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Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making

Published online by Cambridge University Press:  17 January 2008

Joanna Harrington
Joanna Harrington
Affiliation:
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.
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Extract

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

Type
Articles
Information
International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 121 - 160
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

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).

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 <http: /untreaty.un.org/English/overview.asp>.

5 Marquand, DParliament for Europe (Jonathan Cape London 1979) 64–6.Google Scholar

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).

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 Geiringer, C ‘Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law’ (2004) 21(1) NZULR 66.Google Scholar

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 Brunnée, J and Toope, SJ ‘A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts’ in Dyzenhaus, D (ed) The Unity of Public Law (Hart Publishing Oxford 2004) 357–88.Google Scholar

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 <http://www.councilofthefederation.ca/>.

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 Shaw, MNInternational Law (5th edn CUP Cambridge 2003) 89.CrossRefGoogle Scholar

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.

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: <http: / /www.fco.gov.uk/Files/KFile/TreatiesandMOUsFinal,0.pdf> [Treaties and MOUs].

18 Dicey, AVIntroduction to the Study of the Law of the Constitution (10th edn MacMillan London 1959) 425;Google ScholarBradley, AW and Ewing, KDConstitutional and Administrative Law (12th edn Longman London 1997) 272–3.Google Scholar

19 Bradley and Ewing (n 18) at 353. See further SirJennings, Robert and SirWatts, Arthur (eds) Oppenheim's International Law (9thLongman NY 1992) 53.Google Scholar

20 Aust (n 16) at 150–1.

21 Canadians tend to use this term, with incorporation being one of the means of transformation: Currie, JHPublic International Law (Irwin Law Toronto 2001) 205.Google ScholarFor the somewhat interchangeable use of both terms, see Brownlie, IanPrinciples of Public International Law (6th edn Clarendon Press Oxford 2003) 41–5.Google Scholar

22 Canada (A-G) v Ontario (A-G), [1937] AC 326 at 347 (PC) [Labour Conventions Case].

23 See generally Fawcett, JesThe British Commonwealth in International Law (Stevens & Son London 1963) 16–32.Google Scholar

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 Blackshield, T and Williams, GAustralian Constitutional Law and Theory (3rd edn Federation Press Sydney 2002) 774–801 andGoogle ScholarZines, LThe 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 1Google Scholarsee Byrnes, AC ‘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.Google Scholar

27 Australian Constitution (n 25), s 109.

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: <http: / /www.parliament.uk/documents/upload/p14.pdf> [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: <http: / /www.fco.gov.uk/Files/kfile/PonsonbyRule.pdf>.

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: <http: / /www.fco.gov.uk>.

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 Barnes, P ‘Parliamentary Scrutiny of Policy and Legislation: The Procedures of the Lords and Commons’ in Giddings, P and Drewry, G, Britain in the European Union: Law, Policy and Parliament (Palgrave Macmillan NY 2004) 60–96 andGoogle ScholarCygan, AJThe United Kingdom Parliament and European Union Legislation (Kluwer Law International The Hague 1998).Google Scholar

32 n 30.

33 UK, HC, Parliamentary Debates, Series 6 vol 4 col WA 82 (6 May 1981).

34 ‘The Ponsonby Rule’ (n 28).

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 Marquand, DRamsay MacDonald (Jonathan Cape London 1977) 300.Google Scholar

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 Jones, RAArthur Ponsonby: The Politics of Life (Christopher Helm London 1989).Google Scholar

38 Ponsonby, ADemocracy and Diplomacy: A Plea for Popular Control of Foreign Policy (Methuen London 1915).Google Scholar

39 See further Swartz, MThe Union of Democratic Control in British Politics During the First World War (Clarendon Press Oxford 1971) andGoogle ScholarHarris, SOut of Control: British Foreign Policy and the Union of Democratic Control, 1914–1918 (University of Hull Press 1996).Google Scholar

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 Templeman, Lord ‘Treaty-Making and the British Parliament’ (1991) 67 Chi-Kent L Rev 459 at 466.Google Scholar

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.

50 See <http://www.fco.gov.uk>.

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.

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 Warbrick, C ‘Current Developments: Treaties’ (2000) 49 ICLQ 944 at 950.CrossRefGoogle Scholar

61 See Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons (Cm 5484) (April 2002), also available at: <http://www.fco.gov.uk/Files/kfile/btwc290402,0.pdf>.

62 Doeker, GThe Treaty-Making Power in the Commonwealth of Australia (Martinus Nijhoff The Hague 1966) at 138 and 257–261.CrossRefGoogle Scholar

63 Twomey, A ‘International Law and the Executive’ in Opeskin, BR and Rothwell, DR (eds) International Law and Australian Federalism (Melbourne University Press 1977) at 87.Google Scholar

64 ibid. See also Williams, Daryl ‘Establishing an Australian Parliamentary Treaties Committee’ (1995) Public L Rev 275 at 278–9.Google Scholar

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 Lacey, W ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29(2) Fed L Rev 219.Google Scholar

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 Opeskin, BR and Rothwell, DR ‘The Impact of Treaties on Australian Federalism’ (1995) 27 Case W Res J Int'l L 1 at 49–54.Google Scholar

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 Keith, K ‘New Zealand Treaty Practice: The Executive and the Legislature’ (1964) 1 NZULR 272 for a much earlier account.Google Scholar

71 At: <http: / /www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/pre1996/treaty/report/index.htm>.

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; Shearer, IA ‘International Legal Notes’ (1995) 69 Australian Law Journal 404 at 406, n 12.Google Scholar

73 In part because the report was a reflection of the Government's own policies: see Williams, D ‘Australia's Treaty-Making Processes: The Coalition's Reform Proposals’ in Alston, P and Chiam, M (eds) Treaty-Making and Australia: Globalisation versus Sovereignty (Federation Press 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.Google ScholarSee further Sheridan, Greg ‘Security deal moves into the open’ The Australian (21 Oct 2004).Google Scholar

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: <http://www.dfat.gov.au/media/releases/foreign/1996/fa29.html>.

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: / /www.austlii.edu.au/au/other/dfat/nia/>.

77 See:/ /www.aph.gov.au/house/committee/jsct/index.htm>.

78 The Australian Treaties Database is available at:<http: / /www.info.dfat.gov.au/ /treaties>. DFAT also supports the Australian Treaties Library maintained by the Australasian Legal Information Institute (AUSTLII) at: <http: / /www.austlii.edu.au/au/other/dfat/>.

79 The reports are available at: <http: / /www.aph.gov.au/house/committee/jsct/report.htm>.

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 Capling, A and Nossal, KR ‘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.CrossRefGoogle Scholar

83 See Chiam, M ‘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.Google Scholar

84 Commonwealth of Australia Review of the Treaty-Making Process (Aug 1999), online: Attorney-General's Department <http: / /law.gov.au/agd/Attorney-General/Treaty-Making %20Process.htm>. See further Cranwell, G ‘The Treaty-Making Process in Australia: A Report Card on Recent Reforms’ [2001] Aust Int'l LJ 177.Google Scholar

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 treaty. See further Bourne, V ‘The Implications of Requiring Parliamentary Approval of Treaties’ in Alston and Chiam (n 73) at 196–203.Google Scholar

89 See further Chen, M ‘A Constitutional Revolution? The Role of the New Zealand Parliament in Treaty-Making’ (2001) 19 NZULR 448 andGoogle ScholarDunworth, T ‘International Treaty Examination: The Saga Continues’ [2002] NZLR 255–61.Google ScholarSee also Bracegirdle, A ‘Domestic Procedures for International Treaty Actions: Description of New Zealand Procedures’ (2003) 14 Pub L Rev 28.Google Scholar

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 Jones, M ‘Myths and Facts concerning the Convention on the Rights of the Child in Australia’ (1999) 5(2) Aust J of Hum Rts 126.Google Scholar

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.

97 Williams (n 64) at 283.

98 Gotlieb, AECanadian Treaty-Making (Butterworths Toronto 1968) at 27;Google ScholarCopithorne, M ‘Canada’ in Leigh, M et al. (eds) National Treaty Law and Practice, vol 3 (American Society of International Law Washington DC 2003) at 1.Google ScholarSee also Hogg, PWConstitutional Law of Canada (4th edn Carswell Scarsborough 1997) at §11.2.Google Scholar

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: <http: / /www.mri.gouv.qc.ca/en/action_internationale/ententes/index.asp>.

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 Ert, G vanUsing International Law in Canadian Courts (Kluwer Law International The Hague 2002) at 87, n 163.Google Scholar

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.

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 Ollivier, MThe Colonial and Imperial Conferences from 1887 to 1937 (Queen's Printer Ottawa 1954) vol 3 at 150–5.Google Scholar

112 Gotlieb (n 98) at 18. See also Jacomy-Millette, ATreaty Law in Canada (University of Ottawa Press 1975) at paras 32 and 44.Google Scholar

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 Québ´cois Member of Parliament, the practice stopped in the late 1960s: Daniel Turp ‘Un nouveau défi démocratique: l'accentuation du róle 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.

119 Sallot, Jeff ‘Missile treaty up to Cabinet, Graham says’ Globe and Mail (27 Sept 2004).Google Scholar

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.

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 <http: / /www.dfa.maeci.gc.ca/cip_pic/ips/ips-en.asp>.

135 Gotlieb (n 98) at 18 and 66. According to Jacomy-Millette, however, tabling was ‘not an invariable rule’: (n 112) at para 44.

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 <http: / /www.austlii.edu.au/au/other/dfat/reports/infokit.html>.

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.

144 US Senate, ‘Treaties’, online <http: / /www.senate.gov/artandhistory/history/common/briefing/Treaties.htm>.

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 Charnovitz, Steve ‘Using Framework Statutes to Facilitate US Treaty-making’ (2004) 98 Am J Int'l L 696.CrossRefGoogle Scholar

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 Anderson, Winston ‘Treaty-making in Caribbean Law and Practice: The Question of Parliamentary Participation’ (1998) 8 Carib L Rev 75.Google Scholar

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).

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 Basson, DASouth Africa's Interim Constitution: Text and Notes (Juta Kenwyn 1994).Google Scholar

157 Constitution of the Republic of South Africa, Act 108 of 1996 (in force 4 Feb 1997) [1996 Constitution]. See generally Devenish, GEA Commentary on the South African Constitution (Butterworths Durban 1998).Google Scholar

158 Dugard, JInternational Law: A South African Perspective (2nd edn Juta Kenwyn 2000) at 54.Google Scholar

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 Botha, N ‘The Coming of Age of Public International Law in South Africa’ (1992/1993) 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:Google Scholarsee Olivier, M ‘The Status of International Law in South African Municipal Law: Section 231 of the 1993 Constitution’ (1993/1994) 19 S African Ybk Int'l L 1 at 2, n 3 and 3.Google Scholar

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 Devine, DJ ‘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 andGoogle ScholarBotha, Neville ‘Incorporation of Treaties under the Interim Constitution: A Pattern Emerges?’ (1995) S African Ybk Int'l L 196 at 202.Google ScholarSee also Devine, DJ ‘The Relationship between International Law and Municipal Law in the Light of the Interim South African Constitution 1993’ (1995) 44 ICLQ 1 at 9.Google Scholar

163 As confirmed in John Dugard and Iain Currie, ‘Public International Law’ [1995] Annual Survey of South African Law 76 at 77.

164 Compare Dugard, JInternational Law A South African Perspective (1st edn Juta Kenwyn 1994) at 343 and Devine ‘Some Problems’ (n 162) at 17.Google Scholar

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’: Botha, N ‘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).Google Scholar

166 Dugard (n 158) at 55.

167 ibid See also Keightley, Raylene ‘Public International Law and the Final Constitution’ (1996) 12 S African J Hum Rts 405 at 411.Google Scholar

168 Dugard, John ‘International Law and the South African Constitution’ (1997) 8 Eur J Int'l L 77 at 81, n 24.CrossRefGoogle Scholar

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 Botha, N, ‘Treaties after the 1996 Constitution: More Questions than Answers’ (1997) 22 S African Ybk Int'l L 95 at 99.Google ScholarFor an alternative view, see Olivier, M ‘Exploring the doctrine of self-execution as enforcement mechanism of international obligations’ (2002) S African Ybk Int'l L 99.Google Scholar

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 Botha, N ‘Treaty-making in South Africa: A Reassessment’ (2000) 25 S African Ybk Int'l L 69, reprinted with revisions as ‘South Africa’ inGoogle ScholarLeigh, M et al. (eds) National Treaty Law and Practice, vol 3 (American Society of International Law Washington DC 2003) at 199.Google Scholar

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, Schneeberger, JoAnn ‘A Labyrinth of Tautology: The Meaning of the Term ‘International Agreement’ and its Significance for South African Law and Treaty-making Practice’ (2001) S African Ybk Int'l L 1.Google Scholar

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 <http: / /www.dfa.gov.za/department/law.doc>) 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: Dugard, John ‘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:Google ScholarSchoombee, JT ‘A Licence for Unlawful Arrests Across the Border?’ (1984) 101 S African LJ 713 at 713 and 720.Google Scholar

176 Botha (n 170) at 79.

177 ‘Practical Guide’ (n 173) at 27.

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 Olivier, Michèle ‘Informal International Agreements Under the 1996 Constitution’ (1997) 22 S African Ybk Int'l L 62 at 64.Google Scholar

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.

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 Kalley, JASouth Africa's Treaties in Theory and Practice 1806–1998 (Scarecrow Press Lanham MD 2001) at 614–700.Google Scholar

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.

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 Franck, TM (ed) Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (Transnational Publishers NY 2000) at 256.Google Scholar

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 Rawlings, Richard ‘Concordats of the Constitution’ (2000) 116 LQR 257 at 258.Google Scholar

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.

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 <http: / /www.scottish.parliament.uk/business/committees/europe/index.htm>.

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: <http: / /hcch.e-vision.nl/index_en.php?act=conventions.text>.

213 Adults with Incapacity (Scotland) Act 2000, 2000 ASP 4.

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, Burmester, Henry ‘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.Google Scholar

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.

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 <http: / /www.coag.gov.au>.

223 The current text is available at <http: / /www.coag.gov.au/meetings/140696/attachment_ c.htm>.

224 ‘Principles and Procedures’ (n 223) at para 3.1.

225 See further, Williams (n 73) at 187–9. See also Saunders, Cheryl ‘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.Google Scholar

226 ‘Principles and Procedures’ (n 223) at para 4.2. See also Williams, Daryl ‘Treaties and the Parliamentary Process’ (1996) 7 Pub L Rev 199 at 201.Google Scholar

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: <http: / /www.coag.gov.au/treaties_council.htm>.

232 ‘Principles and Procedures’ (n 223) at paras 5.1 and 5.3.

233 For details, see <http: / /www.coag.gov.au/meetings/071197/treaties_council_communique. htm>.

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 Treaty-making and the Role of the States (Oct 1997), esp ch 5, online /http: /www.parliament.vic.gov. au/fsrc/report1/contents.htm>.

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).

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 Laskin, B ‘Some International Legal Aspects of Federalism: The Experience of Canada’ in Currie, DP (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:Google ScholarAtkey, RG ‘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.Google Scholar

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.

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 <http: / /www.iir.gov.ab.ca/canadian_intergov-ernmental_relations/documents/mla_committee_report_003.pdf>.

249 An Act Respecting the Ministére 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.

253 See the debates within the Committee on Institutions, Journal des débats: Commission permanente des institutions (1 May 2002), online <http: / /www.assnat.qu.ca/fra/Publications/debats/journal/ci/020501.htm>.

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 <http: / /www.assnat.qu.ca/fra/Publications/debats/journal/ci/020501.htm>.

259 An Act Respecting the Ministère des Relations Internationales, RSQ 2002, Ch M-25.1.1, s 22.6.

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 Stemmet, Andre ‘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.Google Scholar

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 Waal, Johan de ‘Constitutional Law’ in van der Merwe, CG et al. (eds) Introduction to the Law of South Africa (Kluwer Law International The Hague 2004) at 68.Google Scholar