SPECIAL ISSUE
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Harrington Joanna
    Scrutiny and approval: the role for Westminster-style Parliaments in Treaty-making
    in International and Comparative Law Quarterly , Vol. 55, January 2006 ,  2006 ,  121-160
    SCRUTINY AND APPROVAL: THE ROLE FOR WESTMINSTERSTYLE PARLIAMENTS IN TREATY-MAKING JOANNA HARRINGTON* I. INTRODUCTION In December 2004, Parliament’s Joint Committee on Human Rights added its voice to the call for a greater parliamentary role in the making of treaties. In its report on Protocol No. 14 to the European Convention on Human Rights, the Joint Committee included a one-page chapter on ‘Increasing Parliament’s involvement in the adoption of human rights treaties’, expressing the view that it was desirable for Parliament to become more involved prior to ratification on the grounds that effective parliamentary scrutiny would serve to ‘enhance the democratic legitimacy of human rights obligations incurred . . . by the Executive pursuant to the prerogative power.’1 Motivated by this concern, the Committee has undertaken, on its own initiative, an extensive review of the UK’s treaty commitments in the human rights field with a view to securing greater parliamentary support for these obligations through the mechanism of public scrutiny.2 * Associate Professor, Faculty of Law, University of Alberta, Canada; former Visiting Fellow, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales, Australia; former Parliamentary Legal Officer to Lord Lester of Herne Hill QC. This article builds on my writings on treaty-making in Hilary Charlesworth et al (eds), The Fluid State: International Law and National Legal Systems (Federation Press Sydney 2005) and the McGill Law Journal. Thanks are due to the University of Western Ontario for funding research undertaken in Australia and New Zealand, which led to valuable discussions with Professor Peter Bailey AM OBE (Australian National University); Julie Bishop MP, Gillian Gould, Julia Morris and Glenn Worthington (Australian Joint Standing Committee on Treaties); Allan Bracegirdle (Legislative Counsel, Office of the Clerk of the (New Zealand) House of Representatives); Steve Cutting and David Sanders (New Zealand Foreign Affairs, Defence and Trade Committee); the Rt Hon Sir Kenneth Keith (New Zealand Supreme Court); Professor David Kinley (Monash University); and Anne Twomey (NSW Cabinet Office). I have also benefited from presenting my research at workshops held at the Australian National University in August 2004 and at Duke University in March 2005 and I am grateful to the organizers for their invitations to participate. Lastly, thanks are due to Professors Grant Huscroft, John Law and George Williams and to Lord Lester of Herne Hill QC. 1 UK Joint Committee on Human Rights, Protocol No. 14 to the European Convention on Human Rights, HL Paper 8/HC 106, Session 2004–05 (1 Dec 2004) at 6. 2 See UK Joint Committee on Human Rights The UN Convention on the Rights of the Child, HL Paper 117/HC 81, Session 2002–3 (9 June 2003); UK Joint Committee on Human Rights The International Covenant on Social, Economic and Cultural Rights, HL Paper 183/HC 1188, Session 2003–04 (20 Oct 2004); UK Joint Committee on Human Rights The Convention on the Elimination of Racial Discrimination, HL Paper 88/HC 471, Session 2004–5 (16 Mar 2005) and UK Joint Committee on Human Rights Review of International Human Rights Instruments, HL Paper 99/HC 264, Session 2004–5 (23 Mar 2005). [ICLQ vol 55, January 2006 pp 121–160] doi: 10.1093/iclq/lei069 jharrington@law.ualberta.ca Such concerns about the democratic credentials of treaty law are nothing new, as evidenced by the intent in the US Constitution to subject the President’s treaty-making power to Senate approval.3 However, as the volume of treaty-making has grown,4 so has its scope, with treaties now covering an endless range of subjects as diverse as trade, climate change, and crime, all with clear implications for domestic law and policy. This in turn has prompted greater interest in the executive’s prerogative to make treaties in a Westminster-style democracy, with the writings of David Marquand contributing the term ‘democratic deficit’5 as the shorthand reference for the absence of parliamentary oversight, albeit that Marquand was referring at the time to the functioning of the European Community.6 Yet, despite the impact of treaty-making, including the occasional controversy, law-making by treaty remains an executive act in countries that follow the British constitutional tradition. The common law imposes no obligation to inform or involve Parliament, albeit that Parliament is the ultimate law-making authority in a Westminster-style democracy. Of course, optics or politics may compel an executive to seek parliamentary approval for a treaty prior to its ratification or accession, but the lack of a legal requirement for such involvement grounds complaints that a democratic deficit exists, whatever may be the correct definition of democracy (a subject beyond the scope of this article). Moreover, in federal Commonwealth States, such as Australia and Canada, and even quasi-federal States such as the UK, an additional deficit exists since there is no requirement for the central executive to involve the legislative or executive branches of the sub-national units in the treaty-making process. Of course, the rebuttal argument to granting Parliament a role in treatymaking is two-fold. The practical response is that in a Westminster democracy, the executive comes from the party with the most seats in Parliament, absent a minority situation, and thus the executive reflects (or controls) what would be the wishes of Parliament. The legal response is that a treaty does not have domestic legal effect until Parliament so chooses through the enactment of implementation legislation, and thus Parliament retains its primary responsibility for law-making. But law-making by treaty does not always require the enactment of legislation, particularly if the treaty obligation can be implied within or carried out through a pre-existing law, and thus Parliament may not in fact have this role. Moreover, once ratified, treaties are clearly binding 122 International and Comparative Law Quarterly 3 Art II(2) of the US Constitution provides that the President ‘shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.’ 4 The UN’s treaty collection contains over 50,000 treaties, many of which remain in force. See UN Treaty Collection . 5 D Marquand Parliament for Europe (Jonathan Cape London 1979) 64–6. 6 The term ‘democratic deficit’ is used more broadly today, without attribution to Marquand, to refer to various aspects of the lack of executive accountability to either Parliament or citizens in both the domestic and international arena. See, eg Privy Council Office Ethics, Responsibility, Accountability: An Action Plan for Democratic Reform (Government of Canada 2004). under international law and their legal character, along with the reciprocal nature of the international legal system, puts pressure on a State’s domestic institutions to ensure compliance. It may also lead to judicial circumvention of the traditional rule on domestic effect, as illustrated by the judicial modification of the doctrine of legitimate expectation in Australia,7 new rules on statutory interpretation in New Zealand,8 and new uses for the underlying values of an unimplemented treaty in Canada.9 Treaty law would thus become the purview of the executive branch and the courts, but not Parliament, were it not for certain reforms. These reforms include the adoption in Australia of a dedicated parliamentary treaty committee to ensure the pre-ratification scrutiny of all treaty actions and the enactment in South Africa of a constitutional rule requiring Parliament’s prior approval for treaties of significance. They also include the much earlier development in the UK of a treaty tabling procedure, modified more recently to enhance the scrutiny opportunity for Parliament, and the development of mechanisms to involve the representatives of sub-national units in treaty-making. But not all Commonwealth States are so minded to embrace reform, with Canada serving as an example of a State with virtually no required parliamentary involvement, whether federal or provincial, in the treaty-making process. There is also no mechanism in Canada, unlike Australia and the UK, to ensure that all treaties encroaching on areas of sub-national interest are subject to some form of pre-ratification consultation, either between governments or between parliaments, although the need to develop a better means ‘for the involvement of provincial and territorial governments in international negotiations and agreements that affect their responsibilities’ has been identified by Canada’s newly created Council of the Federation as a future task.10 Scrutiny and Approval 123 7 See Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Aust HC) [Teoh’s Case]. But see W Lacey ‘Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2004) 26 Sydney Law Review 131. The Court of Appeal has rejected the Teoh route, with Laws LJ opining that it would ‘amount, pragmatically, to a means of incorporating the substance of obligations undertaken on the international plane into our domestic law without the authority of Parliament’: European Roma Rights Centre v Immigration Officer at Prague Airport [2003] EWCA Civ 666, [2004] 2 WLR 147 at para 101. 8 See Tavita v Minister of Immigration [1994] 2 NZLR 257 suggesting that ratified but unincorporated treaty obligations are mandatory relevant considerations. Subsequent cases, however, suggest a less enthusiastic approach: see Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510. See further C Geiringer ‘Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law’ (2004) 21(1) NZULR 66. 9 See Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at paras 69–71. The dissent, however, took the view (at para 79) that the proposed use of the underlying values of an unimplemented treaty was ‘not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.’ See further J Brunnée and SJ Toope ‘A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts’ in D Dyzenhaus (ed) The Unity of Public Law (Hart Publishing Oxford 2004) 357–88. 10 Established at a Premiers’ Meeting in December 2003, the Council comprises all 13 of Canada’s Premiers and Territorial Leaders, but not the Government of Canada. See further . And yet, if one looks back at the Westminster model for treaty-making as it developed in the UK, it is evident that the desire to provide for some parliamentary role is long-standing. A review of the historical record shows that this desire originated with the efforts of British anti-war MPs in the late 1910s, who sought to secure greater parliamentary control over treaty-making in reaction to the impact of treaties of alliance in the First World War. The purpose of this article is to acknowledge this history, as well the more recent reforms, through an examination of the current pre-ratification roles in treaty-making of the executive and Parliament in Westminster-style democracies, with the UK, Australia, Canada and South Africa being chosen as comparable countries of focus given their shared legal heritage and similar parliamentary systems.11 II. TREATY-MAKING IN COMMONWEALTH STATES Treaties take various forms, go by various names, and can concern an unlimited range of subject matters, but as express agreements between States that create legally binding rights and obligations, treaties are also ‘a form of substitute legislation’12 in the international legal system. As expressed by the Latin maxim pacta sunt servanda, now codified in Article 26 of the Vienna Convention on the Law of Treaties,13 every treaty in force is binding upon its parties and must be performed by them in good faith. By binding States to each other, treaties constitute a significant component of the international legal order and their faithful observance is ‘perhaps the most important principle of international law.’14 Given the binding quality of treaty law, the most important stage in the treaty-making process is when the State parties express their consent to be bound. This can be done by a variety of means so long as the method chosen clearly signifies a State’s intention to assume the legal obligations in the treaty. With bilateral treaties, the expression of consent often coincides with the adoption of the final treaty text, but with multilateral treaties, a State usually expresses its consent through ratification15 or accession,16 typically 124 International and Comparative Law Quarterly 11 For the practice in other States, including civil law States, see SA Riesenfeld and FM Abbott (eds) Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (Martinus Nijhoff Dordrecht 1994) and the proceedings of a symposium on the subject in volume 67 of the Chicago-Kent Law Review. See also the series on National Treaty Law and Practice published by the American Society of International Law. 12 MN Shaw International Law (5th edn CUP Cambridge 2003) 89. 13 23 May 1969, in force 27 Jan 1980, 1155 UNTS 331, (1969) 8 ILM 679 [Treaties Convention]. 14 Restatement of the Law (Third): The Foreign Relations Law of the United States (American Law Institute St Paul, Minn 1987) vol 1 at §321 [Restatement (Third)]. 15 Treaties Convention (n 13), Arts 2(1)(b), 14 and 16. I refer here to ‘ratification’ in the international law sense and not in the sense of a domestic procedure required in some States. 16 Accession has the same legal effect as ratification, but is the term used when a State becomes bound to a treaty already negotiated and signed by other States: A Aust Modern Treaty Law and Practice (CUP Cambridge 2000) 81 and 88; Treaties Convention (n 13), Arts 2(1)(b) and 15. accomplished by the deposit of a formal declaration of consent some time after the treaty’s adoption. This pause in the process between the treaty’s initial adoption and later ratification enables a State to take whatever steps are necessary, if any, to secure domestic approval for the treaty and to enact any legislative changes needed to ensure compliance.17 It also gives a State time if it so desires to gauge public opinion about the new treaty commitments, with the possibility existing that a strong negative reaction might persuade a State to withhold ratification. As for where the power to make treaties resides within a State, this is determined by the constitutional law of the particular State, and varies from State to State. For States that follow the British constitutional tradition, the power to conduct foreign relations, including the power to make treaties, is one of the royal prerogatives retained by the Crown and carried out by the executive branch, usually through the minister responsible for foreign affairs. Since prerogative powers, by definition, provide the executive with the power to act without Parliament’s consent,18 treaty-making, including treaty ratification, is at common law a wholly executive act. Of course, statute law can change this, as will be discussed in relation to South Africa. As for a treaty’s domestic implementation, the dualist view of treaties as co-existing but functioning separately from domestic law19 means that a treaty that purports to change existing domestic law has no domestic legal effect unless and until the treaty obligations are ‘incorporated’20 or ‘transformed ’21 by the enactment of domestic legislation.22 For some, this distinction is lost in practice given the degree of executive control over Parliament, but the distinction in law between treaty-making and treaty implementation and the corresponding distinction between the roles of the executive and Parliament remains part of the British, and Commonwealth, constitutional tradition.23 Scrutiny and Approval 125 17 Since a State cannot invoke the provisions of its domestic law as justification for its failure to perform a treaty obligation (Treaties Convention (n 13), Art 27), it is common practice for States to insist that any necessary legislative changes be in place before a treaty is ratified. See, for example, the guidance in Treaties and MOUs: Guidance on Practice and Procedure (2nd edn Foreign and Commonwealth Office 2000) (revised May 2004) 7, online: [Treaties and MOUs]. 18 AV Dicey Introduction to the Study of the Law of the Constitution (10th edn MacMillan London 1959) 425; AW Bradley and KD Ewing Constitutional and Administrative Law (12th edn Longman London 1997) 272–3. 19 Bradley and Ewing (n 18) at 353. See further Sir Robert Jennings and Sir Arthur Watts (eds) Oppenheim’s International Law (9th edn Longman NY 1992) 53. 20 Aust (n 16) at 150–1. 21 Canadians tend to use this term, with incorporation being one of the means of transformation: JH Currie Public International Law (Irwin Law Toronto 2001) 205. For the somewhat interchangeable use of both terms, see Ian Brownlie Principles of Public International Law (6th edn Clarendon Press Oxford 2003) 41–5. 22 Canada (A-G) v Ontario (A-G), [1937] AC 326 at 347 (PC) [Labour Conventions Case]. 23 See generally JES Fawcett The British Commonwealth in International Law (Stevens & Son London 1963) 16–32. Australia and Canada, however, are federal States, and their federal character adds a further dimension to the debate about the democratic credentials of treaty-making. With respect to Canada, the responsibility for treaty implementation is divided according to the country’s constitutional division of powers. Treaties must therefore be implemented by the level of government that has constitutional responsibility for the particular subject matter of the treaty,24 notwithstanding the lack of accountability between the federal treatymaker and the provincial legislatures and the potential problems this poses for treaty compliance, absent federal State clauses and reservations alleviating federal responsibility for provincial non-performance. This rule is either criticized for holding the federal government hostage to provincial demands, or praised for protecting provincial autonomy and encouraging federal-provincial collaboration in the treaty-making process, but is likely here to stay. As a result, if a role were to be accorded to the Canadian Parliament in the making of treaties, it would be logical to accord a similar role to the provincial legislatures where the subject matter of the treaty falls within that body’s area of legislative competence. By contrast, in Australia, the Commonwealth Parliament has the ability, authorized by an express ‘external affairs’ power in the Australian Constitution,25 to enact any legislation necessary to bring into effect Australia’s treaty obligations, even when the subject matter of the legislation falls within the constitutional competence of the six State Parliaments.26 The Constitution further provides that the Commonwealth law prevails to the extent of any inconsistency with any State law.27 Thus, Australia takes the opposite position to that taken in Canada, with the Australian approach ostensibly placing the value of treaty compliance above any possible encroachment on areas of State responsibility. III. THE BRITISH MODEL FOR PARLIAMENTARY INVOLVEMENT IN TREATY-MAKING Ironically, the adherence to a strict separation of powers between the executive and Parliament in treaty-making and implementation does not in fact match the actual practice of the UK, where provision has long been made for some parliamentary involvement in the making of treaties by the executive. 126 International and Comparative Law Quarterly 24 Labour Conventions Case (n 22). 25 Commonwealth of Australia Constitution Act, 1900, 63 & 64 Vic, c 12, s 51 (xxix) [the Australian Constitution]. 26 See generally T Blackshield and G Williams Australian Constitutional Law and Theory (3rd edn Federation Press Sydney 2002) 774–801 and L Zines The High Court and the Constitution (4th edn Butterworths Sydney 1997) 274–86. On the key case of Commonwealth v Tasmania (Franklin Dam Case) (1983) 158 CLR 1, see AC Byrnes ‘The Implementation of Treaties in Australia after the Tasmanian Dams Case: The External Affairs Power and the Influence of Federalism’ (1985) 8(2) Boston Coll. Int’l & Comp L Rev 275–339. 27 Australian Constitution (n 25), s 109. Under a conventional practice, known as the Ponsonby Rule, all treaties requiring ratification28 must be presented before both Houses of Parliament for at least 21 sitting days (rather than calendar days)29 before the actual ratification takes place, thereby enabling any member of either House to call attention to the proposed treaty action and stimulate public debate. This laying before Parliament is effected by the deposit of a Command Paper, published in one of three series by the Foreign and Commonwealth Office (FCO): the Country Series (for bilateral treaties), the European Communities Series (for treaties between Member States of the European Union), and the Miscellaneous Series (for multilateral treaties). A fourth series, known as the Treaties Series, contains the texts of all treaties that have come into force for the UK.30 The Rule does, however, have some exceptions. Treaties that explicitly call for parliamentary approval in order to come into force are handled outside of the Ponsonby process,31 as are treaties that are not subject to ratification in the international sense, although these treaties are later laid before Parliament upon their entry into force via publication in the Treaties Series.32 Bilateral double taxation agreements are also exempt from the Ponsonby process, since there is a statutory requirement to expose such treaties to parliamentary scrutiny when the draft Order-in-Council providing for the taxation relief is laid before the House of Commons for approval.33 These too are also later published in the Treaties Series. Lastly, the Ponsonby Rule allows for exceptions when other means of consulting or informing Parliament can be used instead, although this is rare.34 As for the origins of the Rule, it has existed since 1924, when it began life as an undertaking given on behalf of the first Government of Ramsay Scrutiny and Approval 127 28 This term has been interpreted broadly to include treaty accessions, approvals, and acceptances: House of Commons Information Office, Treaties (House of Commons Factsheet No 14, Procedure Series, Revised June 2003) 3, online: [HC Factsheet No 14]. The rule also applies to treaties amending treaties and, since Jan 1998, treaties coming into force by the mutual notification of the completion of constitutional and other procedures by each party: ‘The Ponsonby Rule’ (Foreign and Commonwealth Office 2001), online: . 29 21 sitting days can be considerably longer than 21 calendar days since sitting days need not be continuous. 30 Since Jan 2002, recent treaty texts are also available at: . 31 Section 12 of the European Parliamentary Elections Act 2002, ch 24, eg, requires any treaty increasing the powers of the European Parliament to be approved by a specific Act of Parliament for ratification to take place. The UK Parliament has established extensive, sophisticated, and systematic methods for the scrutiny of European Union developments. See further P Barnes ‘Parliamentary Scrutiny of Policy and Legislation: The Procedures of the Lords and Commons’ in P Giddings and G Drewry, Britain in the European Union: Law, Policy and Parliament (Palgrave Macmillan NY 2004) 60–96 and AJ Cygan The United Kingdom Parliament and European Union Legislation (Kluwer Law International The Hague 1998). 32 n 30. 33 UK, HC, Parliamentary Debates, Series 6 vol 4 col WA 82 (6 May 1981). 34 ‘The Ponsonby Rule’ (n 28). MacDonald by Arthur Ponsonby, then Under-Secretary of State for Foreign Affairs,35 during the Second Reading of the Treaty of Peace (Turkey) Bill in the House of Commons.36 Ponsonby was familiar with international affairs, having worked in the diplomatic service prior to his first election as an MP in 1908,37 and he had long campaigned for greater parliamentary control over treaty-making as an author38 and as a leading member of the Union of Democratic Control (UDC), a prominent anti-war organization,39 whose 1914 manifesto expressly stipulated that ‘No Treaty, Arrangement, or Undertaking shall be entered upon in the name of Great Britain without the sanction of Parliament.’40 As a minister in 1924, Ponsonby gave an undertaking to inform the House of all other ‘agreements, commitments and understandings which may in any way bind the nation to specific action in certain circumstances.’41 The undertaking was later withdrawn during the Baldwin Government of 1924–9, but reinstated when MacDonald was re-elected Prime Minister in 1929, and has been observed ever since, apart from rare cases of emergency.42 While failure to follow the practice carries no legal sanction, it would subject the Government to criticism, given the long-standing nature of the convention. Some have taken the view that the Ponsonby Rule is of ‘limited value’43 since the Government is not legally bound to find valuable parliamentary time to debate a motion deploring its intention to ratify a treaty and, if it did find time, it is unlikely that the Government would be defeated. This, of course, assumes the Government holds a majority. Moreover, although there is no rule flowing from the Ponsonby procedure that requires Parliament to debate the proposed treaty action, and parliamentary time is limited, it may still be difficult for the Leader of the House to resist a debate on an important or controversial treaty that has been laid before Parliament. Ponsonby himself admitted as much in his original announcement when he stated: 128 International and Comparative Law Quarterly 35 Knowing that Labour was unlikely to stay in office for longer than a few months, Ponsonby had successfully urged MacDonald to serve as his own foreign secretary, noting that the ‘extraordinary combination of circumstances’ would allow them ‘to have control of the F.O. [Foreign Office] and to begin to carry out some of the things we have been urging and preaching for years’: Letter from Ponsonby to MacDonald cited in D Marquand Ramsay MacDonald (Jonathan Cape London 1977) 300. 36 UK HC Parliamentary Debates, Series 5 vol 171 cols 2001–6 (1 Apr 1924). 37 He had also been long exposed to the workings of government, being the son of the Sir Henry Ponsonby, the Private Secretary to Queen Victoria, and the great grandson of Lord Grey, Prime Minister from 1830 to 1834. See further RA Jones Arthur Ponsonby: The Politics of Life (Christopher Helm London 1989). 38 A Ponsonby Democracy and Diplomacy: A Plea for Popular Control of Foreign Policy (Methuen London 1915). 39 See further M Swartz The Union of Democratic Control in British Politics During the First World War (Clarendon Press Oxford 1971) and S Harris Out of Control: British Foreign Policy and the Union of Democratic Control, 1914–1918 (University of Hull Press 1996). 40 Reprinted in Swartz (n 39) at 42. 41 UK, HC, Parliamentary Debates, Series 5 vol 171 col 2005 (1 Apr 1924). 42 HC Factsheet No 14 (n 28) at 3. 43 Lord Templeman ‘Treaty-Making and the British Parliament’ (1991) 67 Chi-Kent L Rev 459 at 466. In the case of important treaties, the Government will, of course, take an opportunity of submitting them to the House for discussion within this [21 day] period. But as the Government cannot take upon itself to decide what may be considered important or unimportant, if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the treaty in question.44 It is also possible for members of both Houses to debate a proposed treaty action by initiating a private member’s statement or by making use of the parliamentary questions procedure, both written and oral. In my view, however, the most important benefit of the Ponsonby Rule has been the timely access provided to Parliament and the public to information about recent treaties and its encouragement of greater transparency in treatymaking, albeit that not every treaty so laid is expressly approved by Parliament. This in fact was Ponsonby’s intention in 1924 when he warned that: ‘Resolutions expressing parliamentary approval of every treaty before ratification would be a very cumbersome form of procedure and would burden the House with a lot of unnecessary business.’45 He went on to note that: ‘The absence of disapproval may be accepted as sanction, and publicity and opportunity for discussion and criticism are the really material and valuable elements which henceforth will be introduced.’46 The weakness of the Ponsonby process, however, is the lack of an institutionalized mechanism to ensure that a treaty laid before Parliament is given adequate and effective scrutiny. But the Ponsonby process has undergone improvements. Since January 1997, an additional practice has developed whereby an Explanatory Memorandum (EM) is laid before Parliament for every treaty laid under the Ponsonby Rule.47 The EMs are drafted by the government department which has the main policy interest in the particular treaty,48 but are cleared through the relevant legal adviser at the FCO.49 They are signed by a minister and are intended to provide information on the treaty’s contents, the rationale for the Government’s support for ratification, and the Government’s view of the treaty’s benefits and burdens. EMs are also made available to the public Scrutiny and Approval 129 44 UK HC Parliamentary Debates, Series 5 vol 171 cols 2003–4 (1 Apr 1924). 45 ibid, col 2004 (1 Apr 1924). 46 ibid. 47 The Government’s undertaking to provide an EM is found in the form of a Written Answer published in UK HC Parliamentary Debates, vol 287 WA 9430 (16 Dec 1996) and UK HL Parliamentary Debates, vol 576 WA 101 (16 Dec 1996). It was made, following an unsuccessful attempt by Lord Lester of Herne Hill QC to subject the treaty-making power to parliamentary approval through the introduction of a Private Member’s Bill to this effect: UK HL Parliamentary Debates, vol 569 col 1530 (26 Feb 1996). The Bill was withdrawn in exchange for the Government’s undertaking as acknowledged in the FCO Evidence (n 53) at para 25. 48 Only 55 per cent of EMs are drafted by the FCO: FCO Evidence (n 53) at para 30. This is why the FCO has prepared ‘Guidelines on Explanatory Memoranda for Treaties’ to assist other government departments. 49 Treaties and MOUs (n 17) at 9. through the FCO’s website50 and, as such, they place on public record the name of the minister with primary responsibility for a treaty, the anticipated financial implications of ratification, the means required to implement the treaty, and the outcome of any discussions which have taken place within and outside Government.51 They also provide information on the content of any reservations or declarations. Since November 2000, the FCO has also ensured that a copy of each treaty laid under the Ponsonby Rule is also sent to the relevant departmental select committee,52 bolstering the ability of the parliamentary committee system to initiate an inquiry by alerting them to the existence of a new treaty action under consideration. Such inquiries can involve members of the civil service, academy and non-governmental communities, as well as the general public, through a process of written submissions and witness testimony, and their utility has led to calls within the UK for the establishment of a dedicated treaty scrutiny committee. The Royal Commission on the Reform of the House of Lords reported favourably on this proposal in early 2000,53 as did the House of Commons Procedure Committee in mid-2000,54 after receiving a request from the Defence Committee to inquire into what some view as Parliament’s ‘unsatisfactory role’ in treaty-making.55 In 2004, as noted in the Introduction, the Joint Committee on Human Rights added its voice to the call for greater treaty scrutiny, viewing ‘the lack of effective parliamentary scrutiny [as] particularly pressing in relation to human rights treaties.’56 To date, the British Government has resisted the call for a treaty committee; however, nothing bars an existing committee from undertaking a treaty enquiry, with the Joint Committee on Human Rights showing how this may be done.57 Extra-parliamentary treaty consultations may also be part of the future agenda, with the organization of a public discussion of the Rome Statute for the International Criminal Court58 prior to its ratification by Britain being the 130 International and Comparative Law Quarterly 50 See . 51 See generally, Treaties and MOUs (n 17) at 9–11, and the sample EM at 12–14. 52 ‘The Ponsonby Rule’ (n 28). 53 The Royal Commission recommended that the Liaison Committee (the body responsible for coordinating committee activity in the House) should consider establishing such a committee since it was ‘exactly the mechanism we believe is required to carry out the technical scrutiny of such treaties’: A House for the Future (Cm. 4534) (Jan 2000) at paras 8.37–8.42. The submissions in favour of a treaty scrutiny committee and the FCO Evidence in reply can be found in the appendices to this report. 54 UK HC Select Committee on Procedure, Second Report: Parliamentary Scrutiny of Treaties, HC 210, Session 1999–2000 (26 July 2000). The response can be found in UK HC Select Committee on Procedure, Second Special Report: Government’s Response to the Second Report of the Committee: Parliamentary Scrutiny of Treaties, HC 990, Session 1999–2000 (22 Nov 2000). 55 UK HC Select Committee on Defence, Third Report: NATO Enlargement, HC 469, Session 1997–8 (2 Apr 1998) at paras 103–6. 56 n 1 at para 6. 57 n 2. 58 17 July 1998, in force 1 July 2002, 2187 UNTS 90 (1998) 37 ILM 1002. first example.59 As Professor Colin Warbrick has so aptly noted,60 if extraparliamentary consultations on how best to implement a treaty are feasible prior to ratification, then surely such consultations are possible within Parliament. The UK has also shown that it is possible to carry out a public consultation on the position to be adopted at the negotiation stage of treatymaking, with the example being the public consultation undertaken on amending the 1972 Biological and Toxin Weapons Convention conducted from April to September 2002, involving the publication of a consultation document that expressly sought ‘views from MPs, NGOs, and other organizations and individuals with an interest in the subject’.61 IV. THE AUSTRALIAN CONTRIBUTION TO AN IMPROVED TREATY-MAKING PROCESS Like the UK, Australia has also eschewed a strict separation of powers in treaty-making, allowing for some form of parliamentary scrutiny and even a period of parliamentary approval. According to one study, the Commonwealth Government sought Parliament’s approval for 55 treaties of significance prior to ratification from 1919 to 1963.62 Then in 1961, at the behest of Prime Minister Robert Menzies, a practice of scrutiny began, whereby all treaties were tabled in Parliament for a period of time prior to ratification.63 In the 1970s, however, this practice gradually fell into disuse, replaced by a practice of tabling batches of treaties at six-month intervals, usually after the executive had given its consent to be bound, thus leaving no room for effective parliamentary scrutiny.64 In 1996, however, Australia reformed its treaty-making process through the creation of a designated parliamentary committee to which all future treaty actions must be sent before they become binding legal obligations. Known as the Joint Standing Committee on Treaties (or ‘JSCOT’), the story of its creation is somewhat intertwined with the decision of the Australian High Scrutiny and Approval 131 59 The consultation was carried out through the publication in August 2000 of a draft version of an ‘International Criminal Court Bill’ with a request for comments from the public, parliamentarians, senior judges, police and legal associations, human rights organizations and academics. By the end of the consultation period on 12 Oct 2000, 45 submissions had been received, leading to the introduction of a revised Bill on 14 Dec 2000, which would later become the International Criminal Court Act 2001, ch 17. 60 C Warbrick ‘Current Developments: Treaties’ (2000) 49 ICLQ 944 at 950. 61 See Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons (Cm 5484) (April 2002), also available at: . 62 G Doeker The Treaty-Making Power in the Commonwealth of Australia (Martinus Nijhoff The Hague 1966) at 138 and 257–261. 63 A Twomey ‘International Law and the Executive’ in BR Opeskin and DR Rothwell (eds) International Law and Australian Federalism (Melbourne University Press 1977) at 87. 64 ibid. See also Daryl Williams ‘Establishing an Australian Parliamentary Treaties Committee’ (1995) Public L Rev 275 at 278–9. Court in Teoh’s Case,65 where it was held that the ratification of a treaty created a legitimate expectation that the executive and its agencies would act in conformity with that treaty, even when the treaty had not been implemented into domestic law. The Teoh principle was quickly repudiated by the Commonwealth Government,66 but nevertheless fuelled a passionate debate then taking place about Australia’s involvement in international affairs and the lack of parliamentary oversight. This debate had focused on the Toonen decision67 of the UN Human Rights Committee, which found Australia in breach of the International Covenant on Civil and Political Rights68 because of a criminal ban on homosexuality in the State of Tasmania. The case raised political issues, with some expressing concern about the impact of UN bodies on Australian sovereignty, as well as federalism issues, given the Commonwealth ability to use the external affairs power to over-ride Tasmanian law to achieve treaty compliance.69 Given this interest in international treaties (an interest then evident in New Zealand as well),70 a request was made to the Senate Legal and Constitutional References Committee in December 1994 to undertake an extensive review of the treaty-making power. The results of this review were published in November 1995, in the form of an extensive report entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties,71 which recommended improved access to treaty information, an enhanced role for Parliament through the creation of a treaty committee,72 and greater consultation with industry, civil society, and State governments. The Report received a favourable response from the Coalition Government that came to power after the March 1996 election,73 and on 2 May 1996, the Minister for Foreign 132 International and Comparative Law Quarterly 65 n 7. 66 Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans QC, and the Attorney-General Michael Lavarch MP: International Treaties and the High Court Decision in Teoh (Canberra, 10 May 1995). See further W Lacey ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29(2) Fed L Rev 219. 67 Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). 68 16 Dec 1966, in force 23 Mar 1976, 999 UNTS 171, (1967) 6 ILM 368. 69 See further BR Opeskin and DR Rothwell ‘The Impact of Treaties on Australian Federalism’ (1995) 27 Case W Res J Int’l L 1 at 49–54. 70 In 1993 the New Zealand Law Commission circulated a draft report, The Making, Acceptance and Implementation of Treaties: Three Issues for Consideration by its then President, Sir Kenneth Keith, which led to the publication of Report 45: The Treaty-making Process: Reform and the Role of Parliament (Law Commission Wellington 1997) calling for the creation of a treaty committee. See also K Keith ‘New Zealand Treaty Practice: The Executive and the Legislature’ (1964) 1 NZULR 272 for a much earlier account. 71 At: . 72 The proposal to create a Standing Committee on Treaties was of long-standing, having been introduced in 1983 by Senator Brian Harradine (Independent) and then reintroduced in subsequent sessions: Twomey (n 63) at 88; IA Shearer ‘International Legal Notes’ (1995) 69 Australian Law Journal 404 at 406, n 12. 73 In part because the report was a reflection of the Government’s own policies: see D Williams ‘Australia’s Treaty-Making Processes: The Coalition’s Reform Proposals’ in P Alston and M Chiam (eds) Treaty-Making and Australia: Globalisation versus Sovereignty (Federation Press Affairs and the Attorney-General made a statement to Parliament introducing reforms that would, in their words, ‘overcome what this Government considers to have been a democratic deficit in the way treaty-making has been carried out in the past.’74 Under the 1996 reforms, all proposed treaty actions must, according to administrative practice rather than legislation, be tabled in Parliament at least 15 sitting days before binding action is taken, although there is some flexibility when circumstances require a shorter or longer time period.75 Each treaty is tabled with a National Interest Analysis (NIA), a public document prepared by the responsible line agency in consultation with the Department of Foreign Affairs and Trade (DFAT) that sets out the reasons for the proposed treaty action, its obligations and costs, and documents the consultation that has taken place.76 The tabled treaty (and NIA) is then sent for scrutiny to JSCOT, a large all-party committee supported by a small secretariat. JSCOT is empowered to inquire into and report upon any treaty matter, whether bilateral or multilateral, including treaties in the process of being negotiated as well as those that have already been concluded. It can accomplish this mandate by several means, including the holding of public hearings across Australia and the review of submissions from parliamentarians, non-governmental organizations, academics and industry groups, as well as individual citizens. At the completion of its inquiry, JSCOT prepares a report for Parliament containing its advice on whether the treaty should bind Australia and on any other issues that emerged during the review process. These reports, as well as the treaty text, the NIA, the hearing transcripts, and even the submissions received by JSCOT, are all made available to the public (and the world) through the Committee’s website, thereby serving as a useful resource on a treaty’s contents and consequences.77 To bolster these reforms, Australia also created an on-line treaty database, providing free public access to treaty texts, their ratification records, and NIAs, as well as information on multilateral treaties under negotiation, consideration or review by the Australian Government.78 The reformed treaty-making process has now been in place for nine years, Scrutiny and Approval 133 Sydney 1995) at 192. Coalition support for a treaty committee was also fostered by the public reaction to the discovery that Prime Minister Paul Keating had secretly negotiated a mutual security treaty with Indonesian President Suharto in 1995. See further Greg Sheridan ‘Security deal moves into the open’ The Australian (21 Oct 2004). 74 Joint Statement by the Minister for Foreign Affairs, Alexander Downer MP, and the Attorney-General, Daryl Williams AM QC MP (2 May 1996), online: . 75 Special arrangements can be made if a treaty is sensitive or requires urgent and immediate implementation. 76 The National Interest Analyses can be found at: . 77 See: . 78 The Australian Treaties Database is available at: . DFAT also supports the Australian Treaties Library maintained by the Australasian Legal Information Institute (AUSTLII) at: . resulting in the examination of over 100 treaties, the preparation of over 60 reports,79 and the publication of over 30 Government Responses.80 While some treaties so examined have been relatively bland, others have prompted substantial numbers of submissions and the holding of public hearings across Australia,81 suggesting that, if nothing else, JSCOT has enhanced the public’s awareness of treaty law. While commentators in Australia have criticized JSCOT for serving as a ‘tool for political management’82 and a procedural mask where more substantive changes are needed to improve executive accountability,83 those from abroad envy the sheer volume of treaty-making information made public through the JSCOT process, albeit that this volume can be overwhelming, absent the dedicated efforts of those within and outside Parliament interested in treaty scrutiny. The Australian Government, as one might expect, has spoken positively about the JSCOT process, concluding in a 1999 review that the typical 15 sitting-day period (roughly equivalent to five weeks) did not pose an obstacle to Australia’s ability to undertake timely treaty action.84 Record levels of submissions to JSCOT have, however, prompted the Government to extend the scrutiny period to 20 sitting days (roughly equivalent to eight weeks) for treaties identified as being of major political, economic or social significance and likely to attract considerable public interest and debate.85 The Government’s review also concluded that the sufficiency of the scrutiny process alleviated any need for a rule requiring the parliamentary approval of treaties for ratification,86 a proposal previously mooted during the deliberations of the 1988 Constitutional Commission87 and in a Private Member’s Bill.88 A 134 International and Comparative Law Quarterly 79 The reports are available at: . 80 These are also made available via the JSCOT website. 81 See eg Report 61: Australia–United States Free Trade Agreement (23 June 2004). 82 See A Capling and KR Nossal ‘Parliament and the Democratization of Foreign Policy: The Case of Australia’s Joint Standing Committee on Treaties’ (2003) 36(4) Canadian Journal of Political Science 835. 83 See M Chiam ‘Evaluating Australia’s Treaty-Making Process’ (2004) 15 Pub L Rev 265 and H Charlesworth et al ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423 at 441–4. 84 Commonwealth of Australia Review of the Treaty-Making Process (Aug 1999), online: Attorney-General’s Department . See further G Cranwell ‘The Treaty-Making Process in Australia: A Report Card on Recent Reforms’ [2001] Aust Int’l LJ 177. 85 Treaties are now classified as either Category A (requiring 15 sitting days) or Category B (requiring 20 sitting days). Many bilateral treaties fall within Category A, especially ‘template’ treaties, while Category B is for multilateral treaties and significant ‘one-off’ bilateral treaties such as the Timor Sea Treaty. 86 Review of the Treaty-Making Process (n 84) at paras 5.1–5.8. 87 Two members of the Commission supported the view that there should be a statutory requirement to require the ratification of treaties to be conditional on either the approval of both Houses of Parliament or the disallowance by either House within a specified period: Final Report of the Constitutional Commission (Australian Government Publishing Service Canberra 1988), vol II at 745–6 (Professor Leslie Zines) and 749 (Sir Rupert Hamer). 88 Senator Vicki Bourne of the Australian Democrats introduced a Bill in June 1994, and again in May 1995, that would have required the executive to secure Parliament’s approval to ratify a similar proposal was also made in New Zealand by way of a Private Member’s Bill, with both proposals attracting objections on separation of powers grounds,89 even though, as discussed later in this article, several countries that follow the British legal tradition already require parliamentary approval for treaty ratification. As for the content of the scrutiny, JSCOT has examined mostly new treaty actions, although the broad interpretation it has taken of its mandate has allowed the examination of one treaty well after its ratification, in essence providing an audit of its implementation,90 and the examination of another during its negotiation.91 Some of its reports cover several treaties at once, while others focus solely on a treaty of particular importance, such as the Rome Statute for the International Criminal Court92 or the Kyoto Protocol.93 JSCOT has also examined proposed implementation legislation,94 as well as the treaty-based subject matter of extradition law,95 and has demonstrated on occasion that it has the powerful tool of initiative and does not work solely at the behest of executive action. JSCOT usually concludes its review with a positive recommendation to the executive to take binding treaty action. As with other parliamentary committees, there can be dissenting reports, usually by Opposition members, but on a few very rare occasions, JSCOT has made a unanimous recommendation against the ratification of a proposed treaty action.96 The former Attorney- General Daryl Williams has acknowledged that the unanimous conclusions of Scrutiny and Approval 135 treaty. See further V Bourne ‘The Implications of Requiring Parliamentary Approval of Treaties’ in Alston and Chiam (n 73) at 196–203. 89 See further M Chen ‘A Constitutional Revolution? The Role of the New Zealand Parliament in Treaty-Making’ (2001) 19 NZULR 448 and T Dunworth ‘International Treaty Examination: The Saga Continues’ [2002] NZLR 255–61. See also A Bracegirdle ‘Domestic Procedures for International Treaty Actions: Description of New Zealand Procedures’ (2003) 14 Pub L Rev 28. 90 JSCOT, Report 17: United Nations Convention on the Rights of the Child (28 August 1998). This treaty has attracted considerable controversy in Australia since ratification, not least because of its role in asylum cases such as Teoh’s Case (n 7). The JSCOT inquiry provided an opportunity for many Australians to be heard, as evidenced by the over 700 letters and submissions received, although some contributors believed (erroneously) that the inquiry’s purpose was to facilitate Australia’s withdrawal from the treaty. See further M Jones ‘Myths and Facts concerning the Convention on the Rights of the Child in Australia’ (1999) 5(2) Aust J of Hum Rts 126. 91 JSCOT, Report 14: Multilateral Agreement on Investment: Interim Report (1 June 1998) and JSCOT, Report 18: Multilateral Agreement on Investment: Final Report (23 Mar 1999). 92 JSCOT, Report 45: The Statute of the International Criminal Court (14 May 2002). 93 JSCOT, Report 38: The Kyoto Protocol—Discussion Paper (4 Apr 2001). 94 JSCOT, Report 16: OECD Convention on Combating Bribery and Draft Implementing Legislation (2 July 1998). 95 JSCOT, Report 40: Extradition—A Review of Australia’s Law and Policy (6 Aug 2001). This report has since been discussed in some detail by the Federal Court in Hellenic Republic v Tzatzimakis [2002] FCA 340 at paras 73–82 and briefly by the High Court in Pasini v United Mexican States [2002] HCA 3 at para 91. 96 JSCOT, Report 11 (24 Nov 1997) concerning a proposed cooperation agreement with Kazakhstan. JSCOT’s unanimous support for the International Criminal Court in Report 45 (n 92), is also interesting given the division present within the governing Coalition, although the support was given with strong qualifications. a bipartisan committee have an impact.97 But JSCOT’s greater benefit is likely found in its more frequent criticism of the Government for inadequate NIAs and insufficient consultation, and its ability to make a wealth of treaty information available for public scrutiny, including departmental information. Moreover, its activities do not stop other parliamentary committees from examining a treaty action should they so desire, or be so prompted by the interest in treaties generated by the JSCOT process. V. TREATY-MAKING AND THE PARLIAMENT OF CANADA As in the UK and Australia, the power to make treaties resides in Canada with the executive branch that represents the State abroad.98 While claims have been made that Canada’s provinces also possess a treaty-making capacity,99 prompting the province of Québec to enter into many treaty-like arrangements, 100 these claims have never been accepted by Ottawa101 and are not borne out by Canadian practice.102 Moreover, with the possible exception of France,103 no State in the international community recognizes any competence on the part of Canada’s provinces to conclude treaties. Canada’s treaty-making responsibility, much like that of the other dominions, emerged gradually. Although Confederation in 1867 marked the beginning of Canada’s domestic self-governance, it was not envisaged at the time that Canada would make treaties independently from Britain. Britain retained the prerogative power to make treaties for the Empire as a whole,104 and so Canada’s Constitution of 1867 contained no provision on treaty-making.105 136 International and Comparative Law Quarterly 97 Williams (n 64) at 283. 98 AE Gotlieb Canadian Treaty-Making (Butterworths Toronto 1968) at 27; M Copithorne ‘Canada’ in M Leigh et al (eds) National Treaty Law and Practice, vol 3 (American Society of International Law Washington DC 2003) at 1. See also PW Hogg Constitutional Law of Canada (4th edn Carswell Scarsborough 1997) at §11.2. 99 Such claims were particularly prevalent in the 1960s, bolstering claims then made by the Québec government that led to the creation of a Québec department of intergovernmental affairs in 1967. Québec, however, is not the only province with a department dedicated to international affairs. Ontario, Alberta and British Columbia are also active ‘internationalists’, although all Canadian provinces at one time or another have made agreements with foreign States to serve their interests. See further G van Ert ‘The Legal Character of Provincial Agreements with Foreign Governments’ (2001) 42 Les Cahiers de Droit 1093. 100 It is estimated that 300 of the 550 arrangements entered into since 1967 remain in force: . 101 In 1968 the then Secretary of State for External Affairs, Paul Martin Sr, issued a background paper on Federalism and International Relations (Queen’s Printer Ottawa 1968), disputing and opposing all claims to a provincial treaty-making capacity. 102 Hogg (n 98) at §11.2 and §11.6; Currie (n 21) at 208–10. 103 See G van Ert Using International Law in Canadian Courts (Kluwer Law International The Hague 2002) at 87, n 163. 104 See further, Hogg (n 98) at §11.2. See also Gotlieb (n 98) at 6–10. 105 The closest provision on point is s 132 of the Constitution Act, 1867 which concerns a federal power to perform what are termed ‘Empire treaties’; however, this provision does not extend to treaties entered into by an independent Canada (Labour Conventions Case (n 22) at 350) and is now viewed as obsolete. However, as the countries within the Empire gradually acquired their full independence, so did they acquire their portion of the treaty-making power once held by the British executive, with the delegation of the Canadian portion said to be confirmed by the Letters Patent Constituting the Office of the Governor General of Canada of 1947.106 The federal Government appears to guard its treaty-making power jealously, allowing no formal role for the Parliament of Canada, even though this was not always the case. From 1926 to 1966, it was the practice in Canada for all important treaties to be submitted to Parliament for approval prior to ratification, a practice initiated by Prime Minister William Lyon Mackenzie King by way of a two-part motion, the second part of which read: ‘This House . . . considers further that before His Majesty’s Canadian ministers advise ratification of a treaty or convention affecting Canada, or signify acceptance of any treaty, convention or agreement involving military or economic sanctions, the approval of the Parliament of Canada should be secured.’107 While Mackenzie King acknowledged that treaty ratification was an executive act, he also stated that ‘Parliament should feel assured in regard to all these great obligations of an international character which involve military and economic sanctions that a government should not have the opportunity of binding Parliament in advance of its own knowledge to the obligations incurred thereby.’108 The House adopted the motion, and for the next 40 years, according to Allan Gotlieb’s authoritative109 but now dated account in Canadian Treaty-Making, a practice developed of submitting to Parliament all treaties involving: (1) military or economic sanctions; (2) large expenditures of public funds or important financial or economic implications; (3) political considerations of a far-reaching character; and (4) obligations the performance of which will affect private rights in Canada.110 Since the initiation of this practice took place in the same year that Canada achieved its autonomy from Britain with respect to the exercise of the treaty-making power,111 the practice can be rightly described as being part of the Canadian treaty-making process since the beginning. Scrutiny and Approval 137 106 Reproduced in RSC 1985, App II, No 31. Clause 2 authorizes the Governor General ‘to exercise all powers and authorities lawfully belonging to [the King] in respect of Canada.’ 107 House of Commons Debates (21 June 1926) at 4758–9. The debate on the motion is found at 4758–800. See further, Gotlieb (n 98) at 15–16. 108 House of Commons Debates (21 June 1926) at 4762. 109 Gotlieb was, at the time of authorship, the Assistant Under-Secretary of State for External Affairs and Legal Adviser to the Department. He would later serve as Under-Secretary of State for External Affairs (1977–81) and Ambassador of Canada to the United States (1981–9). 110 Gotlieb, above n 98 at 16–17. 111 The Balfour Declaration was issued at the Imperial Conference of 1926 and confirmed that no autonomous dominion could be bound by commitments incurred by the Imperial Government without its consent. The question of treaty-making was specifically addressed, with the conference confirming that each dominion government had the power to negotiate, sign and ratify treaties on its own behalf. See further M Ollivier The Colonial and Imperial Conferences from 1887 to 1937 (Queen’s Printer Ottawa 1954) vol 3 at 150–5. This practice, however, applied to only a small proportion of all the treaties entered into by Canada for the above time period since many of Canada’s treaties were concluded by way of an exchange of notes or letters and, as such, were not subject to ratification.112 Nevertheless, for those treaties that were submitted, the practice did give Parliament a voice in relation to some treaties of significance, such as the Canada–US Automotive Products Agreement of 1966, known colloquially as the ‘Auto Pact’,113 and the pre-ratification timing was crucial because it meant that Parliament had a say before Canada became bound under international law. The practice, however, waned in the late- 1960s, coinciding with the debate then taking place about Canada’s role in the North American Aerospace Defence Command (NORAD),114 and by 1974 it was the view of Canada’s Department of External Affairs that it was up to the Government of the day as to whether parliamentary approval would be sought for a proposed treaty action.115 This continues to be the Department’s view116 and as time has passed, the practice of submitting treaties to Parliament for approval has been either forgotten or abandoned,117 prompting the introduction of a series of Private Member’s Bills since 1999 to encourage, among other things, its reinstatement.118 The continued demise of a parliamentary role in the making of important 138 International and Comparative Law Quarterly 112 Gotlieb (n 98) at 18. See also A Jacomy-Millette Treaty Law in Canada (University of Ottawa Press 1975) at paras 32 and 44. 113 The agreement was approved by the House of Commons on 6 May 1966 and by the Senate on 30 June 1966. 114 The 1958 Canada–US treaty establishing NORAD is subject to renewal every five years. During the 1960s, the threat of inter-continental ballistic missiles prompted the expansion of NORAD’s mandate from air to aerospace defence and the creation of an extensive defence network. When questioned in Parliament about such changes, Prime Minister Pearson replied that ‘if such a situation developed, requiring such an important change in Canadian defence policy, . . . and if Parliament was sitting, Parliament would be consulted first’: House of Commons Debates (25 Sept 1967) at 2428. The NORAD agreement was renewed in 1968 during Parliament’s dissolution. 115 See the excerpt from a memorandum of 11 June 1974 by the Department’s Bureau of Legal Affairs reprinted in (1975) 13 Can Ybk Int’l L 366–7. 116 See the excerpts from Department memoranda reprinted in (1982) 20 Can Ybk Int’L L 289–92, (1986) 24 Can Ybk Int’l L 397–402 and (2002) 40 Can Ybk Int’l Law 490–2. 117 According to research undertaken by Professor Turp, then serving as a Bloc Québécois Member of Parliament, the practice stopped in the late 1960s: Daniel Turp ‘Un nouveau défi démocratique: l’accentuation du rôle du parlement dans la conclusion et la mise en oeuvre des traités internationaux [1999] CCIL Proceedings 118. As noted by both Turp (at 119) and van Ert, above n 103 at 68–9, commentary suggesting that the practice continues is suspect because of a reliance on the out-dated texts of Gotlieb (n 98) and Jacomy-Millette (n 112). 118 Five Bills were introduced by Professor Turp in October: House of Commons Debates (14 Oct 1999) at 113. An earlier Bill requiring the tabling of treaties was introduced by Turp that Spring: House of Commons Debates (3 May 1999) at 14601. Of the five October Bills, only one proceeded to second reading, garnering support from all but the governing Liberal Party: House of Commons Debates (1 Dec 1999) at 2018–26, House of Commons Debates (13 Apr 2000) at 6127–31, and House of Commons Debates (8 June 2000) at 7725–31. It was later defeated by a vote of 110 to 151: House of Commons Debates (13 June 2000) at 7956–7. Similar Bills were later reintroduced in the following session by Francine Lalonde MP, the Bloc Québécois critic for foreign affairs: House of Commons Debates (28 Mar 2001) at 2440–1. The latest version was introduced as Bill C-260 by Jean-Yves Roy MP of the Bloc Québécois on 3 Nov 2004. treaties appears to be the Government’s position, as illustrated by the recent announcement that there would be no parliamentary role in the conclusion of a Canada–US treaty on missile defence.119 But according to Professor Maurice Copithorne, a former Legal Adviser to the Department of Foreign Affairs, ‘the role of Parliament as a body with which the executive consults is evolving,’120 noting that ‘consultations on Canada’s most important treaties now take place regularly prior to the Government taking binding action.’121 Copithorne points to the work of the House of Commons Standing Committee on Foreign Affairs and International Trade (SCFAIT),122 and in particular its examination of the proposed Multilateral Agreement on Investment in 1997123 and the Canada–US Preclearance Agreement in 1999,124 as well as the practice of passing enabling legislation prior to ratifying a treaty.125 But while there are instances where SCFAIT has examined a treaty that is in the process of being negotiated,126 albeit treaties already in the public eye, a review of the record for the past eight years suggests that when it comes to treaty scrutiny, the usual role for SCFAIT is to review the legislation implementing a treaty, rather than a future treaty action. Moreover, the broad mandates of SCFAIT and other standing committees prompt a hit-and-miss record with respect to treaty scrutiny given the many other matters on the agenda.127 As for the passage of enabling legislation prior to ratification, Copithorne admits that there are ‘rare occasions’ when this is not done, but the central point is that such occasions can occur, and have occurred—most recently with the ratification of the Kyoto Protocol. The principled rebuttal, however, to Copithorne’s arguments is that Parliament is more than a body for ‘consultation’ and as the ultimate law-maker in a Westminster democracy, Parliament should have the opportunity to review all treaties before their ratification, whether or not enabling legislation will be required. Parliament (and through Parliament, the public) is also not kept as well Scrutiny and Approval 139 119 Jeff Sallot ‘Missile treaty up to Cabinet, Graham says’ Globe and Mail (27 Sept 2004). 120 Copithorne (n 98) at 5. 121 ibid. 122 The Committee has recently adopted the acronym ‘FAAE’ rather than ‘FAIT’. 123 Canada and the Multilateral Agreement on Investment: Third Report of the Standing Committee on Foreign Affairs and International Trade: First Report of the Sub-Committee on International Trade, Trade Disputes and Investment (Dec 1997). 124 Bill S-22, An Act authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of customs, immigration, public health, food inspection and plant and animal health: Eighth Report of the Standing Committee on Foreign Affairs and International Trade (May 1999). 125 Copithorne (n 98) at 5. 126 The only example in the past eight years, apart from the Multilateral Agreement on Investment, concerns the proposed Free Trade Area of the Americas (FTAA): The Free Trade Area of the Americas: Towards a Hemispheric Agreement in the Canadian Interest: First Report of the Standing Committee on Foreign Affairs and International Trade: First Report of the Sub- Committee on International Trade, Trade Disputes and Investment (Oct 1999). 127 The SCFAIT has issued 61 reports in the past eight years and only eight of those 61 reports concern treaties. informed as it once was about the treaty-making activities of the executive branch. From its creation in 1909 until 1995, the Department of External Affairs (as it was then called) was required by statute to report annually to Parliament about its activities,128 and, from 1915 on,129 these reports also contained an account of Canada’s treaty-making activities, including a useful listing of all agreements concluded during the particular year under review.130 But in 1995, during the passage of legislation to change the Department’s name and expand its mandate, the annual reporting requirement was repealed.131 No explanation was read into the parliamentary record, and nor did any Member of Parliament ask for the reason for the repeal.132 As a result, the Department of Foreign Affairs is no longer obliged to produce an annual public record of its treaty-making activities,133 and while its Ministers may from time to time choose to provide Parliament with a list of the treaties concluded over a specified time period, there remains no legal rule regularizing the timely provision of such information to Parliament. Only as recently as 19 April 2005 was a political commitment made to table in Parliament ‘annual foreign policy updates’ to ‘increase accountability on international affairs.’134 It was also ‘the invariable practice in Canada’, at least as of 1968 when Gotlieb wrote these words, ‘to table in Parliament all agreements, including exchanges of notes.’135 Through tabling, Parliament was kept informed of treaty obligations assumed on Canada’s behalf by the federal executive, albeit after these obligations became binding under international law. But as with the practice of submitting treaties for parliamentary approval, the practice of tabling treaties has also suffered from decline and had in fact all but disappeared until criticism prompted then Foreign Minister Lloyd Axworthy to 140 International and Comparative Law Quarterly 128 An Act to create a Department of External Affairs, 8–9 Edw. VII c 13, s 5, later amended to become s 14. 129 Gotlieb (n 98) at 7. The National Library of Canada record indicates that the annual reports ceased after the 1991/92 issue. 130 Gotlieb (n 98) at 66. 131 Clause 10 of Bill C-47, An Act to amend the Department of External Affairs Act and to make related amendments to other Acts, which became s 10 of An Act to amend the Department of External Affairs Act and to make related amendments to other Acts, SC 1995, ch 5, simply states: ‘Section 14 of the Act and the heading before it are repealed.’ The annual reporting requirements imposed on the Department by specific Acts such as the Access to Information Act, RSC 1985, ch A-1 and the Export and Import Permits Act, R.S.C. 1985, ch E-19, remain in place. 132 See House of Commons Debates (4 Oct 1994) at 6500–5 and (9 Feb 1995) at 9339–48, as well as Issue No 14 of the Minutes of Proceedings and Evidence of the Standing Committee on Foreign Affairs and International Trade (14–15 Dec 1995). 133 An annual listing of Canadian treaty activity can be found in the Canadian Yearbook of International Law. While useful for the Yearbook’s readers, this listing does not absolve the government of its responsibility to apprise Parliament and the general public of its law-making activities. 134 Government of Canada, International Policy Statement (19 Apr 2005), at . 135 Gotlieb (n 98) at 18 and 66. According to Jacomy-Millette, however, tabling was ‘not an invariable rule’: (n 112) at para 44. table dozens of ratified treaties in 1999,136 including treaties which were required by law to be deposited in Parliament.137 Tabling now occurs on an ad hoc basis at the prerogative of the executive, but often without even the most basic details, such as the treaty’s name or a précis of its subject matter, being read into the parliamentary record. The practice of promptly publishing all treaty texts in the Canada Treaty Series has also been in decline and the Department no longer prepares a general guide to treaty-making,138 as done in Britain139 and Australia.140 Canada has, however, followed Australia and Britain in putting some of its treaties on-line to enhance public access but, unfortunately, the Canadian database contains no memoranda or other guidance. VI. THE PARLIAMENTARY APPROVAL MODEL AND THE SOUTH AFRICAN EXPERIENCE Several jurisdictions go further than those discussed above by requiring the express approval of Parliament before the ratification of a treaty. Of those with a British legal heritage and a common law legal system, the most oft-cited example is that of the US, where there is a constitutional requirement to involve the Senate in the making of treaties,141 even though most treaties are considered under US law to be ‘executive agreements’ and as such need neither Senate (nor Congressional) approval.142 Moreover, for most of its history, the US Senate held its treaty deliberations in secret as a reaction to the public criticism it received for approving the Jay Treaty in 1795,143 a practice that continued officially until 1929, although many previous treaty discussions Scrutiny and Approval 141 136 Turp (n 117) at 128; van Ert (n 103) at 70. Treaties that entered into force for the years 1993–1997 were tabled on four occasions in 1999: House of Commons Debates (13 Apr 1994) at 13715 (12 May 1999) at 15072, (9 June 1999) at 16098 and (10 June 1999) at 16149. 137 Section 7 of the Extradition Act, RSC 1985, ch E-23, used to require all extradition arrangements to be laid as soon as possible before both Houses of Parliament. On 8 Jan 1999, Foreign Minister Axworthy belatedly deposited seven extradition treaties. Such a breach will not occur again since the requirement has now been removed, as evident by comparing the former s 7 to the new s 8 of the Extradition Act, SC 1999, c 18. 138 Copithorne (n 98) at 4. 139 Treaties and MOUs: Guidance on Practice and Procedure (n 17). 140 Signed, Sealed and Delivered: Treaties and Treaty-making: An Official’s Handbook (3rd edn Department of Foreign Affairs and Trade Canberra 2003). Australia also publishes a Treaty Information Kit for the general public, which is made available at . 141 (n 3). 142 Restatement (Third) (n 14) at §303 and Congressional Research Service Library of Congress Treaties and Other International Agreements: The Role of the United States: A Study Prepared for the Committee on Foreign Relations, United States Senate, S Prt 106-71 (Jan 2001). 143 The Jay Treaty was negotiated by Chief Justice John Jay in 1794 to address the issues outstanding between the US and Britain after the American Revolutionary War. So intense was the public outcry that Jay is said to have remarked that he could have travelled the length of the country by the light of bonfires burning his effigy. were leaked to the press.144 The US has since bolstered the role for the legislature in treaty-making by requiring the texts of executive agreements to be transmitted to Congress as soon as possible,145 and through the passage of legislation specifically authorizing the executive branch to conclude international agreements in certain fields, such as foreign aid, agriculture, and trade.146 Ireland, similarly, has a constitutional requirement to involve one of the houses of the national Parliament in treaty-making. The Irish Constitution of 1937 provides that ‘every international agreement to which the State becomes a party shall be laid before Dáil Éireann’,147 but further stipulates that ‘the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by the Dáil Éireann.’148 There is thus both a tabling requirement and an approval requirement imposed on the Irish treaty-making process, although an exception is made to both requirements for ‘agreements or conventions of a technical and administrative character.’149 In a search for more recent examples, one finds parliamentary treaty approval provisions on the statute books of Antigua and Barbuda (since 1987)150 and in the Constitutions of Namibia (as of 1990)151 and South Africa (as of 1993).152 But South Africa has since modified its initial approach with the adoption in 1996 of new constitutional provisions on the parliamentary approval of treaties and, for this reason, its experience has been chosen as worthy of further study. Like the other former dominions of the British Empire included in this study, South Africa inherited the British practice of vesting sole responsibility for the making of treaties in the national executive. Treaty-making was a prerogative power that was later given a statutory foundation in South Africa through codification in the Constitution. When South Africa proclaimed itself 142 International and Comparative Law Quarterly 144 US Senate, ‘Treaties’, online . 145 The legislation is known as the Case-Zablocki Act of 1972, now codified at 1 USC § 112(b). Regulations also require the State Department to provide a background statement with each text transmitted to Congress. 146 See eg Steve Charnovitz ‘Using Framework Statutes to Facilitate US Treaty-making’ (2004) 98 Am J Int’l L 696. 147 The Dáil Éireann is in effect the lower house of the Irish Parliament (the Oireachtas). 148 Constitution of Ireland 1937, Arts 29.5.1° and 29.5.2°. 149 ibid, Art 29.5.3°. 150 See Ratification of Treaties Act 1987, No 1 of 1987. See further Winston Anderson ‘Treatymaking in Caribbean Law and Practice: The Question of Parliamentary Participation’ (1998) 8 Carib L Rev 75. 151 Constitution of the Republic of Namibia 1990, Art 63(2)(e). The text of this Constitution, as well as commentary on the international law provisions, can be found in a special ‘Namibian Independence Edition’ of the South African Yearbook of International Law in 1989/90, later republished as D van Wyk et al (eds) Namibia: Constitutional and International Law Issues (VerLoren van Themaat Centre Pretoria 1991). 152 Constitution of the Republic of South Africa, Act 200 of 1993, s 231(2). a Republic in 1961, this codification served to confirm that the executive, and specifically the State President acting on the advice of the Cabinet, had the power to enter into treaties.153 When further changes were made to the Constitution in 1983, including the adoption of a tri-cameral Parliament, the power to enter into and ratify treaties remained vested in the President.154 The legislature had no role, other than the subsequent role of transforming a treaty obligation into one of domestic law through the enactment of domestic legislation. 155 The real change to treaty-making in South Africa came about in 1994, on the day of the nation’s first democratic elections, and the coming into force of first the interim Constitution,156 and then the ‘final’ Constitution,157 which mandated a role for Parliament in treaty-making in advance of ratification or accession. Motivated by considerations of transparency and accountability,158 and influenced by similar provisions adopted three years earlier in the Namibian Constitution,159 the drafters of South Africa’s post-apartheid constitutional order sought to ensure that all treaties of significance would be approved by Parliament before their ratification or accession, while also providing that any treaty so approved would automatically form part of South African law. The intent was to democratize the process and facilitate the incorporation of treaties into domestic law; however, a subsequent ‘polishing’ of the draft text by the Department of Justice before it was signed into law Scrutiny and Approval 143 153 ibid, Act 32 of 1961, s 7(1)(g). 154 ibid, Act 110 of 1983, s 6(3)(e). 155 The accepted South African authority for this point is Pan American World Airways Inc v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 at 161 (A). 156 Constitution of the Republic of South Africa, Act 200 of 1993 (in force 27 Apr 1994) [interim Constitution]. See generally DA Basson South Africa’s Interim Constitution: Text and Notes (Juta Kenwyn 1994). 157 Constitution of the Republic of South Africa, Act 108 of 1996 (in force 4 Feb 1997) [1996 Constitution]. See generally GE Devenish A Commentary on the South African Constitution (Butterworths Durban 1998). 158 J Dugard International Law: A South African Perspective (2nd edn Juta Kenwyn 2000) at 54. 159 Art 63(2)(e) of the Namibian Constitution of 1990 provides that the National Assembly shall have the power and function . . . ‘to agree to the ratification of or accession to international agreements which have been negotiated and signed in terms of Article 32(3)(e) . . .’, with Art 32(3)(e) providing that the President has the power to ‘negotiate and sign international agreements . . .’ This link to the Namibian Constitution has not gone unnoticed by South African international lawyers: see Dugard (n 158) at 54 and N Botha ‘The Coming of Age of Public International Law in South Africa’ (1992/93) 18 S African Ybk Int’l L 36 at 44. There was also a link between the legal advisers to each drafting process, with two of the three South African advisers to the Namibian Constituent Assembly (namely Advocate Arthur Chaskalson, later the first President of the Constitutional Court of South Africa and now the Chief Justice of South Africa, and Professor Marinus Wiechers of the University of South Africa) playing key roles in the drafting of the interim South African Constitution, while the third (Professor Gerhard Erasmus) contributed specifically to the drafting of the international law provisions: see M Olivier ‘The Status of International Law in South African Municipal Law: Section 231 of the 1993 Constitution’ (1993/94) 19 S African Ybk Int’l L 1 at 2, n 3 and 3. resulted in an end product with ‘substantial technical deviations from the text agreed upon by the Negotiating Council’.160 With respect to treaty approval, section 231(2) of the interim Constitution copied somewhat the wording of the Namibian Constitution by providing that ‘Parliament shall be competent to agree to the ratification of or accession to an international agreement negotiated and signed in terms of section 82(1)(i)’, with section 82(1)(i) being the provision authorizing the President ‘to negotiate and sign international agreements.’ This wording, however, leads to difficulties of interpretation, including the issue of whether competence bestows an obligation and whether all treaties had to be referred to Parliament for their conclusion on the international plane to be constitutional.161 Another difficulty was whether the reference to the signing power in section 82 prescribed a parliamentary process applicable only to treaties signed after the date the interim Constitution came into force;162 a category, if the above was correct, that would include the Agreement Establishing the World Trade Organization, which was signed by South Africa on 15 April 1994, 12 days before the interim Constitution came into force. This agreement was, however, ratified by Parliament in 1995.163 As for section 231(3) of the interim Constitution, it provided that: ‘Where Parliament agrees to the ratification of or accession to an international agreement under subsection (2), such international agreement shall be binding on the Republic and shall form part of the law of the Republic, provided Parliament so expressly provides. . . .’ The provision, however, did not specify how Parliament should indicate its express approval, which in turn led to debates as to whether a resolution, rather than legislation, would suffice.164 Moreover, with either interpretation, the ‘polished’ wording from the Justice 144 International and Comparative Law Quarterly 160 Olivier (n 159) at 3. Olivier, then a legal adviser with the Department of Foreign Affairs and now a Professor of Law at the University of Pretoria, served as a member of the Technical Committee on Constitutional Issues, appointed by the Multi-Party Negotiating Forum in May 1993 to give advice on constitutional matters to the Forum (which negotiated the transition to democracy in South Africa), and to draft on its behalf the interim Constitution. 161 Given the large number of pro forma agreements South Africa would need to conclude in 1994 to establish diplomatic relations, it is perhaps not surprising that the Office of the President (now the Presidency) took the view that Parliament was merely competent, not obliged, and that this competence would be exercised only for those agreements that required accession or ratification to take effect under international law: Manual on Executive Acts of the President of the Republic of South Africa (10 May 1994), as cited in Olivier (n 159) at 8. 162 See DJ Devine ‘Some Problems Relating to Treaties in the South African Constitution and Some Suggestions for the Definitive Constitution’ (1995) 20 S African Ybk Int’l L 1 at 10 and Neville Botha ‘Incorporation of Treaties under the Interim Constitution: A Pattern Emerges?’ (1995) S African Ybk Int’l L 196 at 202. See also DJ Devine ‘The Relationship between International Law and Municipal Law in the Light of the Interim South African Constitution 1993’ (1995) 44 ICLQ 1 at 9. 163 As confirmed in John Dugard and Iain Currie, ‘Public International Law’ [1995] Annual Survey of South African Law 76 at 77. 164 Compare J Dugard International Law A South African Perspective (1st edn Juta Kenwyn 1994) at 343 and Devine ‘Some Problems’ (n 162) at 17. Department contradicted the intent of the Constitution’s drafters since it made the incorporation of a treaty into municipal law less than automatic.165 But the drafters had also failed to take into account what Professor John Dugard SC, a recognized South African expert in international law and a technical adviser to the drafters of the 1996 Constitution, has termed ‘the bureaucratic mind’166—referring to the refusal of government departments to present treaties for parliamentary approval ‘until they were completely satisfied that there would be no conflict between the provisions of the treaty and domestic law.’167 This slowed down the treaty-making process considerably and made the new process cumbersome in a Parliament intent on demonstrating its commitment to a new democratic culture by making extensive use of the committee system. (This intent also means that treaties may need to be approved by several parliamentary committees before being presented for ratification). 168 As a result, when the interim Constitution was redrafted by the first Parliament sitting as a Constitutional Assembly, the Assembly opted to return to the pre-1994 position with respect to treaty implementation, albeit with an ill-advised exception for self-executing treaties,169 but nevertheless retained the new role for Parliament in treaty-making at least for treaties of significance. This new role is now mandated by section 231 of the 1996 Constitution.170 Section 231(1) confirms that the negotiation and signature of all international agreements171 is the responsibility of the national executive, which in turn is Scrutiny and Approval 145 165 Olivier (n 159) at 11. Botha writes that ‘the draft approved by the Negotiating Council provided for automatic municipal application of treaties subject only to the constitution itself and express exclusion by Act of parliament’: N Botha ‘Interpreting a Treaty Endorsed Under the 1993 Constitution’ (1993/1994) 19 S African Ybk Int’l L 148 at 151 (emphasis in original). For judicial confirmation that s 231(3) does the reverse, see Azanian Peoples Organization v President of the Republic of South Africa 1996 (4) SA 671, 1996 (8) BCLR 1015 at paras 26–7 (CC). 166 Dugard (n 158) at 55. 167 ibid. See also Raylene Keightley ‘Public International Law and the Final Constitution’ (1996) 12 S African J Hum Rts 405 at 411. 168 John Dugard ‘International Law and the South African Constitution’ (1997) 8 Eur J Int’l L 77 at 81, n 24. 169 Section 231(4) of the 1996 Constitution provides that ‘a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’, thereby presenting South African courts with the notorious difficulty, long-faced by US courts, of determining what constitutes a self-executing provision. This provision has been criticized by Dugard, above n 158 at 58 and N Botha, ‘Treaties after the 1996 Constitution: More Questions than Answers’ (1997) 22 S African Ybk Int’l L 95 at 99. For an alternative view, see M Olivier ‘Exploring the doctrine of self-execution as enforcement mechanism of international obligations’ (2002) S African Ybk Int’l L 99. 170 And bolstered by procedures set down by the Office of the President in chapter five of the revised Manual on Executive Acts of the President of the Republic of South Africa (Mar 1999), as cited throughout N Botha ‘Treaty-making in South Africa: A Reassessment’ (2000) 25 S African Ybk Int’l L 69, reprinted with revisions as ‘South Africa’ in M Leigh et al (eds) National Treaty Law and Practice, vol 3 (American Society of International Law Washington DC 2003) at 199. 171 Jurisprudence has since confirmed that the term ‘international agreement’ in section 231 applies to instruments ‘intended to create international legal rights and obligations between the parties’: Harksen v President of the Republic of South Africa 2000 (2) SA 825, 2000 (5) BCLR 478 at para 21 (CC). See further, JoAnn Schneeberger ‘A Labyrinth of Tautology: The Meaning comprised of the President and Cabinet,172 although in practice the negotiation of an agreement usually falls to the minister within whose portfolio the subject of the treaty falls.173 Section 231(2) stipulates that an international agreement only binds the Republic of South Africa ‘after it has been approved by resolution in both the National Assembly and the National Council of the Provinces,’ but, unlike under the interim Constitution, there is now an express exemption in section 231(3) for ‘an international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession.’ Exempt agreements must, however, ‘be tabled in the Assembly and Council within a reasonable time,’174 presumably to ensure that South Africa engages in no more secret treaties.175 As for implementation, section 231(4) returns South Africa to the common law fold by stating explicitly that ‘an international agreement becomes law in the Republic when it is enacted into law by national legislation,’ although an exception is made for a ‘selfexecuting provision of an agreement that has been approved by Parliament.’ Treaty-making in South Africa is thus a shared responsibility between the national executive and both houses of Parliament, with all bilateral treaties of significance and virtually all multilateral treaties subject to an ‘approval by both Houses’ rule of constitutional status. Both houses of Parliament thus have the opportunity to either approve or reject a new treaty at a stage in the process that matters in terms of that treaty’s binding nature vis-à-vis South Africa, while also retaining their earlier authority for the enactment of legislation to give a treaty domestic effect. Parliament also receives an explanatory memorandum on the history, purposes and consequences of the treaty being considered for ratification,176 including the projected financial and other costs,177 as well as the legal opinions from the State Law Advisers of the Departments of 146 International and Comparative Law Quarterly of the Term ‘International Agreement’ and its Significance for South African Law and Treatymaking Practice’ (2001) S African Ybk Int’l L 1. 172 Section 85 of the 1996 Constitution provides that ‘the executive authority of the Republic is vested in the President’ and that ‘the President exercises the executive authority, together with the other members of the Cabinet’. 173 Botha (n 170) at 74. The Office of the Chief State Law Adviser (International Law) in the Department of Foreign Affairs has also published a ‘Practical Guide and Procedures for the Conclusion of Agreements’ (online at ) which requires (at page 11) all international agreements to be approved by the national executive prior to signature, with this approval obtained by the signing of a Presidential Minute by the Cabinet Minister responsible for the specific subject matter of the agreement and counter-signed by the President. 174 1996 Constitution, s 231(3). 175 The apartheid Government was suspected of entering into secret military agreements with Israel and Taiwan: John Dugard ‘International Law and the ‘Final’ Constitution’ (1995) 11 S African J Hum Rts 241 at 245. Secret treaties also existed between South Africa and Transkei and Ciskei, the disclosure of which was refused by the Ministers of Internal Affairs and Law and Order: JT Schoombee ‘A Licence for Unlawful Arrests Across the Border?’ (1984) 101 S African LJ 713 at 713 and 720. 176 Botha (n 170) at 79. 177 ‘Practical Guide’ (n 173) at 27. Justice and Foreign Affairs,178 and an indication from the executive as to its intention with respect to the treaty’s incorporation into domestic law.179 Various parliamentary committees in both Houses then review the treaty, depending on its subject matter, before it is considered by each House sitting separately. The committees, and the Houses, can either accept or reject the treaty, but may also propose declarations180 and reservations,181 with the whole process taking from six months to a year to complete.182 As a consequence of this process, government departments negotiating international agreements are advised by the Department of Foreign Affairs to include an entry into force clause requiring notification of the completion of the constitutional procedures. Such a clause reads: ‘The parties shall notify each other in writing when their respective constitutional requirements for entry into force of this Agreement have been fulfilled. This Agreement shall enter into force on the date of the receipt of the last written notification.’183 Notification is accomplished by diplomatic note. As for agreements not subject to ratification or accession, and those of ‘a technical, administrative or executive nature’, it is the view of the Office of the President that this exemption, although not the easiest to apply, is intended to cover agreements of ‘a routine nature, flowing from the daily activities of government departments.’184 These are ‘department-specific agreements; agreements without major political or other significance; and agreements which have no financial consequences185 and do not affect domestic law’186 and they are ‘usually bilateral’.187 As such, the Constitution tries to ensure a measure of efficiency by allowing these agreements to bypass the parliamentary approval process, while also insisting on their tabling in Parliament within a reasonable time to allow for scrutiny. But where there is doubt, according to the Office of the President, the agreement is referred to Parliament for approval pursuant to section 231(2).188 Professor Neville Botha, however, is critical of the provision’s failure to state in whose hands the determination of an agreement’s nature rests given the difference between approval and tabling, Scrutiny and Approval 147 178 ibid. 179 Botha (n 170) at 79. 180 For an example, see the discussion of South Africa’s ratification of the African Charter on Human and Peoples’ Rights in John Dugard and Iain Currie ‘Public International Law’ [1996] Annual Survey of South African Law 145 at 147. 181 Botha (n 170) at 83, citing section 5.11 of the Manual on Executive Acts. 182 Schneeberger (n 171) at 5. 183 ‘Practical Guide’ (n 173) at 19. 184 Office of the President Manual on Executive Acts of the President of the Republic of South Africa, ch 5 (1997) as cited in Michèle Olivier ‘Informal International Agreements Under the 1996 Constitution’ (1997) 22 S African Ybk Int’l L 62 at 64. 185 Agreements which have financial consequence are those requiring an additional budgetary allocation from Parliament, over and above the budget that has been allocated: Schneeberger (n 171) at 4. See also: ‘Practical Guide’ (n 173) at 12–13. 186 Botha (n 170) at 76, relying on the 1999 version of the Manual on Executive Acts. 187 Schneeberger (n 171) at 5. 188 Olivier (n 184) at 64 and Dugard (n 158) at 331. describing the latter as ‘no more than a process of notification of a fait accompli. ’189 But since South Africa no longer publishes its own treaty series due to budgetary constraints,190 the required generation of a parliamentary record through tabling may well serve a useful purpose.191 In any event, South Africa’s new procedures have not hampered its treaty-making efforts since 1994,192 with the parliamentary process applying to both bilateral and multilateral treaties of significance,193 albeit that the vast majority of agreements concluded fall within the exemption in section 231(3).194 VII. FEDERAL INNOVATIONS IN COMMONWEALTH TREATY-MAKING Perhaps surprisingly for some readers, the UK may, however, provide a model for addressing the ‘federal democratic deficit’ in common law treaty-making, although the model is admittedly at a nascent stage of development. With the ‘devolution’ of legislative and executive power to new parliaments and administrations in Scotland, Wales and Northern Ireland in 1998, the UK has become a quasi-federal State. It is not a true federal State since there has been no relinquishment of the central legislature’s supremacy, but there is an intention to develop a convention whereby the Parliament in Westminster will not normally legislate with regard to devolved matters without the consent of the devolved body.195 Under devolution, international relations, including treaty-making, remain a matter expressly ‘reserved’ to Westminster in relation to Scotland,196 a function not transferred in relation to Wales,197 and an ‘excepted matter’ in relation to Northern Ireland.198 Yet the spirit of devolution has led to a change in the UK’s treaty-making practice so as to provide for the involvement of the devolved administrations where a treaty action might have implications for the 148 International and Comparative Law Quarterly 189 Botha (n 169) at 97 and n at 77. 190 ibid, n 170 at 88. 191 An annual listing of treaties concluded by South Africa can also be found in the South African Yearbook of International Law. 192 See eg the listing of treaties entered into by South Africa from 1994–8 in JA Kalley South Africa’s Treaties in Theory and Practice 1806–1998 (Scarecrow Press Lanham MD 2001) at 614–700. 193 A record of Parliament’s consideration of treaties can be found in the chapters on ‘Public International Law’ in the Annual Survey of South African Law for the years 1995–7. Subsequent chapters list the treaties ratified, but without reference to the parliamentary record. 194 Schneeberger (n 171) at 5. 195 With respect to Scotland, this is known as the ‘Sewel convention’ after the statement made to this effect by Lord Sewel during the Second Reading of the Scotland Bill: UK HL Parliamentary Debates, vol 592 col 791 (21 July 1998). The Sewel convention has since been restated to apply to all the devolved bodies in the Memorandum of Understanding discussed below at n 203. 196 Scotland Act 1998, ch 46, Sch 5, Part I, s 7. 197 Government of Wales Act 1998, ch 38. 198 Northern Ireland Act 1998, ch 47, Sch 2, s 3. devolved areas of responsibility, building on the practice of consultation already in place in respect of any treaty-making affecting the Channel Islands, the Isle of Man or the Overseas Territories.199 The UK has also opted for a ‘more Canadian than Australian’ approach with respect to treaty implementation in the post-devolution era, accepting that a dual or ‘parallel’200 competence for implementation exists as a result of the division of powers between Westminster and the devolved legislatures. To ensure effective cooperation between the national and subnational orders of government, certain ground rules have been formalized to guide each administration, and their respective officials, as to what is now required.201 These rules can be found in the ‘Memorandum of Understanding’ and the five ‘overarching concordats’,202 including a ‘Concordat on International Relations’ and another specifically on the ‘Co-ordination of European Union Policy Issues’, agreed to by the UK Government and the devolved administrations in 1999, with some revisions since, as devolution has evolved.203 Described as ‘one of the main pillars of the novel devolutionary architecture of the United Kingdom’,204 these non-statutory executive agreements are ‘intended to be binding in honour only’ rather than in law.205 Nevertheless, the agreements promise interinstitutional cooperation in the exchange of information, the formulation of UK foreign policy, the negotiation of treaties, and the implementation of treaty obligations. Provision also exists in the concordats for ministers and officials from the devolved administrations to form part of a UK treaty negotiating team, and for the apportionment of any quantitative Scrutiny and Approval 149 199 It is recognized, however, that neither the Channel Islands and the Isle of Man, nor the 14 Overseas Territories, are constitutionally part of the UK. The former are self-governing dependencies of the Crown with their own legislative assemblies, while the latter have separate constitutions, and most have elected governments with varying degrees of responsibilities for domestic matters. 200 To borrow the term used by the Foreign Office Legal Adviser, Sir Franklin Berman KCMG, QC in ‘Treaty Implementation in Great Britain after “Devolution”’ in TM Franck (ed) Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (Transnational Publishers NY 2000) at 256. 201 A ‘Parliamentary Relations and Devolution Department’ has also been established within the Foreign Office to assist with the new practice. 202 Separate departmental concordats have been drafted which operate within the overarching framework. 203 See Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, Cm 4444 (Oct 1999). The terms of the Memorandum allow for regular review and revision. A revised Memorandum was published in July 2000 to take account of the devolution process in Northern Ireland, which had been suspended from February to May 2000. However, on 14 Oct 2002, the Northern Ireland Assembly and Executive were again suspended and the province returned to direct rule from Westminster. The Memorandum and concordats cease to operate during the suspension. 204 Richard Rawlings ‘Concordats of the Constitution’ (2000) 116 LQR 257 at 258. 205 The concordat further states that it is not intended to constitute a legally enforceable contract or to create any rights or obligations that are legally enforceable. At most, it might create a ‘legitimate expectation of consultation’ in the procedural sense if subject to judicial review. See further, ibid at 283–4. treaty obligations, as well as the imposition of penalties, should the devolved bodies default on any agreed liability. In this way, the UK is sharing its treatymaking power with its subnational authorities, albeit on the condition of mutual respect for the confidentiality of the discussions and adherence to the resultant ‘UK line’ in any international negotiations.206 Since devolution, the Scottish Parliament has established a dedicated parliamentary committee on ‘European and External Relations’ to keep watch on matters of international relations, although the ‘External Relations’ aspect of its mandate is a new addition207 and much of the Committee’s energies remain focused on the scrutiny of EU developments.208 This is not surprising given the long-standing interest of Scotland in gaining a greater voice in EU affairs because of the importance of fishing and agriculture to the Scottish economy, the separate Scottish legal system, and the desire for regional development funds.209 While the UK Government has stated that it will take into account the views of the Scottish Parliament,210 it is both implicit and explicit in the nature of the devolved arrangements that Westminster retains the ability to override the actions of any devolved body and it could do so to ensure the State’s compliance with its international commitments.211 Nevertheless, there is already an example of the UK sharing its treatymaking capacity with its subnational units. The example concerns the Convention on the International Protection of Adults, a treaty drawn up by the Hague Conference on Private International Law to improve the protection in international situations of incapacitated adults.212 This treaty establishes rules to determine which country’s authorities should have jurisdiction in situations involving adults with connections to more than one country. Under devolution, the subject-matter of the treaty falls within the competence of the Lord Chancellor for England, Wales and Northern Ireland, and the (Scottish) Minister of Justice for Scotland. Consultations carried out in 1999 throughout the UK with respect to the draft Convention revealed broad support for its provisions and led the Scottish Parliament in 2000 to enact those provisions into Scottish law to ready Scotland for the treaty’s implementation.213 The 150 International and Comparative Law Quarterly 206 These requirements can be found in the White Paper, Scotland’s Parliament, Cm 3658 (July 1997) at para 5.4. 207 An amendment to Rule 6.8 of the Standing Orders of the Scottish Parliament was adopted on 5 Mar 2003 to extend the remit of the ‘European Committee’ to include external relations more broadly. 208 Details are available online at . 209 A similar interest is evident within other subnational regions of the EU, including Catalonia, Flanders, and the German Länder, and is also reflected within the EU itself, which established a Committee of the Regions in 1991 to address, or deflect, increasing demands for greater regional involvement. 210 Scotland’s Parliament, Cm 3658 (July 1997) at para 5.7. 211 Scotland Act 1998, ch 46, s 57; Government of Wales Act 1998, ch 38, s 108; Northern Ireland Act 1998, ch 47, ss 26 and 27. 212 See further: . 213 Adults with Incapacity (Scotland) Act 2000, 2000 ASP 4. treaty was then signed on 1 April 2003 on the UK’s behalf by Mr Hugh Henry, a Scottish Member of Parliament and the Scottish Deputy Minister of Justice, and then presented to the Westminster Parliament in July 2003 as required by the Ponsonby Rule.214 The UK Government, however, declined to bring the treaty into force for all of the UK and a Note was entered upon ratification on 5 November 2003 declaring that the Convention applies to Scotland alone.215 The UK has indicated that the ratification will be extended to the rest of the UK once the necessary implementation legislation is in place.216 Federal innovations in treaty-making practice have also appeared in Australia, particularly since the 1996 reforms, although there are earlier examples from the states themselves indicating a desire to participate in treatymaking. One such example can be found in the state of Queensland, which established a Treaties Commission in 1974, during the tenure of the Whitlam Government, to advise the Queensland Government on the benefit to Queensland of existing treaties.217 In its first report, the Treaties Commission also advised the Queensland Government, (relying heavily on an erroneous view of Canadian practice),218 that the Australian states were competent to enter into legally binding intergovernmental agreements,219 but a change of government in Canberra in 1975 removed the need for Queensland to test this thesis.220 The Commission was later disbanded in 1977. During the tenure of the Fraser Government, a new era of ‘cooperative federalism’ was encouraged, as reflected in an agreement on federal-state cooperation reached with the Premiers in 1977.221 This agreement later evolved into an agreed statement of ‘Principles and Procedures for Commonwealth-State Consultation on Treaties,’ which was later adopted by the Council of Australian Governments (COAG) in 1992 and then revised in Scrutiny and Approval 151 214 The Convention was presented as Command Paper 5881. 215 The ratification status and the text of the UK’s declaration can be obtained from the website maintained by the Hague Conference on Private International Law (n 212). 216 Explanatory Memorandum on the Hague Convention on the International Protection of Adults (1 July 2003). 217 Treaties Commission Act 1974 (Qld). The Act was later repealed by the Statute Law (Miscellaneous Provisions) Act 1993, Act No 32 of 1993 (Qld), with a note indicating that the Commission had not functioned since 1977. 218 State claims to international personality, including the capacity to negotiate or enter treaties, have also been rejected by the Australian High Court: New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337. 219 See further, Henry Burmester ‘The Australian States and Participation in the Foreign Policy Process’ (1978) 9 Fed L Rev 257 at 262–4. The full text of the First Report of the Treaties Commission can be found annexed to the Proceedings of the Australian Constitutional Convention, held in Brisbane from 29 July–1 Aug 1985. 220 Then Queensland Premier, Sir Joh Bjelke-Petersen, having played a key role in bringing down the Whitlam government through a Senate appointment that upset the balance and led to the blocking of supply, triggering the constitutional crisis that resulted in Whitlam’s dismissal from office by the Governor General in Nov 1975. 221 The details of this agreement are found in Burmester (n 219) at 280–2. 1996.222 The statement of ‘Principles and Procedures’ is a public document223 and, as such, it is designed to ensure that the Commonwealth Government takes into account state views on treaty-making, although the lack of state consent does not bar treaty ratification.224 The statement also provides for possible state representation at treaty negotiations and for the sharing of information, including departmental information, through the creation of a Standing Committee on Treaties (SCOT) comprised of senior officials.225 With the creation of JSCOT, the latest version of the ‘Principles and Procedures’ also provides for consultation to take place with the states and territories on the development of any relevant NIAs.226 The 1996 reforms also promised to bring into effect a ‘Treaties Council’—an idea borrowed from Germany227 that had gained the support of the Australian Constitutional Convention of 1985,228 the Constitutional Commission of 1988, and the Senate References Committee in its Trick or Treaty? report,229 as well as the Leaders’ Forum of 1995.230 The Treaties Council consists of the Prime Minister, State Premiers, and Chief Ministers from the Territories and serves as a dedicated forum in which to share information and discuss treaties of particular sensitivity or importance.231 However, in its own 1999 Review of the Treaty-Making Process, the Government admitted that the Council had met only once from 1996–99, contrary to the promise to meet at least once a year,232 although it did discuss four treaties and a draft UN declaration.233 No further details of 152 International and Comparative Law Quarterly 222 COAG is the peak intergovernmental forum in Australia, comprising the Prime Minister, state Premiers, territory Chief Ministers and the President of the Australian Local Government Association. It has been in existence since 1992. For further details, see . 223 The current text is available at . 224 ‘Principles and Procedures’ (n 223) at para 3.1. 225 See further, Williams (n 73) at 187–9. See also Cheryl Saunders ‘Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia’ (1995) 17 Syd L Rev 150 at 162–3. As in Canada, some subject areas have long had their own mechanisms for inter-governmental consultation on treaty developments. There is, for example, a 1992 Intergovernmental Agreement on the Environment setting out detailed Commonwealth-State mechanisms relating to the negotiation and implementation of environmental treaties: Bill Campbell, ‘The Implementation of Treaties in Australia’ in Opeskin and Rothwell (n 63) at 149. 226 ‘Principles and Procedures’ (n 223) at para 4.2. See also Daryl Williams ‘Treaties and the Parliamentary Process’ (1996) 7 Pub L Rev 199 at 201. 227 The German ‘Permanent Treaty Commission’ was created pursuant to the Lindau Agreement of 1957 and serves to coordinate the Länder view on treaties. See further, Saunders (n 225) at 165. 228 See further, Saunders (n 225) at 163–6. 229 (n 71) at c 13. 230 COAG Position Paper of the States and Territories of Australia: Reform of the Treaties Process (Apr 1995). 231 Saunders (n 225) at 203–4. See also the website for the Treaties Council on the COAG website at: . 232 ‘Principles and Procedures’ (n 223) at paras 5.1 and 5.3. 233 For details, see . meetings since have been provided on the Council’s website, although its members have clearly met as part of the COAG process and may have discussed treaties at this time, but then only as part of a broader intergovernmental agenda. State Parliaments, however, still push for a greater role in the negotiation, scrutiny and sometimes approval of treaties of significance to States. Shortly after the publication of the Trick or Treaty? report, the Victoria Parliament established a Federal–State Relations Committee with the power to inquire into, consider and report on matters of Commonwealth, state and territory relations, including ‘areas of responsibility for which the States should have an enhanced role for the benefit of the Federation.’234 In its first report, released in October 1997, the Committee chose to tackle the question of state involvement in treaty-making, recommending that the Victoria Parliament establish its own treaties review committee.235 The Report also recommended that all treaties and treaty information be tabled in the Victoria Parliament and encouraged the Victoria Government to call on the Commonwealth Government to extend the 15 sitting days to a period no longer than six months to provide time for state consideration of future treaty actions. The Government of Victoria accepted the recommendation to table treaties in the Victoria Parliament, but refused to establish a treaty committee on resource grounds.236 The Federal-State Relations Committee responded by keeping a eye on treaties itself, even tabling comments on the proposed Multilateral Agreement on Investment, but was itself disbanded in 2001. JSCOT itself has recognized the state interest in treaty-making, convening a meeting with representatives from all states and territories in 1999 to discuss a greater role for ‘Parliaments’ in treaty-making.237 Two proposals, in particular, appeared to garner the most support: (1) the institution of procedures to ensure that the routine presentation of treaty information by state executives to state Parliaments, and (2) the creation of state and territory parliamentary committees with specific responsibility for reviewing treaties.238 But while some states, such as Western Australia, support parliamentary scrutiny at the state level,239 others, such as Queensland, are opposed. For the Queensland Scrutiny and Approval 153 234 Federal–State Relations Committee Terms of Reference, Victorian Government Gazette, G 26, 4 July 1996 at 1706–7, reprinted in (1998) 79(2) The Parliamentarian 145. 235 Australia. Parliament of Victoria. Federal–State Relations Committee International Treatymaking and the Role of the States (Oct 1997), esp ch 5, online . 236 Victoria’s position can be found reproduced in Appendix F to JSCOT, Report 24: A Seminar on the Role of Parliaments in Treaty-making (30 Aug 1999). 237 A full transcript of the meeting can be found in JSCOT, Report 24 (n 236). 238 A third proposal to create an inter-parliamentary working group on treaties, which stemmed from the Victoria Report (n 235), also received support. 239 Australia. Parliament of Western Australia. Standing Committee on Constitutional Relations. Report 38: Report in relation to a Seminar on the Role of Parliaments in Treaty-making (1999). Legal, Constitutional and Administrative Review Committee (LCARC), a Queensland treaty committee would be an exercise in duplication, but it has convinced the Queensland Premier to table in the state Parliament a schedule of treaties under negotiation, as well as all JSCOT advices regarding proposed treaty actions.240 It is then up to state parliamentarians, having been notified, to initiate a debate or inquiry about a proposed treaty. The LCARC has also endorsed a suggestion made by Professor Cheryl Saunders to require the state’s intergovernmental staff to report annually to the LCARC on treaty matters.241 Canada too is not without past examples of federal-provincial cooperation in treaty-making where the circumstances have justified the involvement of one or more provinces. The negotiation of the Canada–US Columbia River Treaty of 1961 is an early example, where the obvious interest of British Columbia242 led to the establishment of a federal-provincial liaison committee at the ministerial level and the inclusion of a provincial representative on the Canadian negotiating team.243 An arrangement was also worked out between Ottawa and British Columbia whereby the province would be responsible for the treaty’s execution with an indemnification agreement in place in the event of provincial non-performance.244 There are, however, no guarantees that the federal Government will invite the provinces to participate in a treaty’s negotiations, no matter how significant the treaty is to the province, and while such cooperation may occur, there is no formalized or institutionalized process for involving the provinces in treaty negotiations. As a result, various remedies for Canada’s treaty-making woes have been proposed, with past studies recommending either the provincial assignment of the treaty implementation power to the federal Parliament245 or the ratification 154 International and Comparative Law Quarterly 240 Australia. Parliament of Queensland. Legal, Constitutional and Administrative Review Committee. The Role of the Queensland Parliament in Treaty-making, Report No 22 (Apr 2000). The tabling of the actual treaty text was deemed unnecessary given the existence of the Australian Treaties database. A favourable review of the new tabling requirement was conducted by the LCARC in 2003: Australia. Parliament of Queensland. Legal, Constitutional and Administrative Review Committee. The Role of the Queensland Parliament in Treaty-making—Review of Tabling Procedure, Report No 39 (July 2003). 241 LCARC Report No 22 (n 240) at 9. 242 The vast dams built on the Columbia and Peace Rivers were also the political legacy of then Premier WAC Bennett who used the dams to generate contracts and employment as well as huge amounts of hydroelectric power, half of which was sold to the US to the benefit of the provincial treasury. 243 See further B Laskin ‘Some International Legal Aspects of Federalism: The Experience of Canada’ in DP Currie (ed) Federalism and the New Nations of Africa (University of Chicago Press 1964) at 405–6. Atkey, writing in 1970, provides further examples of provincial participation in Canadian delegations to international conferences, mostly in the field of education: RG Atkey ‘Provincial Transnational Activity: An Approach to a Current Issue in Canadian Federalism’ in Ontario Advisory Committee on Confederation Background Papers and Reports, vol 2 (Queen’s Printer Toronto 1970) at 171–5. 244 Martin (n 101) at 31. 245 Report of the Royal Commission on Dominion-Provincial Relations (Rowell–Sirois Commission) (Queen’s Printer Ottawa 1940) Book II at 48. of treaties by both Houses of Parliament, with the Senate seen as representing the provinces’ interests.246 A constitutional amendment has also been proposed that would require the Canadian Government to consult with the provinces on treaties dealing with matters of provincial responsibility,247 a sentiment echoed recently in a 2004 report by an Alberta committee of government MLAs.248 The provinces themselves have also considered ways to improve the treatymaking process, with Québec taking the boldest move in 2002 by enacting legislation to require the pre-ratification approval of the Québec National Assembly for all important international commitments (‘des engagements internationaux importants’) intended to be made by either the Québec or Canadian Government when the subject matter of the commitment falls within an area of Québec’s responsibility.249 The primary object of the new legislation, according to the then Minister of International Relations, Louise Beaudoin, was to democratize the process of treaty-making by giving a voice to the elected representatives of the citizens of Québec.250 She also suggested that the new law would allow for greater transparency in the treaty-making process, suggesting that, in some cases, a parliamentary commission could be established to study a proposed treaty action and invite submissions from the public.251 The new law was also intended to address the concern in Québec that the language, culture and future interests of the province may be threatened if the federal Government acts on the international stage without provincial agreement in areas of provincial competence.252 In essence, the Québec legislation requires three actions to occur, and occur sequentially, for an important international commitment to be valid. The three actions are the signature by the responsible Minister, the approval by the provincial legislature (the ‘National Assembly’), and the ratification by the provincial government. The legislation also requires the Minister to table all future treaty actions in the National Assembly, with an explanatory note on the content and effects of the commitment, a procedure that was expressly acknowledged during the legislative debates to be similar to that followed in Scrutiny and Approval 155 246 Second Report of the [Ontario] Advisory Committee on Confederation: The Federal–Provincial Distribution of Powers (Queen’s Printer Toronto 1979) at 44. 247 Canada. Parliament. Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. Final Report (Chairs: Molgat and MacGuigan) (Queen’s Printer Ottawa 1972) at 68–9. 248 Report of the MLA Committee on Strengthening Alberta’s Role in Confederation (Government of Alberta 2004) at 46, available at . 249 An Act Respecting the Ministère des Relations Internationales, RSQ 2002, ch M-25.1.1, s 22.4. 250 Débats de l’Assemblée nationale (20 Mar 2002) at 5247. 251 ibid at 5248. 252 See the speech of then Premier Bernard Landry in Débats de l’Assemblée nationale (22 Mar 2001) at 7–8. the UK, Australia and New Zealand.253 Once tabled, the treaty can be the subject of a motion to either approve or reject, but not amend, provided at least ten days have passed since tabling to ensure time for access and reflection.254 Provision is also made for cases of urgency, allowing the Québec government to ratify an important international agreement before it is tabled or approved by the National Assembly.255 As for what constitutes an ‘important international commitment’, the law suggests that all treaties requiring the passage of implementation legislation, the imposition of a tax, or the acceptance of an important financial obligation, as well as treaties concerned with human rights and international trade, will require Assembly approval.256 There is also a residual category for treaties determined by the Minister to be so important as to require parliamentary approval,257 with the Kyoto Protocol being identified by the Minister during the legislative debates as an example because of its strategic importance.258 However, treaties addressing technical issues and treaties signed by Canada affecting only matters within federal jurisdiction will not need National Assembly approval under the new legislation. Provision is also made to apply the new procedure to the denunciation and termination of an agreement in the same way that the process applies to the adoption and conclusion of a new agreement.259 It would be interesting to see other provinces in Canada adopt similar legislation to encourage, or bargain for, the institutionalization of federalprovincial cooperation in treaty-making, as well as greater access to treaty information. The stark problem, however, with this legislative initiative is that it does not bind the Government of Canada. Canada may choose to seek advance provincial agreement, just as it may choose to seek parliamentary approval, but it is under no legal obligation to do so. Nor is the Canadian Government bound by a resolution of disapproval from a provincial legislature. Nevertheless, as a demand to address the democratic deficit in Canadian treaty-making, the Québec legislation represents a bold approach, adopted by 156 International and Comparative Law Quarterly 253 See the debates within the Committee on Institutions, Journal des débats: Commission permanente des institutions (1 May 2002), online . 254 An Act Respecting the Ministère des Relations Internationales, RSQ 2002, Ch M-25.1.1, s 22.3. Pursuant to Order in Council 223-2004, dated 23 Mar 2004 (2004) 136 GO 2 (French), 1738, the Minister of Economic and Regional Development and Research exercises jointly with the Minister of International Relations the functions of the latter as regards any important international commitment which concerns international trade. 255 An Act Respecting the Ministère des Relations Internationales, RSQ 2002, Ch M-25.1.1, s 22.5. 256 ibid, s 22.2. 257 ibid, s 22.2(4). 258 See Journal des débats: Commission permanente des institutions (1 May 2002) at 3, online . 259 An Act Respecting the Ministère des Relations Internationales, RSQ 2002, Ch M-25.1.1, s 22.6. the unanimous vote of an assembly comprised of federalists and separatists, presumably because the democratic ideal of a greater role for Parliament cuts across the political spectrum. As for the federal aspect of South African treaty-making, although South Africa’s nine provincial governments have no treaty-making powers,260 Stemmet reports that ‘since the establishment of the new provinces, a practice has developed that provincial premiers enter into [what he terms in quotation marks] “international agreements” on behalf of the provinces with foreign states or federal units or regions of such states,’ although these agreements seem more akin to contracts with foreign entities than treaties.261 Botha also notes that ‘this caused considerable confusion and embarrassment to the national executive which, in terms of the Constitution is the only body authorized to negotiate and sign international agreements.’262 Nevertheless, if a proposed treaty action of the national executive should impact on the provinces, the newly established National Council of the Provinces could be used as a forum to exert influence on the national executive.263 The Council consists of 90 delegates (10 from each province),264 who are appointed by the provincial legislature according to a formula that aims to ensure that all parties form part of the delegation and that the strength of the political party in the provincial legislature is reflected proportionally in the delegation to the Council.265 However, unless the Constitution provides otherwise, each province has only one vote in the Council, a vote cast on behalf of the province by the head of its delegation.266 In this way, it was thought that the delegation would be linked more to the province than to national party political interests. 267 Unfortunately, access to South African parliamentary records is limited due to the nation’s financial constraints, making it difficult to verify whether this has been the case. VIII. CONCLUSION The rationale for securing a role for Parliament in treaty-making rests on the important fact that treaties are law—in many cases, permanent law—and, as Scrutiny and Approval 157 260 Dugard (n 175) at 247. The Manual on Executive Acts also makes it clear that ‘provinces may not enter into agreements governed by international law except as agents of the national executive ’: Botha (n 170) at 95. 261 Andre Stemmet ‘The Influence of Recent Constitutional Developments in South Africa on the Relationship Between International Law and Municipal Law’ (1999) 33 Int’l Lawyer 47 at 68–9. 262 Botha (n 170) at 95. 263 Devenish (n 157) at 324. 264 1996 Constitution, s 60. 265 ibid, s 61 and Sch 3, Part B. 266 ibid, s 65(1)(a). 267 Johan de Waal ‘Constitutional Law’ in CG van der Merwe et al (eds) Introduction to the Law of South Africa (Kluwer Law International The Hague 2004) at 68. such, those who make the treaties, be they ministers or officials, should be accountable to Parliament and the public that it represents. The additional benefit of a robust parliamentary role in treaty-making, whether one of scrutiny or approval, is greater public access to treaty information, especially when the tabling requirements include the provision of explanatory memoranda on a treaty’s purpose and consequences, as well as its anticipated financial costs and legal effects. In my view, however, a national parliamentary committee comprised of representatives from all parties and all regions specifically dedicated to the task of treaty scrutiny is the best means to achieve greater public awareness as well as democratic accountability. A treaty committee regularizes and institutionalizes the scrutiny function, providing a public home for a wealth of treaty information, while ensuring that parliamentary time is given to the consideration of the future treaty action before the nation is bound. The committee must, however, be of an adequate size if it is to follow Australia’s lead and carry out hearings across the nation, and it must be supported by an adequate secretariat capable of nurturing a fruitful relationship with both government departments and civil society. I would not, however, bar the possibility of other parliamentary committees embarking on additional inquiries for specific treaties attracting significant public concern. As for the issue of mandating parliamentary approval prior to ratification, it is my view that the treaty-making process should allow for the possibility that a State will not ratify a treaty following an expression of parliamentary disapproval. All treaties need not be expressly approved by Parliament, but there should be a mechanism that enables Parliament to draw attention to a future treaty action that has strong opposition and this mechanism should not rest on executive goodwill or discretion. One such mechanism is a negative resolution procedure that could be invoked within the time period assigned for scrutiny, but would not overly tie the hands of the executive during treaty negotiation. Such a procedure might also encourage greater cooperation between the levels and branches of government to avoid a lobby for triggering the negative resolution mechanism at a later stage. It is also a middle ground position that balances the various interests at play, admittedly sacrificing some efficiency for some accountability. Throughout this examination of the treaty-making practice of several comparable Commonwealth States, I have discussed my recommendations in terms of their applicability to all treaties, regardless of subject matter and the number of parties. I have done so for reasons of both principle and practice since divergent approaches can lead to unequal results, and exemptions for bilateral treaties, for example, run the risk of shielding some of the most controversial treaties from scrutiny, as evidenced by the degree of interest in the Australia–US Free Trade Agreement, which prompted the holding of two parliamentary inquiries. However, in response to concerns about the cumbersome nature of a one-size-fits-all approach, as applied initially in South Africa, it is worth noting that, in practice, a negative resolution procedure 158 International and Comparative Law Quarterly would likely reflect a two-stream approach, with treaties of a truly technical nature being of little concern and only treaties of significance ever facing the prospect of a negative resolution. The benefit, however, of a unified approach is that the elected representatives of the public, and not the executive, determine what is a treaty of no consequence and concern. With the increasing interdependence of our globalized world, Foreign Offices no longer have a monopoly on law-making by treaty. Other government departments are also involved, as are officials at the sub-national level and, to some extent, particular individuals and organizations from outside government. Courts too are assuming a greater role, at least in some common law jurisdictions, by finding ways to give unimplemented treaties domestic legal significance, if not domestic legal effect. Parliament, however, in jurisdictions such as Canada, remains outside the treaty-making process, only to play a role after the conclusion of a treaty and the assumption of its obligations. While the introduction of a process of scrutiny or approval is no panacea for all the ills ascribed to globalization, it does provide the opportunity for dedicated parliamentarians to contribute to the treaty-making process through an interactive route of review and consultation, and in the final analysis, may serve to foster greater respect for treaty law by removing any doubt about a treaty’s democratic credentials. Scrutiny and Approval 159
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