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Policy on Tabling of Treaties in Parliament

1. Effective Date

This policy is effective as of the date of its announcement by the Minister of Foreign Affairs.

2. Policy Objective

The objective of this policy is to ensure that all instruments governed by public international law, between Canada and other states or international organisations, are tabled in the House of Commons following their signature or adoption by other procedure and prior to Canada formally notifying that it is bound by the Instrument.

3. Application

This policy applies to all departments and agencies listed under Schedule I and IV of the Financial Administration Act and to the Canadian Forces, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service.

4. Policy Statement

The Government's Policy on the Tabling of treaties in Parliament is as follows:

  • The Minister of Foreign Affairs will initiate the tabling of all instruments, accompanied by a brief Explanatory Memorandum in the House of Commons following their adoption by signature or otherwise, and prior to Canada's expression of its consent to be bound by ratification, acceptance, approval or accession.

5. Definition of "Treaty"

Canada adheres to the Vienna Convention on the Law of Treaties of 1969, which can be described as a codification of public international law on treaties. The Convention defines treaty in Article 2 as follows:

  • "Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument, or in two or more related instruments and whatever its particular designation."

Canada is a party to many such instruments. These can be called Treaty, Convention, Agreement, Protocol or some similar word. An exchange of diplomatic notes or letters can also be a treaty.

Treaties can be bilateral, multilateral or plurilateral.

  • Bilateral treaties are those between Canada and one other country.

  • Multilateral treaties are those between three or more countries, generally developed under the auspices of international organisations.

  • Plurilateral treaties are generally entered into between one State and a group of States.

  • Agreements between Canada and International Organisations are often treaties governed by public international law.

For the purpose of this document, "treaty" is used in the general sense of any type of instrument governed by public international law.

6. Policy Requirements

6.1 Responsibility of Departments and Agencies

All departments and agencies are responsible:

  1. For informing the Treaty Section of the Department of Foreign Affairs and International Trade before beginning any negotiations with another State, whether with its government as such or with one of its agencies, or with an international organisation. In this way a proper distinction between treaties and other international instruments that are not binding in public international law can be maintained; Annex C discusses these instruments.

  2. For ensuring that this policy is followed fully within their own organisation;

  3. For ensuring that the Treaty Section has sufficient lead-time to verify the texts in all languages and to ensure that proper government authority is obtained before Canada signs the treaty or expresses its consent to be bound by it.

For a description of the Department of Foreign Affairs and International Trade Treaty Section's preparations for tabling a treaty in the House of Commons, see Annex B.

6.2 Tabling period for Treaties

The government can accept the obligations within many treaties without new legislation. In other cases, Canada must amend its domestic law before undertaking treaty obligations.

  1. When treaties do not require implementing legislation, the Government will observe a waiting period of at least twenty-one sitting days after a treaty is tabled before taking legal steps to bring the treaty into force.

    • During this twenty-one sitting day period, Members of Parliament could initiate a debate. Members of Parliament might also request a vote on a motion regarding the treaty in the House of Commons. For example, Opposition parties may use an Opposition day to debate and to present and subsequently vote on a motion.

    • The Government will not seek the legal authority to be bound by the instrument before this twenty-one day period has been observed.

  2. For treaties that require implementing legislation before the Government can proceed to ratification, acceptance, approval or accession ("ratification"), the Government will:

    • Observe a waiting period of at least twenty-one sitting days before the introduction of the necessary implementing legislation in Parliament;

    • Will allow Members of Parliament the same opportunities to debate, present and vote on motions, as for those treaties which do not require implementing legislation;

    • Will subsequently introduce the implementing legislation for these treaties;

    • Seek, only when the legislation is adopted, the authorisation from the Governor in Council to express consent to be bound by the treaty.

  3. For multilateral treaties that do not provide for signature and for which there is no two-step approval process the Government will:

    • table the treaty in the House of Commons for at least twenty-one sitting days prior to taking action to ratify the treaty.

6.3 Exceptions to the treaty tabling process

An exception to the treaty tabling process may be appropriate in certain cases, such as where a treaty's ratification is urgently required. In this case, the following procedure applies:

  1. The Minister of Foreign Affairs and the lead Ministers would seek approval from the Prime Minister for an exemption to the treaty tabling process.

    • This is to be done through a joint-letter that clearly articulates the rationale to proceed with the ratification, without tabling in the House of Commons.

    • The letter should be drafted in consultation with the Treaty Section of the Department of Foreign Affairs and International Trade and the relevant Secretariat in the Privy Council Office.

    • If the responsible Ministers and the Minister of Foreign Affairs are early on aware of the need to request an exemption to the treaty process prior to obtaining Cabinet authority to sign a treaty, a request shall be made in the Memorandum to Cabinet seeking policy approval for the treaty.

    • The Memorandum to Cabinet should clearly articulate the rational for the exception to the treaty tabling process.

  2. If an exception is granted, the Minister of Foreign Affairs will inform the House of Commons that Canada has agreed to be bound by the instrument at the earliest opportunity following the ratification.

6.4 Explanatory Memorandum

An Explanatory Memorandum will accompany each treaty that is tabled in the House of Commons.

  1. The purpose of the Explanatory Memorandum is to provide the House of Commons with information regarding the content of the Treaty.

  2. The Explanatory Memorandum will cover the following points:

    • Subject Matter: a description of the treaty;

    • Main Obligations: a description of the main obligations that will be imposed upon Canada by the treaty, should it be brought into force;

    • National Interest Summary: a description of the reasons why Canada should become a party;

    • Ministerial Responsibility: a listing of Ministers whose spheres of responsibility are implicated by the contents of the treaty;

    • Policy Considerations: an analyse as how the obligations contained in the treaty, as well as how the treaty's implementation by Government departments are or will be consistent with the Government's policies;

    • Federal-Provincial-Territorial implications: a determination of whether the obligations in the treaty relate in whole or in part to matters under provincial constitutional jurisdiction;

    • Time Considerations: details of any upcoming dates or events that make the ratification a matter of priority;

    • Implementation: a brief description of how the treaty will be implemented in Canadian law, including a description of the legislative or other authority under which it will fall (which will have already been determined by the Department of Justice);

    • Associated Instruments: information on any international instruments of any kind that are related to this treaty;

    • Reservations and Declarations: a description of any reservations or declarations;

    • Withdrawal or denunciation: a description of how the treaty could be terminated; and

    • Consultations: a description of the consultations undertaken with the House of Commons, self-governing Aboriginal Governments, other government departments and non-governmental organisations prior to the conclusion of the treaty, as appropriate.

See Annex B for the template for an Explanatory Memorandum.

6.5 Tabling

The Minister of Foreign Affairs will follow procedures established by the Government to table a treaty, and accompanying Explanatory Memorandum, in the House of Commons as outlined in Annex B.

6.6 Post-Tabling

Once a treaty and its Explanatory Memorandum have been tabled in the House of Commons and the waiting period has passed:

  1. The Government will consider any concerns raised by the Opposition Parties during the tabling process. (The Executive under the constitutional treaty-making power exercised by the Federal Crown under the Royal Prerogative remains responsible for undertaking any international obligations of Canada);

  2. The Government will then decide whether to ratify the Treaty or to introduce legislation that may be necessary before bringing the Treaty into force.

  3. If the Government decides to proceed, the Treaty Section of the Department of Foreign Affairs and International Trade will work with the responsible Department and the Department of Foreign Affairs and International Trade Division to complete the final process:

    • A submission to the Governor in Council to obtain the authorisation to ratify the treaty; and

    • Once the Order in Council is granted, the Treaty Section of the Department of Foreign Affairs and International Trade will take the necessary actions to bring the treaty into force.

7. Treaty-making process

This Policy on tabling Treaties in the House of Commons is part of the policy followed in Canada for entering into binding international obligations.

Please note that:

  1. Annex A is an outline of the procedures that all Departments, Agencies and t he Department of Foreign Affairs and International Trade Divisions involved in the negotiation and signing of treaties should follow;

  2. Annex A describes each step that should guide Departments, Agencies and the Department of Foreign Affairs and International Trade divisions prior to and during the negotiation of international Agreements;

  3. Departments/Agencies/ the Department of Foreign Affairs and International Trade Divisions should involve the Treaty Section of the Department of Foreign Affairs and International Trade as early as possible in any process that will result in international commitments of any kind;

  4. The Treaty Section of the Department of Foreign Affairs and International Trade will require sufficient lead-time to verify the texts and ensure that proper Government authority has been obtained prior to Canada signing the treaty and expressing its consent to be bound.

8. Non-binding International Instruments

Under international law, a treaty creates international legal obligations for Canada.

Other international instruments (often referred to, in Canada as "Memorandum of Understanding" (MOU) or "arrangements") can be considered as creating only moral or political commitments.

In order to avoid situations where instruments that,

could reasonably be viewed to be treaties, and therefore covered by the Government's policy, are not mistakenly classified as non-binding instruments and thus not brought to the attention of the House of Commons,

each Department is responsible for ensuring that the proper distinction is made between treaties and non-binding instruments, in consultation with the Treaty Section of the Department of Foreign Affairs and International Trade.

For an explanation of the steps leading to the conclusion of a non-legally binding instrument, see Annex C.

9. Publishing, registration and safekeeping of Instruments

  1. The Treaty Section of the Department of Foreign Affairs and International Trade maintains the official government archive of originals of bilateral treaties and certified copies of multilateral treaties.

  2. The Treaty Section will see to the registration of treaties with the Secretary-General of the United Nations and the Secretary-General of the International Civil Aviation Organization.

  3. All treaties in force for Canada whether bilateral or multilateral will be published in the Canada Treaty Series and distributed to more than 145 depositories in Canada and around the World.

  4. Texts of most treaties that apply to Canada will be published on the Internet, bilateral treaties as soon as they enter into force and multilateral treaties if possible when the certified copy is received from the depositary of the treaty.

10. Accountability

The Minister of Foreign Affairs is responsible for the tabling of treaties in the House of Commons.

However, all Federal government departments and agencies are accountable for ensuring that:

  • The policy is implemented in their own organisation;

  • Their personnel engaged at any steps when creating commitments with other governments (e.g. negotiations, legislative or regulatory requirements, Orders in Council, etc.) are sufficiently aware of or informed about the policy to ensure that the organisation fully cooperates with the Department of Foreign Affairs and International Trade;

  • They seek guidance from the Treaty Section of the Department of Foreign Affairs and International Trade to identify all instruments that can be considered binding on Canada under international public law.

11. Monitoring

  1. The Department of Foreign Affairs and International Trade must ensure that its tabling activities are effective and efficient;

  2. The Department of Foreign Affairs and International Trade will undertake periodic reviews and audits of its tabling activities to ensure that they are established and operated in accordance with this policy;

  3. The Treaty Section of the Department of Foreign Affairs and International Trade will monitor the effectiveness of this policy by periodically reviewing its own departmental procedures and other departments' and agencies' procedures, and

  4. All Departments will monitor the effectiveness of the policy within their own organisations.

12. References

  1. Authority

    This policy is issued pursuant to the approval of the Throne Speech of April 6, 2006.

  2. Relevant Legislation

    Department of Foreign Affairs and International Trade Act.

13. The Department of Foreign Affairs and International Trade Enquiries

Enquiries about this policy should be directed to the Treaty Section of the Department of Foreign Affairs and International Trade at: jlab@international.gc.ca

 

 

Annex A

THE TREATY-MAKING PROCESS

Departmental Guidelines

The following guidelines are intended for federal government departments and agencies.

1. Introduction

This Annex provides general guidance to departments and agencies on:

  1. the nature and significance of international agreements;

  2. the normal procedure for obtaining policy approval prior to entering into negotiations with other States;

  3. the procedure through which instruments intended to be binding under public international law are concluded between Canada and another State or an international organisation, or among several States within a multilateral context;

  4. the process for obtaining the legal authority required to sign and ratify agreements;

  5. the procedure for tabling treaties in the House of Commons;

  6. the steps involved in: bringing the agreements into force; their safekeeping; registration with the Secretary General of the United Nations, and with the International Civil Aviation Organization specifically for Aviation Agreements; and publication of the agreements.

These guidelines should be used by all departments/agencies/Department of Foreign Affairs and International Trade (DFAIT) divisions involved in the negotiation and signing of agreements.

The intent of such guidance is to ensure that Canada's prerogatives are protected with respect to the creation and formalization of international obligations binding Canada.

2. Nature and Significance

Canada adheres to the Vienna Convention on the Law of Treaties of 1969. This Convention can best be described as a codification of public international law.

The Convention defines a treaty as follows:

  • ""Treaty" means an i nternational agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

Canada is a party to many instruments that are governed by public international law. These can be entitled Treaty, Convention, Agreement, Protocol, or some other word. An exchange of instruments in any form, often through diplomatic notes or letters, can be a treaty covered by this definition.

Article 26 of the Convention states:

  • "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

And Article 27 states:

  • "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

Each department or agency, before beginning treaty negotiations, should understand what will be the nature of the document that will be negotiated. Each treaty creates legal obligations for Canada that must be performed.

In the course of treaty negotiations, negotiators have the responsibility of ensuring that obligations negotiated fall within the negotiating mandate authorized by Cabinet, and that Canada would, in fact, be able to meet such obligations, either through existing or new legislation.

3. Normal Procedures for Policy Approval to Negotiate

The significance of creating and formalizing an international obligation on behalf of Canada should not be underestimated.

Before entering into a treaty negotiation, the initiating department or agency should ensure that it has a policy mandate to begin negotiations.

In most cases, the department or agency will submit a Memorandum to Cabinet (MC) to obtain this negotiating mandate. The following is a non-exhaustive list of examples where a MC is required prior to the commencement of negotiations.

When a treaty:

  • requires legislative changes;

  • relates to the mandate of more than one Minister;

  • creates new obligations for Canada;

  • is extremely complex;

  • is multilateral;

  • is likely to represent a significant change in Canada 's foreign policy;

  • will have a major impact on domestic policy;

  • will have a major impact on federal-provincial relations; or

  • will entail significant financial pressure on the fiscal framework.

or when:

  • Cabinet or the Prime Minister requests a MC.

The MC should set out, inter alia :

  1. the expected purpose of the agreement, and its relation to existing agreements;

  2. its potential foreign policy implications;

  3. its possible domestic impact;

  4. a preliminary outline of any financial obligation that may be incurred; and

  5. legislative changes that may be necessary if the negotiations prove successful.

The Government will require the sponsoring department to show that other government departments, provinces and territories, aboriginal groups or NGOs and industry stakeholders have been consulted before granting a negotiating mandate.

As it is sometimes difficult to draw a line between exploratory talks leading up to a negotiation and negotiations themselves, departments may wish to discuss a particular negotiation with the Privy Council Office to ensure that existing negotiating authorities are not being exceeded.

The MC may seek blanket policy authority to enter into negotiation of a number of similar treaties, rather than a separate submission for each one. Such a blanket authority may be considered when a Minister is faced with negotiating a series of identical or very similar bilateral treaties with numerous countries. In some cases, a general authority for a Minister to negotiate arrangements is found in statutes.

In most cases, blanket authority has been granted when:

  1. no new legislation is required to undertake the obligations or amendments to the actual legislation;

  2. there are no funding implications; and

  3. there are no interdepartmental or federal-provincial jurisdictional issues.

The MC for blanket authority should append a typical treaty and should clearly explain the rationale for concluding such treaties with many States.

Such blanket policy authority now exists for:

  • Foreign Investment Protection Agreements;

  • Double Taxation Agreements;

  • Mutual Legal Assistance Treaties (MLAT) to implement the Mutual Legal Assistance in Criminal Matters Act of 1999;

  • Sharing Agreements to implement section 11 of the Seized Property Management Act of 1993;

  • Extradition Agreements - to implement provisions of the Extradition Act of 1999;

  • Transfer of Offenders Treaties (TOOT) to implement provisions of The International Transfer of Offenders Act of 2004;

  • Social Security Agreements - to implement provisions of the Canada Pension Plan Act, and of the Old Age Security Act; and

  • International Civil Aviation Agreements.

The Minister of Foreign Affairs must still approve the negotiation of each individual treaty as conforming to the foreign affairs policy of the Government.

Once a specific mandate is received from Cabinet or authority already exists and approval is granted by the Minister of Foreign Affairs, negotiation can commence. The Treaty Section of DFAIT should be contacted in order to determine if there are any restrictions or pitfalls to be avoided in the negotiation of an instrument and to obtain advice on process and substance.

4. Negotiating a Treaty

The negotiation of a treaty is carried out under the responsibility of the Minister of Foreign Affairs, or another Minister in close cooperation with the Minister of Foreign Affairs.

At each step, negotiators should consider whether the terms and conditions being discussed conform to the mandate the Government has granted.

Negotiators should pay special attention to whether terms and conditions proposed may exceed the financial authority granted or require broader legislative changes than originally envisioned.

Throughout negotiations, other departments, agencies and provinces, when affected, should be consulted on those provisions of the treaty that may impact upon their constitutional jurisdiction.

If the authority risks being exceeded, negotiations should be suspended until authority is revised. The revision may require a new MC.

Departments/agencies/DFAIT divisions are invited to share draft texts as soon as possible with the Treaty Section to ensure that the clauses contained therein are written in accordance with public international law, as well as international and Canadian treaty practice.

Then, at last, when the negotiators from both sides have come to consensus on the substance of the agreement, the draft text will be forwarded to the Treaty Section of DFAIT. The Treaty Section will:

  1. complete a thorough linguistic and legal review of the text;

  2. assist in negotiating and completing administrative articles and final clauses covering signature, entry into force, amendment, termination, etc. to ensure that these meet international law and practice, and Canadian policy; and

  3. oversee the preparation of an accurate clean text in both official languages and to ensure that all versions accurately reflect the agreement reached by the negotiators.

Negotiators should keep in mind that revision and translation will require time. When there are several language versions that need to be compared and agreed by all parties, several months may be required. The final text for signature has to be agreed in all languages by all the parties.

The text produced during the negotiation can continue to be corrected or modified until the authorities of both countries are satisfied, and ultimately until its signature.

Following signature, corrections or amendments can be made but require a lengthy process even though the agreement is yet to be ratified.

The negotiation of multilateral treaties will follow the same steps. Negotiators should keep the Treaty Section informed as drafts, even square bracketed, are available so that negotiators can influence the drafting to meet Canadian policy to the fullest extent possible. The Treaty Section can help in particular with languages and with assisting negotiators with administrative articles and final clauses.

5. Signature

Signature requires that Cabinet provide policy approval of the treaty, as well as the seeking of legal authority through an Order in Council to sign the treaty.

The lead department, with DFAIT, will submit a MC with the full English and French texts of the negotiated treaty.

Unlike the MC to obtain a negotiating mandate, the purpose of this MC is to discuss the negotiated text, explaining as fully and transparently as possible at that time the implications of its entry into force with regard to finances, foreign relations, etc.

The MC should seek:

  1. approval of the text of the treaty in both official languages;

  2. policy approval to sign the treaty, as well as to ratify it should the Government so decide after the tabling period;

  3. policy approval for all resources required to implement the treaty; and

  4. policy approval to draft any legislation necessary to implement the treaty.

If the Government authorises the signature of the treaty, the Treaty Section of DFAIT with the lead department will prepare an Order in Council submission to the Governor in Council, to be considered by the Treasury Board, seeking legal authority to sign the treaty.

The Order in Council will also seek an Instrument of Full Powers authorising the signature. Full Powers are granted to an individual authorizing him or her specifically to sign the treaty in question. The Powers are not tied to an office, and any change to names or office requires a new Order in Council.

The Governor General, the Prime Minister and the Minister of Foreign Affairs have standing at international law to sign for Canada without producing an Instrument of Full Powers.

Submissions to the Governor in Council can take close to six weeks to process, not including preparation time of the submission itself. This timeline revolves around scheduled meetings of the Treasury Board.

It is the Treaty Section's responsibility to ensure that the treaty is ready for signature and to make sure that all arrangements are well coordinated with representatives of the other Parties for signing.

Once signed, an original of the text is kept in the Treaty Section for safekeeping. The Treaty Section maintains the Official Archive of all Canadian treaties and similar arrangements.

If the treaty is signed abroad, it is the responsibility of the Mission to return the treaty to the Treaty Section of DFAIT.

With rare exceptions, signatures are subject to ratification.

However, signature is not without consequence. The Vienna Convention states that Canada has to refrain from acts which would defeat the object or the purpose of the treaty, at least, until it shall have expressed clearly its intention not to become a party to the treaty.

Some multilateral treaties do not require signature and there is no two-step approval process (i.e. signature followed by ratification). Rather, a single binding action is required, such as depositing an instrument of ratification, acceptance, approval or accession.

The lead department, with DFAIT, will still submit these treaties to Cabinet for policy approval through an MC prior to the next step in the treaty process, tabling in the House of Commons.

6. Tabling in the House of Commons

The Minister of Foreign Affairs will table all agreements, accompanied by a brief Explanatory Memorandum, in the House of Commons, for at least twenty-one sitting days before taking any action to bring the agreement into force.

The Treaty Section is responsible for overseeing the preparation of the treaty and accompanying documents for Tabling in the House of Commons.

The lead department or division at DFAIT should inform the Treaty Section about any MCs relating to the negotiation as well as any relevant documents containing information about the agreement.

Work on the Explanatory Memorandum should as far as possible be done in parallel with the submission to Cabinet for policy authority.

Provinces and territories will also be consulted as appropriate and their views recorded in the Explanatory Memorandum.

7. Legislation

Some treaties, prior to their ratification, acceptance, approval or accession by Canada, require legislation.

Where federal legislation is required, the treaty, which was previously tabled in the House of Commons, may be re-distributed to Members of Parliament for information purposes, together with the proposed legislation.

Where provincial legislation is required, the treaty is still tabled in the House of Commons.

8. Ratification

Once the agreement and its Explanatory Memorandum have been tabled in the House of Commons, the waiting period passed, and any necessary legislation adopted, the Government will make a decision on whether to proceed to bind Canada to the treaty.

The Treaty Section will work with the responsible department/agency/DFAIT division to complete the final process, which will involve a second Order in Council submission to obtain the authorisation to ratify the treaty.

Once the Order in Council is granted, the Treaty Section will take the actions necessary to bring the agreement into force.

The nature of the action, which could be ratification, accession, acceptance or other form by which Canada will establish its consent to be bound is the responsibility of the Treaty Section of DFAIT.

9. Publishing, registration and safekeeping of Treaties

The Treaty Section of DFAIT is the Custodian of all originals of Canada 's bilateral agreements and all certified copies of multilateral agreements to which Canada is a party, which are kept in the archive of the Treaty Section.

The Treaty Section will oversee the registration of the treaties with the Secretary-General of the United Nations and with the Secretary-General of the International Civil Aviation Organization, as the case may be. As a member of the United Nations, Canada has the obligation to register its treaties.

All agreements in force for Canada are normally published in the Canada Treaty Series and distributed by the Department of Public Works and Government Services to more than 145 depositories in Canada and around the world.

Multilateral treaties will only be published when Canada receives a certified copy from the treaty's depositary, which certifies that the text, in all of its languages, is the text that was adopted and that the agreement has entered into force.

The delay before receiving the certified copy of a multilateral treaty could take several years.

The Treaty Section maintains an Internet database of all treaties that apply to Canada. Information on all of the treaties and the text of some of them are available at www.treaty-accord.gc.ca.

The texts of bilateral agreements will be available on the Treaty Section Internet site as soon as possible after their entry into force.

 

 

Annex B

Department of Foreign Affairs and International Trade

Procedures for the Tabling of Treaties in the House of Commons

Introduction

The objective of this policy is to ensure that instruments, governed by public international law and concluded by the Government of Canada, are tabled in the House of Commons following their signature or adoption by other procedure and prior to their ratification.

The Minister of Foreign Affairs will initiate the tabling of the text of the agreement in both official languages accompanied by a brief Explanatory Memorandum.

Procedure

The Treaty Section of the Department of Foreign Affairs and International Trade (DFAIT) has overall responsibility for managing the tabling of treaties in the House of Commons.

The treaty or agreement in whatever form, will only be tabled once it has been approved by signature or by adoption by other procedure, as outlined in Annex A.

Departments are reminded of the steps outlined in Annex A for policy approval and legal authority to adopt a treaty.

The Treaty Section will prepare and print a complete file including the text of the agreement, the Explanatory Memorandum and any other information required to explain the action, for each Member of Parliament in accordance with the needs of the House of Commons.

The Treaty Section of DFAIT will have primary responsibility for preparing the Explanatory Memorandum outlined below. Lead departments or divisions in DFAIT will cooperate closely in drafting the Explanatory Memorandum and in furnishing any other documents that need to accompany the treaty.

The Cabinet and Parliamentary Liaison Division of DFAIT will be responsible for delivering the documents to the House of Commons.

The Cabinet and Parliamentary Liaison Division, as well as the Treaty Section of DFAIT, will monitor the progress of the treaty while it is tabled before the House.

Parliamentary Procedure

The Minister of Foreign Affairs, another Minister of the Crown, or the Parliamentary Secretary acting on behalf of the Minister of Foreign Affairs, will table two copies of the treaty accompanied by the Explanatory Memorandum, in each official language, during Routine Proceedings in the House of Commons, pursuant to Standing Order 32(2), using the following statement:

  • "Mr. Speaker, I am pleased to table in both official languages a treaty entitled '___________' accompanied by an Explanatory Memorandum on this treaty."

Once the treaty and Explanatory Memorandum are tabled, 308 copies will be distributed to Members of the House of Commons through the services of the House of Commons Distribution Office.

The Explanatory Memorandum

The purpose of the Explanatory Memorandum is to explain:

  1. Why becoming a party to this treaty would be in Canada's national interest;

  2. The advantages and disadvantages for Canada of becoming a party;

  3. Any obligations, which would accrue from joining;

  4. The likely economic, social, cultural, environmental and legal effects and impacts; and

  5. The costs of compliance.

The Explanatory Memorandum will cover the following points:

  • Subject Matter: a description of the treaty;

  • Main Obligations: a description of the main obligations that will be imposed upon Canada by the treaty, should it be brought into force;

  • National Interest Summary: a description of the reasons why Canada should become a party;

  • Ministerial Responsibility: a listing of Ministers whose spheres of responsibility are implicated by the contents of the treaty;

  • Policy Considerations: an analyse as how the obligations contained in the treaty, as well as how the treaty's implementation by Government departments and agencies, are or will be consistent with the Government's policies;

  • Federal-Provincial-Territorial Implications: a determination of whether the obligations in the treaty relate in whole or in part to matters under provincial constitutional jurisdiction;

  • Time Considerations: details of any upcoming dates or events that make the ratification a matter of priority;

  • Implementation: a brief description of how the treaty will be implemented in Canadian law, including a description of the legislative or other authority under which it will fall (which will have already been determined by the Department of Justice);

  • Associated Instruments: information on any international instruments of any kind that are related to this treaty;

  • Reservations or Declarations: a description of any reservations or declarations;

  • Withdrawal or Denunciation: a description of how the treaty could be terminated; and

  • Consultations: a description of the consultations undertaken with the House of Commons, self-governing Aboriginal Governments, other government departments and non-governmental organisations prior to the conclusion of the treaty, as appropriate.

The Explanatory Memorandum will ensure that Members of Parliament and the public have sufficient information to assess why Canada should enter into the treaty.

 

 

Annex C

International Instruments that are not binding under Public International Law (Memoranda of Understanding)

Canada uses non-legally binding instruments in international relations to express political and moral commitments as opposed to undertakings governed by public international law.

They are nonetheless international instruments that should not be treated lightly.

These instruments can be in single documents usually entitled "Memoranda of Understanding" or "Arrangements" or can be constituted by Exchanges of Notes or Letters.

If a matter is of a routine or technical nature, or appears to fall entirely within the existing mandate and responsibility of a department or agency, and if it does not contain substantive matter which should be legally binding in public international law, it is often preferable to deal with the matter through the use of a non-legally binding instrument.

It is important to note that while Canadian recent practice dictates that Memoranda of Understanding or Arrangements are not legally-binding, not all States view these instruments as such.

Simply labelling a document as a "Memorandum of Understanding" or "Arrangement" is not enough to ensure that it will not be considered as an agreement governed by public international law by some of the participants to the instrument.

Departments and agencies should take care to ascertain before negotiating a non-binding arrangement that the other participants agree that the arrangement is not binding at public international law.

Treaties and other agreements governed by public international law are entered into by Canada.

Memoranda of Understanding and similar arrangements can be between Canada and another sovereign state, but much more commonly are between a Canadian Government department, an agency or a province or other sub-national government or para-statal organisation and a similar body in another country.

Although considered non-binding by Canada, such instruments do have a form and must respect Canadian policies and practices, including the foreign policy of the Canadian Government, Canadian and international law.

It is Government policy that any such instrument entered into by any Federal Government department or agency should be in both English and French.

The terminology used in drafting non-legally binding instruments must clearly indicate that these are not legally binding instruments. The provisions of such an instrument should be cast as expressions of intent rather than as obligations.

Policy Approval in the conclusion of a non-legally binding instrument

  • As with Treaties, non-legally binding instruments require policy approval.

  • In some circumstances, such approval should come from Cabinet. A non-legally binding instrument that would result in a major shift in Canadian policy will require an MC.

  • In most cases the necessary policy controls will rest within the mandate of the Minister of Foreign Affairs and of the responsible Minister.

  • It is never necessary to obtain any sort of juridical authority through an Order in Council to sign a non-binding international instrument.

Safekeeping

To ensure that Canada maintains a record of all its international commitments the Government established the policy that the originals of Memoranda of Understanding and similar non-binding arrangements be kept by the Treaty Section of the Department of Foreign Affairs and International Trade.

CHART OF TREATY PROCEDURES

1. Policy priority for International Agreement.

2. Cabinet authority for negotiating mandate.

3. Treaty text reviewed in all languages and agreed.

4. Cabinet policy authority to sign and ratify agreed text.

5. Legal authority for signature of Treaty via OIC.

6. Tabling in House with Explanatory memorandum.

7. Legal authority for ratification via OIC.

8. Registration, deposit and publication.