AuthorGib van Ert
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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