The implementation and interpretation of treaties

• Author: Gib van Ert
• Pages: 284-379

7 he implementation and

interpretation of treaties

Treaties are the pre-eminent form of international lawmaki ng. Multi-

lateral treaties of a lawmaking cha racter reshaped i nternation al rela-

tions in the twentieth centur y and are likely to continue to do so in the

twenty-rst. Of pa rticular importance for this b ook are what might be

called inward-look ing treaties, by which I mean t hose in which states

parties commit themselves not only to certain courses of conduct on

the international pla ne but also to achieving certain treaty-dened

norms and standards i n their own jurisdictions. Such treaties, in t he

Anglo-C anadian tradition, require legislation to give direct eect to

them in domestic law.

If the incorporation of custom is pri marily informed by the prin-

ciple of respect for international law, the implementation of treaties

is the realm of self-gover nment. e self-government principle struc-

tures this area of the law by requiring that government-made treaties

be implemented by our legislatures before taking direct eect in do-

mestic law. As described in Ch apter , however, the implementation re-

quirement is signica ntly mitigated by the presumption of conformity

with internationa l law. e interplay between self-gover nment and re-

spect for international law – the former insisting on treaty implemen-

tation and the latter advancing the presumption of conformity – may

be seen throughout this ch apter.

 Brownlie suc cinctly dened law making treatie s as treaties that “create lega l

obligations the o bservance of which do es not dissolve the treaty obl igation”: I

Brownlie, Pr inciples of Public Internat ional Law, th ed (Oxford: Oxford Univ er-

sity Press,  ) [Brownlie] at .

284

 • Treaties

285

. e implementation requirement

As expla ined in Chapter , the fundamental ru le applicable to treaties

in the Canadian reception system is that they do not ta ke direct eect

in domestic law. Rat her, treaties require implement ation.

(a) “Implementation”

“Implementation” is the technical ter m long preferred by Canadia n

legislatures and legislative dra fters to describe the domestic perform-

ance of a treaty obligation by primary or secondar y legislation. It is

also the term employed in the federal government’s Policy on Tabling

of Treaties in Parliament. e term “incor poration” is sometimes used

by Canadian judges as a synonym for implementation. Courts some-

times also spea k of legislative “ratication” when they mean implemen-

tation. Both term s, employed in this context, ignore parliamentary

usage and risk confusion with other concepts. roughout this book

I use the term “i mplementation” as it is used by our legislatures a nd

 See Chapter , Se ction .(a).

 In federal law, see, e.g., C anada–Chi le Free Trade Agreement Implementat ion

Act, SC , c ; A nti-Personnel Mines Convent ion Implementation Act, SC

, c ; Civil Inter national Space Stati on Agreement Implementation A ct, SC

, c ; Tax Conventions I mplementation Act, , S C , c ; An Act to

amend the Cri minal Code in order to imp lement the United Nations Convention

against Cor ruption, SC , c ; Tax Conventions Impleme ntation Act, ,

SC  c ; Canad a–United States Enhance d Tax Information Exch ange Agree-

ment Implementation Ac t, SC , c , s ; Port State Mea sures Agreement

Implementation Ac t, SC , c ; Canada–Eu ropean Union Comprehensive

Economic and Trade Agre ement Implementation Act, SC  , c . In provin-

cial law, see, e.g., Inte rnational Conventions I mplementation Act, RS A , c

I-; Intercountr y Adoption (Hague Convent ion) Implementation Act, SS  ,

c I-.; Internat ional Trade and Investment Ag reements Implementation

Act, RSA  , c I-; North Americ an Environmental a nd Labour Cooperation

Agreements Imp lementation Act, CCSM, c N; A n Act respecting t he imple-

mentation of intern ational trade agree ments, RSQ, c M- .; etc.

 Government of Canad a, “Policy on Tabling of Treaties in Par liament” (),

online: ww w. treaty-accord.gc.ca/procedures .aspx.

 E.g., Re Canada Labour Cod e, []  SCR  at  (“I would note that SOFA has

no legal eect i n Canada, as it has not bee n ratied by domestic legi slation”); R

v Rumbaut (),  CCC (d)  (NBQB) at par a  (“Neither the  Genev a

Convention [on the High Sea s, ] . . . nor the [United Nations Convention on

the Law of the Sea , ] . . . have been ratied by the Ca nadian Parlia ment and

are not, as such, pa rt of Canadian d omestic law”).

Using International Law in Canadian Courts

286

governments, namely as ch iey referring to legisl ative measures that

seek to ensure domestic performa nce of an obligation assumed by the

state under an internationa l agreement.

ere is a broader sense in which non-legisl ative measures, such as

the adoption of administrat ive practices and policies, may also be char -

acterized as implementation. Treaties may positively require states to

take measures beyond legi slation to implement their provisions. It is

not wrong to describe non-legislative measures adopted to perform

the state’s treaty obligations as implementation, but for clarity when I

speak of implementation I refer (unless otherwise i ndicated) to imple-

mentation by law.

We will see that there is no pa rticula r form of words required to

implement a treaty. Precedents and standard practices have developed ,

of course, but whether a law implements a treaty or not remains a

question of substance rather than an analysis of form. In deter mining

whether a law implements a treaty, the question to be answered comes

down to this: Does this enactment perform, in whole or in part, the

state’s treaty obligations in our law?

(b) Leading cases on the implementation requirement

e constitutional prohibition of Crown law making ha s long been

understood to mean that treaties need legi slative implementation to

take eect in domestic law. Even once implemented, it is not strictly

speaking the t reaty that takes eect in domestic law, but the legislative

measure that introduces or gives eect to it.

 Legislatures a lso have the power to implement i nstruments other th an bind-

ing internat ional agreements, and t hey sometimes do. Professor Ha rrington

notes that “nothing b ars a domestic legislat ure from choosing to give a s oft law

instrume nt domestic legal eect th rough the enactment of domest ic law”: J

Harrin gton, Halsbury’s Laws of Cana da – Public International La w ( reissue)

at HPI-. e same is t rue of non-internation al instruments , e.g., the Dunsmuir

agreement at issue i n Re British Columbia (Attor ney General) v Canada (Attor ney

General); Re An Act R especting the Vancouver Island Rai lway, []  SCR  [Re

Vancouver Island Railway].

 E.g., art  of the Conve ntion on the Rights of the Ch ild , [] Can TS no

, which reads i n part, “States Part ies shall under take all appropri ate legisla-

tive, admin istrative, and other mea sures for the implementation of the r ights

recognize d in the present Convention.”