Treaties
| Author | Gib van Ert |
| Pages | 228-278 |
Treaties
Treaties are the pre-eminent form of internationa l law-making. Multi-
lateral treaties of a law-ma king character reshaped internationa l rela-
tions in the twentieth century and are likely to continue to do so. Of
particul ar importance for this book a re what might be called inwa rd-
looking treaties, by which I mean those in whic h states parties commit
themselves not only to certai n courses of conduct on the international
plane but a lso to achieving certain treaty-defi ned norms in their own
jurisdictions. Such treat ies, in t he Anglo-C anadian tr adition, require
legislation to give di rect effect to them in domestic law.
If the incorporation of custom is primar ily informed by the prin-
ciple of respect for international law, the implementation of treaties
is the realm of self- government. e self-gover nment principle struc-
tures thi s area of the law by requiring that government-m ade treaties
be i mplemented by our legisl atures before taking di rect effect in do-
mestic law. As described in Chapter , however, the implementation re-
quirement is significa 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 lat ter advancing the presumption of conformity — may
be seen throughout this ch apter.
Brownlie suc cinctly defines 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, P rinciples of Public Interna tional Law, th ed. (Oxford: Ox ford Univer-
sity Press, ) at .
7 • Treaties
. e constitutional objection to self-executing treaties
ere is no prima fac ie rea son for a country’s constitutional law to
require that internat ional obligations assu med by the state be with-
out domestic legal effect until acted upon by t he legislature. Indeed,
some written constitutions ex plicitly grant the force of l aw to treaties
without legislation. But in Canada and similarly-constituted states,
treaties are said not to be self- executing, mea ning that they a re not
stand-alone sources of law. Rather, they must be introduced i nto Can-
adian law by statute. Sel f-executing treaties a re objectionable because
treaty-mak ing is a prerogative of the Crown. For Canadian law to treat
international conventions as bind ing domestic law without leg islative
action would effectively confer upon the Crown a power to make law.
at power was removed from the Crown several hundred years ago
and has not been restored.
e rule that the executive l acks power to legisl ate outside Parlia-
ment fi nds no explicit expression in Canada’s w ritten constitutiona l
texts. It is, for the most part, an unwritten l aw of the constitution.
Article o f the French Constitution of Oc tober provides that “L es trai-Artic le of the French Constitution of Oc tober provides that “L es trai-
tés ou accords régu lièrement ratifiés ou approuvés ont, d ès leur publication, une
autorité supérieu re à celle des lois, sous réser ve, pour chaque accord ou tra ité,
de son application pa r l’autre partie.” Arti cle of the German Ba sic Law of
May provides th at “the general rule s of public internationa l law constitute
an integra l part of federal law. ey ta ke precedence over statutes a nd directly
create rights a nd duties for the inhabitant s of the federal terr itory.” Article
VI of the US Const itution provides that “al l Treaties made, or which shal l be
made, under the Aut hority of the United States, sh all be the supreme Law of
the Land.” But subseq uent US constitutional law h as narrowed thi s provision
by drawing a d istinction betw een treaties and execut ive agreements (bot h of
which constit ute treaties for the purpo ses of international l aw). For a survey
of the practices of t hese and other states, see A . Aust, Modern Treaty Law and
Practic e (Cambridge: Cambridge Un iversity Press, ) at – .
However, where a treaty de clares or has come to represe nt customary inter -
national law, a Ca nadian court may l ook to the treaty, though uni mplemented,
to discern c ustomary intern ational law as incor porated by the common law. See
the discu ssion in Chapter , Sectio n .(b).
I say “statute” for the sake of conven ience, but it is clear that tre aties may be im-
plemented by delegated l egislation (see Sectio n .(b)(i), below in this chapt er).
It is unwritten i n the sense defined in C hapter ; namely, that it is not en-
trenched in the C onstitution of Canad a as described in s. () of t he Constitu-
tion Act . Yet the ru le finds written e xpression in case law a nd in the Bill
of Rights ( UK) Willi am & Mary sess. c. , an A ct of the UK Parliame nt
which passed i nto Canadian law by r eception. Brun & Tremblay obser ve, “on
e ru le is implicit, however, in the preamble to t he Constitution Act
, which endowed Canada with a constitution “similar in Principle
to that of the United Kingdom.” Centuries ago the sovereign did have a
power to legislate, but that power ha s long since passed to Parliament.
In t he Proclamations case of , Coke CJ he ld that “t he king by his
proclamation cannot create any offence which was not an offence be-
fore, for then he may alter the law of the land by his proclam ation. . .”
and “the law of Eng land is divided into three parts, common law, stat-
ute law, and custom; but the King’s proclam ation is none of them.” At
about the same time it was held in A rchbishop of York and Sedgwick’s
case th at “the King could not by His grant alter the l aw of the l and.”
Some eight y years a nd t wo revolutions later, a statute confi rmed the
common law position enunciated in these judgments. Article of the
Bill of Rights declared that “the pretended Power of suspending of
Laws, or the Execution of L aws, by regal authority, without Consent of
Parliament, is illegal .” All these texts refer to the sovereign personal ly.
But the prohibition on regal law-making had, by the time of the Consti-
tution Act , transformed into a broader prohibition on legis lation
by the executive, meaning not just the sovereign but also cabinet and
the executive branch genera lly.
is broadening of the prohibition, to cover not only the sovereign
but all those who govern in hi s or her name, tell s us something about
the natu re of the objec tion to regal law-making. It was not simply a n
peut toujours plaid er l’application au Canad a de certains anc iens statuts angla is
qui consituent l ’armature de base du droit cons titutionnel britan nique, tels
la Magna Cart a de , la Petition of Right de , le Bill of Rights de ou
l’Act of Settlement de ”; H. Brun & G. Tremblay, Droit constitut ionnel, d ed.
(Cowansvi lle, QC: Les éditions Yvon Bl ais, ) at .
Constitution A ct preamble. On the role of t he preamble in importin g
unwritte n constitutional ru les, see Reference re Remuneration of Judge s of the
Provincial Court of P rince Edward Island [] SCR at –, La mer CJ. e
rule that t he executive lack s legislative power i s also implied by the defi nitions
of the federal a nd provincial leg islatures in the Cons titution Act .
() Co. R ep. at , ER at .
() Godbolt at , E R at .
Bill of Ri ghts , above note .
Of course the exec utive may exercise law -making power where t hat power is
delegated to it by the leg islature. Seconda ry legislation i s not a violation of
the rule t hat the Crown is not a source of law, bec ause the ultimate sourc e of
secondary l egislative power is not t he Crown but the legisl ature.
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