Canadians and International Law
The federal government is responsible for negotiating international treaties with other nations. The Department of Foreign Affairs and International Relations (DFAIT) frequently takes the lead in negotiating such agreements, although other federal departments may also play a role if the agreement relates to their focus.
Once negotiated, an international agreement must be “ratified”, indicating that the government of Canada intends to abide by it. Ratification is done by the federal cabinet (the Executive). No approval is required from Parliament or the provincial governments.
However, while ratifying a treaty means that Canada agrees to abide by the treaty, it does not mean that the treaty automatically becomes part of Canadian law (enforced by the Canadian courts). A treaty becomes binding on individuals and the government in Canadian courts, the treaty must be implemented. Implementing a treaty means passing legislation to enact the requirements of the treaty in Canadian law. See, for example, the federal Migratory Birds Convention Act, which implements the Migratory Birds Convention.
This two-step process occasionally causes problems. A treaty that is binding on Canada may not be enforceable by Canadian citizens. In some cases the constitutional authority for implementing a treaty may lie with the provinces. In such cases it can be difficult to all 10 provinces to implement the necessary legislation (although the federal government may be able to pass its own laws in such cases). In other cases the Canadian government doesn’t pass any implementation legislation, arguing that existing Canadian laws are already consistent with the new treaty obligations (which may, or may not, be correct).
This is not to say that a treaty will have no impact on Canadian law unless implemented. It is clear that in some cases the judge-made common law will be influenced by treaties signed or principles of customary international law. And if there are doubts about the true meaning of a Statute it will sometimes be interpreted in accordance with international law. However, the Courts will not enforce international law unless the Canadian law provides for it in some way.
Some treaties create their own enforcement mechanisms. Thus, even if the Canadian courts will not enforce the agreement, an international tribunal might be able to rule against Canada if it ignores an international agreement. The best known examples of such tribunals are in trade agreements, such as the North American Free Trade Agreement, which allow investors to sue a government to recover lost investments (a process which has been criticized by environmentalists). However, multilateral environmental treaties generally do not create such enforcement powers.
The federal government is responsible for negotiating international treaties with other nations. The Department of Foreign Affairs and International Relations (DFAIT) frequently takes the lead in negotiating such agreements, although other federal departments may also play a role if the agreement relates to their focus.
Once negotiated, an international agreement must be “ratified”, indicating that the government of Canada intends to abide by it. Ratification is done by the federal cabinet (the Executive). No approval is required from Parliament or the provincial governments.
However, while ratifying a treaty means that Canada agrees to abide by the treaty, it does not mean that the treaty automatically becomes part of Canadian law (enforced by the Canadian courts). A treaty becomes binding on individuals and the government in Canadian courts, the treaty must be implemented. Implementing a treaty means passing legislation to enact the requirements of the treaty in Canadian law. See, for example, the federal Migratory Birds Convention Act, which implements the Migratory Birds Convention.
This two-step process occasionally causes problems. A treaty that is binding on Canada may not be enforceable by Canadian citizens. In some cases the constitutional authority for implementing a treaty may lie with the provinces. In such cases it can be difficult to all 10 provinces to implement the necessary legislation (although the federal government may be able to pass its own laws in such cases). In other cases the Canadian government doesn’t pass any implementation legislation, arguing that existing Canadian laws are already consistent with the new treaty obligations (which may, or may not, be correct).
This is not to say that a treaty will have no impact on Canadian law unless implemented. It is clear that in some cases the judge-made common law will be influenced by treaties signed or principles of customary international law. And if there are doubts about the true meaning of a Statute it will sometimes be interpreted in accordance with international law. However, the Courts will not enforce international law unless the Canadian law provides for it in some way.
Some treaties create their own enforcement mechanisms. Thus, even if the Canadian courts will not enforce the agreement, an international tribunal might be able to rule against Canada if it ignores an international agreement. The best known examples of such tribunals are in trade agreements, such as the North American Free Trade Agreement, which allow investors to sue a government to recover lost investments (a process which has been criticized by environmentalists). However, multilateral environmental treaties generally do not create such enforcement powers.
