Redressing the Democratic Deficit in Treaty
Law Making: (Re-)Establishing a Role
for Parliament
Joanna Harrington*
Treaties are a significant source of law on a wide
range of subjects, but traditionally do not become domestic
law without national implementation. Nevertheless, the
legal character of treaty rules does place pressure on a
states domestic institutions to ensure compliance. Given
the influence of treaty law, several Commonwealth states
provide a role for Parliament in treaty making even though
at common law, the decision to make a treaty clearly rests
with a governments executive branch. Such reforms to the
treaty-making process attempt to address complaints that a
democratic deficit exists, including an additional federal
democratic deficit in federal states arising from the
absence of a requirement for consultation between the
central and regional bodies. A review of the experiences in
Canada, the United Kingdom, and Australia leads to
several suggested reforms to secure greater legislative
scrutiny, enhance public awareness, and
improve
democratic accountability in the field of treaty making.
Les traits sont une importante source de droit dans
bien des domaines, mais ne sintgrent traditionnellement
pas au systme juridique intrieur sans une mise en uvre
nationale. Quoi quil en soit, le caractre juridique des
rgles issues dun trait exerce une certaine pression sur les
institutions nationales afin den assurer le respect. tant
donn linfluence du droit des traits, plusieurs tats du
Commonwealth accordent au Parlement un rle dans
llaboration des traits, mme si daprs le droit commun,
la dcision de rdiger un trait appartient clairement
lexcutif du gouvernement. De
telles rformes du
processus dlaboration des traits tentent de rpondre aux
critiques
il existe un dficit
dmocratique, en plus dun dficit dmocratique fdral
dans des tats fdraux, issu de labsence dune obligation
de consultation entre ltat central et les gouvernements
locaux. Cette revue de lexprience en cette matire au
Canada, au Royaume-Uni et en Australie conduit lauteure
suggrer plusieurs rformes afin dassurer un droit de
regard plus tendu aux pouvoirs lgislatifs, de conscientiser
davantage le public et de dvelopper une responsabilit
dmocratique en ce qui concerne llaboration des traits.
lesquelles
suivant
* Associate Professor, Faculty of Law, University of Alberta, and former Visiting Fellow, Gilbert +
Tobin Centre of Public Law, Faculty of Law, University of New South Wales. Many thanks are due to
the following who kindly agreed to be interviewed for this project: Professor Peter Bailey, AM, OBE
(Australian National University); Julie Bishop, MP, Gillian Gould, Julia Morris, and Glenn
Worthington (Australian Joint Standing Committee on Treaties); Alan Bracegirdle (Legislative
Counsel, Office of the Clerk of the New Zealand House of Representatives); Steve Cutting and David
Sanders (New Zealand Foreign Affairs, Defence and Trade Committee); Sir Kenneth Keith (New
Zealand Supreme Court); Professor David Kinley (Monash University); and Anne Twomey (New
South Wales Cabinet Office). I am also grateful to the University of Western Ontario for funding
research undertaken in Australia and New Zealand in 2003, and to the Gilbert + Tobin Centre of
Public Law and the Centre for International and Public Law for the opportunity to present part of this
paper at an expert workshop on International Challenges to National Legal Systems in Canberra in
2004. Thanks are also due to my student research assistants, Andrea Gonsalves, Nevinne Hassan, and
John Morris, to Reference Librarian Marianne Welch, and to my colleagues in Canada and Australia,
Barb Billingsley, Russ Brown, Grant Huscroft, John Law, and George Williams, for comments on an
earlier draft. I am also indebted to Lord Lester of Herne Hill, QC, who introduced me to the topic of
parliamentary treaty scrutiny while serving as his legal officer from January 1998 to June 1999.
Joanna Harrington 2005
To be cited as: (2005) 50 McGill L.J. 465
Mode de rfrence : (2005) 50 R.D. McGill 465
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Introduction
467
470
474
482
485
491
497
508
I. Treaties and Treaty Making in Commonwealth States
II. Treaty Making and the Parliament of Canada
III. Treaty Implementation and the Parliament of Canada
IV. The British Model for Involving Parliament in the
Treaty-Making Process
V. The Australian Contribution to an Improved Treaty-
Making Process
VI. Federal Innovations in Commonwealth Treaty Making
Conclusion and Recommendations
2005]
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
467
Introduction
In todays interdependent world, treaties are a significant source of law.1 Through
hundreds of agreements reached between states after months of negotiations down
government corridors and through diplomatic channels, new legal rules on subjects as
diverse as defence, criminal law, trade and investment, the environment, and human
rights are adopted that will in many cases generate new domestic law and policy. This
is certainly true for Canada, which is a party to some three thousand treaties, each of
which contains various obligations.2 Once ratified, these treaty obligations are binding
on Canada under international law, and while it has become trite to state that treaty
rules do not become domestic law without the passage of domestic legislation, it is
clear that a treatys legal character puts pressure on a states domestic institutions to
take steps to ensure compliance. After all, there are consequences if Canada breaks its
word with its treaty partners. This pressure also extends to the courts, which assist
with treaty compliance through the long-standing interpretive presumption of
conformity with international law and more recently, through the judicial modification
of the common law doctrine of legitimate expectation,3 new rules on statutory
interpretation,4 and new uses for the values of an unimplemented treaty.5
1 The UNs treaty collection contains over 50,000 treaties, many of which remain in force. See the
website of the UN Treaty Database, online:
2 See Maurice Copithorne, Canada in Monroe Leigh, Merritt R. Blakeslee & L. Benjamin
Ederington, eds., National Treaty Law and Practice: Canada, Egypt, Israel, Mexico, Russia, South
Africa (Washington D.C.: American Society of International Law, 2003) 1 at 13. Canadas treaty
collection is now available on the Canada Treaty Information website, online:
3 See Minister of State for Immigration and Ethnic Affairs v. Teoh (1995), 183 C.L.R. 273 (H.C.A.)
[Teoh] and the resulting criticism in Michael Taggart, Legitimate Expectation and Treaties in the
High Court of Australia (1996) 112 Law Q. Rev. 50. See also Margaret Allars, One Small Step for
Legal Doctrine, One Giant Leap Towards Integrity in Government: Teohs Case and the
Internationalisation of Administrative Law (1995) 17 Sydney L. Rev. 204. But see Wendy Lacey, In
the Wake of Teoh: Finding an Appropriate Government Response (2001) 29 Fed. L. Rev. 219
[Lacey, In the Wake of Teoh]; Wendy Lacey, Prelude to the Demise of Teoh: The High Court
Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2004) 26 Sydney
L. Rev. 131.
4 See Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (N.Z.C.A.), where dicta suggested
that ratified but unincorporated treaty obligations are mandatory relevant considerations. Subsequent
cases, however, suggest a less enthusiastic approach: see Puliuvea v. Removal Review Authority
(1996), 2 H.R.N.Z. 510 (C.A.). See also Claudia Geiringer, Tavita and All That: Confronting the
Confusion surrounding Unincorporated Treaties and Administrative Law (2004) 21 N.Z.U.L. Rev.
66.
5 See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193 [Baker cited to S.C.R.]. See also Jutta Brunne & Stephen J. Toope, A Hesitant Embrace:
Baker and the Application of International Law by Canadian Courts in David Dyzenhaus, ed., The
Unity of Public Law (Oxford: Hart Publishing, 2004) 357.
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Nevertheless, in Commonwealth states, the decision to make a treaty clearly rests
at common law with the executive branch of the government that represents the state
abroad. The common law imposes no legal obligation on the executive to secure the
consent or approval of Parliament prior to treaty ratification, despite the fact that
Parliament is the ultimate law-making authority in a Westminster-style democracy.
There may, of course, be practical or political reasons that compel an executive to
seek parliamentary approval for treaty actions prior to ratification, but the lack of a
legal requirement for such consultation supports complaints that a democratic
deficit exists in the treaty-making process given the executives ability to engage the
nation in legal commitments without involving the institution responsible for making
law. Moreover, law making by treaty, unlike law making by Parliament, is
untrammelled by the principle of parliamentary sovereignty, which ensures that one
parliament cannot bind another, and some treaties, by their very nature, admit of no
right of withdrawal, and as such, are permanent law made by the executive.6
An additional deficit can be found in federal Commonwealth states, such as
Australia and Canada, and quasi-federal states such as the United Kingdom since
1998, where there is also no legal requirement for the executive branch of the central
government to involve the elected regional assemblies, or their executive bodies, in
the treaty-making process. This is so even when the subject matter of the treaty falls
within the legislative competence of the regional bodya position not without
controversy, as evidenced by the provincial opposition to Canadas ratification of the
Kyoto Protocol.7 Despite the fact that many of the emissions at which this treaty is
aimed are caused by energy-related processes that fall within the regulatory
jurisdiction of the provinces,8 the ratification took place without prior provincial
agreement,9 and in the face of a united call for a first ministers conference to take
6 The International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171,
Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May
1976), for example, contains no provision on termination, nor can a right to withdraw be implied
given that the treatys purpose is to codify universal rights.
7 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December
1997, UN Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 (entered into force 16 February 2005)
[Kyoto Protocol]. Canada ratified the Kyoto Protocol on 17 December 2002, after a motion calling on
the government to ratify the treaty was passed by the federal parliament by a vote of 196 to 77: House
of Commons Debates (10 December 2002) at 2524-25. Parliament did not, however, examine the text
of the Kyoto Protocol prior to adopting the call to ratify. Some have argued that a constitutional
convention was breached in ratifying the Kyoto Protocol without provincial support: Allan Gotlieb &
Eli Lederman Ignoring the provinces is not Canadas way National Post (3 January 2003) A14.
8 Examples include mining, energy production and use, manufacturing, and most aspects of natural
resources.
9 Canada has now reached Memoranda of Understanding for Cooperation on Addressing Climate
Change with four of the ten provinces (Prince Edward Island, Manitoba, Ontario, and
Newfoundland and Labrador) and one of the three territories (Nunavut). The texts of these
memoranda are available online: Climate Change, Government of Canada
opposed to the Kyoto Protocol and has proposed its own climate change strategy: Albertans &
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
2005]
place before a decision was made to ratify.10 While some have argued that
greenhouse gas emissions are a discrete subject matter suitable for unilateral federal
jurisdiction as a matter of national concern under Canadas peace, order and good
government clause,11 federal-provincial co-operation remains the more practical
route for achieving the treatys implementation. Thus, the legal ability of the central
government to go-it-alone with respect to the Protocols ratification, albeit with the
support of environmentalists,12 illustrates a federal democratic deficit in the treaty-
making process.
469
In some Commonwealth jurisdictions, these concerns about the democratic
credentials of the treaty-making process have motivated various reforms, including
the adoption in Australia of a dedicated committee procedure to ensure the
parliamentary scrutiny, at least at the federal level, of all treaty actions after signature
but before ratification. Britain has also modified its process by requiring the tabling of
both treaties and explanatory memoranda in Parliament in order to draw the attention
of parliamentary committees to the opportunity to scrutinize. In Canada, however, no
such dedicated committee process exists and while treaties may be subject to scrutiny
on an ad hoc basis, such as through the House of Commons Standing Committee on
Foreign Affairs and International Trade,13 there is little required parliamentary
involvement,14 let alone provincial parliamentary involvement, in the Canadian treaty-
Climate Change: A Strategy for Managing Environmental & Economic Risks (Government of
Alberta, 2002), online: Government of Alberta
Albertas Proposals (2004) 42 Alta. L. Rev. 355.
10 See Steven Chase, Chrtien refuses to delay ratifying Kyoto Globe and Mail (30 October
2002) A1. See also Jack Stilborn, The Kyoto Protocol: Intergovernmental Issues (Ottawa: Library of
Parliament, 2002).
11 Donald M. McRae & John H. Currie, Treaty-Making and Treaty Implementation: The Kyoto
Protocol (2003) 29:2 CCIL Bulletin, online: Canadian Council on International Law
Protocol: Can Parliament Implement Emissions Trading Without Provincial Co-operation (2002) 40
Alta. L. Rev. 417; Mollie Dunsmuir, The Kyoto Protocol: Overview of Federal Legal Mechanisms for
Implementation (Ottawa: Library of Parliament, 2002) at 10-11; Elisabeth DeMarco, Robert Routliffe
& Heather Landymore, Canadian Challenges in Implementing the Kyoto Protocol: A Cause for
Harmonization (2004) 42 Alta. L. Rev. 209.
12 Retiring Prime Minister Jean Chrtien was awarded the Sierra Club of Canadas highest honour
for pursuing the ratification of the Kyoto Protocol: Sierra Club, Press Release, PM Receives John
Fraser Award for Environmental Achievement (12 December 2002), online: Sierra Club of Canada
13 This is usually done, however, in relation to the passage of legislation to implement a treaty to
which Canada has already agreed to become bound, rather than for the specific purpose of reviewing
a proposed treaty action prior to any commitment to ratify having been made. Treaty scrutiny must
also compete with the many other items on the committees (and its members) agenda.
14 Social security treaties brought into force by regulation may be the one exception. Section 42 of
the Old Age Security Act, R.S.C. 1985, c. O-9, requires such regulations to be laid before Parliament
and enables Parliament, if it so desires, to prevent the treaty from coming into force through a
negative resolution procedure.
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making process. There is also no mechanism in place to ensure that all treaties
affecting provincial and territorial interests are subject to consultation at the
intergovernmental level, although certain kinds of treaties, such as those in the fields
of private international law and environmental law, have benefited in the past from
some pre-ratification consultation among federal, provincial, and territorial ministers
and government officials.15 The newly formed Council of the Federation has
identified the need to develop better means for the involvement of provincial and
territorial governments in international negotiations and agreements that affect their
responsibilities as a future task.16
And yet, if one looks back at the Westminster model for treaty making, as it
developed in the Mother of Parliaments, it is evident that a desire to provide for an
enhanced parliamentary role is long-standing. A review of the historical record shows
that this desire originated with the efforts of British anti-war MPs in the late 1910s,
who sought to secure greater parliamentary control over foreign affairs following the
human cost of World War I. The purpose of this article is to acknowledge this history,
as well as the more recent reforms that have taken place to address the democratic
deficit in treaty law making, through a re-examination of the pre-ratification roles of
the executive and legislature in the making of treaties. The chosen states of focus are
Canada, the UK, and Australia,17 and the goal is to recommend several reforms to
enhance the pre-ratification role of parliaments, both federal and provincial, in
Canadian treaty making.
I. Treaties and Treaty Making in Commonwealth States
It is sensible to begin with a general overview of the law on treaties and treaty
making in Commonwealth states. Simply put, a treaty is like a contract. It is an
express agreement between states, between states and international organizations, or
between international organizations, that creates legally binding rights and obligations
for its parties and is governed by international law on such matters as its validity,
application, interpretation, and enforceability. Many names are given to treaties,
including Convention, Charter, Covenant, Protocol, Pact, Act, Statute,
15 See Rosemary Rayfuse, Treaty Practice: The Canadian Perspective in Philip Alston & Madelaine
Chiam, eds., Treaty-Making and Australia: Globalisation versus Sovereignty? (Sydney: Federation
Press, 1995) 253. For the pre-ratification consultation that takes place in relation to human rights
treaties, see Irit Weiser, Undressing the Window: Treating International Human Rights Law
Meaningfully in the Canadian Commonwealth System (2004) 37 U.B.C. L. Rev. 113 at 126-27.
16 The Council of the Federation is a new institution, comprising all thirteen of Canadas premiers
and territorial leaders, but not the government of Canada. It was established in December 2003 at a
premiers meeting in Charlottetown. Further details are available on the Council of the Federations
website, online:
17 For the practice in other states, see Stefan A. Riesenfeld & Frederick M. Abbott, eds.,
Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study
(Dordrecht: Martinus Nijhoff, 1994). See also the results of a Symposium on Parliamentary
Participation in the Making and Operation of Treaties published in (1991) 67:2 Chicago-Kent L. Rev.
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
2005]
and Agreement. But whatever the name given, all are treaties if they reflect the will
of the parties to be bound by their terms under international law.18 A treaty can be
made on any subject matter, including crime, trade promotion, human rights, national
security, and environmental protection, and can involve as few as two, or as many as
all states in the world. Treaties can also be used to create normative regimes to govern
the future conduct of states, and are the principal method by which states can
formalize and realize their foreign policy objectives.
471
Treaties are also an important source of the rules of international law, especially
those treaties that are drafted with an intention to codify or further develop
substantive areas of the law, including the very rules governing such agreements.19
Treaties are in essence a form of substitute legislation20 undertaken by states that,
while similar to contracts, have a nature of their own that reflects the character of the
international system.21 By binding states to each other, treaties constitute a significant
component of the international legal order and the faithful observance of treaty
obligations is considered vital to securing international co-operation. International law
supports this role for treaties by the rule expressed in the Latin maxim pacta sunt
servanda, and now codified in article 26 of the Vienna Convention on the Law of
Treaties,22 that every treaty in force is binding upon the parties to it and must be
performed by them in good faitha rule that has been described as perhaps the most
important principle of international law.23
As for the making of treaties at the international level, the methods used can be as
varied as the parties desire, ranging from the simple exchange of diplomatic notes to
the convening of a formal international conference of government ministers and
diplomats. International law leaves the procedures by which a treaty is negotiated to
the will of the state parties, although there is typically little or no opportunity for
parliamentary or public input at such a level.24 However, once the terms of a treaty are
18 See Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press,
2000) at 19-24, 333; Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheims International Law,
9th ed. (London: Longman, 1992) at 1208 [Oppenheim]; Malcolm N. Shaw, International Law, 5th
ed. (Cambridge: Cambridge University Press, 2003) at 88.
19 These rules are found in the Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980) [Treaties Convention]. For the law
applicable to agreements with international organizations, see the Vienna Convention on the Law of
Treaties Between States and International Organizations or Between International Organizations, 21
March 1986, UN Doc. A/CONF.129/15, 25 I.L.M. 543 (not yet in force) and P.K. Menon, The Law of
Treaties Between States and International Organizations (Lewiston, NY: Edwin Mellen Press, 1992).
20 Shaw, supra note 18 at 89.
21 See ibid.
22 Supra note 19.
23 Restatement (Third) of the Foreign Relations Law 321 (1986) [Third Restatement].
24 The high degree of involvement of non-governmental organizations in the negotiation of the
Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF. 183/9, 2187
U.N.T.S. 90, (1998) 37 I.L.M. 1002 (entered into force 1 July 2002) [Rome Statute], may set an
example for the future. See also William R. Pace & Mark Thieroff, Participation of Non-
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agreed upon, international law does require the treaty text to be adopted,25
authenticated as correct and final26 (usually by signature or initials), and then made
available to be accepted as binding by the parties (although there is no prescribed
procedure by which to accomplish these three tasks).27 With bilateral treaties, these
tasks are often collapsed into a single procedure, whereas with multilateral treaties,
there is usually a clear distinction between each task, particularly since adoption
(usually by a vote or resolution of the states participating in the negotiations) may
have no legal significance other than to indicate the end of negotiations.28
In any event, the most important stage for treaty making at the international level
is when the state parties express their consent to be bound. This can be done by a
variety of methods, including signature,29 so long as the method chosen clearly
signifies a states intention to assume the legal obligations in the treaty. In the case of
multilateral treaties, a state usually expresses its consent to be bound through
ratification30 (or accession).31 This is typically accomplished by the deposit with a
designated institution of a formal written declaration of consent known as an
instrument of ratification some time after the treatys adoption. The passage of time
between adoption and ratification enables a state to take whatever steps are necessary
domestically to seek any required approvals for the treaty and to enact any legislative
changes needed to comply with the treaty.32 It also gives a state time to gauge public
opinion about the new treaty commitments if it so desires, with the possibility that a
strong negative reaction might lead a state to decide against ratification.
Governmental Organizations in Roy S. Lee, ed., The International Criminal Court: The Making of
the Rome Statute: Issues, Negotiations, Results (Boston: Kluwer Law International, 1999) 391.
25 Adoption is the formal act by which the form and content of a proposed treaty text are
established. See the United Nations Treaty Collections Treaty Reference Guide, available from its
website, online:
19, art. 9.
26 Treaties Convention, ibid., art. 10.
27 Treaties Convention, ibid., art. 11.
28 See John H. Currie, Public International Law (Toronto: Irwin Law, 2001) at 117.
29 See Treaties Convention, supra note 19, art. 12; Shaw, supra note 18 at 817-18; Aust, supra note
18 at 75-76.
30 Treaties Convention, supra note 19, arts. 2(1)(b), 14, 16. I refer here to ratification in the
international law sense and not in the sense of a domestic procedure required in some states.
31 Accession has the same legal effect as ratification, but is the term used when a state becomes
bound to a treaty already negotiated and signed by other states (Aust, supra note 18 at 81, 88; Shaw,
supra note 18 at 820-21). See also Treaties Convention, supra note 19, arts. 2(1)(b), 15.
32 Since a state cannot invoke the provisions of its domestic law as justification for its failure to
perform a treaty obligation (Treaties Convention, ibid., art. 27), it is common practice for states to
insist that any necessary legislative changes be in place before a treaty is ratified. See for example the
guidance given to British civil servants in U.K., Foreign & Commonwealth Office, Treaty Section,
Treaties and MOUs: Guidance on Practice and Procedures, 2d ed. (London: Foreign and
Commonwealth Office, 2000) (Revised May 2004) at 7, online: Foreign & Commonwealth Office
473
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As for where the power to make treaties resides within a state, this is determined
by the constitutional law of the particular state, and varies from state to state. For
states that follow the constitutional traditions of the UK, the power to conduct foreign
relations, including the power to make treaties, is one of the royal prerogatives33
retained by the Crown and carried out by the executive branch of government, usually
through the minister responsible for foreign affairs.34 Since prerogative powers, by
definition, provide the executive with the power to act without the consent of
Parliament,35 treaty making, including treaty ratification, is legally a wholly executive
act within the UK36 and most Commonwealth states.37
Treaty implementation, however, is a different matter. Because Commonwealth
states typically embrace a dualist approach with respect to the relationship between
treaty law and domestic law, the two legal systems are said to coexist, but function
separately.38 Consequently, a treaty that purports to change existing domestic law has
no domestic legal effect unless and until the treaty obligations are incorporated39 or
transformed40 into domestic law by the enactment of domestic legislation.41 As a
result, while Parliament has no formal role in treaty making, it does, as the supreme
lawmaker, have a role in treaty implementation, although some may argue that this
distinction is lost in practice given the degree of executive control over Parliament.
Minority governments, however, as currently experienced in Canada, test the strength
of this argument. Moreover, whether moot or not, the separation of powers between
the executive and Parliament in treaty making and treaty implementation remains part
33 Munro defines the royal prerogative as comprising those attributes peculiar to the Crown which
are derived from common law, not statute, and which still survive (Colin R. Munro, Studies in
Constitutional Law (London: Butterworths, 1987) at 159). Dicey describes the prerogatives as a set of
common law powers comprising the residue of discretionary or arbitrary authority, which at any
given time is legally left in the hands of the Crown (A.V. Dicey, Introduction to the Study of the Law
of the Constitution, 10th ed. (London: MacMillan, 1959) at 424 [footnotes omitted]).
34 See F.A. Mann, Foreign Affairs in English Courts (Oxford: Clarendon Press, 1986) at 1-22.
35 See Dicey, supra note 33 at 425; A.W. Bradley & K.D. Ewing, Constitutional and Administrative
Law, 13th ed. (London: Longman, 2003) at 246-50, 309.
36 Parliament may play an indirect role in the sense that a treaty that lacks majority support could
bring down the government through a non-confidence motion or at the ballot box.
37 Antigua and Barbuda is an exception since it has passed legislation to give its parliament a role in
ratification: Ratification of Treaties Act 1987, No. 1 of 1987. See Winston Anderson, Treaty Making in
Caribbean Law and Practice: The Question of Parliamentary Participation (1998) 8 Carib. L. Rev. 75.
38 See Bradley & Ewing, supra note 35 at 310. See also Oppenheim, supra note 18 at 53.
39 This is the term used in the UK. See Aust, supra note 18 at 150-51.
40 This is the term used in Canada, with incorporation being one of the means of transformation.
See Currie, supra note 28 at 205; Hugh M. Kindred et al., eds., International Law Chiefly as
Interpreted and Applied in Canada, 6th ed. (Toronto: Emond Montgomery, 2000) at 188-89. But see
Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press,
2003) at 41-45 for the somewhat interchangeable use of both terms.
41 Canada (A.G.) v. Ontario (A.G.), [1937] A.C. 326 at 347, 1 D.L.R. 673 (P.C.) [Labour
Conventions case cited to A.C.].
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of the British constitutional tradition, and is the legal approach embraced by most42 of
the former British colonies, including Canada.43
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II. Treaty Making and the Parliament of Canada
Although Canadas written constitution does not contain a provision on the
subject of treaty making directly,44 it is generally recognized under Canadian
constitutional law that the power to make treaties resides with the executive branch of
the government that represents Canada as a whole, namely the federal government
based in Ottawa.45 While claims have been made that the provinces also possess a
treaty-making capacity,46 and certainly one province in particular has entered into
42 The United States being the principal exception. Under article II, section 2 of the United States
constitution, the president may ratify a treaty only with the advice and consent of a two-thirds vote
of Senate. But, as noted in Aust, supra note 18 at 158, most treaties entered into by the United States
are considered executive agreements rather than treaties and, as such, do not need Senate
approval. See also Laurence H. Tribe, American Constitutional Law, 3d ed. (New York: Foundation
Press, 2000) at 4-4 and Third Restatement, supra note 23 at 303. The Senate itself is aware of its
diminishing role. See U.S., Congressional Research Service, Library of Congress, Treaties and Other
International Agreements: The Role of the United States Senate: A Study Prepared for the Committee
on Foreign Relations, United States Senate (S. Prt. 106-71) (Washington, D.C.: US Government
Printing Office, 2001) at 2).
43 See generally J.E.S. Fawcett, The British Commonwealth in International Law (London: Stevens
& Sons, 1963) at 16-32.
44 The closest provision on point is section 132 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict.,
c. 3, reprinted in R.S.C. 1985, App. II, No. 5, concerning the federal power to perform what are
termed Empire treaties. Although some have argued that the broad intention was plainly to enable
the Canadian Parliament to give internal effect in Canada to treaties binding upon it (Fawcett, ibid. at
20-21), the courts have ruled that section 132 does not extend to treaties entered into by an
independent Canada: Labour Conventions case, supra note 41 at 350. The provision is now viewed as
obsolete.
45 See A.E. Gotlieb, Canadian Treaty-Making (Toronto: Butterworths, 1968) at 27, and Copithorne,
supra note 2 at 1. See also Peter W. Hogg, Constitutional Law of Canada, 4th ed. (Scarborough:
Carswell, 1997) at para. 11.2.
46 Such claims were particularly prevalent in the second half of the 1960s, bolstering claims then
made by the Quebec government that led to the creation of a Quebec Department of
Intergovernmental Affairs in 1967. Quebec, however, is not the only province with a department
dedicated to international affairs, nor the only province with missions abroad. Ontario, Alberta, and
British Columbia are also active internationalists, although all Canadian provinces at one time or
another have made agreements with foreign states to serve their interests. See Jacques-Yvan Morin,
La conclusion daccords internationaux par les provinces canadiennes la lumire du droit
compar (1965) 3 Can. Y.B. Intl Law 126, and his Comment (in English) in (1967) 45 Can. Bar
Rev. 160. See also Ivan L. Head, The New Federalism in Canada: Some Thoughts on the
International Legal Consequences (1966) 4 Alta. L. Rev. 389; Bora Laskin, The Provinces and
International Agreements in Ontario Advisory Committee on Confederation, Background Papers
and Reports, vol. 1 (Toronto: Queens Printer, 1967) 101; R.J. Delisle, Treaty-Making Power in
Canada in ibid., 115; Edward McWhinney, The Constitutional Competence Within Federal
Systems as to International Agreements in ibid., 149; Gerald L. Morris, The Treaty-Making Power:
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
2005]
many treaty-like arrangements in the areas of education, economic development, and
cultural co-operation,47 such claims have never been accepted by the federal
government48 and are not borne out by state practice.49 Moreover, with the possible
exception of France,50 no other state in the international system recognizes any
competence on the part of Canadas provinces to conclude treaties.
475
Federal executive responsibility for treaty making emerged gradually, much like
Canadas full independence. Although Confederation marked the beginning of
Canadas domestic self-governance, it was not envisaged at that time that Canada
would make treaties independently from Britain. The Constitution Act, 186751
therefore included no explicit treaty-making provision since the British executive
retained the prerogative power to make treaties for the Empire as a whole.52 However,
as the countries within the Empire gradually acquired their full independence, so did
they acquire their portion of the treaty-making power once held by the British
executive. In Canadas case, it is said that the confirmation of such delegation can be
found in the 1947 Letters Patent Constituting the Office of the Governor General of
Canada,53 clause 2 of which authorizes the Governor General to exercise all powers
and authorities lawfully belonging to [the King] in respect of Canada. According to
Professor Hogg, [t]his language undoubtedly delegates to the federal government of
Canada the power to enter into treaties binding Canada.54
Within the federal government, the minister responsible for the conduct of foreign
relations is the former secretary of state for external affairs, now known as the
A Canadian Dilemma (1967) 45 Can. Bar Rev. 478; Michael C. Rand, International Agreements
Between Canadian Provinces and Foreign States (1967) 25 U.T. Fac. L. Rev. 75; Lorne Giroux, La
capacit internationale des provinces en droit constitutionnel canadien (1967-68) C. de D. 241;
Ronald G. Atkey, Provincial Transnational Activity: An Approach to a Current Issue in Canadian
Federalism in Ontario Advisory Committee on Confederation, Background Papers and Reports,
vol. 2 (Toronto: Queens Printer, 1970) at 153. For recent commentary, see Gibran van Ert, The
Legal Character of Provincial Agreements with Foreign Governments (2001) 42 C. de D. 1093.
47 The province of Quebec has entered into over 550 such arrangements since 1964. Three hundred
agreements remain in force, the details of which are available from the website of the Quebec
Ministry of International Relations, online:
48 In 1968, the then secretary of state for external affairs, Paul Martin Sr., issued a background
paper entitled Federalism and International Relations (Ottawa: Queens Printer, 1968) disputing and
opposing all claims to any provincial treaty-making capacity.
49 Hogg, supra note 45 at paras. 11.2 and 11.6; Currie, supra note 28 at 208-10. For arguments for a
provincial treaty-making capacity based on constitutional law, see Gibran van Ert, Using
International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 74-92.
50 See also van Ert, ibid. at 87, n. 163.
51 Supra note 44.
52 See Hogg, supra note 45 at para. 11.2. See also Gotlieb, supra note 45 at 6-10.
53 Reproduced in R.S.C. 1985, App. II, No. 31.
54 Hogg, supra note 45 at para. 11.2.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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minister of foreign affairs,55 and it is the ministers department that takes the lead
role in the making of treaties. The federal parliament has no formal role, apart from
being the body to which all ministers are accountable in a system of responsible
government.
[Vol. 50
It was not always the case, however, that the federal parliament had no formal
role. From 1926 to 1966, it was the practice in Canada for all important treaties to be
submitted to Parliament for approval prior to ratification, a practice that began at the
initiation of Prime Minister (and Secretary of State for External Affairs) William Lyon
Mackenzie King. In 1926, Prime Minister Mackenzie King moved a two-part motion
to improve the treaty-making process, the second part of which read: This House …
considers further that before His Majestys Canadian ministers advise ratification of a
treaty or convention affecting Canada, or signify acceptance of any treaty, convention
or agreement involving military or economic sanctions, the approval of the parliament
of Canada should be secured.56 While Mackenzie King acknowledged that the
ratification of a treaty was an executive act that took place on the advice of Cabinet,
he also stated that parliament should feel assured in regard to all these great
obligations of an international character which involve military and economic
sanctions that a government should not have the opportunity of binding parliament in
advance of its own knowledge to the obligations incurred thereby.57 The House
adopted the motion, and for the next forty years, according to Allan Gotliebs
authoritative58 but now dated account in Canadian Treaty-Making, a practice
developed of submitting to Parliament all treaties involving: (1) military or economic
sanctions; (2) large expenditures of public funds or important financial or economic
implications; (3) political considerations of a far-reaching character; [and] (4)
obligations the performance of which will affect private rights in Canada.59 Since the
initiation of this practice took place in the same year that Canada achieved its
autonomy from Britain with respect to the exercise of the treaty-making power,60 the
practice can be rightly described as being part of the Canadian treaty-making process
since the beginning.
55 Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, s. 10, as am. by
S.C. 1995, c. 5, s. 7.
56 House of Commons Debates (21 June 1926) at 4758-59 (W.L. Mackenzie King). The debate on
the motion can be found at 4758-4800. See also Gotlieb, supra note 45 at 15-16.
57 House of Commons Debates, ibid. at 4762.
58 Gotlieb was, at the time of authorship, the assistant under-secretary of state for external affairs
and legal adviser to the department. He would later serve as under-secretary of state for external
affairs (1977-1981) and ambassador of Canada to the United States (1981-1989).
59 Gotlieb, supra note 45 at 16-17 [footnotes omitted].
60 The Balfour Declaration issued at the Imperial Conference of 1926 confirmed that no auto-
nomous dominion could be bound by commitments incurred by the imperial government without its
consent. The question of treaty making was specifically addressed, with the conference confirming
that each dominion government had the power to negotiate, sign, and ratify treaties on its own behalf.
See Maurice Ollivier, ed., The Colonial and Imperial Conferences from 1887 to 1937, vol. 3 (Ottawa:
Queens Printer, 1954) at 150-55.
477
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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This practice, however, applied to only a small proportion of all the treaties
entered into by Canada during this period since many of Canadas treaties were
concluded by way of an exchange of notes or letters and as such, were not subject to
ratification.61 Nevertheless, for those treaties that were submitted, the practice did give
Parliament a voice in relation to some treaties of significance, such as the Canada-US
Auto Pact of 1966,62 and the pre-ratification timing was crucial because it meant that
Parliament had a say before Canada became bound under international law. The
practice, however, waned in the late 1960s, coinciding with the debate then taking
place about Canadas role in North American Air Defense Command (NORAD),63
and by 1974, it was the view of the Department of External Affairs (as it was then
called) that it was up to the government of the day to decide whether parliamentary
approval would be sought for a proposed treaty action.64 This continues to be the
departments view65 and as time has passed, the practice of submitting treaties to
Parliament for approval has been either forgotten or abandoned,66 prompting the
61 See Gotlieb, supra note 45 at 18. See also A. Jacomy-Millette, Treaty Law in Canada (Ottawa:
University of Ottawa Press, 1975) at 126 and 130.
62 Agreement concerning Automotive Products between the Government of Canada and the
Government of the United States of America, 16 January 1965, Can. T.S. 1966 No. 14 [Auto Pact].
The Auto Pact was approved by the House of Commons on 6 May 1966 (House of Commons
Debates (6 May 1966) at 4795-4820) and by the Senate on 30 June 1966 (Senate Debates (30 June
1966) at 853).
63 The 1958 Canada-US treaty establishing NORAD (Agreement between the Government of
Canada and the Government of the United States concerning the Organization and Operation of the
North American Air Defence Command (NORAD), 12 May 1958, 316 U.N.T.S. 151, Can. T.S. 1958
No. 9) is subject to renewal every five years. During the 1960s, the threat of intercontinental ballistic
missiles prompted the expansion of NORADs mandate from air to aerospace defence and the
creation of an extensive defence network. When questioned in Parliament about such changes, Prime
Minister Pearson replied that [i]f a situation were to develop requiring such an important change in
Canadian defence policy … if parliament was sitting parliament would be consulted first (House of
Commons Debates (25 September 1967) at 2428). The NORAD agreement was renewed in 1968
during Parliaments dissolution.
64 See the excerpt from a memorandum of 11 June 1974 by the departments Bureau of Legal
Affairs reprinted in (1975) 13 Can. Y.B. Intl Law 366.
65 See the excerpts from department memoranda reprinted in (1982) 20 Can. Y.B. Intl Law 289;
(1986) 24 Can Y.B. Intl Law 397; and (2002) 40 Can. Y.B. Intl Law 490.
66 According to research undertaken by Professor Turp, then serving as a member of Parliament for
the Bloc Qubcois, the practice stopped in the late 1960s: Daniel Turp, Un nouveau dfi
dmocratique: laccentuation du rle du parlement dans la conclusion et la mise en oeuvre des traits
internationaux in The Impact of International Law on the Practice of Law in Canada: Proceedings
of the 27th Annual Conference of the Canadian Council on International Law, Ottawa, October 15-
17, 1998 (The Hague: Kluwer Law International, 1999) at 118. As noted by both Turp, ibid. at 119,
and van Ert, supra note 49 at 68-69, commentary suggesting that the practice continues is suspect
because of a reliance on the out-of-date texts of Gotlieb, supra note 45, and Jacomy-Millette, supra
note 61.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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introduction of a series of private members bills since 1999 to encourage, among
other things, its reinstatement.67
[Vol. 50
The continued absence of a parliamentary role in the making of important treaties
is supported by current government action, as illustrated by the announcement that
there would be no parliamentary role in the conclusion of a Canada-US treaty on
missile defence.68 But, according to Professor Maurice Copithorne, a former legal
adviser to the Department of External Affairs, the role of Parliament as a body with
which the executive consults is evolving.69 He notes that [c]onsultations on
Canadas most important treaties now take place regularly prior to the Government
taking binding action.70 Copithorne points to the work of the House of Commons
Standing Committee on Foreign Affairs and International Trade (SCFAIT),71 and in
particular its examination of the proposed Multilateral Agreement on Investment in
199772 and the Canada-US Preclearance Agreement in 1999,73 as well as Canadas
practice of passing enabling legislation prior to ratifying a treaty.74 But while there are
instances where SCFAIT has examined a treaty currently under negotiation,75 albeit
67 Six bills were introduced by Professor Turp in his role as an MP, one in May 1999 and five in
October 1999. See House of Commons Debates (3 May 1999) at 14601 and (14 October 1999) at
113. One of these bills, Bill C-214, An Act to Provide for the Participation of the House of Commons
When Treaties Are Concluded, proceeded to second reading, garnering support from all but the
Liberal Party (House of Commons Debates (1 December 1999) at 2018-26, (13 April 2000) at 6127-
31, and (8 June 2000) at 7725-31), with defeat occurring by a vote of 110-151 (House of Commons
Debates (13 June 2000) at 7956-57). The proposed legislation was reintroduced in the following
session by Francine Lalonde, the Bloc Qubcois critic for foreign affairs (House of Commons
Debates (28 March 2001) at 2440-41). The latest version was introduced as Bill C-260, An Act
respecting the Negotiation, Approval, Tabling, and Publication of Treaties, 1st Sess., 38th Parl., 2004
(by Jean-Yves Roy, MP for the Bloc Qubcois).
68 See Jeff Sallot, Missile treaty up to Cabinet, Graham says Globe and Mail (27 September
2004), A5.
69 Copithorne, supra note 2 at 5.
70 Ibid.
71 The committee has recently adopted the acronym FAAE rather than FAIT.
72 Canada, House of Commons, Canada and the Multilateral Agreement on Investment: Third
Report of the Standing Committee on Foreign Affairs and International Trade: First Report of the
Sub-Committee on International Trade, Trade Disputes and Investment (Ottawa: Standing Committee
on Foreign Affairs and International Trade, December 1997) (Chair: Bill Graham, MP; Chair of the
Subcommittee: Bob Speller, MP).
73 Canada, House of Commons, Bill S-22, An Act authorizing the United States to preclear
travellers and goods in Canada for entry into the United States for the purposes of customs,
immigration, public health, food inspection and plant and animal health: Eighth Report of the
Standing Committee on Foreign Affairs and International Trade (Ottawa: Standing Committee on
Foreign Affairs and International Trade, May 1999).
74 Copithorne, supra note 2 at 5.
75 The only example in the past eight years, apart from the Multilateral Agreement on Investment,
concerns the proposed Free Trade Area of the Americas (FTAA): Canada, House of Commons, The
Free Trade Area of the Americas: Towards a Hemispheric Agreement in the Canadian Interest: First
Report of the Standing Committee on Foreign Affairs and International Trade: First Report of the
479
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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one already in the public eye, a review of the record for the past eight years suggests
that when it comes to treaty scrutiny, the usual role for SCFAIT is to review the
legislation implementing a treaty, rather than a future treaty action.76 Moreover, the
broad mandates of SCFAIT and other standing committees (including the Senate
Committee on Human Rights, which recently examined the question of Canadas
adherence to the American Convention on Human Rights)77 prompt a hit-or-miss
record with respect to the scrutiny of treaties given the other matters competing for
the committees attention.78 As for the passage of enabling legislation prior to
ratification, Copithorne admits that there are rare occasions when this is not done,79
but for me, the central point is that such occasions can occur, and have occurred. The
principled rebuttal to Copithornes arguments is that Parliament is more than a body
for consultation, and as the ultimate lawmaker in a Westminster system, Parliament
should have the opportunity to review all treaties before their ratification, whether or
not enabling legislation will be required.
Parliament (and through Parliament, the public) is also not kept as well informed
as it once was about the treaty-making activities of the executive branch. Beginning in
1909, when the Department of External Affairs (as it was then called) was first
created, the secretary of state for external affairs (as the minister was then known) was
required by statute to report annually to Parliament on the departments activities. The
statutory provision read as follows: The Secretary of State shall annually lay before
Sub-Committee on International Trade, Trade Disputes and Investments (Ottawa: Standing
Committee on Foreign Affairs and International Trade, October 1999) (Chair: Bill Graham, MP;
Chair of the Subcommittee: Sarmite Bulte, MP).
76 The most recent treaty-related reports are: Canada, House of Commons, Dispute Settlement in the
NAFTA: Fixing an Agreement Under Siege (Ottawa: Standing Committee on Foreign Affairs and
International Trade, May 2005); Canada, House of Commons, Bill S-2, Tax Conventions
Implementation Act, 2002: Second Report of the Standing Committee on Foreign Affairs and
International Trade (Ottawa: Standing Committee on Foreign Affairs and International Trade,
November 2002); Canada, House of Commons, Bill C-32, An Act to implement the Free Trade
Agreement between the Government of Canada and the Government of the Republic of Costa Rica:
Eighth Report of the Standing Committee on Foreign Affairs and International Trade (Ottawa:
Standing Committee on Foreign Affairs and International Trade, October 2001); Canada, House of
Commons, Bill C-6, An Act to amend the International Boundary Waters Treaty Act: Second Report
of the Standing Committee on Foreign Affairs and International Trade (Ottawa: Standing
Committee on Foreign Affairs and International Trade, October 2001); Canada, House of Commons,
Bill C-19, An Act respecting genocide, crimes against humanity and war crimes and to implement
the Rome Statute of the International Criminal Court, and to make consequential amendments to
other Acts: Seventh Report of the Standing Committee on Foreign Affairs and International Trade
(Ottawa: Standing Committee on Foreign Affairs and International Trade, June 2000).
77 Canada, Standing Senate Committee on Human Rights, Enhancing Canadas Role in the OAS:
Canadian Adherence to the American Convention on Human Rights (Ottawa: Standing Senate
Committee on Human Rights, 2003) (Chair: Shirley McNeil). The author discloses that she appeared
as an expert witness before the committee in relation to this inquiry.
78 The SCFAIT has issued sixty-one reports in the past eight years and only eight of those reports
concern treaties.
79 Copithorne, supra note 2 at 5.
[Vol. 50
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Parliament, within ten days after the meeting thereof, a report of the proceedings,
transactions and affairs of the department during the year then next preceding.80 This
led to the regular deposit of annual reports, which served as a reliable source of
information on Canadas foreign policy commitments, and from 1915 on,81 the reports
also contained an account of Canadas treaty-making activities, including a useful
listing of all agreements concluded during the particular year under review.82 Yet in
1995, with the passage of Bill C-47, which changed the departments name and
expanded its mandate to expressly include international trade, the statutory
requirement for the submission of an annual report was repealed.83 A review of the
bills second and third reading in Hansard, as well as a review of the minutes of the
committee stage of the bills consideration, provides no explanation for this since not
one member of Parliament queried the repeal of a reporting requirement that had
existed since 1909.84 As a result, the government is no longer legally obliged to
produce an annual public record of Canadas treaty-making activities,85 and while it
may from time to time deposit a list of all the treaties concluded over a specified time
period, there remains no legal rule or even a political commitment regularizing the
provision of such information to Parliament.86
It was also the invariable practice in Canada, at least as of 1968 when Gotlieb
wrote these words, to table in Parliament all agreements, including exchanges of
notes.87 Through tabling, Parliament was kept informed of treaty obligations
assumed on Canadas behalf by the federal executive, albeit after these obligations
became binding under international law. But as with the practice of submitting treaties
for parliamentary approval, the practice of tabling treaties has also suffered from
disuse and had in fact all but disappeared until criticism prompted the then foreign
80 An Act to create a Department of External Affairs, 8 & 9 Edw. VII, c. 13, s. 5, later amended to
become s. 14.
81 See Gotlieb, supra note 45 at 7. The National Library of Canada record indicates that the annual
reports ceased after the 1991-1992 issue.
82 See Gotlieb, ibid. at 66.
83 Clause 10 of Bill C-47, which became section 10 of An Act to amend the Department of External
Affairs Act and to make related amendments to other Acts, S.C. 1995, c. 5, simply states: Section 14
of the Act and the heading before it are repealed. The annual reporting requirements imposed on the
department by acts such as the Access to Information Act, R.S.C. 1985, c. A-1 and the Export and
Import Permits Act, R.S.C. 1985, c. E-19, remain in place.
84 See House of Commons Debates (4 October 1994) at 6500-505, and (8 February 1995) at 9339-
48. See also issue no. 14 of the Minutes of Proceedings and Evidence of the Standing Committee on
Foreign Affairs and International Trade (14-15 December 1995).
85 An annual listing of Canadian treaty activity can be found in the Canadian Yearbook of
International Law. While useful for the yearbooks readers, this listing does not absolve the
government of its responsibility to apprise Parliament and the general public of its law-making
activities.
86 See Turp, supra note 66 at 120, 128.
87 Gotlieb, supra note 45 at 18. According to Jacomy-Millette, however, tabling was not an
invariable rule (supra note 61 at 130).
481
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
2005]
minister Lloyd Axworthy to table dozens of ratified treaties in 1999,88 including
treaties that were required by law to be deposited in Parliament.89 Tabling now occurs
on an ad hoc basis at the prerogative of the executive, but often without even the most
basic details, such as the treatys name or a prcis of its subject matter, being read into
the record. The usual wording is Mr. Speaker, pursuant to Standing Order 32(2) I
have the honour to table, in both official languages, five multilateral treaties and one
bilateral treaty that were entered into force for Canada in 2001, followed by an
indication that a CD-ROM containing the treaty texts has been deposited with the
Library of Parliament.90 On only one occasion has this prompted a member of
Parliament to ask immediately for the treaty details to be tabled, but that was in
1980.91
To make matters worse, the practice of promptly publishing all treaty texts in the
Canada Treaty Series, an authoritative source of Canadian treaty law published by the
Department since 1928,92 has also been on the decline. To the frustration of law
librarians everywhere, the Canada Treaty Series is often incomplete, and in many
libraries its various parts remain loose and unbound while the library waits for the
missing treaties that will complete the consecutively numbered series. The reason
given for these delays is budget cuts. Even the Treaty Secretariat, a helpful unit within
the Department of Foreign Affairs that used to answer treaty queries from the public,
has been disbanded as a cost-cutting measure,93 and the Treaty Section no longer
prepares a general guide to treaty making which, Copithorne notes, used to be part of
88 See Turp, supra note 66 at 128; van Ert, supra note 49 at 70. Treaties that entered into force for
the years 1993-1997 were tabled on four occasions in 1999: House of Commons Debates (13 April
1999) at 13715, (12 May 1999) at 15072, (9 June 1999) at 16098, and (10 June 1999) at 16149.
89 Section 7 of the Extradition Act, R.S.C. 1985, c. E-23, used to require all extradition
arrangements to be laid as soon as possible before both Houses of Parliament. On 8 January 1999,
Foreign Minister Axworthy belatedly deposited seven extradition treaties, acknowledging the breach
of the above law. Such a breach, however, will not occur again since the requirement has now been
removed, as evident by comparing the former section 7 to the new section 8 of the Extradition Act,
S.C. 1999, c. 18.
90 See e.g. House of Commons Debates (13 December 2002) at 2686 (Bill Graham). The delay of
almost a full calendar year between treaty conclusion and tabling is also typical.
91 House of Commons Debates (17 July 1980) at 2999. The details were then appended to the days
Hansard.
92 Originally, there were two series, one in English and one in French. In 1947, the two series were
combined into one in which both the English and French texts appear. See Gotlieb, supra note 45 at
66.
93 The UK Foreign Office offers a free Treaty Enquiry Service to the public, which provides very
prompt replies to email enquiries, even from academics based in Canada. Further details are available
on the Foreign & Commonwealth Offices website, online:
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the Departmental Procedures Manual.94 Such guides can be found in Britain95 and
Australia96 (and Quebec!97).
[Vol. 50
The department is, however, at long last, delivering on its promise to put
Canadas treaties online, thereby enhancing public access to the treaty texts and
Canadas ratification record.98 While a welcome start, not all treaty texts are as yet
available and the search capacity is limited.99 But of much greater disappointment is
the complete absence of any memoranda or guidance on the legal effect of the treaties
in the database, and the lack of any future plans to include such valuable information.
The database is also annoying with respect to an ironic welcome note that explains
how the Treaty Section of the Department of Foreign Affairs is responsible for
publishing on an annual basis in the Canada Treaty Series the texts of those
agreements that have come into force for Canada and … for ensuring the tabling in
Parliament of those agreements that have not otherwise been brought to the attention
of Parliament …, but then expressly states that this note … is based on material
drawn from an article that appeared in External Affairs, vol 19 (1967) at 369.100 It is
disgraceful that the department has not seen fit to provide an up-to-date account of its
own practices for the public that it serves.
III. Treaty Implementation and the Parliament of Canada
Although it no longer has a role in treaty making, nor much of a role in the
scrutiny of new treaty obligations, Canadas Parliament still plays a role in treaty
implementation, given the common law rule that any treaty that entails the alteration
of domestic law requires the passage of legislation to gain domestic legal effect.101 But
94 Copithorne, supra note 2 at 4.
95 Treaties and MOUs, supra note 32.
96 Austl., Commonwealth, Department of Foreign Affairs and Trade, Treaty Secretariat, Signed,
Sealed and Delivered: Treaties and Treaty Making: An Officials Handbook, 5th ed. (Canberra:
Department of Foreign Affairs and Trade, 2004) online: Department of Foreign Affairs and Trade
a Treaty
Information Kit for the general public, which is made available online: Australasian Legal
Information Institute
also publishes
97 A Guide de la pratique des relations internationales du Qubec was published in 2000 by the
Ministre des Relations internationales to assist personnel within the Quebec government who deal
with international affairs: Franois Le Duc, Guide de la pratique des relations internationales du
Qubec (Quebec City: Ministre des Relations internationales, 2000).
98 See online: Canada Treaty Information, supra note 2.
99 A search for rights of the child, the short form for one of the most ratified treaties, produced no
results.
100 Canada, Department of Foreign Affairs and International Trade, Welcome to the Treaty
Section, online: Canada Treaty Information
101 Canadian confirmation of this rule can be found in Baker, supra note 5 at paras. 69 and 79,
although Baker also modifies the common law rule to allow the courts to consider the values of an
unimplemented treaty, thereby bypassing Parliaments implementation role.
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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Canada is a federal state, and its federal character clearly complicates the subject of
treaty implementation (although this is not the case in all federations, or even all
Commonwealth federations).102 Canadas federal nature may also be a factor for any
reforms to the treaty-making process that aim to address any perceived democratic
deficit.
483
The rule in Canada, as decided by the Judicial Committee of the Privy Council in
the Labour Conventions case of 1937,103 is that treaties that fall within a federal area
of responsibility in terms of their subject matter must be implemented by the passage
of federal legislation, whereas treaties that fall within a provincial area of
responsibility must be implemented by the enactment of legislation by the ten
provinces. As a result, there are some treaties that are ratified by the federal executive,
which must be implemented by the provincial legislatures, notwithstanding the lack of
any formal ties of accountability between the two levels of government. This rule can
therefore pose problems for the performance of Canadas treaty commitments
(although this is not the case for all treaties), since many treaties do not entail a
change in domestic law and therefore require no implementing legislation,104 while
others make use of a federal state clause105 or reservation106 to alleviate Canadas
responsibility for the non-compliance of one or more provinces. The environmental
side agreement to the North American Free Trade Agreement,107 for example, leaves
room
Canadian
Intergovernmental Agreement (CIA) because, in the words of the government of
implementation
individual
provincial
through
for
a
102 The position in Australia is discussed below. India and Malaysia have taken an approach similar
to that taken by Australia, while Nigeria has taken an approach similar to that taken by Canada. See
Gotlieb, supra note 45 at 74-75.
103 Supra note 41.
104 According to Gotlieb, a very large percentage of all treaties do not even require legislation but
can be implemented by executive or administrative action (such as numerous treaties relating to
defence, boundary waters, consular and immigration matters and economic co-operation) (supra
note 45 at 76). See also Hogg, supra note 45 at para. 11.4.
105 A federal state clause permits the state to participate in a treaty on a partial basis to alleviate the
problems posed to full implementation by the federal states internal arrangements. Canadian practice
with respect to federal state clauses is summarized in a letter from the Department of Foreign Affairs
dated 17 March 1982, reprinted in (1983) 12 Can. Y.B. Intl Law 319.
106 According to Copithorne, Canada initially had such a reservation to the UN Convention on the
Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3, to accommodate the
opposition of the province of Alberta, which viewed the treaty as anti-family (Copithorne, supra note
2 at 7). See also Weiser, supra note 15 at 127, n. 50. Alberta later changed its position. Similar
concerns about the conventions impact on the family unit and parental rights have been raised in
Australia: see Melinda Jones, Myths and Facts concerning the Convention on the Rights of the Child
in Australia (1999) 5:2 Austl. J. of Hum. Rts. 126 at 129-31.
107 North American Free Trade Agreement between the Government of Canada, the Government of
Mexico, and the Government of the United States, 17 December 1992, Can. T.S. 1999 No. 2, 32
I.L.M. 289 (entered into force 1 January 1994) [NAFTA].
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Canada, most environmental legislation falls under provincial jurisdiction.108 (This
is an interesting admission given the recent ratification of the Kyoto Protocol,109
although the rebuttal from the government would be that no implementing legislation
is required.)110
[Vol. 50
Nevertheless, for treaties that do require provincial legislative action, the rule
adopted in 1937 can be either criticized for holding the federal government hostage to
provincial demands, or praised for protecting provincial autonomy and encouraging a
degree of federal-provincial consultation, and even collaboration, in the treaty-making
process. In any event, it would appear that the Labour Conventions rule is here to
stay, notwithstanding the steady barrage of commentary and critique,111 and even the
disclosure of an ex post facto dissent.112 As a result, the extent of the federal
parliaments involvement in treaty implementation depends on a treatys subject
matter. However, if a role were to be accorded to Parliament in the treaty-making
process, the rules recognition of a regional role in treaty implementation lends
credence to the argument that a similar role should be accorded to the provincial
108 North American Agreement on Environmental CooperationCanadian Office, Canadian
Implementation, online: NAAEC
American Agreement on Labour Cooperation, Canada, Mexico, and the United States, 14 September
1993, Can. T.S. 1994 No. 4 (entered into force 1 January 1994)), given the need for inter-
jurisdictional co-operation in the implementation of labour obligations. The text of this CIA is
available from Human Resources and Skills Development Canadas website, online:
109 Supra note 7.
110 For commentary on the implementation debate with respect to the Kyoto Protocol, see supra
note 11.
111 See F.R. Scott, The Consequences of the Privy Council Decisions (1937) 15 Can. Bar Rev.
485; Ivan C. Rand, Some Aspects of Canadian Constitutionalism (1960) 38 Can. Bar Rev. 135 at
142-43; Grard V. LaForest, The Labour Conventions Case Revisited (1974) 12 Can. Y.B. Intl
Law 137; W.R. Lederman, Legislative Power to Implement Treaty Obligations in Canada in J.A.
Aitchison, ed., The Political Process in Canada (Toronto: University of Toronto Press, 1963) 171,
reprinted in W.R. Lederman, Continuing Canadian Constitutional Dilemmas (Toronto: Butterworths,
1981) 350; Armand L.C. de Mestral, Lvolution des rapports entre le droit canadien et le droit
international un demi-sicle aprs laffaire des conventions internationales de travail (1987) 25 Can.
Y.B. Intl Law 301; Robert Howse, The Labour Conventions Doctrine in an Era of Global
Interdependence: Rethinking the Constitutional Dimensions of Canadas External Economic
Relations (1990) 16 Can. Bus. L.J. 160; Torsten H. Strom & Peter Finkle, Treaty Implementation:
The Canadian Game Needs Australian Rules (1993) 25 Ottawa L. Rev. 39; Hogg, supra note 45 at
para. 11.5(c); Currie, supra note 28 at 211-15. See also Wallace W. Struthers, Treaty
Implementation … Australian Rules: A Rejoinder (1994) 26 Ottawa L. Rev. 305.
112 Lord Wright of Durley recorded his dissent some eighteen years after hearing the Labour
Conventions case in an eulogy for the late Sir Lyman Poore Duff, chief justice of Canada, published
in (1955) 33 Can. Bar Rev. 1123 at 1125-28. Privy Council practice at the time was to issue one
unanimous opinion. See also, Labour Conventions Case: Lord Wrights Undisclosed Dissent?
(1956) 34 Can. Bar Rev. 114.
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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legislative assemblies for treaties where the subject matter falls within their area of
legislative competence.
485
IV. The British Model for Involving Parliament in the Treaty-
Making Process
Ironically, Canadas current adherence to a strict separation of powers approach
with respect to treaty making stands in contrast to the actual practice of the UK, where
provision has long been made for some parliamentary involvement at the pre-
ratification stage in the making of treaties. Under a constitutional practice, known as
the Ponsonby Rule,113 all treaties requiring ratification114 must be presented before
both Houses of Parliament for at least twenty-one sitting days115 before the actual
ratification takes place, thereby enabling any member of either House to call attention
to the proposed treaty action and stimulate public debate. This laying before
Parliament is effected by the deposit of a Command Paper,116 published in one of
the three series117 published by the Foreign and Commonwealth Office (FCO),118
113 See generally U.K., Foreign & Commonwealth Office, The Ponsonby Rule (N.p., January 2001),
online: Foreign & Commonwealth Office
Ponsonby Rule].
114 This term has been interpreted broadly to include treaty accessions, approvals and acceptances:
U.K., House of Commons Information Office, Treaties (House of Commons Factsheet No. 14,
Procedure Series) (N.p., revised June 2003) at 3, online: The United Kingdom Parliament
applies to treaties amending treaties and, since January 1998, treaties that come into force by the
mutual notification of the completion of constitutional and other procedures by each party. See The
Ponsonby Rule, supra note 113.
115 Twenty-one sitting days can be considerably longer than twenty-one calendar days, depending
on the parliamentary schedule, since sitting days need not be continuous. Confirmation that the
practice refers to sitting days can be found in Sir William McKay, ed., Erskine Mays Treatise on the
Law, Privileges, Proceedings and Usage of Parliament, 23rd ed. (London: Lexis-Nexis UK, 2004) at
264, n. 2 [Erskine May].
116 Command Papers are presented to Parliament as by command of the Queen. They serve as a
vehicle through which the government can bring forward matters deemed to be of interest to
Parliament, the presentation of which is not required by statute. The term Command Paper is an
umbrella term, under which various types of documents are published, including government
department annual reports, treaties and other state papers, statements of government policy (White
Papers), consultative documents (Green Papers), and Royal Commission reports. See Erskine
May, ibid. at 261-62.
117 The three series are the Country Series (for bilateral treaties), the European Communities Series
(for treaties between member states of the European Union, or between one of the Communities, with
the member states, and a non-member state or group of states), and the Miscellaneous Series (for
multilateral treaties). A fourth series, known as the United Kingdom Treaty Series (or U.K.T.S.),
contains the texts of all treaties that have come into force for the UK, including those subject to the
Ponsonby Rule after their ratification. The U.K.T.S. has been published since 1892. Full-text copies
of its recent contents have also been made freely available to the public since January 2002 through
the Foreign & Commonwealth Offices website, online:
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which is made readily available to members of Parliament and members of the House
of Lords through the Vote Office and the Printed Paper Office respectively, and to the
public through the Stationary Office and libraries.
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The Ponsonby Rule has existed in the UK since 1924, where it began life as an
undertaking given on behalf of the first government of Ramsay MacDonald119 by
Arthur Ponsonby, then under-secretary of state for foreign affairs,120 during the second
reading of the Treaty of Peace (Turkey) Bill in the House of Commons.121 Appalled by
the consequences of the secret treaties of alliance into which states had entered prior
to World War I, Ponsonby had long campaigned for greater parliamentary control
over foreign affairs and an end to secret diplomacy. As a Radical Liberal MP,
Ponsonby had been a leading member of the Union of Democratic Control (UDC),
a prominent anti-war organization formed to oppose Britains involvement in World
War I.122 Article 2 of the UDC manifesto of 1914 stipulated that [n]o Treaty,
Arrangement, or Undertaking shall be entered upon in the name of Great Britain
without the sanction of Parliament. Adequate machinery for ensuring democratic
control of foreign policy shall be created.123 As a minister in 1924, Ponsonby
undertook to inform the House of all other agreements, commitments and
understandings which may in any way bind the nation to specific action in certain
circumstances.124 The Ponsonby Rule was withdrawn during
the Baldwin
118 There are a few exceptions. Treaties concerning communications satellites, for example, are laid
by the Department of Trade and Industry.
119 Ramsay MacDonald served as Britains first Labour prime minister in 1924, but his government
was short-lived. He was re-elected in 1929, and served as prime minister for the second Labour
government from 1929 to 1931. Faced with an economic crisis, and weakened by splits in his own
party, he formed a National Government with some Conservatives and Liberals from 1931 to 1935.
120 Knowing that Labour was unlikely to stay in office for longer than a few months, Ponsonby had
successfully urged MacDonald to serve as his own foreign secretary, noting that the extraordinary
combination of circumstances would allow them to have control of the F.O. [Foreign Office] and to
begin to carry out some of the things we have been urging and preaching for years (letter from
Ponsonby to MacDonald, cited in David Marquand, Ramsay MacDonald (London: Jonathan Cape,
1977) at 300). Ponsonby was also familiar with the terrain, having worked in the diplomatic service
prior to his first election as an MP in 1908. He had also been long exposed to the workings of
government, being the son of Sir Henry Ponsonby, the private secretary to Queen Victoria, and the
great grandson of Lord Grey, prime minister from 1830 to 1834. See Raymond A. Jones, Arthur
Ponsonby: The Politics of Life (London: Christopher Helm, 1989) at 1 and 11.
121 U.K., H.C., Parliamentary Debates, 5th ser., vol. 171, cols. 2001-2006 (1 April 1924).
122 See Marvin Swartz, The Union of Democratic Control in British Politics during the First World
War (Oxford: Clarendon Press, 1971) at 14-17. See also Sally Harris, Out of Control: British Foreign
Policy and the Union of Democratic Control, 1914-1918 (Hull: University of Hull Press, 1996) at 2-3.
123 UDC manifesto of 1914, reprinted in Swartz, ibid. at 42. A year later, Ponsonby expounded
further on this position in Democracy and Diplomacy: A Plea for Popular Control of Foreign Policy
(London: Methuen and Co., 1915). Like other anti-war MPs, he lost his seat in the 1918 election, but
was re-elected in 1922 as a Labour MP.
124 U.K., H.C., Parliamentary Debates, 5th ser., vol. 171, col. 2005 (1 April 1924).
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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government of 1924-1929,125 but reinstated when MacDonald was re-elected prime
minister in 1929, and it has been observed ever since, absent cases of emergency.126
Failure to follow the practice carries no legal sanction, but would subject the
government to criticism given the long-standing nature of the convention.
487
Some have taken the view that the Ponsonby Rule is of limited value,127 since
the government is not legally bound to find valuable parliamentary time to debate a
motion deploring its intention to ratify a treaty, and if it did find time, it is unlikely
that the government would be defeated. This, of course, assumes the government
holds a majority. Moreover, although there is no rule flowing from the Ponsonby
procedure that requires Parliament to debate the proposed treaty action, and
parliamentary time is limited, it may still be difficult for the leader of the House to
resist a debate on an important or controversial treaty that has been laid before
Parliament. Ponsonby himself admitted as much in his original announcement when
he stated:
In the case of important Treaties, the Government will, of course, take an
opportunity of submitting them to the House for discussion within this [21 day]
period. But, as the Government cannot take upon itself to decide what may be
considered important or unimportant, if there is a formal demand for discussion
forwarded through the usual channels from the Opposition or any other party,
time will be found for the discussion of the Treaty in question.128
It is also possible for members of both Houses to debate a proposed treaty action by
initiating a private members statement or bill, and making use of the parliamentary
questions procedure, both written and oral.
In my view, however, the most important benefit of the Ponsonby Rule has been
the timely access provided to Parliament and the public to information about recent
treaties, and hence its encouragement of greater transparency in treaty making, even
though not every treaty laid before Parliament is expressly approved. This, in fact,
was Ponsonbys intention when, in 1924, he warned that [r]esolutions expressing
Parliamentary approval of every Treaty before ratification would be a very
cumbersome form of procedure and would burden the House with a lot of
unnecessary business.129 He went on to note that [t]he absence of disapproval may
125 The Conservative under-secretary of state for foreign affairs, Mr. Ronald McNeill, referred to
the practice as an utterly absurd rule during a debate on a Labour resolution requiring all treaties to
be ratified with the consent of Parliament: U.K., H.C., Parliamentary Debates, 5th ser., vol. 181, col.
1443 (11 March 1925). The resolution was later defeated by 255 votes to 133: U.K., H.C.,
Parliamentary Debates, 5th ser., vol. 181, cols. 1474-78 (11 March 1925).
126 H.C. Factsheet No. 14, supra note 114 at 3.
127 Lord Templeman, Treaty-Making and the British Parliament (1991) 67 Chicago-Kent L. Rev.
459 at 466.
128 U.K., H.C., Parliamentary Debates, 5th ser., vol. 171, cols. 2003-2004 (1 April 1924).
129 U.K., H.C., Parliamentary Debates, 5th ser., vol. 171, col. 2004 (1 April 1924).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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be accepted as sanction, and publicity and opportunity for discussion and criticism are
the really material and valuable elements which henceforth will be introduced.130
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Since January 1997, an additional, and equally valuable, practice has developed
in the UK whereby an explanatory memorandum (EM) is also made available for
every treaty laid before Parliament under the Ponsonby Rule as a means of improving
parliamentary treaty scrutiny.131 As with the unratified treaties, copies of the EMs are
made available to members of both Houses through the Votes Office and the Printed
Paper Office, and are distributed to the chairpersons of the relevant select committees.
The EMs are also posted on a treaty website maintained by the FCO132 and through
this medium are readily available to the public. EMs are drafted by the government
department that has the main policy interest in a particular treaty,133 but are cleared
through the relevant legal adviser at the FCO.134 They are signed by a minister,
preferably the minister with responsibility for the subject matter of the treaty, and are
intended to provide information on the contents of the treaty, the rationale for the
governments support for ratification, and the governments view of the benefits and
burdens for the UK in becoming a treaty party. EMs also put on record which minister
is primarily responsible for the treaty, the anticipated financial implications of
ratification, the means required to implement the treaty, and the outcome of any
discussions that have taken place within government and with interested parties, such
as business and special interest groups.135 EMs also provide information on the
content of any reservations or declarations.136
130 Ibid.
131 The undertaking by the relevant ministers to provide an EM is found in the form of a Written
Answer published in U.K., H.C., Parliamentary Debates, 6th ser., vol. 287, col. WA 430 (16
December 1996) and U.K., H.L., Parliamentary Debates, 5th ser., vol. 576, col. WA 101 (16
December 1996). This undertaking was made following an unsuccessful attempt by Lord Lester of
Herne Hill, QC, to subject the treaty-making power to parliamentary approval through the
introduction of a Treaties (Parliamentary Approval) Bill: see U.K., H.L., Parliamentary Debates, 5th
ser., vol. 569, col. 1530 (28 February 1996). The bill was withdrawn in exchange for the
governments undertaking to introduce a system of EMs by administrative, non-statutory means, as
acknowledged in the document entitled Evidence to the Royal Commission on the Reform of the
House of Lords [FCO Evidence], reproduced in the volume of evidence and the CD-ROM
released with the commissions report: U.K., Royal Commission on the Reform of the House of
Lords, A House for the Future, Cm 4534 (London: Her Majestys Stationery Office, 2000) [Wakeham
Report].
132 See supra note 117.
133 Only fifty-five per cent of EMs are drafted by the Foreign & Commonwealth Office. See FCO
Evidence, supra note 131 at para. 30. This is why the FCO has prepared Guidelines on Explanatory
Memoranda for Treaties to assist other government departments.
134 See Treaties and MOUs, supra note 32 at 9.
135 See generally ibid. at 9-11 and the sample EM at 12-14.
136 A supplementary EM is laid before Parliament if there are any changes to the content of a
reservation or declaration, or if the government wishes to make any additional reservations or
declarations. See ibid. at 11.
489
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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Since November 2000, the FCO has also ensured that a copy of every treaty laid
under the Ponsonby Rule is sent to the relevant departmental select committee,137
thereby enabling the existing committee system to initiate a timely inquiry, if desired,
by drawing attention to a new treaty action under consideration. Such inquiries serve
to involve both the government and the non-governmental community in the
submission of written and oral evidence, with the utility of such submissions leading
to calls within the UK for the establishment of a designated treaty scrutiny committee
to ensure the institutionalized scrutiny of all international treaties. The Royal
Commission on the Reform of the House of Lords reported favourably on this
proposal in early 2000,138 as did the House of Commons Procedure Committee in
mid-2000139 (having been prompted by a request from the Defence Committee to
inquire into what it viewed as Parliaments unsatisfactory role in treaty making140). In
2004, the Joint Committee on Human Rights added its voice, viewing the lack of
effective parliamentary scrutiny [as] particularly pressing in relation to human rights
treaties.141 While this call for a treaty committee has (so far) been resisted, nothing
bars an existing committee from undertaking a treaty enquiry, with the Joint
Committee taking the lead.142 The Joint Committee has now advised that it will report
to Parliament on all human rights treaties, viewing the reporting mechanism as a
137 The Ponsonby Rule, supra note 113. Select committees are appointed by the House of Commons
to perform a wide range of functions and over the years have become the principal mechanism by
which Parliament holds government ministers and their departments to account. See Erskine May,
supra note 115 at c. 26.
138 Submissions (in which the author was involved) were made to the House of Lords Liaison
Committee and the Royal Commission on the Reform of the House of Lords in 1999, urging the
establishment of a treaty scrutiny committee. The FCO also submitted its views on the proposal in
FCO Evidence, supra note 131. The commission recommended that the Liaison Committee
consider establishing such a committee since it was, in the commissions words, exactly the
mechanism we believe is required to carry out the technical scrutiny of such treaties (Wakeham
Report, supra note 131 at 91). The Lords submission and FCO Evidence, supra note 131, can also
be found in the appendices to this report. The matter remains before the Liaison Committee, which is
the body responsible for coordinating committee activity in the House.
139 U.K., H.C., Select Committee on Procedure, Second Report: Parliamentary Scrutiny of Treaties
(HC 210) (London: Her Majestys Stationery Office, 2000). For the governments response, see U.K.,
H.C., Select Committee on Procedure, The Governments Response to the Procedure Committees
Second Report of Session 1999-2000, Parliamentary Scrutiny of Treaties (HC 210) (London: Her
Majestys Stationery Office, 2000), online: Foreign & Commonwealth Office
140 U.K., H.C., Select Committee on Defence, Third Report: NATO Enlargement (HC 469)
(London: Her Majestys Stationery Office, 1998) at paras. 103-06.
141 U.K., Joint Committee on Human Rights, Protocol No. 14 to the European Convention on
Human Rights (HL Paper 8/HC 106) (London: Her Majestys Stationery Office, 2004) at para. 6
[Report on Protocol No. 14].
142 See U.K., Joint Committee on Human Rights, The UN Convention on the Rights of the Child
(HL Paper 117/HC 81) (London: Her Majestys Stationery Office, 2003); U.K., Joint Committee on
Human Rights, The International Covenant on Social, Economic and Cultural Rights (HL Paper
183/HC 1188) (London: Her Majestys Stationery Office, 2004).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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means to enhance the democratic legitimacy of human rights obligations incurred …
by the Executive pursuant to the prerogative power.143
[Vol. 50
Some treaties are not subject to the Ponsonby Rule. Treaties that explicitly call for
parliamentary approval in order to come into force are handled outside of the
Ponsonby process,144 as are treaties that are not subject to ratification in the
international sense, although these treaties are later laid before Parliament upon their
entry into force via publication in the Treaty Series.145 Bilateral double taxation
agreements are also exempt, since there is a statutory requirement to expose such
treaties to parliamentary scrutiny when the draft order-in-council providing for the
taxation relief is laid before the House of Commons for approval.146 These too are also
later published in the Treaties Series. Lastly, the Ponsonby Rule allows for exceptions
when other means of consulting or informing Parliament can be used instead,
although such departures from the rule are rare.147
The UK government has also engaged in extraparliamentary treaty consultations,
with the public discussion of the Rome Statute of the International Criminal Court148
prior to ratification being the first example.149 As Professor Warbrick has so aptly
noted, if extra-parliamentary consultations on how best to implement a treaty are
feasible prior to ratification, then surely such consultations are possible within
Parliament.150 The UK has also shown that it is possible to carry out a public
consultation on the position to be adopted at the negotiation stage of treaty making.
For example, with respect to amending the 1972 Biological and Toxin Weapons
143 Report on Protocol No. 14, supra note 141 at para. 7.
144 Section 12 of the European Parliamentary Elections Act 2002 (UK), 2002, c. 24, for example,
requires any treaty increasing the powers of the European Parliament to be approved by a specific Act
of Parliament in order for ratification to take place. The UK has established extensive, sophisticated,
and systematic methods for the parliamentary scrutiny of EU developments. See also Priscilla Baines,
Parliamentary Scrutiny of Policy and Legislation: The Procedures of the Lords and Commons in
Philip Giddings & Gavin Drewry, eds., Britain in the European Union: Law, Policy and Parliament
(New York: Palgrave Macmillan, 2004) at 60-96; Adam Jan Cygan, The United Kingdom Parliament
and European Union Legislation (The Hague: Kluwer Law International, 1998).
145 Supra note 117.
146 See the Written Answer to a parliamentary question on Command Papers (Economies)
provided by the Lord Privy Seal: U.K., H.C., Parliamentary Debates, 6th ser., vol. 4, col. WA 82 (6
May 1981).
147 See The Ponsonby Rule, supra note 113.
148 Rome Statute, supra note 24.
149 The consultation was carried out through the publication in August 2000 of a draft version of an
International Criminal Court Bill, with a request for comments from the public, parliamentarians,
senior judges, police and legal associations, human rights organizations and academics. By the end of
the consultation period on 12 October 2000, forty-five submissions had been received, leading to the
introduction of a revised bill in the House of Lords on 14 December 2000, which would later become
the International Criminal Court Act 2001 (U.K.), 2001, c. 17.
150 Colin Warbrick, Current Developments: Treaties (2000) 49 I.C.L.Q. 944 at 950.
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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Convention,151 public consultations were conducted from April to September 2002,
and involved the publication of a consultation document that expressly sought views
from MPs, NGOs, and other organisations and individuals with an interest in [the]
subject.152
491
V. The Australian Contribution to an Improved Treaty-Making Process
Australia also serves as a model for reforming the Canadian treaty-making
process, particularly given Canada and Australias shared legal heritage and similar
political structure. As in Canada, treaty making is a prerogative power exercised by
the federal executive of Australia,153 and like Canada, Australia experienced an earlier
era of parliamentary participation that gradually fell into decline. A study undertaken
in the mid-1960s revealed that fifty-five treaties had received the Australian
parliaments approval prior to ratification between 1919 and 1963.154 Then in 1961, at
the behest of Prime Minister Robert Menzies, a practice began whereby all treaties
were tabled in both Houses of the Commonwealth Parliament for a period of time
prior to ratification.155 But this practice, oddly enough, also fell into disuse in
Australia in the 1970s, and was replaced with a practice of tabling batches of treaties
at six-month intervals, usually after the executive had given the nations consent to be
bound, and thus leaving no room for prior parliamentary scrutiny.156
As in Canada, however, a ratified treaty in Australia requires the passage of
domestic legislation to gain direct domestic legal effect (unless, of course, there is
existing legislation that is sufficient to give effect to the obligations in the new
treaty).157 The Australian constitution, however, in marked contrast to that of Canada,
contains an express external affairs power in section 51(xxix), which has been
interpreted broadly by the Australian courts so as to grant the Commonwealth
151 Convention on
the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015
U.N.T.S. 163, Can. T.S. 1975 No. 12, 11 I.L.M. 310 (entered into force 26 March 1975).
the Prohibition of
152 U.K., H.C., Strengthening the Biological and Toxin Weapons Convention: Countering the
Threat from Biological Weapons, Cm 5484 (London: Her Majestys Stationery Office, 2002) at 3,
online: Foreign & Commonwealth Office:
153 The inheritance of the prerogative power by the federal rather than state executive is confirmed
by section 61 of the Commonwealth of Australia Constitution Act, 1900 (U.K.), 63 & 64 Vict., c. 12
[Australian constitution].
154 Gnther Doeker, The Treaty-Making Power in the Commonwealth of Australia (The Hague:
Martinus Nijhoff, 1966) at 138, 257-61.
155 See Anne Twomey, International Law and the Executive in Brian R. Opeskin & Donald R.
Rothwell, eds., International Law and Australian Federalism (Melbourne: Melbourne University
Press, 1997) [Opeskin & Rothwell, Australian Federalism] at 87.
156 See Twomey, ibid. See also Daryl Williams, Establishing an Australian Parliamentary Treaties
Committee (1995) Pub. L. Rev. 275 at 278-79 [Williams, Establishing a Treaties Committee].
157 For a current review of the reception of international law in Australia, see Hilary Charlesworth et
al., Deep Anxieties: Australia and the International Legal Order (2003) 25 Sydney L. Rev. 423.
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Parliament the power to enact any legislation necessary to bring into effect Australias
treaty obligations, even when the subject matter of the legislation falls within the
constitutional competence of the six state parliaments.158 If such legislation conflicts
with any state law, section 109 of the Australian constitution provides that the
Commonwealth law prevails to the extent of any inconsistency. Thus, the Australian
courts take the opposite position to that taken in Canada since the Labour
Conventions case, having decided that the consequences that flow from allowing the
state parliaments to hamper the national parliaments ability to ensure treaty
compliance outweigh the possible usurpation or emasculation of the states powers.
Since 1996, however, Australia has reformed its treaty-making process through
the creation of a designated parliamentary committee to which all future treaty actions
must be sent before they become binding legal obligations. Known as the Joint
Standing Committee on Treaties (or JSCOT), the story of its creation is intertwined
with the Australian High Courts decision in Teoh,159 where it was held that the
ratification of a treaty created a legitimate expectation that the executive and its
agencies would act in conformity with that treaty, even when the treaty had not been
implemented into domestic law. The Supreme Court of Canada later adopted a similar
position in Baker,160 notwithstanding the almost immediate repudiation of the Teoh
principle by the Australian Government.161 Teoh did, however, add fuel to a passionate
debate then taking place about the perceived lack of parliamentary or public oversight
regarding Australias involvement in international affairs that had been triggered by
the Toonen decision162 of the UN Human Rights Committee, which had found
Australia in breach of the International Covenant on Civil and Political Rights163
because of a criminal ban on homosexuality in Tasmania. The Toonen case was both a
political issue, with some expressing concern about the impact of UN bodies on
Australian sovereignty, and a federal issue, given the Commonwealth governments
158 See generally Tony Blackshield & George Williams, Australian Constitutional Law and Theory,
3d ed. (Sydney: Federation Press, 2002) at 774-801; Leslie Zines, The High Court and the
Constitution, 4th ed. (Sydney: Butterworths, 1997) at 274-86. On the key case of The Commonwealth
v. Tasmania, (1983), 158 C.L.R. 1 (H.C.A.) [Tasmanian Dams case], see Andrew C. Byrnes, The
Implementation of Treaties in Australia after the Tasmanian Dams Case: The External Affairs Power
and the Influence of Federalism (1985) 8 B.C. Intl & Comp. L. Rev. 275-339.
159 Supra note 3.
160 Supra note 5.
161 Australia, Department of Foreign Affairs and Trade, Media Release M44, Joint Statement M44
by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney General, Michael
Lavarch: International Treaties and the High Court Decision in Teoh (10 May 1995), online:
Department of Foreign Affairs and Trade
anti-Teoh legislation, even though an expectation cannot arise from state action.
162 Human Rights Committee, Communication No. 488/1992, Toonen v. Australia, 1994, UN Doc.
CCPR/C/50/D/488/1992.
163 Supra note 6. Australia has been a treaty party to the covenant since 1980.
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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ability to use the external affairs power to override Tasmanian state law to comply
with the committees decision.164
493
Given this interest in international law, including treaty making,165 a request was
made to the Senate Legal and Constitutional References Committee in December
1994 to undertake an extensive review of the treaty-making power. The results of this
review were published in November 1995, in the form of an extensive report entitled
Trick or Treaty? Commonwealth Power to Make and Implement Treaties,166 which
recommended improved access to treaty information, an enhanced role for Parliament
through the creation of a treaty committee,167 and greater consultation with industry,
civil society, and subnational governments. The report received a favourable response
from the coalition government that came to power after the March 1996 election,168
and on 2 May 1996, the minister for foreign affairs and the attorney general made a
statement to Parliament introducing reforms that would, in their words, overcome
what this Government considers to have been a democratic deficit in the way treaty-
making has been carried out in the past.169
Under the reformed treaty-making process, all proposed treaty actions must,
according to administrative practice rather than legislation, be tabled in Parliament at
least fifteen sitting days before binding action is taken, although there is some
164 See Brian R. Opeskin & Donald R. Rothwell, The Impact of Treaties on Australian Federalism
(1995) 27 Case W. Res. J. Intl L. 1 at 49-54.
165 An interest also evident across the Tasman Sea: in 1993, the New Zealand Law Commission
circulated a draft report, The Making, Acceptance and Implementation of Treaties: Three Issues for
Consideration, prepared by its then president, Sir Kenneth Keith, which later led to the publication of
Report 45: The Treaty Making Process: Reform and the Role of Parliament (Wellington: Law
Commission, 1997), calling for the creation of a treaty committee.
166 Austl., Commonwealth, Senate Legal and Constitutional Committee, Trick or Treaty? Common-
wealth Power to Make and Implement Treaties (N.p., November 1995), online: Parliament of
AutraliaSenate
167 The proposal to create a Standing Committee on Treaties was long-standing, having been
introduced in 1983 by Brian Harradine, Australias longest-serving independent senator, and then
reintroduced in subsequent sessions. See Twomey, supra note 155 at 88; I.A. Shearer, International
Legal Notes (1995) 69 Austl. L.J. 404 at 406, n. 12.
168 In part because the report was a reflection of the governments own policies. See Daryl
Williams, Australias Treaty-Making Processes: The Coalitions Reform Proposals in Alston &
Chiam, supra note 15, 185 at 192 [Williams, Australias Process]. Coalition support for a treaty
committee was also fostered by the public reaction to the discovery that Prime Minister Paul Keating
had secretly negotiated a mutual security treaty with Indonesian President Suharto in 1995. See also
Greg Sheridan Security deal moves into the open The Australian (21 October 2004) online: The
Australian
169 Australia, Department of Foreign Affairs and Trade, Media Release FA29, Joint Statement by
the Minister for Foreign Affairs, Alexander Downer, and the Attorney-General, Daryl Williams:
Government Announces Reform of Treaty-Making (2 May 1996), online: Department of Foreign
Affairs and Trade
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flexibility when circumstances require either a shorter or longer time period.170 Each
treaty is tabled with a national interest analysis (NIA), a public document
prepared by the line agency in consultation with the Department of Foreign Affairs
and Trade (DFAT), that sets out the proposed treaty actions advantages, legal
impacts and financial costs, and documents the consultation that has taken place.171
The tabled treaty (and NIA) is then sent for scrutiny and review to JSCOT, a
relatively large all-party committee comprised of nine members of the House of
Representatives and seven members of the Senate, and supported by a small
secretariat. JSCOT is empowered to inquire into and report upon any treaty matter,
whether bilateral, plurilateral or multilateral, including treaties in the process of being
negotiated, as well as those that have already been concluded. It can accomplish this
mandate through several means, including the holding of public hearings across
Australia and the review of submissions from other parliamentarians, non-
governmental organizations, academics, industry groups, and individual members of
the public.172 At the completion of its inquiry, JSCOT prepares a report for Parliament
containing its advice on whether the treaty should bind Australia and on any other
related issues that may have emerged during the review process. These reports, as
well as the treaty text, the NIA, the hearing transcripts, and even the written
submissions received by JSCOT, are all made available to the public (and the world)
through the Committees website, thereby serving as a useful resource on a treatys
intentions, effects, and consequences.173 To bolster these reforms, Australia also
created an excellent online treaty database, providing free public access to treaty texts,
their ratification records, NIAs, and detailed information on multilateral treaty actions
currently under negotiation, consideration or review by the Australian government.174
The reformed treaty-making process has now been in place for over nine years.
During this time, well over two hundred treaties have been examined by JSCOT,
resulting in sixty-five reports to Parliament,175 which in turn have prompted over
thirty Government Responses.176 While some treaty actions so examined have been
relatively bland, others have prompted substantial numbers of written submissions
170 Special arrangements can be made if a treaty is sensitive or requires urgent and immediate
implementation.
171 See all the NIAs since 1996 on AustLII, online:
172 Notices for meetings appear regularly in The Australian newspaper under the heading Whats
Happening at Your House, and JSCOT staff regularly send out email alerts to civil society groups
about specific inquiries of interest.
173 See
JSCOTs website, online:
[JSCOT website].
174 See the Australian Treaties Database, online:
Department of Foreign Affairs and Trade also supports the Australian Treaties Library maintained by
the Australasian Legal Information Institute, online:
175 JSCOT, Committee Activities (Inquiries and Reports), online: JSCOT
176 The Government Response to a JSCOT report is also made publicly available on the JSCOT
website, supra note 173.
495
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and the holding of public hearings in every capital city in Australia.177 In fact, so
successful has this process been in enhancing public awareness of treaties that in
2000, after record levels of public submissions to JSCOT, the government agreed to
extend the scrutiny period to twenty sitting days (roughly equivalent to eight weeks)
for treaties identified as being of major political, economic or social significance and
likely to attract considerable public interest and debate.178 In any event, the
governments own review of the process in 1999 concluded that the typical fifteen-
sitting-day period (roughly equivalent to five weeks) did not pose an obstacle to the
executives ability to undertake timely treaty action.179 Moreover, the sufficiency of
the scrutiny process was seen, at least by the government,180 as alleviating any need
for a rule requiring the parliamentary approval of treaties for ratification, as had been
previously mooted in the deliberations of the 1988 Constitutional Commission181 and
a private members bill.182
177 See e.g. Austl., Commonwealth, JSCOT, Report 61: Australia-United States Free Trade
Agreement (23 June 2004), online: JSCOT website, ibid.
178 As a result, treaties are classified as either category A (requiring fifteen sitting days) or category
B (requiring twenty sitting days). See the brief explanation on the Department of Foreign Affairs and
Trades website, online:
treaties fall within category A, especially template treaties on matters of tax and extradition, while
category B is for multilateral treaties and significant one-off bilateral treaties such as the Timor Sea
Treaty (East Timor and Australia, 20 May 2002, [2003] A.T.S. 13 (entered into force 2 April 2003)).
179 Austl., Commonwealth, Review of the Treaty-Making Process (N.p., August 1999), online:
Attorney-Generals Department
Card on Recent Reforms [2001] Austl. Intl L.J. 177; Madelaine Chiam, Evaluating Australias
Treaty-Making Process (2004) 15 P.L. Rev. 265.
180 1999 Review, ibid. at para. 5.4.
181 In the end, only two members of the Constitutional Commission supported the view that there
should be a statutory requirement that the ratification of treaties be conditional on either the approval
of both Houses of Parliament or the disallowance by either House within a specified period: Austl.,
Commonwealth, Constitutional Commission, Final Report of the Constitutional Commission, vol. 2
(Canberra: Australian Government Publishing Service, 1988) at 745-46 (Professor Leslie Zines) and
749 (Sir Rupert Hamer).
182 Senator Vicki Bourne, the Foreign Affairs spokesperson for the Australian Democrats,
introduced a private members bill in June 1994, and again in May 1995, that would have required the
executive to secure Parliaments approval to ratify a treaty: see Vicki Bourne, The Implications of
Requiring Parliamentary Approval of Treaties in Alston & Chiam, supra note 15, 196 at 196-97.
This proposal has been seen by some to breach the constitutional separation of powers in Australia, as
well as in New Zealand where, coincidentally, a similar private members bill was proposed by Green
Party MP Keith Locke. See also Mai Chen, A Constitutional Revolution? The Role of the New
Zealand Parliament in Treaty-Making (2001) 19 N.Z.U.L. Rev. 448; Treasa Dunworth,
International Treaty Examination: The Saga Continues [2002] N.Z.L. Rev. 255 at 255-61. The
Senate References Committee, however, drew no conclusions about approval versus scrutiny in Trick
or Treaty?, supra note 166, and as noted earlier, Antigua and Barbuda already require parliamentary
approval for treaty ratification (supra note 37). A similar proposal was included in a draft constitution
for the UK published by the British Institute for Public Policy Research in 1993.
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As for the content of the scrutiny, JSCOT has examined mostly new treaty
actions, including new amendments to existing treaties, although the broad
interpretation it has taken of its mandate has allowed for the examination of one treaty
well after ratification (in essence providing an audit of that treatys domestic
implementation),183 and the examination of another during its negotiation.184 Some of
its reports cover several treaties at once, while others focus solely on a treaty of
particular importance, such as the Rome Statute of the International Criminal Court185
and the Kyoto Protocol.186 JSCOT has also examined the domestic legislation
intended to implement a treaty obligation,187 leading to the revision and improvement
of this legislation, and the law and policy of a subject area based on a network of
treaties (that subject area being extradition law).188 It has also examined a treaty that
the government had publicly stated it was not intending to ratify.189 JSCOT has thus
proven it has the powerful tool of initiative, and does not work solely at the behest of
executive action.
JSCOT has usually concluded its review with a positive recommendation to the
executive to take binding treaty action. But, as with other parliamentary committees,
there can be dissenting reports, usually made by opposition members, and on
183 Austl., Commonwealth, JSCOT, Report 17: United Nations Convention on the Rights of the
Child (28 August 1998), online: JSCOT website, supra note 173. This Convention has attracted
considerable controversy in Australia since its ratification in 1990, not least because of its role in
asylum cases such as Teoh, supra note 3. The JSCOT inquiry provided an opportunity for many
Australians to be heard, as evidenced by the over 700 letters and submissions, although some
contributors believed (erroneously) that the purpose of the inquiry was to facilitate Australias
withdrawal from the treaty. For an analysis of the JSCOT inquiry, see Jones, supra note 106.
184 Austl., Commonwealth, JSCOT, Report 14: Multilateral Agreement on Investment: Interim
Report (1 June 1998) and Report 18: Multilateral Agreement on Investment: Final Report (23 March
1999), online: JSCOT website, supra note 173.
185 Austl., Commonwealth, JSCOT, Report 45: The Statute of the International Criminal Court (14
May 2002), online: JSCOT website, ibid. [Report 45].
186 Austl., Commonwealth, JSCOT, Report 38: The Kyoto ProtocolDiscussion Paper (4 April
2001), online: JSCOT website, ibid. Australia signed the Kyoto Protocol in 1997, but has since
decided not to ratify the treaty. Australia is pursuing instead its own strategy for reducing greenhouse
emissions: Australian Greenhouse Office, Department of the Environment and Heritage, Kyoto
Protocol, online: Australian Greenhouse Office
187 Austl., Commonwealth, JSCOT, Report 16: OECD Convention on Combating Bribery and
Draft Implementing Legislation (2 July 1998), online: JSCOT website, supra note 173.
188 Austl., Commonwealth, JSCOT, Report 40: ExtraditionA Review of Australias Law and
Policy (6 August 2001), online: JSCOT website, ibid. This report has since been discussed in some
detail by the Federal Court of Australia in the extradition case of Hellenic Republic v. Tzatzimakis,
[2002] FCA 340, [2002] WL 461785 at paras. 73-82 (F.C.A.) (WL), and in brief by the High Court of
Australia in the extradition case of Pasini v. United Mexican States, [2002] 187 A.L.R. 409, [2002]
HCA 3 at para. 92 (H.C.A.).
189 Austl., Commonwealth, JSCOT, Report 58: Optional Protocol to the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (23 March 2004), online: JSCOT
website, supra note 173.
497
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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occasion, albeit rarely, JSCOT has made a unanimous recommendation against the
ratification of a proposed treaty action.190 It has also criticized departmental officials
when they have provided inadequate NIAs, and it has criticized the government when
it has found there to have been insufficient consultation, thereby having an impact on
the pre-signature stage of treaty making.191 As accepted publicly by the former
attorney general, the unanimous conclusions of a multipartisan committee have an
impact,192 and in this way, the JSCOT process can serve to keep the executive branch
in check, while also making a wealth of treaty information (including departmental
information) available for scrutiny. A review of the appendices to the annual reports193
published by DFAT reveals a steady list of departmental officials regularly appearing
before JSCOT to provide it with information that is later made more widely available
through transcripts and reports.194 The final advantage to the JSCOT process is that it
does not bar other parliamentary committees from examining a treaty action should
they so desire,195 such as when a particular committee has a specialized expertise in a
treatys subject matter. Furthermore, the familiarity with treaties generated by the
JSCOT process may embolden other committees to act.
VI. Federal Innovations in Commonwealth Treaty Making
As for accommodating Canadas federal character in a reformed treaty-making
process, the UK, perhaps surprisingly for some readers, also provides a model worthy
of adaptation, though admittedly the model is at a nascent stage of development. With
the passage of legislation in 1998 to devolve certain specified legislative and
executive powers to new parliaments and administrations in Scotland, Wales, and
Northern Ireland, the UK has become a quasi-federal state. While devolution is not,
strictly speaking, a form of federalism since there has been no abdication of the
190 Austl., Commonwealth, JSCOT, Report 11 (24 November 1997), online: supra note 173 at xii,
concerning a proposed Agreement on Economic and Commercial Cooperation with Kazakhstan. The
committees unanimous support for the International Criminal Court in Report 45, supra note 185, is
also interesting given the internal division then present within the government party.
191 See e.g. Austl., Commonwealth, JSCOT, Report 28: Fourteen Treaties Tabled on 12 October
1999 (6 December 1999) online: JSCOT website, supra note 173, concerning a proposed Consular
Agreement with China. See also Austl., Commonwealth, JSCOT, Report 18: Multilateral Agreement
on Investment: Final Report (23 March 1999) online: JSCOT website, ibid.
192 See Williams, Establishing a Treaties Committee, supra note 156 at 283.
193 Unlike Canada, but like the UK, Australia continues to publish departmental annual reports. The
DFAT annual reports (since that of 1993-1994) are also available online: Department of Foreign
Affairs and Trade, Australia
194 Staff from the Commonwealth Attorney Generals Department also attend JSCOT meetings
regularly.
195 See e.g. Austl., Commonwealth, Senate Foreign Affairs, Defence and Trade References
Committee, Voting on Trade: The General Agreement on Trade in Services and an Australia-US Free
Trade Agreement (Canberra: Australian Government Publishing Service, 2003).
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central legislatures supremacy,196 there is an intention to develop a convention
whereby the central parliament in Westminster will not normally legislate with
regard to devolved matters … without the consent of [the devolved body].197
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Under devolution, international relations, including treaty making, remain a
matter expressly reserved to Westminster in relation to Scotland,198 a function not
transferred in relation to Wales,199 and an excepted matter in relation to Northern
Ireland.200 Yet the spirit of devolution has led to a change in the UKs treaty-making
practice so as to provide for the involvement of the devolved administrations where a
treaty action might have implications for devolved areas of responsibility. This change
builds on the practice of consultation already in place in respect of any treaty making
affecting the Channel Islands, the Isle of Man or the Overseas Territories.201 The UK
has also opted for a Labour Conventions-style approach with respect to treaty
implementation in the post-devolution era, accepting that a dual or parallel202
competence for implementation exists as a result of the division of powers between
Westminster and the devolved legislatures.
To ensure effective co-operation between the national and devolved orders of
government, certain ground rules have been formalized to guide each administration
196 By contrast, in a federal state, legislative supremacy is divided between the central and regional
authorities, with neither being subordinate to the other within their sphere of competence.
197 This is known in Scotland as the Sewel Convention after the statement to this effect made by
Lord Sewel during the second reading of the Scotland Bill (Bill 104, Scotland Bill, 1997-1998 Sess.,
1998). See U.K., H.L., Parliamentary Debates, 5th ser., vol. 592, col. 791 (21 July 1998). See also
Barry K. Winetrobe, Counter-Devolution? The Sewel Convention on Devolved Legislation at
Westminster (2001) 6 Scot. L. & Prac. Q. 286 at 287. The Sewel Convention is restated to apply to
all the devolved bodies in the Memorandum of Understanding discussed at note 205, below. Sewel
motions, indicating that the consent of the devolved body has been obtained, were given fairly
frequently during the early days of devolution. See Alan Page & Andrea Batey, Scotlands Other
Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution [2002]
P.L. 501.
198 See Scotland Act 1998 (U.K.), 1998, c. 46, Sch. 5, Part I, s. 7.
199 See Government of Wales Act 1998 (U.K.), 1998, c. 38. The National Assembly for Wales is the
weakest of the devolved bodies since it lacks the power to pass primary legislation.
200 See Northern Ireland Act 1998 (U.K.), 1998, c. 47, Sch. 2, s. 3. The UKs form of quasi-
federalism is asymmetrical, both in terms of the powers given to the subnational units and the
terminology used to describe these powers.
201 It is recognized, however, that neither the Channel Islands and the Isle of Man, nor the fourteen
Overseas Territories, are constitutionally part of the UK. The former are self-governing dependencies
of the Crown with their own legislative assemblies, while the latter have separate constitutions, and
most have elected governments with varying degrees of responsibilities for domestic matters.
202 To borrow the term used by the Foreign Office Legal Adviser, Sir Franklin Berman, KCMG,
QC, in Treaty Implementation in Great Britain after Devolution in Thomas M. Franck, ed.,
Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (New York:
Transnational Publishers, 2000) at 256.
499
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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and their respective officials as to what is now required.203 These rules can be found in
the Memorandum of Understanding and the five overarching concordats,204
including a Concordat on International Relations and another specifically on the
Co-ordination of European Union Policy Issues, agreed to by the UK government
and the devolved administrations in 1999, with some more recent revisions as
devolution has evolved.205 Described as one of the main pillars of the novel
devolutionary architecture of the United Kingdom,206 these non-statutory executive
agreements are intended to be binding in honour only rather than in law.207
Nevertheless, the agreements promise inter-institutional co-operation in the exchange
of information, the formulation of UK foreign policy, the negotiation of treaties, and
the implementation of treaty obligations. Provision also exists in the concordats for
ministers and officials from the devolved administrations to form part of a UK treaty
negotiating team, and for the apportionment of any quantitative treaty obligations, as
well as the imposition of penalties should the devolved bodies default on any agreed
liability. In this way, the UK is sharing its treaty-making power with its subnational
authorities, albeit on the condition of mutual respect for the confidentiality of the
discussions and adherence to the resultant UK line in any international negotiations.208
Since devolution,
the Scottish Parliament has established a dedicated
parliamentary committee on European and External Relations to keep watch on
matters of international relations, although the external relations aspect of its
mandate has only been present since March 2003209 and much of the committees
203 A Parliamentary Relations and Devolution Department has also been established within the
Foreign Office to assist with the new practice.
204 Separate departmental concordats have been drafted which operate within the overarching
framework.
205 See U.K., H.C., Memorandum of Understanding and Supplementary Agreements between the
United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for
Wales, Cm 4444 (London: Her Majestys Stationery Office, 1999), online: Cabinet Office
terms of the memorandum allow for regular review and revision. A revised memorandum was
published in July 2000 to take account of the devolution process in Northern Ireland, which had been
suspended from February to May 2000. However, on 14 October 2002, the Northern Ireland
Assembly and Executive were again suspended and the province returned to direct rule from
Westminster. The memorandum and concordats cease to operate during the suspension.
206 Richard Rawlings, Concordats of the Constitution (2000) 116 Law Q. Rev. 257 at 258.
207 Ibid. at 282. The concordat further states that it is not intended to constitute a legally enforceable
contract or to create any rights or obligations that are legally enforceable. At most, it might create a
legitimate expectation of consultation in the procedural sense if subject to judicial review. See
supra note 197 and accompanying text.
208 These requirements can be found in U.K., H.C., Scotlands Parliament, Cm 3658 (London:
Her Majestys Stationery Office, 1997) at para. 5.4 [Scotlands Parliament].
209 An amendment to rule 6.8 of the Standing Orders of the Scottish Parliament was adopted on 5
March 2003 to extend the remit of the European Committee to include external relations more
broadly: Standing Orders of the Scottish Parliament, 2d ed., September 2003 (5th Revision, March
2005), online: The Scottish Parliament
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energies remain focussed on the scrutiny of EU developments.210 This is not
surprising since Scotland has long had an interest in gaining a greater voice in EU
matters given the importance of fishing and agriculture to the Scottish economy, the
distinct character of the Scottish legal system, the inclusion of matters of justice and
home affairs in the EU mandate, and the desire for regional development funds.211 The
UK government has stated that it will take into account the views of the Scottish
Parliament;212 but both implicit and explicit in the nature of the devolved
arrangements is the fact that Westminster retains the ability to override the actions of
any devolved body and could do so to ensure the states compliance with its
international commitments.213
Notwithstanding the very recent nature of these developments, an example can
already be found of the UK sharing its treaty-making capacity with its subnational
units. The example concerns the Convention on the International Protection of
Adults,214 a treaty drawn up by the Hague Conference on Private International Law to
improve the protection in international situations of incapacitated adults. The treaty
essentially sets out rules to determine which countrys courts or administrative
authorities should have jurisdiction in situations involving adults with connections to
more than one country. Under devolution, the subject matter of the treaty falls within
the competence of the Lord Chancellor for England, Wales and Northern Ireland, and
the (Scottish) minister of justice for Scotland. Consultations carried out in 1999 in
England and Wales, Scotland, and Northern Ireland, with respect to the draft
convention, revealed broad support for its provisions and led the Scottish Parliament
in 2000 to enact those provisions into Scottish law that would prepare Scotland for the
treatys implementation.215 The treaty was then signed on 1 April 2003 on the UKs
behalf by a Scottish member of Parliament, Mr. Hugh Henry (who is also the Scottish
deputy minister of justice), and presented to the Westminster parliament in July 2003
as required by the Ponsonby Rule.216 The UK government, however, declined to bring
the treaty into force for all of the UK and a note was entered upon ratification on 5
210 Details are available on the Scottish Parliaments website, online:
211 A similar interest is evident within other subnational regions of the EU, including Catalonia,
Flanders, and the German Lnder, and is also reflected within the EU itself, which established a
Committee of the Regions in 1991 to address, or deflect, increasing demands for greater regional
involvement.
212 See Scotlands Parliament, supra note 208 at para. 5.7.
213 Scotland Act 1998, supra note 198, s. 57; Government of Wales Act 1998, supra note 199, s.
108; Northern Ireland Act 1998, supra note 200, ss. 26-27.
214 13 January 2000, online: Hague Conference on Private International Law
215 Adults with Incapacity (Scotland) Act 2000, A.S.P. 2000, c. 4.
216 The convention was presented as U.K., H.C., Convention on the International Protection of
Adults, Cm 5881 (London: Her Majestys Stationery Office, 2003).
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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November 2003 declaring that the convention would apply to Scotland alone.217 The
UK has indicated that the ratification will be extended to the rest of the UK once the
necessary implementation legislation is in place.218
501
Federal innovations in treaty-making practice have also appeared in Australia, 219
particularly since the 1996 reforms, although there are earlier examples of the states
themselves indicating a desire to participate in federal treaty making. One such
example can be found in the state of Queensland, which established a Treaties
Commission to advise the Queensland government on the benefit to Queensland of
existing treaties.220 In its first report, the Treaties Commission also advised the
Queensland government (relying heavily on what was viewed erroneously as clear
Canadian practice),221 that the Australian states had the competence to enter into
legally binding intergovernmental agreements.222 A change of government in Canberra
in 1975 removed the need for Queensland to test this thesis.223 The commission was
later disbanded in 1977.
During the subsequent tenure of the Fraser government, the matter of
Commonwealth-state consultation with respect to treaty making in areas of state
interest was placed on a more formal footing, with Prime Minister Fraser announcing
a new era of co-operative federalism based on an agreement reached with the
premiers in 1977.224 This agreement was further formalized in 1982 by way of an
217 The ratification status and the text of the UKs declaration can be obtained from the website
maintained by the Hague Conference on Private International Law, online:
218 U.K., Foreign & Commonwealth Office, Explanatory Memorandum on the Hague Convention
on the International Protection of Adults (London: Her Majestys Stationery Office, 2003), online:
Foreign & Commonwealth Office
219 Australia is comprised of six states, two internal territories, and many external territories. The six
states were all former British colonies, which federated in 1901 to become the Commonwealth of
Australia. The two internal territories were formed at a later date from land surrendered by the states,
but have now been granted self-governing status. Although important differences remain, the internal
territories are often treated as akin to states in practice.
220 See Treaties Commission Act 1974 (Qld.). The act was later repealed by the Statute Law
(Miscellaneous Provisions) Act 1993 (Qld.), Sch. 3(B)(4), with a note indicating that the commission
had not functioned since 1977.
221 For the debate about provincial treaty-making capacity in Canada, see supra note 46, especially
van Ert. State claims to international personality, including the capacity to negotiate or enter treaties,
have also been rejected by the High Court: New South Wales v. The Commonwealth (1975), 135
C.L.R. 337 (H.C.A.), [1975] 8 A.L.R. 1 [Seas and Submerged Lands case].
222 See e.g. H. Burmester, The Australian States and Participation in the Foreign Policy Process
(1978) 9 Fed. L. Rev. 257 at 262-64. The full text of the first report of the Treaties Commission can be
found annexed to the proceedings of the Australian Constitutional Convention, held in Brisbane from
29 July to 1 August 1985.
223 The then Queensland premier, Sir Joh Bjelke-Petersen, having played a key role in bringing
down the Whitlam government through a Senate appointment that upset the balance and led to the
blocking of supply, triggering the constitutional crisis that resulted in Whitlams dismissal from office
by the governor general in November 1975.
224 The details of this agreement are found in Burmester, supra note 222 at 280-82.
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agreed statement of Principles and Procedures
for Commonwealth-State
Consultation on Treaties, which was later adopted by the Council of Australian
Governments (COAG) in 1992 and subsequently revised in 1996.225 This statement
is a public document designed to ensure that intergovernmental consultation takes
place from the time negotiations begin on a treaty. It also requires the Commonwealth
government to take into account the views of the states, although the lack of state
consent does not bar treaty ratification.226 The Principles and Procedures further
provide for possible state representation at treaty negotiations and for the sharing of
information, including departmental information, through the creation of a Standing
Committee on Treaties (SCOT) comprised of senior officials from each
jurisdiction.227 Following JSCOTs creation in 1996, an additional change was made
to the Principles and Procedures to provide for state and territory consultation in the
development of the NIAs applicable to treaties of state or territorial interest.228 This
inclusion also provides an opening for JSCOT to examine the NIA with a view to
ensuring that state and territorial consultation has in fact taken place.
A Treaties Council has also been created as part of the reform package of 1996,
although the idea (borrowed from Germany)229 had previously been supported by the
Australian Constitutional Convention of 1985,230 the Constitutional Commission of
1988, and the Senate References Committee in its 1995 Trick or Treaty? report,231 as
well as the Leaders Forum of 1995.232 The Treaties Council consists of the prime
minister, state premiers, and territorial chief ministers, and serves as a forum in which
225 Austl., Council of Australian Governments, Attachment CPrinciples and Procedures for
Commonwealth-State Consultation on Treaties, online: COAG
the peak intergovernmental forum in Australia, comprising the prime minister, state premiers, territory
chief ministers and the president of the Australian Local Government Association. It has been in
existence since 1992. Further details can be obtained from its website, online: COAG
226 Principles and Procedures, ibid., s. 3.1.
227 See Williams, Australias Process, supra note 168 at 187-89. See also Cheryl Saunders,
Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia
(1995) 17 Sydney L. Rev. 150 at 162-63. Some subject areas have long had their own mechanisms
for intergovernmental consultation on treaty developments. There is, for example, a 1992
Intergovernmental Agreement on the Environment setting out detailed Commonwealth-state
mechanisms relating to the negotiation and implementation of environmental treaties. See Bill
Campbell, The Implementation of Treaties in Australia in Opeskin & Rothwell, Australian
Federalism, supra note 155 at 149.
228 Principles and Procedures, supra note 225 at s. 4.2. See also Daryl Williams, Treaties and the
Parliamentary Process (1996) 7 Pub. L. Rev. 199 at 201.
229 A German Permanent Treaty Commission was created pursuant to the Lindau Agreement of
1957 and serves to coordinate the Lnder view on treaties. See Saunders, supra note 227 at 165.
230 See Saunders, ibid. at 163-66.
231 Supra note 166 at c. 13.
232 See Council of Australian Governments, Communiqu, Council of Australian Governments
Meeting (11 April 1995), online: COAG
503
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to share information and discuss treaties of particular sensitivity and importance to the
states and territories.233 It also has an advisory function and is supposed to meet at
least once a year.234 However, in its 1999 Review of the Treaty-Making Process, the
government admitted that the council had met only once from 1996-1999.235 This
meeting occurred in November 1997, at which time the council did discuss four
treaties and a draft UN declaration.236 In light of the submissions made by the states
and territories during the review process, it is clear that consultation at any early stage
in a treatys negotiation continues to be a matter of key concern, with several states
still pushing for the ability to approve a treaty where the subject matter falls within
state areas of responsibility. The Commonwealth government, however, is of the view
that the 1996 reforms are sufficient, and while the Treaties Council has not shared the
details of its meetings since 1997, its members have met through the broader COAG
meetings (although this leads to a fear that treaties have become a ten-minute item on
a lengthy inter-governmental agenda).
The Australian state parliaments, nevertheless, still push for a greater role in the
negotiation, scrutiny, and sometimes approval of treaties of significance to them.
Shortly after the publication of the Trick or Treaty? report, the Victoria Parliament
established a Federal-State Relations Committee with the power to inquire into,
consider, and report on matters of Commonwealth, state, and territory relations,
including areas of responsibility for which the State should have an enhanced role
for the benefit of the Federation.237 In its first report, released in October 1997, the
committee chose to tackle the question of state involvement in treaty making,
recommending that the Victoria Parliament establish its own treaties review
committee.238 The report also recommended that all treaties and treaty information be
tabled in the Victoria Parliament and encouraged the Victoria government to call on
the Commonwealth government to extend the fifteen sitting days to a period no longer
than six months to provide time for state consideration of future treaty actions. The
government of Victoria accepted the recommendation to table treaties in the Victoria
233 See Council of Autralian Governments, Treaties Council, online: COAG
234 See Principles and Procedures, supra note 225 at ss. 5.1, 5.3.
235 1999 Review, supra note 179.
236 For details, see Council of Australian Governments, Communiqu, Treaties Council Meeting
Communique (7 November 1997), online: COAG
237 Austl., Victoria, Federal-State Relations Committee, Terms of Reference in Victorian
Government Gazette, No. G-26 (4 July 1996) at 1706-07, reprinted in Michael John, Victoria
Launches Insight Committee The Parliamentarian (April 1998) 143 at 145.
238 Austl., Victoria, Federal-State Relations Committee, International Treaty Making and the Role of
the States (October 1997), especially c. 5, online: Federal-State Relations Committee
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Parliament, but refused to establish a treaty committee on resource grounds.239 The
Federal-State Relations Committee responded by keeping a eye on treaties itself, even
tabling comments on the proposed Multilateral Agreement on Investment. However, it
was itself disbanded in 2001.
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JSCOT has itself recognized the state interest in treaty making, convening a
meeting with representatives from all states and territories in 1999 to discuss the role
for parliaments in treaty making, as well as state proposals for according such
parliaments a greater role.240 Two proposals, in particular, appeared to garner support
at the meeting: the institution of procedures to ensure that the presentation of treaty
information by state executives to state parliaments is a matter of routine, and the
creation of parliamentary committees in each state and territory with specific
responsibility for reviewing treaties.241 After the seminar, the state representatives
reported back to their respective parliaments, with some states, such as Western
Australia, remaining strongly in favour of the parliamentary scrutiny of treaties at the
state level.242 In Queensland, the Legal, Constitutional and Administrative Review
Committee (LCARC) supported a middle ground position, recommending against a
Queensland treaty committee on grounds of duplication, but successfully convincing
the Queensland premier to periodically table in the Queensland Parliament a schedule
of treaties under negotiation, as well as all JSCOT advices regarding proposed treaty
actions.243 It would then be open to members of the Queensland Parliament to debate
the proposed treaty or refer the matter to a committee for further inquiry. The LCARC
has also endorsed a suggestion made by Professor Cheryl Saunders to require the
relevant state officials involved with intergovernmental relations to report annually to
LCARC on treaty matters.244
Canada is also not without past examples of federal-provincial co-operation in
treaty making where the circumstances have justified the involvement of one or more
provinces. The negotiation of the Canada-US Columbia River Treaty of 1961 is an
239 Victorias position is reproduced in Austl., Commonwealth, JSCOT, Report 24: A Seminar on
the Role of Parliaments in Treaty Making (30 August 1999), online: JSCOT website, supra note 173
[Report 24].
240 A full transcript of the meeting can be found in Report 24, ibid.
241 A third proposal to create an interparliamentary working group on treaties, which stemmed from
the Victoria Report, supra note 238, also received support.
242 Austl., Western Australia, Standing Committee on Constitutional Affairs, Report in relation to a
Seminar on the Role of Parliaments in Treaty MakingCanberra 24 and 25 (Report No. 38) by
Murray Nixon (N.p., 1999).
243 Austl., Queensland, Legal, Constitutional and Administrative Review Committee, The Role of
the Queensland Parliament in Treaty Making (Report No. 22) (N.p., April 2000) [LCARC Report No.
22]. The tabling of the actual treaty text was deemed unnecessary given the existence of the
Australian Treaties Database, supra note 174. A favourable review of the new tabling requirement
was conducted by the LCARC in 2003: Austl., Queensland, Legal, Constitutional and Administrative
Review Committee, The Role of the Queensland Parliament in Treaty MakingReview of Tabling
Procedure (Report No. 39) (N.p., July 2003).
244 LCARC Report No. 22, ibid. at 9.
505
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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early example, where the obvious interest of British Columbia (the province in which
the river originates)245 led to the establishment of a federal-provincial liaison
committee at the ministerial level and the inclusion of a provincial representative on
the Canadian negotiating team.246 An arrangement was also worked out between
Ottawa and British Columbia whereby the province would be responsible for the
treatys execution, with an agreement to indemnify the federal government in the
event of its failure to do so.247 There are, however, no guarantees that the federal
government will invite the provinces to participate in a treatys negotiations, no matter
how significant the treaty is to the province, and while such co-operation may occur,
there is no formalized or institutionalised process for involving the provinces in treaty
negotiations.
Various remedies for Canadas treaty-making woes have been proposed, with the
subject being included on the agenda of several past studies, including the 1940
Report of the Royal Commission on Dominion-Provincial Relations (which
recommended that the provinces give their power to implement international labour
conventions to the federal parliament)248 and the 1979 report of the Ontario Advisory
Committee on Confederation (which recommended that all treaties should be ratified
by both Houses of Parliament, with the Senate being replaced by a House of
Provinces).249 Constitutional amendments have also been proposed. In 1972, the
Special Joint Committee of the Senate and of the House of Commons on the
Constitution of Canada recommended, inter alia, that [a]ll formal treaties should be
ratified by Parliament rather than the Executive Branch and that the Government of
Canada should, before binding itself to perform under a treaty an obligation that
comes within the legislative competence of the Provinces, consult with the
245 Those familiar with BC politics will also know that the vast dams built on the Columbia and
Peace Rivers were the desired legacy of the then premier W.A.C. Bennett, who used the dams to
generate contracts and employment as well as huge amounts of hydroelectric power, half of which
was sold to the US to benefit the provincial treasury.
246 Treaty between Canada and the United States of America relating to Cooperative Development
of the Water Resources of the Columbia River Basin, 17 January 1961, Can. T.S. 1964 No. 2 (entered
into force 16 September 1964). See Bora Laskin, Some International Legal Aspects of Federalism:
The Experience of Canada in David P. Currie, ed., Federalism and the New Nations of Africa
(Chicago: University of Chicago Press, 1964) at 405-06. Atkey, writing in 1970, provides further
examples of provincial participation in Canadian delegations to international conferences, mostly in
the field of education: Atkey, supra note 46 at 171-75.
247 See Martin, supra note 48 at 31.
248 Canada, Report of the Royal Commission on Dominion-Provincial Relations, vol. 2 (Ottawa:
Queens Printer, 1940) at 48 (Chairs: N.W. Rowell and Joseph Sirois).
249 Ontario Advisory Committee on Confederation, Second Report of the Advisory Committee on
Confederation: The Federal-Provincial Distribution of Powers (Toronto: Queens Printer, 1979) at
44. One member of this committee is now a member of the federal cabinet: Ken Dryden is the
minister of social development.
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Government of each Province that may be affected by the obligation.250 A recent
report by an Albertan committee of government MLAs, released in June 2004, echoes
this last sentiment.251
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A statutory approach to the problem has also been espoused. In 2002, the
National Assembly of the province of Quebec enacted legislation to require the
Assemblys prior approval for all important international commitments (des
engagements internationaux importants) intended to be made by either the Quebec or
Canadian executive branch, provided that, in the latter case, the subject matter of the
commitment falls within an area of Quebec responsibility.252 The primary object of the
new legislation, according to the then Quebec minister of international relations,
Louise Beaudoin, was to democratize the process of treaty making by giving a voice
to the elected representatives of the citizens of Quebec.253 She also suggested that the
new law would allow for greater transparency in the treaty-making process,
suggesting that in some cases, a parliamentary commission could be established to
study a proposed treaty action and invite submissions from the public.254 The new law
was also intended to address the concern in Quebec that the language, culture, and
future interests of the province may be threatened if the federal government acts on
the international stage without provincial agreement in areas of provincial
competence.255
In essence, the Quebec legislation requires three actions to occur, and occur
sequentially, for an important international commitment to be valid. The three actions
are the signature by the responsible minister, the approval by the legislature (the
National Assembly), and the ratification by the provincial government. The legislation
also requires the minister to table all future treaty actions in the National Assembly,
with an explanatory note on the content and effects of the commitmenta procedure
that was expressly acknowledged during the legislative debates to be similar to that
followed in the UK, Australia, and New Zealand.256 Once tabled, the treaty can be the
subject of a motion to either approve or reject, but not amend, provided at least ten
250 Canada, Special Joint Committee of the Senate and of the House of Commons on the
Constitution of Canada, Final Report (Ottawa: Queens Printer, 1972) at 68-69 (Chairs: Gildas L.
Molgat and Mark MacGuigan, MP).
251 Alberta, Report of the MLA Committee on Strengthening Albertas Role in Confederation
(Edmonton: Government of Alberta, 2004) at 46, online: Government of Alberta, International and
Intergovernmental
Relations
252 An Act respecting the Ministre des Relations internationales, R.S.Q., c. M-25.1.1, s. 22.4.
253 See Quebec, National Assembly, Journal des dbats, 79 (20 March 2002) at 5247 (Louise
Beaudoin).
254 See ibid. at 5248.
255 See the speech of the then premier Bernard Landry in Quebec, National Assembly, Journal des
dbats, 1 (22 March 2001) at 7-8 (Bernard Landry).
256 See the debates within the Quebec Committee on Institutions: Quebec, Commission permanente
des institutions, Journal des dbats, 70 (1 May 2002), online: Assemble nationale du Qubec
J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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days have passed since tabling to ensure time for access and reflection.257 Provision is
also made for cases of urgency, allowing the Quebec government to ratify an
important international agreement before it is tabled or approved by the National
Assembly.258
507
As for what constitutes an important international commitment, the law
suggests that all treaties requiring the passage of implementation legislation, the
imposition of a tax, or the acceptance of an important financial obligation, as well as
treaties concerned with human rights and freedoms or international trade, will require
Assembly approval.259 There is also a residual category for treaties determined by the
minister to be so important as to require parliamentary approval,260 with the Kyoto
Protocol being identified by the minister during the legislative debates as an example
because of its strategic importance.261 However, treaties addressing technical issues
and treaties signed by Canada affecting only matters within federal jurisdiction will
not need National Assembly approval under the new legislation. Provision is also
made to apply the new procedure to the denunciation and termination of an agreement
in the same way that the process applies to the adoption and conclusion of a new
agreement.262
It would be interesting to see other provinces in Canada adopt similar legislation
to encourage, or bargain for, the institutionalisation of federal-provincial co-operation
in treaty making, as well as greater access to treaty information; however, the stark
problem with this legislative initiative is that it does not bind the government of
Canada. The government of Canada may choose to seek advance provincial
agreement to a future treaty action, but it is under no legal obligation to do so, nor is it
bound by a resolution of disapproval from a provincial legislature. Nevertheless, I
should note that the Quebec legislation was adopted by a unanimous vote in an
assembly comprised of federalists and separatists, presumably because the democratic
credentials of a greater role for the legislature in treaty making cuts across the political
spectrum.
257 An Act respecting the Ministre des Relations internationales, supra note 252, s. 22.3. Pursuant
to order-in-council 223-2004, G.O.Q. 2004.II.136 at 1738, dated 14 April 2004, the minister of
economic and regional development and research exercises jointly with the minister of international
relations the functions of the latter as regards any important international commitment that concerns
international trade.
258 An Act respecting the Ministre des Relations internationales, ibid., s. 22.5.
259 Ibid., s. 22.2.
260 Ibid., s. 22.2(4).
261 The comments of the minister during the debates within the Committee on Institutions can be
found in the Journal des dbats for 1 May 2002, supra note 256 at 32-39.
262 An Act respecting the Ministre des Relations internationales, supra note 252, s. 22.6.
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Conclusion and Recommendations
The desire for greater accountability in treaty law making has no natural political
home. It is an idea that is neither left nor right, as evidenced by its embrace by
Australian conservatives and British liberals alike. Nor is it decidedly American, as
some have claimed, given the historical role that Commonwealth parliaments once
played in the treaty-making process. It is not, however, a desire included in Prime
Minister Paul Martins much-publicized Action Plan for Democratic Reform263a
disappointing omission given that Canada is in greatest need.
In evaluating our current treaty-making process, it must not be forgotten that
treaties are lawoften permanent lawand as such, the law makers, be they
ministers or officials, should be accountable to Parliament and the public that it
serves. Their work product should also be made readily accessible, with this requiring
more than the bare notation in Hansard that a certain number of treaties have now
been tabled. As Allan Gotlieb stated many years ago: It is, of course, obvious that a
country must give suitable publicity to the treaties it concludes in order that the public
may be aware of the undertakings and engagements its government makes.264
The adoption of rules requiring the tabling of all treaty actions in Parliament for a
twenty-sitting-day period after signature but before ratification, as well as the public
provision of explanatory memoranda on the legal effects and financial costs of a
proposed treaty action, would serve to better educate us all as to the benefits and
burdens of new treaty obligations, while also providing a suitable opportunity for
parliamentarians to scrutinize the treaty action when desired. These steps may also
instil greater treaty compliance by enhancing a treatys democratic credentials. The
quarterly publication of a list of treaties currently under negotiationas done in
Australiaand its provision to the provincial premiers and territorial leaders would
also assist in alerting both the provinces and the public to future treaty actions of
importance. The new Council of the Federation could serve as an intergovernmental
forum for this purpose, akin to Australias Treaties Council, while a robust approach
by federal parliamentarians to the scrutiny of tabled treaties would offset the need for
provincial treaty scrutiny requirements in their legislatures and the resulting
duplication of effort. Consultations with civil society groups, industry leaders and
other stakeholders could also be recorded in the documents so tabled, leading to the
expectation over
for
intergovernmental support, the concordat approach of the UK could be adopted in
Canada to institutionalize, and make more transparent, the degree of federal-
provincial co-operation at the pre-signature stage of treaty making.
that such consultation must
time
take place. As
In my view, however, a multipartisan federal parliamentary committee
specifically dedicated to the task of treaty scrutiny is the best means to achieve both
263 Canada, Privy Council Office, Ethics, Responsibility, Accountability: An Action Plan for
Democratic Reform (Ottawa: Government of Canada, 2004).
264 Gotlieb, supra note 45 at 66.
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J. HARRINGTON DEMOCRATIC DEFICIT IN TREATY LAW MAKING
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public awareness and improved democratic accountability in the field of treaty
making. A treaty committee focuses public attention on treaty making, dispells any
myths and uncovers matters needing further investigation, and also provides a public
repository for treaty information. Such a committee, however, must be established
with the support of the government in power since the committee will need the co-
operation of its ministers and officials. It must also be of an adequate size if it is to
follow Australias lead and carry out hearings beyond the confines of the capital, and
it must be supported by an adequate secretariat to assist with the development of a
corporate memory and a fruitful relationship with civil society groups, industry
leaders, academics, and other non-governmental organizations.
As for the need for parliamentary approval for future treaty action, whether
federal or regional, it is my view that the treaty-making process must allow for the
possibility that a state will not ratify a treaty following an expression of parliamentary
disapproval. All treaties need not be expressly approved by Parliament, but there
should be a mechanism that enables Parliament to draw attention to a future treaty
action that has strong opposition, and this mechanism should not rest on the goodwill
or discretion of the executive branch. Oddly enough, such a mechanism is already in
place in Canada for social security treaties,265 and I can hardly see the expansion of
this legal fetter on the prerogative power of the Crown causing any great harm. A
negative resolution procedure applicable to treaties after signature but before
ratification will not unduly tie the hands of the executive during treaty negotiation,
and may foster a greater degree of consultation, and even co-operation, between the
levels and branches of government at the pre-signature stage. It is also a middle
ground position that balances the various interests at play.
A final impetus for securing a greater role for the elected legislature in the making of
treaties comes from the domestic courts. No longer is it elementary, to use the words
of Lord Denning, that these courts take no notice of treaties as such … until they are
embodied in laws enacted by Parliament, and then only to the extent that Parliament tells
us.266 Our common law courts are increasingly finding ways to give unincorporated
treaties domestic legal significance, if not domestic effect, and for this reason too, I
support a greater role for Parliament, whether federal, state, provincial or devolved, in
the making of treaties. The resulting public record of Parliaments involvement prior to
ratification could serve to either counterbalance the activism of the courts when
Parliament is against giving domestic effect to a treaty, or bolster the decisions of the
courts by providing evidence of Parliaments support for a treatys provisions. In any
event, a parliamentary role in treaty making is necessary to avoid engaging the nation in
long standing legal commitments without public scrutiny and debate.
265 Old Age Security Act, supra note 14.
266 Blackburn v. Attorney General, [1971] 1 W.L.R. 1037 at 1039. See also the argument made by
Gotlieb in 1968 that because treaties do not, in themselves, become part of the law of the land, there
is less need to involve parliaments in the making of treaties: Gotlieb, supra note 45 at 14-15.
