[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• Overseas Practice And Experience Of Treaty Making And Implementation
• Australia
• The United Kingdom
• France
• The Netherlands
• The United States
• Switzerland
• Canada

APPENDIX A

Overseas practice and experience of treaty making and implementation¹⁹⁷

A1 BY WAY OF INTRODUCTION to the differing overseas practices in treaty making, it is instructive to consider the following table: Treaty making practice in OECD countries. It shows that the majority of OECD countries require parliamentary approval of at least some categories of treaties and that this does not appear to have impeded their ability to conduct foreign policy. Also, in a significant number of those OECD countries treaties are self-executing.¹⁹⁸ It also shows, in comparison, that New Zealand has no process of parliamentary approval nor self-executing treaties. In New Zealand, however, some treaties that do not require legislation to implement them are, while not in the strict legal sense, in effect self-executing.

TABLE: Treaty making practice in OECD countries

AUSTRALIA

A2 Unlike New Zealand, Australia is a federal state: the Commonwealth of Australia Constitution Act 1900 establishes the distribution of powers in the federation and creates central and State governments.¹⁹⁹ The power to enter into treaties is an executive power within section 61 of the constitution. Section 51(xxix) provides for the “foreign affairs power” or the legislative power to implement treaties in domestic law.²⁰⁰

A3 In Australia in 1961 the Prime Minister, the Rt Hon Mr Robert Menzies, announced a new practice to the Commonwealth Parliament:

Except in cases where a treaty will otherwise be brought to the attention of the Parliament, for example, where a bill or motion relating to the treaty is to be introduced, the Government as from the next parliamentary session proposes as a general rule to lay on the tables of both Houses, for the information of honourable members and senators, the text of treaties signed for Australia, whether or not ratification is required, as well as the texts of treaties to which the Government is contemplating accession. Unless there be particular circumstances which in the Government’s opinion require that urgent attention be given to the matter – for example, at a time when Parliament is not in session – the Government will moreover as a general rule not proceed to ratify or accede to a treaty until it has lain on the table of both Houses for at least twelve sitting days.
By this means honourable members and senators will be kept informed of treaties which have been signed for Australia and, in cases where ratification or accession is contemplated, it will be possible for them, if they so desire, to draw attention to any relevant consideration prior to ratification or accession.²⁰¹

A4 We understand that practice has not always complied with this statement. Prior to recent reforms, treaties were tabled in bulk every 6 months in the House of Representatives, but a process of deemed procedure meant that there was no provision for parliamentary debate of the tabling of treaties. Bilateral treaties, due to reasons of confidentiality, were not tabled at all. A recent report of the Senate Committee on treaty making processes noted that the Senate was not provided with adequate time to consider tabled treaties.²⁰²

A5 Where legislation is necessary to give effect to treaty obligations, it was “official” policy that Australia would not ratify a treaty and accept obligations under the treaty until the appropriate domestic legislation was in place. In the past, Parliament had passed legislation to approve the ratification of treaties. For example, the Racial Discrimination Act 1975 contained a provision whereby Parliament approved the ratification of the Convention on the Elimination of All Forms of Racial Discrimination. The failure of the Bill to pass through Parliament meant that the executive did not ratify the Covenant at that time. However, the Senate Committee noted in its report that the practice of seeking parliamentary approval for the signing and ratification of significant or controversial treaties appeared to have lapsed.²⁰³

A6 The practice is, however, evolving and future changes can be expected, in part as a result of a widespread public and parliamentary debate in Australia on the matter of treaty making. The Senate Legal and Constitutional References Committee’s comprehensive review of powers exercised by the Commonwealth Government in making and implementing treaties, as seen in its report Trick or Treaty? Commonwealth Power to Make and Implement Treaties, forms part of that debate.²⁰⁴ The Committee raised concerns in relation to the impact of international treaties on the Australian federal system and the sovereignty of the nation. It also considered the degree of consultation prior to joining international treaties and the respective roles that Parliament and the government should fulfil in regard to the decision to enter into treaties.

A7 A significant part of the Senate Committee’s 11 recommendations dealt with increasing government efforts to identify and consult groups which may be affected by a treaty. The key groups identified included trade unions, industry and environmental groups, as well as many other non-governmental organisations. A “whole of Government” approach was advocated to ensure all relevant government departments and interest groups are consulted during the development of a treaty. Concern was also expressed about the lack of transparency in the treaty process from the viewpoint of community groups and individuals. The Senate Committee recommended that the Department of Foreign Affairs and Trade (DFAT) prepare a publication providing information on the treaties under consideration by the government and make it available, free of charge, to all public libraries.²⁰⁵ (This recommendation was later accepted by the Australian Government – see the DFAT internet website listed in appendix B.)

A8 Submissions to the Senate Committee extended to six volumes. They indicated a growing understanding about the effects of globalisation and internationalisation, a range of concerns about the way the treaty making power is exercised, and a range of proposals for making the treaty process more transparent, accountable and democratic.²⁰⁶ Concerns relate to the processes of agenda setting and negotiations as well as to acceptance. For instance, the National Farmers Federation, in its submission to the Senate Committee, proposed reforms in relation to multilateral treaties along these lines:

• Federal Cabinet should clearly determine and indicate to both officials and the Parliament Australia’s objectives for engaging in treaty negotiations, and for considering signature and ratification.
• Parliament and relevant industry sectors should be given the opportunity through timely briefings to influence the position to be taken by Australian delegations at forthcoming treaty negotiating conferences, that is, well before the finalisation of treaty texts.
• Tabling by the government in Parliament of the text of proposed treaties upon their adoption at international conferences and well before the deadline for signature.
• The concurrent tabling of a government statement (copied to relevant industry associations) summarising:

– the terms of the treaty, including Australia’s obligations if we became a party;
– how it will further Australian national interests; including the expected economic, social and environmental impacts of both the treaty and of not becoming party to it; also including (where the treaty will have economic impacts) a detailed cost-benefit analysis economy-wide and for affected industry sectors, estimating production, income and employment impacts; such analysis should also show how Australia will be affected relative to its trade partners and competitors;
– the relevance to, and likely impact on, Australia of any subsequent protocols then expected;
– the extent of any consultation already held with Parliament, the States, industry and the wider community (with a brief summary of any positions expressed by them).

• The referral by the Senate or by each House of particular treaties and tabling statements, at least in the case of treaties with perceived national or contentious impacts, to the relevant parliamentary committee(s) for public inquiry and report to government:

– to test the government’s own impact statement with relevant industry and community sectors; and
– to lead to recommendations for (or against) signing and becoming party, and for any conditions that should be placed on treaty action (eg, drafting changes).

• • The repeating of these processes before a formal international review of the treaty is to take place (multilateral treaties and their operation are commonly reviewed say 5 years after their commencement) and before a “protocol” is to be negotiated and signed.
• • The relevant parliamentary committee(s) should retain a watching brief on the treaty’s impact on and value to Australia, and should publish periodic reports.
• • Full and frank participation of government officials and industry representatives in these parliamentary review processes.
• • Regular opportunity for full participation of industry representatives on delegations; with opportunity for participation by Members of Parliament and community representatives with significant interests at stake.

A9 In 1995 the Australian High Court held, in the controversial decision Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that there was a legitimate expectation that government administrative decision-makers would take into account treaties ratified by Australia but not yet directly incorporated into Australian law when making their decisions. Initial debate over the decision was on whether it altered the traditional position where the executive act of entering into a treaty which creates obligations does not become part of Australian law until legislative action is taken to implement those obligations. It seems clear, however, that the decision leaves the basic position unaltered.²⁰⁷

A10 In response to Teoh, the Australian Government issued a press release and introduced the Administrative Decisions (Effect of International Instruments) Bill 1994. The Bill and press release were intended to restore the position as it was understood to have existed prior to the Teoh decision. More specifically, the Government wished to make clear that the ratification of a treaty does not give rise to a legitimate expectation that an administrative decision will be made in conformity with a treaty.²⁰⁸ The Bill was referred to the Senate Legal and Constitutional Legislation Committee who recommended by majority that it be enacted.²⁰⁹ The Bill lapsed at that time, however it has been revived in the latest round of reforms. It was (re)introduced into the House of Representatives on the 18 June 1997 and referred to the Senate Legal and Constitutional Legislation Committee on 26 June. The Committee reported back to the House on 20 October 1997 and (again) recommended by majority that the Bill be enacted (with the Labour and Democrat Committee members holding the minority opinion).²¹⁰ (See the provisions of the Bill in paras A25–A26 below, detailing the reforms to the treaty making process.)

Reforms to the treaty making process

A11 On 2 May 1996 the then Minister for Foreign Affairs, the Hon Alexander Downer MP, made a statement to the House of Representatives which outlined reforms to the treaty making process. Changes made to the process include the introduction of a new tabling arrangement, where treaties will be tabled for at least 15 sitting days after signature to allow for parliamentary scrutiny before binding treaty action is taken. This arrangement applies to both bilateral and multilateral treaties and to all actions which amend a treaty if the amendment would alter obligations with a legally binding impact on Australia, including termination or denunciation of a treaty.²¹¹

A12 The Government also indicated that special procedures will exist when it needs to take treaty action urgently. Where tabling in advance of such binding action is not possible, the documents will be tabled as soon as possible with an explanation of the reasons for urgent action. The Government undertook to use such procedures sparingly and only where necessary to safeguard Australia’s national interests, be they commercial, strategic or foreign policy.²¹²

A13 In addition the Government agreed to table a list of Commonwealth legislation which specifically implements Australia’s treaty obligations, as well as the comprehensive, periodic implementation and update reports prepared in compliance with Australia’s reporting obligations under various treaties.²¹³

A14 In June 1996 the Council of Australian Governments (COAG) agreed to revise Principles for consultation between the Commonwealth, States and Territories in relation to treaties. These principles have existed in one form or another since 1977, although they have been updated periodically in accordance with changing federal relations, international legal developments, and government policy. The new principles reflect the recommendations made in the Senate Committee’s 1995 report (many based upon Senator Vicki Bourne’s Private Member’s Parliamentary Approval of Treaties Bill 1995).

A15 Information on treaty negotiations will be provided in various ways: information about treaty discussions will be forwarded to Premiers’ and Chief Ministers’ Departments regularly by the Department of Prime Minister and Cabinet and DFAT. Every 6 months the Commonwealth will provide states and territories with a list of current and forthcoming negotiations (forecasting 12 months ahead) and matters under consideration for ratification. States and territories will be consulted on the preparation of National Interest Analysis (NIA) for treaties in which they have an interest. The Commonwealth will provide states and territories, on a confidential basis, with reports of international negotiating sessions of concern to them.²¹⁴

A16 A review of the current consultation process is being undertaken as a result. The value of treaty-specific consultation and formal meetings with representatives of interested organisations will be considered. The review will also consider the nature and form of the information provided to private sector groups on treaty issues. Due to the delivery of an increasingly large volume of information through the electronic media, it has been suggested that the government should fulfil the role of provider of analysis rather than raw information for consultation purposes. This would be at least where interested organisations and specialist groups are concerned. Access to information is important if consultation is to be effective.²¹⁵

A17 The revised principles introduce a further number of reforms including: the completion of an NIA, as mentioned above, for each treaty; the establishment of a Joint Standing Committee on Treaties for the purpose of scrutinising important treaties; the establishment of an advisory treaties council comprised of the heads of government of the Commonwealth, states and territories; and the establishment of a treaties database.²¹⁶

National Interest Analysis

A18 In response to a suggestion in Senator Bourne’s Bill that treaty impact statements be prepared for every treaty tabled in Parliament, the government agreed to prepare and table an NIA for each treaty. The NIA is to be made available to the states and territories and the general public. It was noted that the detail of each NIA would depend upon the nature of each treaty. A standard form, simplified NIA would be prepared for “template treaties” or bilateral treaties which follow an approved model text such as double taxation agreements, investment promotion and protection agreements, and social security agreements.

A19 The NIA should include:

• the reasons for and against Australia becoming a party to the treaty – a discussion of the economic, environmental, social and cultural effects of the treaty where relevant;
• the obligations imposed;
• its direct financial cost to Australia;
• how it will be implemented domestically;
• what consultation has occurred (including specific details of organisations and individuals consulted; and
• whether the treaty provides for withdrawal or denunciation.²¹⁷

Joint Standing Committee on Treaties

A20 A Joint Standing Committee on Treaties was also established²¹⁸ consisting of senior Commonwealth and state and territory officers who meet at least twice a year. The Committee considers and reports on tabled treaties, their NIA (particularly in relation to treaties of sensitivity and importance to the states and territories), and any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. In appropriate cases, state and territory representatives may be included in delegations to international conferences.²¹⁹

A21 In relation to urgent or sensitive treaties, it was decided that in the interests of national security and observance of international comity, in camera hearings (that is, behind closed doors) and restricted circulation of documentation were necessary. It was noted that these considerations applied in particular to bilateral treaties, which international convention requires to be confidential between negotiating states during negotiation and until signed.²²⁰

A22 Once details of treaty actions are tabled, the Standing Committee on Treaties promptly reviews them by seeking further information and/or taking evidence from Commonwealth departments and agencies, state and territory governments and interested organisations and individuals where appropriate. It reports its findings to both Houses.²²¹

Treaties Council

A23 The Australian Commonwealth Government also supported the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The Council, consisting of the Prime Minister, Premiers and Chief Ministers, meets at least once a year. It has an advisory function, as well as providing a forum for consultation between the states and the Commonwealth in relation to treaty making.²²²

Treaties database

A24 Also, in accordance with the Senate Committee’s recommendation, a treaties database has been established to facilitate the dissemination of treaty information. The database is available both in hard copy form, free of charge from the agent responsible or DFAT, and is now available on the internet. The importance of advertising the availability of such information has been recognised. It is also proposed that consultation on particular treaties could be conducted with electronic news groups as the vehicle for community consultation and will provide immediate advice of treaty developments to anyone who wants to be linked to the system.

Administrative Decisions (Effect of International Instruments) Bill 1997

A25 This Bill, with a long title of “A Bill for an Act relating to the effect of international instruments on the making of administrative decisions”, had its second reading in July 1997 and was reported back from Committee in October 1997. The Bill was reintroduced (after lapsing in 1994) as a measure to secure the Government’s position in response to Teoh. The preamble sets out the reasoning for the proposed enactment.

Preamble
This Preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 a majority of the High Court held that the act of entering into an international instrument gives rise to a legitimate expectation at law that could form the basis for challenging an administrative decision. It also held that such a legitimate expectation could be set aside by an executive or legislative indication to the contrary.
There is a need for certainty in making administrative decisions. Uncertainty is created by allowing decisions to be challenged on the ground that decision makers did not properly give effect to such legitimate expectations.
Australia is fully committed to observing its obligations under international instruments.
However, international instruments by which Australia is bound or to which Australia is a party do not form a part of Australian law unless those instruments have been validly incorporated into Australian law by legislation. It is the role of Commonwealth, State and Territory legislatures to pass legislation in order to give effect to international instruments by which Australia is bound or to which Australia is a party.
On 10 May 1995, the then Minister for Foreign Affairs and the then Attorney-General issued a joint statement concerning legitimate expectations and international instruments. On 25 February 1997, the present Minister for Foreign Affairs and present Attorney-General issued a further joint statement. Both statements said, on behalf of the Commonwealth, that the act of entering into an international instrument should not give rise to such legitimate expectations, and that legislation would be introduced to set aside any such legitimate expectations.
The Parliament of Australia therefore enacts:
1 Short title
This Act may be cited as the Administrative Decisions (Effect of International Instruments) Act 1997.
2 Commencement
This Act commences on the day on which it received the Royal Assent.
3 Application to external Territories
This Act extends to all the external Territories.
4 Definitions
In this Act, unless the contrary intention appears:
administrative decision means:
(a) a decision by or on behalf of the Commonwealth, a State or a Territory; or
(b) a decision by or on behalf of an authority of, or office holder of, the Commonwealth, a State or a Territory;
that is a decision of an administrative character (whether or not the decision is made under an enactment), and includes such a decision reviewing, or determining an appeal in respect of, a decision made before the commencement of this Act.
enactment means:
(a) an Act passed by the Parliament, by the Parliament of a State or by a Legislative Assembly of a Territory; or
(b) an instrument of a legislative character made under such an Act.
international instrument means:
(a) any treaty, convention, protocol, agreement or other instrument that is binding in international law; and
(b) a part of such a treaty, convention, protocol, agreement or other instrument.
5 International instruments do not give rise to legitimate expectations at law
The fact that:
(a) Australia is bound by, or a party to, a particular international instrument; or
(b) an enactment reproduces or refers to a particular international instrument;
does not give rise to a legitimate expectation of a kind that might provide a basis at law for invalidating or in any way changing the effect of an administrative decision.
6 Exclusion where State or Territory coverage
Section 5 does not apply to an administrative decision by or on behalf of:
(a) a State or Territory; or
(b) an authority of, or office holder of, a State or Territory;
if provision having the same effect as, or similar effect to that which, section 5 would otherwise have in relation to the decision is made by an Act passed by the Parliament of the State or Legislative Assembly of the Territory.
7 Other operation etc. of international instruments not affected
To avoid doubt, section 5 does not affect any other operation or effect, or use that may be made, of an international instrument in Australian law.

A26 The proposed legislation has attracted some criticism.

If the Government sees fit to enter into an international agreement, perhaps one in which it undertakes to secure certain basic human rights, it seems peculiar, almost hypocritical, to assert that such agreements have no effect (in the Teoh sense) unless legislation is passed to give effect to the treaty. Western countries, including Australia, have been very vocal in criticising other States for failing to live up to their international obligations towards their citizens, yet in cases like this a real risk arises that Australia may be cast in the same light, even if there may be sound constitutional reasons for adopting such a posture. Of course, one remedy in such a situation is simply to enact appropriate legislation.
The High Court made a telling comment that ratification of a convention is “a positive statement . . . to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention”. Ultimately, it seems that ratification may really be only a statement to the rest of the world.²²³

THE UNITED KINGDOM²²⁴

A27 In the United Kingdom the power to negotiate and conclude treaties is the exclusive preserve of the executive branch of the government, which, acting on advice, can bind the United Kingdom on an international level.²²⁵ This is (theoretically) balanced by the dualist approach to international law whereby a treaty has no effect on a domestic level until incorporated into legislation. Thus should the terms of the treaty require alteration of domestic law, these obligations cannot be performed without legislative action.

A28 As a matter of long-standing practice the government lays before Parliament as Command Papers all treaties signed by the United Kingdom, but only after their entry into force.²²⁶ Treaties may also be tabled in accordance with the Ponsonby Rule which was introduced in 1924 by the British Under-Secretary of State for Foreign Affairs. This convention

obliges the British Government to let treaties lie on the table of the Parliament for 21 days after signature and before ratification and to submit important treaties to the House of Commons for discussion. It applies only where a treaty places “continuing obligations” on the United Kingdom, where a further formal act to signify commitment is required after signature and where the matter is not one of “urgency”. In 1990–91, the Select Committee on the European Communities of the House of Lords estimated that approximately one quarter of the United Kingdom treaties were subject to the Ponsonby Rule.²²⁷

A29 However, the Ponsonby Rule can be described as ineffectual for a number of reasons. First, the voluntary nature of the rule has meant it has fallen into disuse: recent governments’ statements have made it clear that the rule is not regarded as a binding convention and departures are made from it on grounds of expediency.²²⁸ This demonstrates that for a tabling procedure to be effective it should be established on a more formal basis.

A30 Further, where a treaty is tabled in accordance with the Ponsonby Rule, the text is tabled without explanation of its meaning, purpose or reasons for its ratification. This significantly detracts from the effectiveness of Parliament’s involvement in treaty making. In addition,

[t]he Government is not bound to find parliamentary time to devote to a motion deploring the Government’s intention to ratify a treaty. If time were found it is unlikely that the Government would be defeated in the House of Commons. The Government might in the face of parliamentary disapproval change its mind but this is unlikely.²²⁹

A31 Interestingly, although the Westminster Parliament has traditionally played a very limited role in treaty making and implementation, it does possess the power to limit the executive in its capacity to enter into certain treaties. However, this power does not seem to be invoked often. An example of the exercise of this power is section 6(1)–(2) of the European Parliamentary Elections Act 1978 (UK) which provides:

(1) No treaty which provides for an increase in the powers of the European Parliament shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament.
(2) In this section ”treaty” includes any international agreement, and any protocol or annex to a treaty or international agreement.²³⁰

A32 The United Kingdom’s membership, since 1973, of the European Economic Community (now the European Union or EU) has had a significant effect upon the traditional supremacy of Parliament which is now overshadowed to a great extent by EU law. The Treaty of Rome established the Community (or Union as it now is) with a written constitution and provided that the United Kingdom Parliament has accepted that the Treaty and Community legislation shall prevail in cases of inconsistency between Community law and domestic law or practice.²³¹ Enactment of EU legislation is preceded by rigorous scrutiny and consultation involving the European Council, Commission and Parliament.²³²

A33 Since the United Kingdom’s accession to the EU the government has deposited proposals in both the House of Lords and the House of Commons, which are subjected to extensive scrutiny by select committees in both chambers. After investigation, reports are made for debate on the floor of both Houses. The role of the United Kingdom Parliament in the consideration of and debate about EU legislation is a direct contrast to the lack of effective parliamentary involvement in treaty making with non-Member States.²³³

A34 It is perhaps the binding nature and far-reaching implications of the EU law which has prompted the comprehensive scrutiny of proposals. The supremacy of EU legislation is illustrated by the House of Lords decision in R v Secretary of State ex p Factortame No 2 [1991] 1 AC 603 where it effectively held that the provisions of an English statute were not conclusive in a case of conflict with Community law.²³⁴ Arguably the Factortame judgment signals the need for principles of constitutional law to better reflect the reality in which they operate.

A35 In 1996 Lord Lester QC introduced the Treaties (Parliamentary Approval) Bill (HL) 1995/96. The Bill was passed through all stages in the House of Lords, receiving its second reading on 28 February 1996 after substantial debate. Although the Bill has now lapsed, it is still useful to note the Bill’s proposed reforms. In relation to the ratification process, the Bill proposed introducing a requirement that concluded treaties subject to ratification be approved by Parliament before they are ratified. In effect the Bill would apply to about a dozen, mostly multilateral treaties, each year which require ratification before coming into force.²³⁵

A36 The proposed procedure would have been to require the tabling of the treaties in Parliament, along with an explanation of the object and purpose of the treaty, the reasons for the proposed ratification, and the likely benefits and disadvantages of becoming party to the treaty.²³⁶ Approval of both Houses of Parliament would have been required before the government could ratify the treaty.²³⁷ If either House objected to ratifying a treaty, a resolution confirming this must be passed within 21 sitting days of the treaty being tabled.²³⁸ The Bill also provided for an exception in the case of urgent treaties.²³⁹ In that situation the Secretary of State was to notify both Houses of Parliament of the decision and the reasons for it.

A37 A proposal in the Bill which has been implemented is the use of explanatory memoranda to improve the information about treaty matters which is provided to Parliament by the executive. All international agreements signed after 1 January 1997 and laid for 21 sitting days under the Ponsonby Rule, namely those agreements concluded subject to ratification, accession, acceptance or approval, are to be accompanied by an explanatory memorandum.²⁴⁰ As the Guidelines on Explanatory Memoranda for Treaties, created by the Foreign and Commonwealth Office, explain, the explanatory memoranda will bring to the attention of Parliament the main features of the treaty with which it is laid, including:

• general principle,
• subject matter,
• Ministerial responsibility,
• benefits and burdens from becoming a party to the treaty,
• financial implications,
• reservations and declarations,
• means of implementation, and
• consultation undertaken.²⁴¹

Preparation of explanatory memoranda is the responsibility of the department which has the main policy interest in a particular treaty.

FRANCE²⁴²

A38 In France, the power to conclude treaties is in the hands of the President of the Republic who negotiates and ratifies treaties.²⁴³ The French Parliament plays a greatly restricted role in the area of treaty making, with international relations always having been considered the exclusive preserve of the executive. This is accentuated by the present 1958 Constitution, which provides that Parliament is only to be involved after the terms of a treaty have been decided upon, and can only approve or reject its ratification. There is no parliamentary power to amend a treaty.²⁴⁴

A39 Article 52 of the Constitution lists a number of categories of treaties which must be submitted to Parliament. These include:

• peace treaties,
• trade treaties,
• treaties referring to international organisations,
• human rights treaties,
• treaties ceding, exchanging or adding territory, and
• in more general terms, those treaties which require legislative action.²⁴⁵

A40 Since Parliament can only pronounce on a treaty as a whole, it cannot modify its terms or attach either reservations or interpretations. The rules of the Assembly further limit the power of Parliament in this respect, stipulating that a government Bill which authorises ratification must be voted on as a whole. As a result the passage of legislation authorising the ratification of a treaty is accorded little time and is no more than a simple formality.²⁴⁶

A41 There is no obligation to carry out ratification once parliamentary authority has been obtained. Although an authorising Bill must be promulgated and published in the Official Journal within 15 days of its adoption, the treaty itself is not published until the President has proceeded with the ratification. Even if the treaty commits France with respect to other states, it is not challengeable in the French courts until its publication.²⁴⁷

A42 The government does seek to involve Parliament in its foreign policy in several ways, communicating to the Foreign Affairs Commissions of both Houses the list of treaties or agreements that France has concluded. The texts of treaties can be requested by Parliament and more recently the proposed reservations to be attached to the ratification have been made available. In addition, at the time of the debates over the authorising legislation, members of Parliament can “advise” the government to attach certain specific reservations to the ratification. This advice can be acted on for political advantage in rallying support, sometimes resulting in the formulation of reservations proposed by members of Parliament.

A43 In some circumstances, Article 49 of the Constitution is invoked in order to gain the approval of a “declaration of general policy”.²⁴⁸ But even the extent of parliamentary participation in more serious decisions is determined wholly by the government which goes to great lengths to ensure it is not considered as precedent.²⁴⁹ In sum, the role of the French Parliament in treaty making and foreign relations is minimal.

A44 In direct and notable contrast to those states with Westminster-derived constitutions, concluded treaties do not require implementing legislation in order to be enforceable at a domestic level. Article 55 of the Constitution provides that once a treaty has come into force it overrides any conflicting domestic legislation, even if that legislation is passed subsequent to the treaty’s ratification. The Constitutional Council also considers that this primacy extends to rules promulgated by international bodies in compliance with the treaties that established them.²⁵⁰

THE NETHERLANDS²⁵¹

A45 Both the law relating to the approval of treaties and the Dutch Constitution itself have been relatively recently revised. A new Dutch Constitution was enacted in 1983²⁵² and while the Constitution itself had previously governed treaty making and implementation, Article 91 of the 1983 Constitution provides that this process is now to be regulated by an Act of Parliament. The Rijkswet goedkeuring en bekendmaking verdragen or State Law on the Approval and Promulgation of Treaties came into force on 20 August 1994.²⁵³

A46 The power to conclude treaties is not expressly provided for by the Constitution, but Article 90 does provide that the government shall promote the development of the international legal order. All policy decisions, including foreign policy, are the collective responsibility of the government in conjunction with Parliament. Treaties are concluded with or by the authority of the Crown. After parliamentary approval of the treaty in question, consent to be bound by the treaty (in the case of ratification) is given by the Head of State or the Minister of Foreign Affairs or authorised agent of the Minister. In practice, the Minister of Foreign Affairs often fulfils the role of foreign policy co-ordinator rather than policy maker, since other ministers are increasingly involved in foreign affairs as a function of their ministries.²⁵⁴

A47 The general principle regarding treaty making in the Netherlands is contained in Article 91 of the Constitution and requires the approval of Parliament to be given before consent to be bound by a treaty can be given.²⁵⁵ Article 1 of the new State Law is significant in that it provides that Parliament is to be periodically informed about treaties which are being negotiated. Parliament is to be given a list of ongoing negotiations containing indications of the object and purpose of the negotiations, the prospective treaty partners, any international organisations involved in the negotiation, and the ministries concerned.²⁵⁶

A48 The purpose of this requirement is to keep Parliament generally informed of treaties under negotiation, allowing comment or directives to be made before the text is settled or the treaty submitted for approval, that is, before it is too late to object. In sum, although parliamentary approval in the Netherlands is not sought until after changes to the actual text of the treaty can be made, the provision contained in Article 1 of the State Law ensures that Parliament is effectively involved in the treaty making process even at the preliminary but most important stage of negotiation.

A49 Article 1 is also complemented by the role of the Council of State. The Council is the highest general advisory body in the Dutch government and fulfils a vital supervisory role prior to the treaty being submitted for parliamentary approval. It is not until after the treaty text has been adopted and signed, and all other advisory bodies consulted, that the Council of State considers the treaty in question. Although it is not feasible for the Council to recommend alterations to the text of the treaty, it having been agreed upon already, the Council still has an important influence.²⁵⁷

A50 The role of the Council has been described as follows:

The Council . . . has an influence upon the type of parliamentary approval (tacit or explicit), the Explanatory Memorandum or Note published with the treaty, the approving Act and the implementing legislation. As far as the Act is concerned it could, for example, influence the decision whether to enter reservations or to make declarations on becoming a party to the treaty and the content and formulation of such reservations or declarations. It is in the area of implementing legislation (the need for it and its form and content) that the Council is able to do full justice to its role as legislative adviser. In general the Council’s recommendations show that it examines proposals to Parliament in the light of the Constitution, existing Acts of Parliament, general principles of law and aspects of public interest. The Council does not attempt to exercise any political influence.²⁵⁸

A51 Under the State Law parliamentary approval can be given expressly or tacitly.

Express approval

A52 Parliament can only give its express approval of a treaty and any reservations in the form of legislation. In this case the Head of State sends a Royal Message to the Second Chamber containing the Bill and the explanatory memorandum which explains the treaty and any reservations, and states the government’s reasons for becoming party to it. It is at this point that the report of the Council of State becomes public and the normal legislative procedure applies.²⁵⁹

Tacit approval

A53 This procedure was introduced by the 1953 Constitution when it was decided that the parliamentary workload was becoming excessive. It is now the more usual means of gaining parliamentary approval.²⁶⁰ A treaty is introduced for tacit approval by the Minister of Foreign Affairs to the chairpersons of both chambers of the States-General accompanied by an explanatory note setting out the substance of the treaty and the government’s reasons for becoming party to the treaty. The report of the Council of State is also made public at this point. Tacit approval is considered granted 30 days after the treaty’s submission, unless a statement has been made by either chamber requesting that the treaty be subject to express approval. In this case the treaty is subject to the procedure for express approval.²⁶¹

A54 The Council of Ministers or the executive usually decides whether or not to become a party to a treaty and also in what form parliamentary approval will be sought. This decision is carefully considered so that time is not wasted where an agreement submitted for tacit approval must be subjected to express approval. Hence, the government will initiate the procedure for express approval when it anticipates that Parliament may consider a particular treaty controversial or politically important.²⁶²

A55 After the government is given an opportunity to comment upon a report of the Council of State, the Head of State submits the treaty to Parliament for express approval or authorises the Minister of Foreign Affairs to submit the treaty to Parliament for tacit approval. In exceptional circumstances the Council of State may advise the Head of State not to submit the treaty to Parliament for approval and the government may decide to act on this advice.²⁶³

A56 Legally Parliament can withhold approval of a treaty or postpone the decision as to approval, and in this situation the Crown has no right to ratify a treaty. Where approval has been granted, the Crown has the freedom but no ensuing obligation to proceed with ratification.²⁶⁴

Exceptions

A57 There are six exceptions from the basic principle requiring parliamentary approval provided for in Article 7 of the State Law. The most straightforward is where the exemption has been provided for by legislation. For example, the Act of Approval of the agreement on the privileges and immunities of the United Nations provides that the government has the right to enter into similar agreements concerning other organisations without having to submit such agreements for parliamentary approval.²⁶⁵

A58 Treaties considered to exclusively concern the execution of treaties approved earlier are also excepted from the requirement of parliamentary approval.²⁶⁶ Short-term treaties, which do not impose considerable financial obligations and have been concluded for a period not exceeding one year, do not require parliamentary approval either. In exceptional cases of a compelling nature, the kingdom may require a treaty to remain secret or confidential and thus exempt from parliamentary scrutiny. But as soon as the secret or confidential nature of the treaty evaporates it must be submitted for approval without delay. If Parliament withholds approval, the government is under an obligation to terminate the treaty as soon as is legally possible.²⁶⁷

A59 In addition, treaties which merely renew an expiring treaty or changes to execution annexes which are integral parts of approved treaties are also exempted, unless Parliament has made a reservation to that effect in its Act of Approval.²⁶⁸

A60 In very limited circumstances, it is possible for treaties to enter into force before approval. Article 10 provides that this can occur in exceptional cases of a compelling nature, in which the kingdom’s interests would be prejudiced if the treaty were first submitted to Parliament. As is the case with secret or confidential treaties, parliamentary approval must be sought without delay and where approval is withheld, the treaty must be terminated as soon as possible. Article 10 requires the government to include a reservation concerning the possibility that parliamentary approval may not be granted, ensuring that Article 10 is not employed as an exception to the general rule in the event that termination is not possible after a reasonable time.²⁶⁹

A61 Before a treaty can be approved by the Dutch Parliament it must be translated into Dutch. The text of all treaties signed by the Kingdom of the Netherlands and of treaties to which the kingdom intends to accede, and the translation of the treaties into Dutch are officially published in the Treaty Series of the Kingdom of the Netherlands (Tractatenblad van het Koninkrijk der Nederlanden). This official publication of the government also includes other information such as the dates on which other states became parties and the date on which the treaty enters into force.²⁷⁰

The effect of treaties

A62 The status of treaties in domestic law has been expressly incorporated in the Constitution since its revision in 1953. Article 93 of the Constitution provides that the terms of self-executing treaties entered into and the decisions of international organisations are binding in effect from the time of their official publication. Non-self-executing treaties are binding “on all branches of the central and local legislative and executive authorities, which also have to enforce the resulting obligations within the scope of their powers”.²⁷¹

A63 Article 94 of the Constitution provides that municipal legislation is overridden if incompatible with the terms of self-executing treaties or decisions of international organisations. Further, domestic courts must give precedence to a self-executing treaty provision over all national law (including constitutional law) which is inconsistent with treaty obligations. Although legislation which is incompatible with non-self-executing treaties will not be overridden, it will be repealed or amended at the first opportunity. The impact of this provision is obviously great and illustrates the importance the Dutch ascribe to their international obligations.²⁷²

A64 In summary, the treaty making arrangements operating in the Kingdom of the Netherlands contrast markedly with those currently in place in Commonwealth countries, where the balance of power between the executive and Parliament is distributed differently. In the Netherlands, the aim of allowing the executive sufficient freedom to conduct foreign affairs effectively and efficiently is achieved while at the same time allowing Parliament to exercise supervision over foreign policy and, importantly, to be effective in this supervisory role. Concerns regarding the possible limitation of sovereignty are not given priority, being overridden by an emphasis on democratic decision making and on giving full binding force in law to international agreements once they are concluded.

THE UNITED STATES²⁷³

A65 The United States (US) Constitution expressly provides for the treaty making power, albeit in bare outline. Article II, section 2, empowers the President, “by and with the Advice and Consent of the Senate, to Make Treaties, provided two-thirds of the Senators present concur . . .”.²⁷⁴ It is accepted practice that the President initiates and conducts the negotiation of treaties, bringing a signed or otherwise final draft to the Senate for its advice and consent. But members of Senate make suggestions to the President about possible treaty making, are consulted by executive branch representatives during the negotiating process, and act as members of or advisers to the US delegation negotiating a treaty.²⁷⁵

“Circular 175 Procedure”

A66 The “Circular 175 Procedure” forms part of the US Department of State instructions issued to the Foreign Service, with regard to the negotiation and conclusion of treaties and other international agreements. The procedure provides criteria for determining whether the advice and consent of the Senate should be sought and requires that “due consideration is given to the following factors”, none of which are determinative, in addition to those referred to in the Constitution itself:

(a) The extent to which the agreement involves commitments or risks affecting the nation as a whole;

(b) Whether the agreement is intended to affect State laws;

(c) Whether the agreement can be given effect without the enactment of subsequent legislation by Congress;

(d) Past US practice as to a particular type of agreement;

(e) The preference of the Congress as to a particular type of agreement;

(f) The degree of formality desired for an agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

(g) The general international practice as to similar agreements – in determining whether any international agreement should be brought into force as a treaty or as an international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or compromise of the constitutional powers of the Senate, the Congress as a whole, or the President.

A67 The procedure is intended to ensure that the Senate (or Congress as a whole in some cases) is adequately consulted in relation to impending, ongoing and concluded treaty negotiations. A diplomat’s request for authorisation to negotiate or sign a treaty must indicate what arrangements have been made for congressional consultation and public submissions. With regard to negotiations, congressional leaders and committees are to be kept informed and consulted, “including especially whether any legislation is considered necessary or desirable for the implementation of the new treaty or agreement”. ²⁷⁶

A68 The Case Act²⁷⁷ requires international agreements, other than treaties, to which the US is a party, to be submitted to Congress within 60 days after entry into force. However, where national security interests dictate, the agreement will be submitted to the Senate Foreign Relations Committee and the Foreign Affairs Committee of the House of Representatives under an appropriate injunction of secrecy.²⁷⁸

A69 After a treaty has been negotiated by the executive, it is submitted to the Senate for its advice and consent. In the Senate, treaties are referred to the Foreign Relations Committee which has exclusive jurisdiction over treaties, and conducts hearings which include testimony from executive branch witnesses. The Committee then reports on the treaty and votes on whether or not to recommend a resolution of ratification to the full Senate.

A70 The recommendations of the Committee may contain proposed amendments and conditions, namely, reservations, understandings, declarations or provisos. The Senate then considers the treaty under Rule 30 of the Senate Rules. In its unabbreviated form, the treaty is considered article by article, proposed amendments being examined by the Senate first sitting as a Committee of the Whole; the Senate thereafter sitting as the Senate must vote again on each proposed amendment. After voting on the amendments, the Senate is then to consider conditions to the resolution of ratification, which will at the final stage set out any agreed amendments and conditions.

A71 Where the Rule 30 procedure is abbreviated, which is usual, the Senate first considers the treaty as a whole, voting on any proposed amendments. The Senate then considers the resolution of ratification reported by the Foreign Relations Committee (including any proposed conditions) and any additional conditions suggested. The Senate lastly votes on the resolution of ratification, which requires a two-thirds majority of members present. All other votes are by a simple majority. Following a favourable vote by the Senate, the President may proceed to ratify the treaty, provided that conditions properly attached to the resolution of ratification are fulfilled (eg, by their incorporation in the instrument of ratification). The President then proclaims the treaty.²⁷⁹

A72 The Senate does not have the power to compel the President to ratify a treaty or modify its terms. However, the Senate can refuse to pass a resolution or alternatively give its consent subject to conditions which require the making of reservations at the time of ratification.²⁸⁰

A73 The requirement that a two-thirds majority of the Senate approve a treaty appears at first sight the ultimate in parliamentary involvement and mandate. However, objection has been made to the fact that Senators representing as little as 7% of the population (the 17 least populous states) are able to defeat a treaty or to impose a condition on their consent.²⁸¹

Executive agreements

A74 An exception to the requirement of consent by the Senate is the executive agreement. An executive agreement is made by the President under his or her own executive power and, while it is not considered a “treaty” within Article II section 2(2) of the Constitution, it is considered a valid treaty at international law. This type of agreement usually relates to foreign relations or military matters, which do not tend to affect the rights and obligations of citizens. However, by virtue of the Case Act mentioned previously an executive agreement must be transmitted to Congress within 60 days of its entry into force.²⁸²

The Congressional-executive agreement process

A75 The Congressional-executive agreement process is another means of entering into treaties. The process involves the Congress passing a joint resolution of both Houses, or passing legislation, which authorises or approves the conclusion of an international agreement by the President. In contrast to the Article II procedure, there is no requirement to obtain a two-thirds approval of the Senate. A simple majority in each House is all that is required to authorise the ratification of a treaty. Although human rights and arms control treaties have not yet been the subject of the Congressional-executive agreement process, it is often employed for trade agreements, since Congress has the constitutional authority to regulate commerce with foreign nations under Article I of the Constitution.²⁸³

A76 Recently, a “fast-track” procedure, which is a modified form of bicameral congressional approval, has been developed to implement international trade agreements. Here Congress agrees to impose limits upon itself in exchange for commitments from the President. When the President signals his intention to negotiate an international trade agreement under the fast-track procedure, the President commits the executive to consultation with Congress concerning the agreement and implementing legislation. In exchange, Congress commits to certain internal rule changes which are designed to guarantee an expeditious consideration of a completed agreement and proposed implementing legislation. Further, Congress agrees to vote on the agreement and legislation without amendment. It has been noted that this procedure has enhanced congressional input in the treaty making process, an example being the North American Free Trade Agreement, in which Congress played an active role in the arrangements in respect of the environment.²⁸⁴

A77 In relation to the status of treaties in domestic law, Article VI Section 2 of the Constitution Act states:

[A]ll treaties made or which shall be made with the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.²⁸⁵

However, the United States has a mixed or partly dualist legal system with respect to international treaties.²⁸⁶

A78 A distinction is drawn between self-executing and non-self-executing treaties. Self-executing treaties do not require implementing legislation and are directly cognisable by municipal courts. In contrast, non-self-executing treaties require further legislative or administrative action before effect can be given in municipal law to the treaty provision. Whether a treaty is directly effective is usually determined by the courts and depends upon the nature of the treaty itself. Treaties which require substantial expenditure of public funds generally require enabling legislation before they can take effect in domestic law. In some cases the Senate will qualify its consent to the ratification of a treaty with a declaration that the treaty shall not be self-executing.²⁸⁷

A79 In summary it can be noted that both Argentina and Mexico have based their treaty making practice upon the United States system, which perhaps is a reflection of its success.²⁸⁸ Treaty making in the United States is governed by a network of inter-related legislation, Department of State instructions, Senate Rules and the Constitution itself. This arrangement ensures that the various bodies involved in treaty making such as the Department of State, as well as the Senate and House of Representatives are kept well-informed and have adequate opportunity to effectively participate in the scrutiny of proposed agreements at all stages of development.

A80 Agreements are subjected to one of various forms of Senate approval and, importantly, the Senate is adequately informed of impending, ongoing and concluded treaty negotiations. Arrangements for congressional consultation and public submissions are made before signature or negotiation. The Case Act ensures that international agreements not considered treaties be submitted to Congress after their conclusion. The procedure whereby committees of the House of Representatives and Senate consider agreements which bear upon national security interests in conditions of secrecy is a viable alternative to the practice recently adopted in Australia of excepting sensitive treaties from any sort of parliamentary scrutiny or approval.

A81 Parliamentary approval of treaties is rigorous, with a two-thirds majority vote of the Senate required before the President can ratify a treaty. The executive agreement and the Congressional-executive agreement processes are, however, exceptions to this requirement.

SWITZERLAND²⁸⁹

A82 Executive authority in Switzerland is exercised by the Federal Council, headed by the President, and the Federal Chancellor. The Federal Council has seven members elected by a joint meeting of the two Houses of Parliament. The electorate must vote on amendments to the Constitution, and it may vote on laws and on international treaties. The Federal Council negotiates and signs treaties and has the power to discontinue an unsatisfactory project without consulting the Federal Assembly.²⁹⁰

A83 Once a treaty has been negotiated and signed, there are four possible procedures by which treaties can be concluded, depending upon their nature.

• Agreements which Parliament has authorised in advance – those which necessitate a provisional entry into force without delay and those which relate to matters of a purely administrative or technical nature and are of minor importance – may be concluded by the executive alone.
• The agreement may require approval by Parliament.
• The agreement may be subjected to an optional referendum as provided for in Article 89(3) of the Constitution. This category includes: treaties concluded for an indefinite period and without possibility of denunciation; treaties implying multilateral unification of law; and treaties relating to the adherence to international organisations. Treaties can also be subjected ad hoc to an optional referendum by a discretionary decision of the Federal Assembly, under Article 89(4) of the Constitution. Although possible under this provision, the Assembly generally refrains from putting politically and legally sensitive treaties to referendum.
• The agreement must be approved by compulsory referendum. Article 89(5) provides that treaties which provide for the adherence to supra-national organisations and to organisations for collective security must be subjected to compulsory referendum.²⁹¹

A84 Although the Constitution provides that the Federal Assembly must approve treaties, it does not specify at which stage in the treaty making process this is to occur. The usual procedure involves specific approval by Parliament between signature and ratification, although in some cases the approval is sought earlier, in advance of negotiations. The approval of a treaty by the Federal Assembly is in effect an authorisation to the Federal Council to ratify it, by way of federal decree. Parliamentary involvement is not restricted to one point in the treaty making process: sometimes parliamentary involvement occurs at a number of stages. For example, if authorisation was sought prior to negotiation the treaty may be subsequently submitted to Parliament for specific approval after ratification – ratification having been given subject to approval.²⁹²

A85 There is basically no possibility for Parliament to influence the content of a draft treaty or to modify it. Parliament cannot amend the text of the treaty itself because in approving the treaty the chambers are acting upon federal decree. Generally it is the executive which suggests reservations and issues interpretative declarations.

A86 However, Parliament also has the power to qualify its approval by requiring the executive to make specific reservations or declarations when ratifying a treaty. Therefore it can change the reservations and declarations formulated by the executive; it can introduce new reservations or declarations; and it can ask the executive to examine whether a specific reservation can be omitted from the treaty. Although it is the executive which has the power to decide whether or not to terminate or denounce a treaty, Parliament arguably has the power to force the executive to carry out either of these actions, and this has on occasion occurred.²⁹³ The legislature insists upon regular and timely information from its preparatory commissions, and important treaties undergo comprehensive scrutiny (particularly in relation to possible membership of the European Union).

A87 In 1991, a preparatory commission of the National Council formulated proposals for increased parliamentary participation in treaty making. It was suggested that before negotiations took place with international organisations Parliament should be more fully and regularly informed about international developments, and that consultation should take place with the External Affairs Commissions of the Federal Assembly. It was also suggested that the External Affairs Commissions send observers to negotiations of treaties and international conferences.

A88 The executive rejected the suggestion of obligatory consultation of parliamentary commissions before treaty negotiations and the inclusion of observers in Swiss delegations to international conferences. But a diluted version of the other proposals was accepted which will enhance parliamentary participation at an early stage, emphasising regular information and consultation.²⁹⁴

A89 In relation to the application of treaties in domestic law, after ratification and upon official publication, treaties are directly enforceable in law. In the monistic tradition, any self-executing treaty can be enforced by an individual in a court.

A90 In summary, Switzerland has several different processes for the conclusion of a treaty, depending upon the nature of the treaty in question. This practical and flexible approach allows for adequate scrutiny of those agreements with significant implications but also ensures that participation in treaty making is efficient. Parliament can become involved prior to negotiation, however, guidelines specifying which treaties are to be subjected to particular procedures are required to ensure that parliamentary involvement is consistent. Once the contents of a treaty have been decided upon, Parliament does not have the ability to influence or modify its terms.

A91 Swiss treaty making provides an alternative method of dealing with urgent or sensitive treaties, whereby ratification is subject to denunciation in the case of subsequent refusal of parliamentary consent. Unique to Swiss politics is the use of the referendum to obtain the direct consent of the electorate. In the case of agreements with onerous obligations, the use of an optional referendum is perhaps the most democratic procedure for obtaining approval. However, its successful employment may in part be due to the fact that referenda form an integral part of political participation in Switzerland.

CANADA²⁹⁵

A92 In Canada the treaty making power is exercised by the Canadian Governor-General, on the advice of the executive branch of the federal government. The Canadian Constitution Act 1982 contains no express reference to an external affairs power. However, the Federal government claims the exclusive power to enter into treaties on behalf of Canada on the basis that Canada is one sovereign entity at international law. The Canadian provinces have argued that since they have exclusive power to implement certain treaties, they must also have the right to enter into those treaties. Although this view is not accepted by the Federal government, the provinces do have the power to enter into international agreements which are not binding at international law.²⁹⁶

A93 Although not legally required, it has been the practice of the government to seek the approval of Parliament before an important treaty is ratified.²⁹⁷ In this situation, parliamentary committees may be involved in considering the treaty in question. According to the Canadian Bureau of Legal Affairs, there are four general categories of treaties for which parliamentary approval is sought prior to ratification:

• military or economic sanctions;
• large expenditures of public funds or treaties with important financial or economic implications;
• political considerations of a far-reaching character; and
• obligations the performance of which will affect private rights in Canada.²⁹⁸

A94 Approval is given in the form of resolutions passed in both Houses rather than by the passage of legislation. Between 1946 and 1966 approximately a quarter of all treaties were submitted to Parliament for approval.²⁹⁹ However, there is no parliamentary scrutiny of those treaties and agreements which do not require ratification, although treaties which have not otherwise come to the attention of Parliament are tabled once a year in both the House of Commons and the Senate. There appear to be no moves at present to enhance the role of Parliament in the treaty making process.³⁰⁰

A95 In common with other states with Westminster-derived constitutions, legislative action is required before the provisions of a treaty become law and enforceable in the courts. In addition, the Federal Canadian government cannot ensure the performance of treaties which require legislation within the legislative competence of the provinces. This is the result of the 1937 Privy Council decision Attorney-General (Canada) v Attorney-General (Ontario) [1937] AC 326 (PC) (the Labour Conventions case). In this case it was held that the Federal government did not have the power to pass legislation to implement treaties the subject-matter of which touched on matters falling within the provincial jurisdiction under the Constitution. Thus in some cases where the Federal government enters into a treaty, it can only be implemented by legislation enacted by the provincial legislatures.³⁰¹

A96 In summary, the present complex situation in Canada with regard to jurisdiction over treaty matters has perhaps meant that increased parliamentary involvement in treaty making would only represent additional complication. Canada’s treaty making process involves minimal participation of Parliament and as a result is not particularly instructive to this study. The fact that implementing legislation can only be enacted by the provinces has perhaps been one incentive for adequate consultation. The four categories of treaties for which parliamentary approval is sought prior to ratification perhaps provide a possible way of distinguishing between more and less important treaties, enabling parliamentary consideration of just some of them.