Treaty-Making Power

Treaty-Making Power

Treaty-Making Power describes any and all types of international agreements governed by international law which are concluded between and among states and international organizations. Terms such as "convention," "protocol" and "declaration" are sometimes used to describe such agreements. Treaties may be either bilateral, ie, between 2 parties, or multilateral, ie, between more than 2 parties. Informal agreements or understandings between states that are not intended to create legal obligations are not regarded as treaties. Most treaties that have entered into force for Canada are published in the Canada Treaty Series and the UN Treaty Series. Only states and international organizations possessing an international personality, such as the UNITED NATIONS, have the capacity to conclude treaties. Before Canada became an independent sovereign state, a process that occurred over a number of years, Canada's EXTERNAL RELATIONS were controlled by Britain, which negotiated, signed and ratified treaties on behalf of the British Empire, which included Canada. The first multilateral treaty to be signed by Canada in its own right was the Treaty of VERSAILLES (1919). The first bilateral treaty negotiated and signed by Canada was the Halibut Fisheries Convention of 1923 with the US (see HALIBUT TREATY). In Canada treaty-making power remains part of the royal prerogative, the residue of authority left in the CROWN. The delegation of the prerogative powers to Canada was an evolutionary process completed with the issuance of the Letters Patent of 1947, by which the governor general was authorized to exercise all the powers of the sovereign in respect of Canada. In practice the treaty-making power is exercised on the basis of policy approval from Cabinet or the ministers most directly concerned, coupled with an executive authority in the form of an ORDER-IN-COUNCIL issued by the governor-in-council. The secretary of state for external affairs, as the minister responsible for foreign relations, advises and recommends on treaty action to be taken by Canada.

Canada is bound by the terms of treaties that it enters into and breach thereof may give rise to international claims. However, in Canada treaties are not self-executing; they do not constitute part of the law of the land merely by virtue of their conclusion. If domestic law must be changed in order to carry out treaty obligations, implementing legislation is required. It follows that if the existing laws of Canada do not give the Government of Canada the capacity to discharge treaty obligations, then it will be necessary for the appropriate legislative body, federal or provincial, or a combination of both, to enact implementing legislation. This is the effect of the Labour Conventions Case of 1937.

Although competent to conclude treaties, the federal government can only enact legislation in relation to those treaties whose subject matter falls within the federal field of competence. If the treaty concerns matters within provincial legislative competence, the provincial legislatures must adopt the necessary implementing legislation. As a general practice, the federal government carries out prior consultation with those provinces that may be called upon to implement a treaty. The modern form of the federal state clause enables Canada to become a party to international conventions, such as the 1980 Hague Convention on International Child Abduction, and to designate the provinces to which the convention applies; in practice this means the provinces that have adopted the required implementing legislation. The wording of the clause enables Canada to file subsequent declarations extending the application of the convention to other provinces as soon as they pass implementing legislation.

A general rule of international law is that only a central government can bind a state in a treaty. Thus the Canadian government alone can bind Canada internationally, but its legislative limitations restrict its implementation powers. On the other hand, the provinces cannot bind Canada internationally even in those subject matters in which they enjoy legislative competence. In recent years the provinces have entered into a variety of arrangements or understandings with foreign governments that are not considered binding in international law. For example, Ontario and Québec have signed a number of educational and cultural arrangements with foreign governments.

In spite of what is regarded by some as an unsatisfactory system of treaty making and treaty implementation, Canada is among the most active treaty-making nations in the world. Much of the INTERNATIONAL LAW governing treaties is incorporated in the Vienna Convention on the Law of Treaties to which Canada acceded in 1970.