New zealand law commission



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CANADA295


A92 In Canada the treaty making power is exercised by the Canadian Governor-General, on the advice of the executive branch of the federal government. The Canadian Constitution Act 1982 contains no express reference to an external affairs power. However, the Federal government claims the exclusive power to enter into treaties on behalf of Canada on the basis that Canada is one sovereign entity at international law. The Canadian provinces have argued that since they have exclusive power to implement certain treaties, they must also have the right to enter into those treaties. Although this view is not accepted by the Federal government, the provinces do have the power to enter into international agreements which are not binding at international law.296

A93 Although not legally required, it has been the practice of the government to seek the approval of Parliament before an important treaty is ratified.297 In this situation, parliamentary committees may be involved in considering the treaty in question. According to the Canadian Bureau of Legal Affairs, there are four general categories of treaties for which parliamentary approval is sought prior to ratification:



  • military or economic sanctions;

  • large expenditures of public funds or treaties with important financial or economic implications;

  • political considerations of a far-reaching character; and

  • obligations the performance of which will affect private rights in Canada.298

A94 Approval is given in the form of resolutions passed in both Houses rather than by the passage of legislation. Between 1946 and 1966 approximately a quarter of all treaties were submitted to Parliament for approval.299 However, there is no parliamentary scrutiny of those treaties and agreements which do not require ratification, although treaties which have not otherwise come to the attention of Parliament are tabled once a year in both the House of Commons and the Senate. There appear to be no moves at present to enhance the role of Parliament in the treaty making process.300

A95 In common with other states with Westminster-derived con­stitutions, legislative action is required before the provisions of a treaty become law and enforceable in the courts. In addition, the Federal Canadian government cannot ensure the performance of treaties which require legislation within the legislative competence of the provinces. This is the result of the 1937 Privy Council decision Attorney-General (Canada) v Attorney-General (Ontario) [1937] AC 326 (PC) (the Labour Conventions case). In this case it was held that the Federal government did not have the power to pass legislation to implement treaties the subject-matter of which touched on matters falling within the provincial jurisdiction under the Constitution. Thus in some cases where the Federal government enters into a treaty, it can only be implemented by legislation enacted by the provincial legislatures.301

A96 In summary, the present complex situation in Canada with regard to jurisdiction over treaty matters has perhaps meant that increased parliamentary involvement in treaty making would only represent additional complication. Canada’s treaty making process involves minimal participation of Parliament and as a result is not particularly instructive to this study. The fact that implementing legislation can only be enacted by the provinces has perhaps been one incentive for adequate consultation. The four categories of treaties for which parliamentary approval is sought prior to ratification perhaps provide a possible way of distinguishing between more and less important treaties, enabling parliamentary consideration of just some of them.

APPENDIX B

Internet websites relevant to treaties and treaty making


B1 This appendix contains a list of internet website addresses that are relevant to treaty making and/or treaties generally. It includes addresses for less specifically “treaty” yet still useful sites, such as various United Nations websites.

B2 The Law Commission would like to make clear that this address list of relevant websites is intended only as a starting point resource.302 It is not intended as an exhaustive guide to websites concerning treaties and treaty making. There are many more sites with treaty and international law materials which can be retrieved by searching for the relevant convention name, organisation name or subject matter, or even by law journal or law school.303 However, this sample of treaty sites may, in a small way, increase interest in the resources available on the internet and the potential for its further use.

B3 It may also serve to highlight the potential that exists in particular for the New Zealand Ministry of Foreign Affairs and Trade (MFAT) to expand its website (address noted below). Material that could be presented includes, for example, the specific treaties to which New Zealand is a party, the statutes which implement our international obligations, and the recent MFAT multilateral and bilateral treaty list publications. The material presented in the Australian Department of Foreign Affairs and Trade (DFAT) website (address noted below) provides an excellent example of how to make best use of the opportunities the medium offers.

New Zealand

ministry of foreign affairs and trade
http://www.mft.govt.nz/

ministry of foreign affairs and trade: notes on mfat’s work with treaties
http://www.mft.govt.nz/Guide/part6.html#6-4

Australia

australian department of foreign affairs and trade, treaties library
http://www.austlii.edu.au/au/other/dfat

This website provides the following information:



  • Australian Treaty List (index and monthly updates);

  • Australian Treaties Full Text Database;

  • National Impact Statements (1996 & 1997);

  • Select Documents on International Affairs;

  • List of Multilateral Treaty Actions Under Negotiation (the list covers current treaties and those to be negotiated in the next 12 months and provides contact names and addresses in relevant departments for each treaty listed);

  • Status Lists (of parties to the multilateral treaties for which Australia is the depositary);

  • Trick or Treaty? Commonwealth Power to Make and Implement Treaties (the Australian Senate Legal and Constitutional References Committee Report on treaty making);

  • Australia and International Treaty Making Information Kit – June 1997 (a valuable 64 page kit that covers all aspects of treaty making in Australia including discussion of current developments and major treaties);

  • United Nations General Assembly Resolution – Electronic Treaties Database (the text of the resolution adopted on 16 December 1996 concerning the importance of making the text of United Nations treaties available on a database);

  • List of other sites relevant to Australian treaties (including the Department of Foreign Affairs and Trade Joint Standing Com­mittee on Treaties, and Hansard Internet Publishing Service).

trick or treaty? commonwealth power to make and implement treaties
http://senate.aph.gov.au/committee/legcon_ctte/4chapt12.html
The website contains the text of chapter 12 of the Trick or Treaty? report, “Consultation with Interested Groups”.

australian government response to the recommendations in trick or treaty?
http://www.lib.monash.edu.au/law/govres.htm

australian department of foreign affairs and trade: human rights manual
http://www.dfat.gov.au/dept/hr/hr_manual/hr_man_ch2.html
The website contains the text of chapter 2 of the Human Rights Manual, “The International Legal Framework”, covering basic concepts of public international law and human rights, including treaty law.

United States of America

us house of representatives internet law library: treaties and international law
http://law.house.gov/89.htm
This site contains links to an enormous number of international treaties. It is arranged both by subject and individual treaty name and often includes different versions of the same treaty. Some of the major treaties reproduced include: Australia-Vietnam Trade and Economic Co-operation Agreement; General Agreement of Tariffs and Trade; Maastricht Treaty of the European Union; North American Free Trade Agreement; Patent Cooperation Treaty; and the Vienna Convention. It provides connections to other sites, such as the human rights collection compiled by the University of Minnesota.

European Union

treaties of the european union
http://www.eurunion.org/infores/resguide.htm
This website includes information about European Union Treaties and Institutions (eg, the Maastricht Treaty).

International Law Commission

international law commission home page
http://www.un.org/law/lindex.htm
The International Law Commission website includes material on its work, its 1996 Annual Report and information on the “Colloquium on Progressive Development and Codification of International Law” held in October 1997 to mark the ILC’s 50th anniversary.

vienna convention on the law of treaties
gopher://wiretap.Spies.COM/00/Gov/Treaties/Treaties/treaties.69

United Nations (UN)

un home page
http://www.un.org/

official website locator for the un system of organisations (uno’s)
http://www.unsystem.org/
This site includes a world map of UN systems websites and provides entry to sites of other international organisations (not part of the UN system), for example, North Atlantic Treaty Organisation (NATO), Organisation for Economic Co-operation and Develop­ment (OECD), World Trade Organisation (WTO), and provides entry to sites for non-governmental international organisations, for example, International Committee of the Red Cross (ICRC).

un international law page
http://www.un.org/law/

un treaty collection database
http://www.un.org/Depts/Treaty
The UN Treaty collection, including the UN Treaty Series and the Multilateral Treaties Deposited with the Secretary-General. (This website attracts a fee). (See also the US House of Repre­sentatives and the Fletcher School of Law and Diplomacy websites.)

charter of the un
http://www.umn.edu/humanrts/instree/aunchart.htm

un human rights
http://www.un.org/rights/

un human rights website
http://193.135.156.15/welcome.htm
The site includes lists of human rights instruments.

un treaty bodies
http://www.tufts.edu/fletcher/secretariats.html
This site provides access to the UN Treaty Secretariats and is part of the Multilaterals Project provided by the Fletcher School of Law and Diplomacy.

http://www.unhchr.ch/tbs/doc.nsf
This site contains the Treaty Bodies Database – a database developed to meet the growing interest in the UN committees established to monitor the implementation of the principal international human rights treaties (also referred to as “treaty monitoring bodies” or “treaty bodies”).

un documents database: dag hammarskjold library
http://www.un.org/Depts/dhl/unique
This new database, UN-I-QUE, available on the Dag Hammarsk­jold Library home page, is an electronic research tool that serves as a guide to the symbols of tens of thousands of selected documents and new publications from 1946 to the present. UN-I-QUE focuses upon documents and publications of a recurrent nature: annuals/sessional reports of committees/commissions; monographic series; journals; annual publications; reports periodically/irregularly issued; reports of major conferences; statements in the General Debate; etc. It is geared towards the UN community and librarians in UN depository libraries but its usefulness will extend to researchers worldwide who would like to find shortcuts to identifying key documentation.

Note: There are many more sites with UN materials which can be retrieved by searching for convention name, organisation name or subject matter.

International trade (sample only)

un commission on international trade law (uncitral)
http://www.un.or.at/uncitral/index.html
This website is the home page of the International Trade Law Branch of the UN Office of Legal Affairs, servicing the UN Commission on International Trade Law (UNCITRAL). The site includes the current status of Conventions and Model Law.

international trade law materials including multilateral trade agreements
http://ananse.irv.uit.no/trade.html

world trade organisation (wto) home page
http://www.unicc.org/wto

Environment (sample only)

oceans and law of the sea
http://www.un.org/Depts/los

environmental treaties and resource indicators service
http://sedac.ciesin.org/pidb/
This website provides a service for locating environmental treaties and resource indicators, including treaty texts and state parties, etc.

guide to the laws and international treaties of the us for protecting migratory birds
http://www.fws.gov/~r9mbmo/intrnltr/treatlaw.html

Intellectual property (sample only)

world intellectual property organisation (wipo)
http://www.wipo.org/

world intellectual property organisation (wipo) web
http://www.uspto.gov/
This is the site for the US Patent and Trade Mark Office which provides access to websites related to intellectual property worldwide.

world intellectual property report
http://www.bna.com/newsstand/wipr/2a06_69e.htm
This site contains a report on the negotiations of the two WIPO treaties on copyright.

world intellectual property organisation (wipo) treaty on databases
http://www.loc.gov/copyright/wipo6.html
The site details the WIPO proposal for a treaty on intellectual property in respect of databases.

Nuclear (sample only)

nuclear test ban treaties
http://www.acda.gov/treaties/ctbtreat.htm
This site has the text, narrative and signatories for the Comprehensive Nuclear Test Ban Treaty.

http://www.acda.gov/treaties/ltbt.htm
This site has the text, narrative and signatories for the Limited Test Ban Treaty.

http://www.acda.gov/treaties/ttbt.htm
This site has the text, narrative and signatories for the Threshold Test Ban Treaty.

Universities and law schools

fletcher school of law and diplomacy
http://www.tufts.edu/fletcher/multilaterals.html
This website is the home of the Multilateral Project, an extensive collection. The project’s purpose is to make the text of international multilateral treaties and other instruments available. It also provides access to the United Nations Treaties Database.

university of minnesota human rights library
http://www.umn.edu:80/humanrts
This site is a useful resource, with international human rights instruments and information on, for example, treaty ratifications.

washburn law school
http://lawlib.wuacc.edu/forint/forintmain.html
This is the Foreign and International Law Web which provides links to primary and international legal resources research aids and useful sites, on areas such as international treaties, environment law, human rights and public international law.

cornell law school
gopher://gopher.law.cornell.edu:70/11/foreign/fletcher
This website contains a large list and text of conventions including the Vienna Convention on the Law of Treaties, environmental conventions, and the International Covenant on Civil and Political Rights.

new york university law library
http://www.nyu.edu:81/law/library/treaties.htm
The site includes full text treaty sources for international treaty research and references to many other treaty sources.
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