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TREATY PRACTICES OF CANADA

Canada’s treaty making process (negotiation, conclusion and ratification) is mainly governed by the federal executive branch. Given Canada’s dualist approach to international law, a treaty’s provisions must be domesticated by the Parliament before implementation.

1. Treaty making process 

Step 1: Negotiations

  • The Department of Foreign Affairs, Trade and Development (commonly known as Global Affairs Canada) supervises and coordinates with concerned Ministries and agencies depending on the topic of the treaty being negotiated.
  • Bilateral and plurilateral negotiations often take place with limited publicity. Nevertheless, plurilateral negotiations may have higher publicity and open to engagement from civil societies. The Canadian government has recently consulted those and the public in general during the negotiations of certain treaties.

Step 2: Signature

  • After the negotiating parties have agreed on the contents of the draft treaty, the Cabinet must show approval before the treaty is signed.
  • The signing of the treaty means Canada agrees with the principles enshrined in the treaty and intend to adhere to the provisions as such, but has not been officially bound by the treaty itself until ratification takes place. After signature, the government must restrain all actions which may contradict to the treaty’s subjects and principles.

Step 3: Ratification and Implementation

  • Ratification: Canada is officially bound by the treaty after its ratification. After procedures for the treaty’s entry into force are completed, the Cabinet authorizes the Minister of Foreign Affairs ratify the treaty. This ratification process is completely controlled by the executive branch.
  • Implementation: Canada cannot ratify a treaty until there is guarantee that the treaty’s provisions can be implemented in Canada.
  • The implementation of a treaty may require the adoption of new legislations, i.e. the Crimes Against Humanity and War Crimes Act (2000) which seeks to implement the Rome Statute of the International Criminal Court.
  • In many cases, the federal government may declare that domestic laws are already compatible with Canada’s international obligation or that the treaty does not require the adoption of new legislations, for example, human rights treaties.

Step 4: Entry into force

2. Exceptions and Practice 

  • The involvement of the Canadian Parliament in the ratification process in policy-making terms, not legal:
    • As mentioned above, the ratification process of a treaty in Canada is controlled by the executive branch. The federal government, however, adopted a policy in 2008 (last updated in 2020) to increase the involvement of the Parliament.
    • Under the said policy, all treaties must be submitted to the House of Commons (lower house of the Parliament) to be reviewed in 21 working days before the executive branch takes actions for the treaty to enter into force. The House of Commons may debate over the treaty and adopt some motions not legally binding the executive branch.
    • The policy’s exception: In exceptional cases, where the Prime Minister has approved, the executive branch may ratify a treaty before submitting it to the Parliament. Precisely, the executive branch shall announce to the House of Commons as soon as possible after ratification takes place. This implies that the Parliament’s involvement in treaty ratification remains largely a courtesy instead of a legal regime.
    • Concerning the free trade agreements (FTAs), the November 2020 update of the said policy requires the following information about the treaty to be publicized: the Statement of Intent (SOI), description of the goals and assessment of economic impacts before negotiation commences or enactment act is tabled.
  • Treaty implementation not requiring an enactment act
    • Certain types of treaties, especially those governing human rights, foreign investment promotion and protection, do not necessarily require an enactment act to implement.
    • In such cases, the federal government may declare that the contemporary domestic legislations are already compatible with Canada’s international obligations or that the implementation of the concerned treaty does not require new enactment acts. Ratification may therefore take place without adoption of new legislations. Before ratification, concerned government officials will assess the applicable legislations’ compatibility with the treaty.
  • Cooperation with foreign territories
    • The federal government reserves the power to negotiate, conclude and ratify treaties, but treaties governing specific topics (labor, trade) fall into provincial jurisdiction.
    • The implementation of such treaties requires the cooperation between the federal government and the provincial administration due to power division.
    • The federal government consults the provinces before concluding a treaty and only ratifies it after agreed on by all concerned provinces/territories (i.e. ILO Convention no. 138).
    • Canada may include in the treaty text a “federal article” to limit federal accountability if some provinces do not uphold the said treaty.
    • According to VCLT 1969, the federal government remains being held accountable even if a violation is committed by one of its provinces (i.e. Waldman v. Canada UN Human Rights Committee case or AbitibiBowater Inc. v. Government of Canada ICSID case).
    • Some provinces proactively domesticate treaties for efficient implementation.

[source]: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/HillStudies/2008-45-e.pdf