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-dened
norms and standards i n their own jurisdictions. Such treaties, in t he
Anglo-C anadian tradition, require legislation to give direct eect 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 eect in do-
mestic law. As described in Ch apter , however, the implementation re-
quirement is signica 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 dened 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 eect
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 “ratication” 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 eect i n Canada, as it has not bee n ratied 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 ratied 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 iey 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 eect in domestic law. Even once implemented, it is not strictly
speaking the t reaty that takes eect in domestic law, but the legislative
measure that introduces or gives eect 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 eect 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.”
