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The Legal Status of Agreements Concluded by Component Units of Federal States with Foreign Entities
Published online by Cambridge University Press: 09 March 2016
Extract
The canadian provinces, the länder of the Federal Republic of Germany, the Swiss cantons, and the states of the United States of America have all concluded numerous agreements with foreign entities. Although great attention has been paid to their capacity to do so, not much attention has been paid to the legal status of these agreements. In particular, authors have tended to ignore their binding character and the law applicable to them. These issues will, therefore, now be considered.
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- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 16 , 1979 , pp. 197 - 229
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- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1979
References
1 For published surveys relating to the number and type of agreements these entities have concluded, see: for the Canadian provinces and the American states, Leach, Richard, Walker, D., and Levy, T., “Province-State Transborder Relations: A Preliminary Assessment,” in Canadian Public Administration (1973) at 468 CrossRefGoogle Scholar, and Swanson, R. F., State-Provincial Interaction: A Study of Relations between U.S. States and Canadian Provinces (Washington: The Canus Research Institute, August 1974)Google Scholar. No equivalent surveys for the German länder and the Swiss cantons exist. However, the reader may obtain unpublished lists of the agreements to which the cantons are parties from the Swiss Political Department in Bern. For a commentary on the external relations of the Swiss cantons, see Wildhaber, L., “External Relations of the Swiss Cantons,” 12 Canadian Yearbook of International Law 211 (1974).Google Scholar
2 The reader is referred to the following works dealing with the capacity of the component units to conclude agreements and the issues discussed in this article. There are two general works, namely Bernier, Ivan, International Legal Aspects of Federalism (London: Longmans, 1973)Google Scholar and Wildhaber, Luzius, Treaty-Making Power and Constitution (Basel: Helbing and Lichtenhahn, 1971)Google Scholar. Specific works, often comparative in nature but placing an emphasis on one country, are as follows. For Canada, Morin’s, J. Y. seminal article on “Treaty-Making: The Position of the Quebec Government,” 45 Can. Bar R. 160 (1967)Google Scholar; Gotlieb, A. E., Canadian Treaty-Making (Toronto: Butterworth and Co., 1968)Google Scholar; Jacomy-Millette, A., L’introduction et l’application des traités internationaux au Canada (Paris: Librairie Générale de Droit et de Jurisprudence, 1971)Google Scholar; McWhinney, E., “Canadian Federalism and the Foreign Affairs and Treaty-Making Power,” 7 Canadian Yearbook of International Law 3 (1969)Google Scholar; Rand, M., “International Agreements between Canadian Provinces and Foreign States,” 25 U. of T. L.J. 75 (1967)Google Scholar; and several articles published by Laskin, B. and Delisle, R. in the Ontario Advisory Committee on Confederation: Background Papers and Reports (1967 and 1970).Google Scholar For Germany, Bernhardt, R., Der Abschluss völkerrechtlicher Verträge im Bundesstaat (Köln-Berlin: Carl Heymans Verlag, 1957)Google Scholar; Beisswingert, R., “Die Einwirkung bundesstaatlicher Kompetenzverscheibung auf völkerrechtliche Verträge” (Munich: dissertation, 1960)Google Scholar; Leisner, W., “The Foreign Relations of the Member States of the Federal Republic of Germany,” 16 U. of T. L.J. 346 (1966)CrossRefGoogle Scholar. For Switzerland, His, E., “De la compétence des cantons suisses,” 10 Revue de Droit International et Législation Comparée 454 (1929)Google Scholar; Aubert, J. F., Traité de droit constitutionnel suisse (Neuchâtel, 1967), vol 1 Google Scholar; Schwarzenbach, W., Staatsverträge der Kantone mit dem Ausland (Zurich: dissertation, 1926)Google Scholar; Wildhaber, supra note I, at 211. For the United States, Lissitzyn, O., “Territorial Entities Other than Independent States in the Law of Treaties,” 125 Recueil des Cours 1 (1968)Google Scholar; Naujoks, H. J., “Compacts and Agreements between States and between States and a Foreign Power,” 36 Marquette L. Rev. 219 (1952)Google Scholar; Rodgers, R. S., “The Capacity of States of the Union to Conclude International Agreements,” 61 Am. J. Int’l L. 1021 (1967)CrossRefGoogle Scholar.
3 Fawcett, J.E., “The Legal Character of International Agreements,” 30 Brit. Y.B. Int’l L. 390 (1953).Google Scholar
4 Ibid., 387.
5 Article 34 of the Statute of the International Court of Justice is quite explicit on this point. Article 34, paragraph 1, reads: “only States may be parties in cases before the Court.” This seems to exclude effectively most component units from appearing before it, but it must be kept in mind that the Soviet Union Republics, Byelorussia and the Ukraine, could, as members of the United Nations, in theory bring a case before the Court.
6 See the agreement between the United Nations and the Swiss Confederation on the Ariana Site, signed at Bern on June 11, 1946: 1 UNTS 154 (1946–47).
7 Fawcett, supra note 3, at 392.
8 See the modus vivendi entered into by the Ministre de l’Instruction Publique et des Beaux Arts of the French Republic and the Direction de l’Instruction Publique of the Canton of Fribourg concerning the appointment of French professors to the University of Fribourg (September 11, 1922), in Extrait de Protocole de Conseil d’Etat, session of March 9, 1923, no. 368.
9 See the circular of October 28, 1895 from the federal council to all federal states concerning the communication of civil acts of foreigners in Switzerland (de Martens, Nouveau recueil générale des traités, 2nd series, vol. XXIII, at 159 (Leipzig: Theodor Weicher Verlag, 1922).
10 An agreement was reached between France and the cantons of Bern and Solothurn concerning the road Grand-Lucelle-Kloesterli on November 4, 1926. This agreement was reconsidered and updated on April 9, 1930. Both arrangements were still valid in 1973 according to a letter sent from the Tiefbauamt of the Canton of Solothurn to the Justice Department of the same canton on March 23, 1973. The basis of the agreement was two procès verbaux which are, unfortunately, not published.
11 See Article 2 of the Luxemburg-Rheinland-Pfalz treaty concerning the establishment of a natural park, in Gesetz und Verordnungsblatt Rheinland-Pfalz, 1965, no. 45, at 225.
12 Ibid., 1950, no. 35, at 239.
13 Ibid., 1959, no. 4, at 13.
14 In this respect the Austrian-Bavarian treaty of October 14, 1950 setting up the Austrian-Bavarian Hydroelectric Company reads: “The Republic of Austria undertakes to ensure the observance of the provisions agreed upon below concerning the establishment of the company. The Free State of Bavaria assumes the same obligations as the Republic of Austria” (emphasis added) (United Nations, Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers for Other Purposes than Navigation, Doc. ST/LEG/SER B/12, at 470).
15 For instance, the multilateral convention of October 27, 1960 to control pollution on Lake Constance reads : “Les états riverains … s’engagent à collaborer dans le domaine de la protection des eaux du Lac de Constance contre la pollution” (ibid., 438).
16 United Nations, International Tax Agreements, DOC ST/ECA/SER C/9, at 115.
17 St. Gallen, Gesetzsammlung, NR, vol. 7, at 37.Google Scholar
18 The Germano-Zurich declaration of reciprocity of November 24, 1926 to eliminate double taxation on donations made to charitable institutions, for instance, states: “cette déclaration restera en vigueur jusqu’à dénonciation” (op. cit. supra note 16, Vol. 2, at 201).
19 The Zurich-German agreement to eliminate double taxation on donations made to charitable institutions of January 10, 1913 states: “Les déclarations réciproques demeurent en vigueur aussi longtemps qu’elles n’auraient pas été dénoncées ou que la législation en vigueur relative à l’imposition de successions, legs et donations ne sera pas modifiée” (ibid., 199).
20 The Alsace-Lorraine agreements with Basel-City and Basel-Country of Septemper 7, 1910 concerning frontier doctors and workers, taking the Basel-Country agreement as an example, reads: “Considérant la proposition faite dans votre honorée du 3 Octobre, comme un engagement de votre part en ce que concerne le Canton de Bâle-Campagne, j’ai décidé par application de la décision ministerielle sur la réciprocité, que tant que durera cette réciprocité aucune cotisation à l’impôt sur les traitements et salaires et à l’impôt sur les professions ne sera établie” (ibid., 146).
21 See Article 22 of the April 25, 1950 treaty between Rheinland-Pfalz and Luxembourg for the construction of a hydroelectric power plant on the Sauer at Rosport-Ralingen (Gesetz und Verordnungsblatt für das Land Rheinland-Pfalz, 1950, no. 35, at 239) ; Article 27 of the October 16, 1950 treaty between Bavaria and Austria concerning the Österreichische-Bayerische Kraftwerke AG ( Hartig, E., Internationale Wasserwirtschaft und Internationales Recht 64 (Vienna, 1955)CrossRefGoogle Scholar; Article 25 of the February 23, 1952 agreement to which the Federal Republic of Germany, Bavaria, and Austria are parties concerning the Donau Kraftwerk-Jochenstein Aktiengesellschaft (ibid., 65); and Article 11 of the July 10, 1958 treaty between Rheinland-Pfalz and Luxembourg concerning the building of hydroelectric installations on the Our River (Mémorial du Grand Duché de Luxembourg, 1959, no. 35).
22 Article 22 of the agreement reads in full: “Any disputes arising out of this treaty shall be settled by an arbitral tribunal, and no recourse shall be had to the ordinary courts. The said tribunal shall consist of two arbitrators, of whom each of the contracting parties shall appoint one. Where the arbitrators are unable to agree, they shall be entitled to choose an umpire whose decision shall be final. If they fail to agree on such a choice, the umpire shall, if one of the parties so requests, be appointed by the President of the International Court of Justice.” (See UN Legislative Series, supra note 14, at 726.)
To be noted is that the July 20, 1958 agreement reads similarly. However, concerning failure to reach agreement on the appointment of arbitrators, Article 11 of the 1958 agreement suggests that the two parties shall consult each other on the matter.
23 Among these agreements setting up tribunals are: the November 14, 1908 Prussia/Hambourg agreement concerning the “amélioration des voies navigables de l’Elbe ( de Martens, , Nouveau Recueil, 3rd series, vol. 4, at 844)Google Scholar; the September 12, 1895 additional protocol to the Rhine Navigation agreement of 1867, this agreement referring to the Rheinschiffahrtsgericht (ibid., vol. XI, at 796); the November 22/December 5, 1911 Basel-Stadt/Lorrach agreement re “Ableitung des Schmutzwassers” (not published, article 13) ; the July ι, 1946 agreement between the Swiss Confederation in the name of Geneva and the United Nations re the Ariana site (1 UNTS 160 (1946–47), article 13); the March 25, 1957 Salt Convention between Bavaria and Austria (Bayerische Gesetz und Verordnungsblatt, 1958, no. 16, at 167, Part 3, section 2); lastly, the July 20, 1968 agreement between St. Gallen and Liechtenstein re the Neu-Technikum Buchs (St. Gallen Gesetzsammlung, N.F., vol. 15, 1967/68, at 341, article 32).
24 de Martens, , Nouveau Recueil, 3rd series, vol. 4, at 844.Google Scholar
25 The Neu-Technikum Buchs agreement, by Article 32, provides that “should doubts [Anstände] arise out of the agreement between the parties to the treaty, a tribunal constituted for the matter in dispute shall pass judgement.” This wording implies that each tribunal is to be “made up on command” (see St. Gallen Gesetzsammlung, neue Reihe, vol. 5, 1967, at 348). The Salt Convention reads: “Insofar as a difference of opinion cannot be resolved … it shall be submitted to a court of arbitration by request of one of the parties to the treaty” (Bayerische Gesetzund Verordnungsblatt, no. 16, 1958, at 168).
26 Supra note 6, at 160.
27 The three concordats are as follows: March 29, 1924, Bavaria Concordat (Nouveau Recueil, 3rd series, vol. XX, at 310, article 15); November 17, 1932 Baden Concordat (ibid., vol. XXVIII, at 13, article 12) ; February 26, 1965, Nieder-Sachsen Concordat (Niedersachsisches Gesetzund Verordnungsblatt, 1965, no. 18, at 192, article 19).
28 de Martens, , Nouveau Recueil, 3rd series, vol. 20 at 310.Google Scholar
29 Article 8 of the agreement reads: “les désaccords et les doutes qui surgiraient à l’occasion de l’application de la présente Convention devraient être réglés par les autorités financières suprêmes des deux Etats” (op. cit. supra note 16, at 154 and 156).
30 See Gesetzblatt für Baden-Württemburg, 1959, no. 7, at 41.
31 de Martens, , Nouveau Recueil, 2nd series, vol. 32, at 550.Google Scholar
32 As expressed by Michel Virally see Sorensen, M. (ed.), Manual of Public International Law 185 (London: Macmillan, 1968)CrossRefGoogle Scholar, unilateral acts cannot impose obligations on other states: “The principle of the sovereign equality of states precludes a state from imposing, by its own act alone, obligation upon others without their consent. But by the same token, it will permit the unilateral creation of rights for others, of which the counterpart will be duties binding on the actor, although the beneficiaries of such rights need not exercise them.”
33 Reproduced in Swanson, op. cit. supra note I, at 403.
34 Ibid., 352.
35 See the memorandum of understanding of January 1, 1973 between Minnesota and Ontario on fighting forest fires which, after outlining the responsibilities of the parties, reads : “each party waives all claims against every other party for any loss, damage, personal injury or death occurring as a consequence of the performance of the agreement” (ibid., 400).
36 This is the case with the reciprocal agreement of August 19, 1969 between North Carolina and Quebec concerning the payment of Motor Vehicle Privilege License Fees, which reads: “Any violation of the provisions of this agreement shall result in the immediate cancellation of reciprocal privileges. Each state or province entering this agreement may act unilaterally in denying reciprocal privileges to a particular non-resident” (ibid., 442).
37 Lissitzyn, supra note 2, at 29.
38 Naujoks, supra note 2, at 237.
39 Ibid.
40 McWhinney, supra note 2, at 14.
41 Laskin, op. cit. supra note 2, at 111.
42 Ibid.
43 Bemier, op. cit. supra note 2, at 58.
44 Gotlieb, op. cit. supra note 2, at 25.
45 McWhinney, , “The Constitutional Competence within Federal Systems for International Agreements,” Ontario Advisory Committee on Confederation 154 (1967)Google Scholar. Probably this is what Laskin meant when he said that the provinces could not conclude an “enforceable” agreement; he was implying that the agreement created “understanding” rather than legal obligations binding in law. Were this what he meant it should be pointed out that most of the agreements concluded by the federal government itself, as noted below, are worded almost identically to those concluded by the provinces; yet Laskin would probably argue that they are binding and legally enforceable.
46 McWhinney, supra note 2, at 14, fn. 18.
47 A.G. for Ontario v. Scott, [1956] S.C.R. 137.
48 McHendry County et al. v. Brady, 37 North Dakota 59; 1963 N.W. 540 (1917).
49 Among the agreements falling into this category perhaps the most famous are the two Quebec concluded with France over cultural and educational affairs in February and November 1965. Both agreements were concluded by Quebec with France and both were followed by an exchange of letters by the Canadian federal government with the government of France. For commentary on the agreements, see Fitzgerald, G. F., “Educational and Cultural Agreements and Ententes,” 60 Am. J. Int’l L. 533 (1966)CrossRefGoogle Scholar. A number of other agreements could also be mentioned in this connection, among them the Northeastern Interstate Forest Fire Protection Compact. The Canadian federal government and the U.S. Department of State through an exchange of notes on January 29) 1970 approved the adherence of New Brunswick and Quebec to the compact which, until then, had as parties to it American states only (for a copy of the exchange of notes, see 753 UNTS 44 (1970)).
50 Among these agreements can be noted the Ontario-Minnesota agreement for the construction of a bridge over the Pigeon River and the New Brunswick-Maine Lubec Bridge agreement. Both agreements were authorized by an act of the Canadian parliament and each was preceded by an exchange of notes by the Canadian federal government with the United States government. Generally speaking, the procedure followed is this. The Canadian parliament first of all adopts an act authorizing the province to conduct negotiations with a foreign party. This act is then followed by an act of the provincial legislature authorizing a minister of a department of the provincial government to negotiate the agreement. An illustration of this procedure is the manner in which New Brunswick was authorized to enter into the Campobello-Lubec Bridge Agreement with the State of Maine. By the Campobello-Lubec Bridge Act, the federal parliament authorized the province of New Brunswick to enter into an agreement with the state of Maine (cf. Statutes of Canada, c. 23, 7 Eliz. II, Sept. 1958). The province then passed a similar act which authorized the Minister of Public Works of New Brunswick to enter into an agreement (cf. Statute of New Brunswick, 1959, c. 5). The act was finally put into force by an order-in-council whereby the Lieutenant-Governor of New Brunswick again authorized the Minister of Public Works to enter into an agreement (order-in-council 10-122 of the province of New Brunswick).
51 For reference to some of these agreements, see infra notes 60 to 63.
52 753 UNTS 46 (1970).
53 Public Law 340-82nd Congress, Chapter 267-2nd Session, H.R. 4764.
54 External Affairs, 1965, at 518.
55 Atkey, R., “Provincial Transnational Activity,’ Ontario Advisory Committee on Confederation 167 (1970).Google Scholar
58 Among them can be listed the Pigeon River Agreement concluded between Ontario and Minnesota in 1959, the Campobello-Lubec Bridge Agreement concluded in 1958, and the Manitoba/Minnesota Highway Compact negotiated in 1962: see supra note 50.
57 See the agreement between British Columbia and Alaska concerning the Alaska Ferries Terminal Services at Prince Rupert, B.C., reproduced in Swanson, op. cit. supra note 1, at 294.
58 In the Pigeon River Agreement, for instance, it was stated that: “Construction of the new bridge shall not be commenced until such a time as the plans and drawings and the location of the bridge have been approved by the Governor in Council of Canada....”
59 In the Minnesota/Manitoba Highway Compact, for instance, it was said that in the event that the Congress of the United States did not within a period of five years allocate a sum of money equal to one-half Minnesota’s share of construction costs, the agreement would be “null and void and Manitoba and Minnesota are released and discharged from each and every covenant contained herein.” Congress did not pay and the agreement was never executed.
60 Numerous reciprocity agreements have been entered into by the American states and the Canadian provinces. Perhaps the most widely known is the Uniform Vehicle Registration Proration and Reciprocity Agreement, the so-called “Western Compact” between the provinces of Alberta, British Columbia, Saskatchewan, and 17 American states. British Columbia made the agreement by order-in-council 2465, approved September 26, 1961 and published in the Gazette as B.C. Reg. 151/61. The agreement has been amended numerous times and the reader is referred to the departments of transport or highways of the various states and provinces for an indication of the present status.
61 For instance, the April 12, 1960 reciprocal arrangement between Arkansas and Alberta reads: “This Arrangement is subject to any alterations that may be made by the Statutes in either State and is subject to mutual amendment. Cancellation by either State may be had on thirty (30) days written notice by registered mail by such notice being addressed to the authorities of the respective States negotiating this arrangement. This Arrangement shall be in full force and effect on and after the First Day of June, 1960, but shall not impose on either State any liability to refund any fees or taxes collected prior to such effective date.” (Swanson, op cit. supra note 1, at 304.)
62 For instance, in the January 1, 1973 arrangement between the Ontario Minister of Transport and Communications and the North Carolina Commissioner of Motor Vehicles, it is stated: “The provisions of this Agreement are supplemental to existing laws and shall not be construed so as to repeal any existing provisions contained in the General Statutes of North Carolina and the laws of the Province of Ontario except to the extent set forth herein.”
63 The most noteworthy of these resolutions is the so-called “Sugarbush Compact” on energy adopted by the eastern provinces and the New England states on June 14, 1974. The Compact is reproduced in Swanson, op. cit. supra note 1, at 330.
64 Atkey, R. G, “The Role of the Provinces in International Affairs,” 26 International Journal 268 (1970–71).CrossRefGoogle Scholar
65 External Affairs, supra note 54, at 523.
66 Article 7 of this agreement reads: “Each of the Contracting Parties shall, insofar as possible, facilitate the resolution of administrative and financial problems arising from the cultural activities in its territory of the other party” (637 UNTS 225 (1968)).
67 It should be noted that, although the terms are not synonymous, private international law and municipal law are often used interchangeably. Private international law is a term more frequently used by lawyers in Europe than those in North America. It is related to municipal law, however, insofar as private international law involves choosing between different municipal systems when one is seeking the applicable law.
68 See Lalive, F., “Contracts between a State or a State Agency and a Foreign Company,” 13 Int’l & Comp. L.Q. 987 (1964)CrossRefGoogle Scholar, for this classification.
69 Gesetz und Verordnungsblatt für das Land Rheinland-Pfalz, 1950, no. 35, at 239 for the German version of the treaty. It has been translated into English and reproduced in UN, Utilization of Rivers for Other Purposes than Navigation, DOC ST/LEG/SER B/12, at 721.
70 Ibid., Gesetz …, 1959, no. 4, at 13; UN, Utilization of Rivers …, at 726.
71 Bourquin, M., “Arbitration and Economie Development Agreements,” The Business Lawyer, July 1960, at 868 Google Scholar; Verdross, A., “Quasi-International Agreements,” 18 Yearbook of World Affairs 230 (1964).Google Scholar
72 Verdross, ibid, 234.
73 Verdross, A., “Die Sicherung von ausländische privatrechten Abkommen zur wirtschaftlichen Entwicklung mit Schiedklauseln,” 18 Zeitschrift für Auslandisches offentliches Recht und Völkerrecht 641 (1958).Google Scholar
74 See Rivista di Diritto Internazionale, 1963, at 232, 246 where the agreement is reproduced.
75 Mann, F. A., “The Proper Law of Contracts,” 35 Brit. Y.B. Int’l L. 230 (1959).Google Scholar
76 Schwarzenberger, G., A Manual of International Law 153 (5th ed., London: Stevens, 1967).Google Scholar
77 See Jessup, P., Transnational Law 2–3, and 106 (New Haven: Yale University Press, 1956) for a description.Google Scholar
78 Weil, P., “Problèmes relatifs aux contrats passés entre un état et un particulier,” 123 Recueil des Cours 179 (1969) for commentary on these principles.Google Scholar
79 O’Connell, D. P., International Law, vol. 2, at 1063 (2nd ed., London: Stevens and Sons, 1970).Google Scholar
80 Lalive, supra note 68, at 1009.
81 Ibid.
82 Delisle, R. J., “Treaty-Making Power in Canada,” Ontario Advisory Committee on Confederation: Background Papers and Reports 132 (1967).Google Scholar
83 Gotlieb, op. cit. supra note 2, at 24.
84 Lissitzyn, supra note 2, at 29.
85 Serbian Loans case, PCIJ, Series A, no. 20/21, at 4 (1924).
86 This point was expressed in several ways. Max Wershof, the legal advisor to the Department of External Affairs at the time the 1965 Quebec cultural ententes were concluded with France, said to a meeting of the Canadian Bar Association that “by the procedure of exchanging notes, bare consensus is raised to the status of an international agreement”: see Toronto Globe and Mail, Sept. 13, 1965. Paul Martin expressed a similar viewpoint in his monograph, Federalism and International Relations 32 (Ottawa: Queen’s Printer, 1968), where he wrote concerning the umbrella agreement: “The exchange of notes gives international legal effect to the arrangement between the province and the foreign entity, but does not involve the province itself acquiring international rights or accepting international obligations. Only the Canadian government is bound internationally by the agreement.…”
87 Ibid.
88 Laskin, op. cit. supra note 2, at 111.
89 Delisle, op. cit. supra note 82, at 132.