Redressing the democratic deficit in treaty law making: (re-)establishing a role for Parliament.

• Author: Harrington, Joanna

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 state's 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 government's executive branch. Such reforms to the treaty-making process attempt tn 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 traites sont une importante source de droit dans bien des domaines, mais ne s'integrent traditionnellement pas au systeme juridique interieur sans une mise en ceuvre nationale. Quoi qu'il en soit, le caractere juridique des regles issues d'un tralte exerce une certaine pression sur les institutions nationales afin d'en assurer le respect, Etant donne l'influence du droit des traites, plusieurs etats du Commonwealth accordent au Parlement un role dans l'e1aboration des traites, meme si d'apres le droit commun, la decision de rediger un traite appartient clairement l'executif du gouvernement. De telles reformes du processus d'elaboration des traites tentent de repondre aux critiques suivant lesquelles il existe un <>, en plus d'un <> dans des etats federaux, issu de l'absence d'une obligation de consultation entre l'etat central et les gouvernements locaux. Cette revue de l'experience en cette matiere au Canada, au Royaume-Uni et en Australie conduit l'auteure a suggerer plusieurs reformes afin d'assurer un droit de regard plus etendu aux pouvoirs legislatifs, de conscientiser davantage le public et de developper une responsabilite democratique en ce qui concerue l'elaboration des traites.

 Introduction 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 

Introduction

In today's 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 treaty's legal character puts pressure on a state's 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)

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 executive's 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 body--a position not without controversy, as evidenced by the provincial opposition to Canada's 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 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 Canada's "peace, order and good government" clause, (11) federal-provincial co-operation remains the more practical route for achieving the treaty's implementation. Thus, the legal ability of the central government to "go-it-alone" with respect to the Protocol's ratification, albeit with the support of environmentalists, (12) illustrates a "federal democratic deficit" in the treaty-making process.

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-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.

1. 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", and "Agreement". But whatever the name...