggering an election.

A similar bill was passed shortly afterwards by a new Parliament.
Nevertheless, Canada has traditionally considered that many treaties and agreements, 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 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 reservation31 or statement of understanding to the treaty to clarify Canada’s position on certain issues.
Where provincial or territorial legislation is implicated, as a matter of policy, the executive branch does not ratify the treaty until all Canadian jurisdictions have indicated that they support ratification.32 3.4 COMING INTO FORCE Although Canada may have signed and ratified a treaty, this does not necessarily mean that the 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 LIBRARY OF PARLIAMENT 4 PUBLICATION NO.

2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS the ratification instruments are exchanged or tabled.

Sometimes, the treaty will establish a deadline for ratification.
For example, 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 Sea33 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 covered comprehensively in a few paragraphs.

Ultimately, there are multiple forms of international treaties, multiple levels of enforceability and multiple mechanisms for enforcement.
Various bodies may be involved in the enforcement of international treaties and conventions at the international and regional levels.

For example, trade treaties may be subject to enforcement through the World Trade Organization,34 which has various levels of tribunals to ensure compliance with its trade rules.

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 (UN) treaty bodies.35 The concluding observations36 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,37 which has the power to sentence individuals to imprisonment.
The International Court of Justice38 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.

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2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 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 39 requires that orders in council implementing 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 compliance with its international treaty obligations.40 Even without such provisions, parliamentary committees have a monitoring role to play, and can choose to study and make recommendations with respect to 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 is evolving in a manner that encourages the creation of monitoring and accountability mechanisms under national law.41 While no body with a formal mandate to monitor compliance with international treaty obligations has been established in Canada to date, a number of institutions, such as the Canadian Human Rights Commission, do play an important role in holding the government to account.42 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 increasingly 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.43 Cases such as Baker v. Canada (Minister of Citizenship and Immigration)44 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 LIBRARY OF PARLIAMENT 6 PUBLICATION NO.
2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 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.45 4.3 COOPERATION 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 powers 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.46 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,47 the British Judicial Committee of 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 implementing international treaties in Canada.48 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 Arieh Hollis Waldman v. Canada.49 In this case, a UN treaty body criticized Ontario’s funding of a separate Catholic school system, dealing with the federal government for this violation of the equality provision of the International Covenant on Civil and Political Rights50 – even though this preferential treatment is entrenched in section 93 of the Constitution Act, 1867.51 Another more recent example involves NAFTA and the federal government’s obligation to pay compensation to AbitibiBowater, a forest products company, due to actions taken by the Government of Newfoundland and Labrador.52 In order to limit Canada’s liability where a treaty concerns an area of provincial legislative jurisdiction, Canada may negotiate with other states to include a “federal state clause” in the treaty itself.
To varying degrees, depending on the purpose of LIBRARY OF PARLIAMENT 7 PUBLICATION NO.

2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 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.
Treaties that include this clause allow the government to consent to be bound by only those international obligations that come within federal jurisdiction, and to make best efforts to get provincial compliance.
Alternatively, such clauses can be used for the government to declare that the treaty only applies to those provinces that have accepted it.53 By contrast, some provinces have implemented legislation specifically intended to give some international treaties effect in provincial law.54 5 CONCLUSION The way in which Canada negotiates, signs, ratifies and implements international treaties is a constantly evolving process.
Very little authority is explicitly set 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 a 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.

NOTES 1.

2.

3.

4.


Since 1982, the British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.), passed by the British Parliament, has been entitled the Constitution Act, 1867.

Prior to the early 1990s, Canada traditionally used the term “external affairs” in reference to its foreign affairs.
Out of respect for the British Crown, which, within the Empire, reserved the use of the term “foreign affairs” for itself, Canada refrained from using the term “foreign” or its French-language translation (“étranger/étrangère”).

See Peter W. Hogg, Constitutional Law in Canada, Carswell, Toronto, 1992, pp.
290–291; and J.-C. Bonenfant, “Le développement du statut international du Canada,” in Paul Painchaud, ed., Le Canada et le Québec sur la scène internationale, Centre québécois de relations internationales, Québec, 1977, p. 43, note 25.

For more information on the development of Canada’s international personality, see Bonenfant (1977), pp.

31–49.

See also René Morin, Le Canada et les traités : notes sur le développement constitutionnel du Canada, Syndicat des imprimeurs du Saguenay, Chicoutimi, 1926.
The Balfour Declaration was the result of the 1926 Imperial Conference of British Empire leaders in London, which essentially recognized that the United Kingdom and the Dominions are autonomous, equal communities within the British Empire.

The Declaration stated that the nations were united by a common allegiance to the Crown and were members of the British Commonwealth.

See Imperial Conference 1926: Inter-Imperial Relations Committee – Report, Proceedings and Memoranda, p. 3.

5.
5.

United Kingdom, Statute of Westminster, 1931, 22 Geo.

5, Ch.

4.

LIBRARY OF PARLIAMENT 8 PUBLICATION NO.

2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 6.

7.

8.

9. Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada, in Canada Gazette, Vol.

LXXXI, No.

12, 1 October 1947.

John H. Currie, Public International Law, 2nd ed., Irwin Law, Toronto, 2008, pp.
239–240; and Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making,” International & Comparative Law Quarterly, Vol.

55, No.

1, January 2006, pp.

136–137.

Anne-Marie Jacomy-Millette, L’introduction et l’application des traités internationaux au Canada, Librairie générale de droit et de jurisprudence, Paris, 1971, p. 102; A.E.
Gotlieb, Canadian Treaty-Making, Butterworths, Toronto, 1968, p. 4; and Peter W. Hogg, Constitutional Law of Canada, 3rd ed., Looseleaf, Carswell, Toronto, 1997, ch.

11.

Capital Cities Comm.

v.

C.R.T.C., [1978] 2 SCR 141; Canada (Attorney General) / Ontario (Attorney General), 1937 CanLII 362 (UK JCPC), [1937] AC 326, [1937] 1 DLR 673 [“Labour Conventions case”]; Harrington (2006), p. 125; and Laura Barnett and Sebastian Spano, Parliamentary Involvement in Foreign Policy, Publication no.
2008-60-E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 28 August 2013.

10.

Department of Foreign Affairs, Trade and Development Act, S.C. 2013, c. 33, s. 174, section 10(2)(c).

11.

12.

Plurilateral treaties are those signed between more than two states (such as NAFTA), whereas a multilateral treaty involves a great number of states.

For further information, see Global Affairs Canada, “4.
Negotiating a Treaty,” Policy on Tabling of Treaties in Parliament: Annex A – The Treaty-Making Process.

13.

For example, see House of Commons, Standing Committee on International Trade [CIIT] Human Rights, the Environment and Free Trade with Colombia, Fifth Report, 2nd Session, 39th Parliament, June 2008; and CIIT, Canada-Europe Comprehensive and Economic Trade Agreement, Second Report, 2nd Session, 41st Parliament, June 2014.

14.

Global Affairs Canada, “5.


Signature,” Policy on Tabling of Treaties in Parliament: Annex A – The Treaty-Making Process.

15.

The importance of a treaty directly affects who is authorized to sign it.

Although the treaty may be signed by an official who has received authorization, this is usually the duty of a minister.

The most important treaties are signed personally by the Prime Minister.
Only the Governor General, the Prime Minister and the Minister of Foreign Affairs have the power to sign a treaty without an Instrument of Full Powers.

16.

Currie (2008), p. 589; and United Nations [UN], Vienna Convention on the Law of Treaties, 1969, art.

18.

17.

18.

19.

Accession is essentially the same as ratification.

The main difference is that accession does not require prior signature of the treaty; instead, accession is a one-step process.
Canada generally accedes to treaties that are already in force rather than undertaking the two-step ratification process.

For more information, see Global Affairs Canada, “8.

Ratification,” Policy on Tabling of Treaties in Parliament: Annex A – The Treaty-Making Process.

See Gotlieb (1968), pp.

15–17; Jacomy-Millette (1971), pp.

118–128; and Harrington (2006), p. 137.
Important treaties included peace treaties; defence treaties (including those imposing military sanctions); treaties on the imposition of economic sanctions; treaties on Canada’s territorial jurisdiction (land and maritime frontiers, air space and near-Earth space); trade treaties; treaties resulting in public expenditures (economic and technical aid programs, food aid programs, developing country loan programs); and treaties pertaining to international organizations.
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2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS 20.

See Harrington (2006), pp.

140–141; and Gotlieb (1968), pp.

15–17.

21.

Government of Canada, “Canada Announces Policy to Table International Treaties in House of Commons,” News release, 25 January 2008.

22.
22.

For more information on the application of the 2008 policy, including the use of exemptions, see Charlie Feldman, “Parliamentary Practice and Treaties,” Journal of Parliamentary and Political Law, Vol.

9, No.

3, December 2015, pp.

585–619; Silvina Lilian Danesi, “Tabling and waiting: a preliminary assessment of Canada’s treaty-tabling policy,” Canadian Foreign Policy Journal, Vol.

20, No.

2, 2014, pp.


189–208; and Ted L. McDorman, “The Tabling of International Treaties in the Parliament of Canada: The First Four Years,” Dalhousie Law Journal, Vol.

35, No.

2, 2012, pp.

358–381.

23.

See Capital Cities Comm.

v.

C.R.T.C.

; “Labour Conventions case”; and Harrington (2006), p. 125.

24.
24.

See, for example, the schedules to the following Acts: Civil International Space Station Agreement Implementation Act, S.C. 1999, c. 35; the Anti-Personnel Mines Convention Implementation Act, S.C. 1997, c. 33; and the Bretton Woods and Related Agreements Act, R.S.C., 1985, c. B-7.

25.
25.

Marc Bosc and André Gagnon, eds., “Chapter 16: The Legislative Process –Structure of Bills” and “Chapter 16: The Legislative Process – Stages in the Legislative Process” in House of Commons Procedure and Practice, Third Edition, 2017; and Feldman (2015), p. 599.

26.

See, for example, the North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, s. 10; and the Geneva Conventions Act, R.S.C.

1985, c. G-3, s. 2.

27.

Customs Tariff, S.C. 1997, c. 36.

28.


Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24.

29.

Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, S.C. 2017, c. 6.

30.

31.

Bill C-130, Canada–United States Free Trade Agreement Implementation Act, 2nd Session, 33rd Parliament.
The Vienna Convention on the Law of Treaties sets out a definition of a “reservation” in Article 2(1)(d): “‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” See also the definition of “reservation” in Office of the United Nations High Commissioner for Human Rights [OHCHR], Human Rights Treaty Bodies: Glossary of technical terms related to the treaty bodies: A reservation is a statement, however phrased or named, made by a State by which it purports to exclude or alter the legal effect of certain provisions of a treaty in their application to that State.
A reservation may enable a State to participate in a multilateral treaty in which it would otherwise be unable or unwilling to do so.

States can make reservations to a treaty when they sign, ratify, accept, approve or accede to it.

When a State makes a reservation upon signing, it must confirm the reservation upon ratification, acceptance or approval.

Reservations are governed by the Vienna Convention on the Law of Treaties, and cannot be contrary to the object and purpose of the treaty.
Consequently, when signing, ratifying, accepting, approving or acceding to a treaty, States may make a reservation unless (a) the reservation is prohibited by the treaty; or (b) the treaty provides that only certain reservations may be made and these do not include the reservation in LIBRARY OF PARLIAMENT 10 PUBLICATION NO.

2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS question.

Other State parties may lodge objections to a State party’s reservations.
Reservations may be withdrawn completely or partially by the State party at any time.

32.

Senate, Standing Committee on Human Rights [RIDR], Children: The Silenced Citizens – Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, Final Report, April 2007, pp.

9–15.

For example, Canada was unable to ratify International Labour Organization’s [ILO] Minimum Age Convention, 1973 (No.
138), as Canada’s Constitution gives each province jurisdiction over labour issues, and some provinces were unwilling to raise the minimum age in accordance with that specified in the Convention.

See ILO, NORMLEX, Convention concerning Minimum Age for Admission to Employment, 26 June 1973 (entered into force 19 June 1976).

Canada finally ratified the Convention in June 2016 with a minimum age of 16 specified.

33.
33.

UN, United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 16 November 1994), art.

308.

34.

For more information, see World Trade Organization, Dispute Settlement.

35.

For more information, see OHCHR, Human Rights Bodies.

36.

37.

“Concluding observations” are the observations and recommendations issued by a UN treaty body after consideration of a state party’s report.
They refer both to positive aspects of a state’s implementation of the treaty and to areas where the treaty body recommends that further action needs to be taken by the state.

See OHCHR, Human Rights Treaty Bodies: Glossary of technical terms related to the treaty bodies.

For more information, see International Criminal Court; and Laura Barnett, The International Criminal Court: History and Role, Publication no.
2002-11-E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 28 June 2013.

38. International Court of Justice, The Court.

39.

Old Age Security Act, R.S.C.

1985, c. O-9, s. 42.

40.

Harrington (2006), p. 140.

41.

For example, see UN, Department of Economic and Social Affairs, Convention on the Rights of Persons with Disabilities, 13 December 2006 (entered into force 3 May 2008), art.

33.

42.
33.

42.

For a discussion of the role of the Canadian Human Rights Commission as a national human rights institution and the Commission’s call for enhanced accountability with respect to the implementation of international human rights commitments, see Canadian Human Rights Commission, Submission to the United Nations Human Rights Council on the Occasion of its Review of Canada During the 3rd Cycle of the Universal Periodic Review, October 2017.

43.

See, for example, R. v. Hape, 2007 SCC 26, para.

39.
39.

44.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

45.

Ibid., para.

70.

46.

For example, federally negotiated trade agreements often entail a risk of financial liability stemming from provincial government actions.

Provincial and territorial governments are regularly consulted during trade negotiations.
An information-sharing forum called C-Trade also serves as a vehicle for consultation between the federal, provincial and territorial governments and other stakeholders.

For further discussion, see Patrick Fafard and Patrick Leblond, Twenty-First Century Trade Agreements: Challenges for Canadian Federalism, The Federal Idea, September 2012; and Christopher J. Kukucha, The Provinces and Canadian Foreign Trade Policy, UBC Press, 2008, pp.

53–58.

LIBRARY OF PARLIAMENT 11 PUBLICATION NO.


2008-45-E CANADA’S APPROACH TO THE TREATY-MAKING PROCESS Human rights also fall under both federal and provincial jurisdiction.

A Continuing Committee of Officials on Human Rights has been established within the Department of Canadian Heritage as a means of facilitating consultation among federal, provincial and territorial counterparts in the lead-up to the signature and ratification of an international human rights treaty.
See Government of Canada, “The Continuing Committee of Officials on Human Rights,” About human rights.

For further discussion, see RIDR (2007), p. 17.

47.

See note 9.

In this case, the Government of Canada had approved three international conventions on labour relations and Parliament had passed statutes in order to implement the conventions in Canada.

This legislation was disputed by, among others, some provinces that saw this as an intrusion into their areas of legislative jurisdiction.
The British Privy Council ruled that Parliament could not pass such statutes, even to implement Canada’s international obligations, because the labour relations field was the exclusive jurisdiction of the provinces.

48.

Article 26 states: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article 27 provides that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” 49.
UN, Human Rights Committee, Arieh Hollis Waldman v. Canada, Communication No.

694/1996, CCPR/C/67/D/694/1996, 67th Session, 18 October to 5 November 1999.

50.

OHCHR, International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976).

51.

See Adler v. Ontario, [1996] 3 SCR 609.

52.

Global Affairs Canada, “AbitibiBowater Inc. v. Government of Canada,” NAFTA - Chapter 11 - Investment; and Fafard and Leblond (2012), p. 6.

53.
53.

Currie (2008), p. 244; and “The Federal State Clause,” Chapter 2 in Académie de droit international, Recueil des cours: collected courses of the Hague Academy of International Law, Vol.

249, 1994, Martinus Nijhoff Publishers, The Hague, 1996, p. 71.

54.

See, for example, An Act Respecting the Implementation of International Trade Agreements, c. M-35.2 [Québec]; and International Conventions Implementation Act, R.S.A.

2000, c. I-6 [Alberta].

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