In Canada, the treaty-making process is controlled by the executive branch of the federal government, while the Parliament of Canada (“Parliament”) is often responsible for passing legislation to implement international treaties at the federal level. The treaty-making process is made up of five broad stages: negotiation, signature, ratification, implementation and coming into force.
The Minister of Foreign Affairs is technically responsible for negotiating international treaties on Canada’s behalf. In practice, Global Affairs Canada plays a supervisory role during negotiations with foreign states and international organizations, along with other relevant government departments, depending on the subject matter. Treaty negotiations most often occur behind closed doors, although negotiations of multilateral treaties may sometimes be more transparent and open to civil society.
Once negotiators agree on the text of an agreement, Cabinet must give its approval before the treaty can be signed on Canada’s behalf. Such a signature indicates that Canada agrees in principle with the treaty and intends to abide by its terms. After signature, the government must not take any actions that go against the object or purpose of the treaty.
Canada becomes bound by a treaty after ratification. Once all the formalities for the implementation and coming into force of the treaty are in place, Cabinet authorizes the Minister of Foreign Affairs to ratify the treaty. Although this entire process is controlled by the executive branch, the federal government does involve Parliament in this stage of the treaty-making process by tabling treaties and relevant explanatory documents for debate in the House of Commons.
As well, the executive branch cannot ratify an international treaty until measures are in place to ensure that the terms of the agreement are implemented in Canadian law. In some cases, this means that domestic laws must be passed by Parliament before ratification. In other cases, the federal government, after consultations with provinces and territories and other stakeholders, may consider that Canada’s laws are already consistent with the international treaty obligations.
A treaty comes into force according to the terms of the treaty itself – this may mean that the treaty comes into force on a specific date or after it has been ratified by a certain number of countries.
A wide variety of international mechanisms exist for the enforcement of international treaties, from trade tribunals to United Nations treaty bodies and international courts. At the national level, however, there are few formal means of ensuring the government’s compliance with the treaties it has ratified. Parliament has a role to play in oversight through the scrutiny of annual reports tabled before it and through committee studies. Non-governmental organizations and the Canadian Human Rights Commission may also hold the government to account, while Canada’s courts generally interpret domestic laws based on a presumption that they are consistent with the country’s international obligations.
Finally, it is important to note that many international treaties deal with issues under provincial jurisdiction, even if the federal government is ultimately responsible for the treaty-making process and for respecting its international commitments. Because of this, the federal government often involves the provinces and territories in the negotiating process to ensure collaboration for implementation and compliance.
Read the full text of the HillStudy: Canada’s Approach to the Treaty-Making Process
Author: Laura Barnett, Library of Parliament