FEDERAL-STATE RELATIONS COMMITTEE
Report on
A3.0 The constitutional, legal and administrative arrangements for treaty making in other federations provide a number of examples of parliamentary and State involvement in a nation's treaty making process.
A.3.1 Canada is a federal Westminster democracy not unlike Australia, and her treaty making arrangements are consequently quite similar. When Canada was founded, Imperial Britain had power over Canada's international relations. This power has since been passed to the Federal Government, and it is this Government which now enters into treaties on behalf of the nation.1
A3.2 Canada's entry into treaties is a purely executive act, with no legal requirement for parliamentary involvement.2 However, it has been the practice of the Government to obtain approval of more significant treaties by resolution of both Houses of the Federal Parliament.3 This takes place in the interval between signature and ratification.4
A3.3 As in Australia, treaties do not have any effect on Canadian domestic law unless implemented by legislation.5
A3.4 Whereas Canada's treaty making institutions are similar to Australia's, her processes of treaty implementation are very different. Section 132 of the Canadian Constitution reads:
The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.
In the Labour Conventions case,6 the Privy Council decided that this power was restricted to the implementation of treaties binding Canada in its capacity as part of the British Empire, and did not empower the Parliament to implement treaties entered into by Canada as a nation in its own right.7
A3.5 This means that, if the Federal Government wishes to implement treaty obligations, it must have some other head of constitutional power under which to do so. If it does not have such a power, it must rely upon Provincial legislation to implement the treaty.
A3.6 Dr David Kinley told the Committee that this has given the Provinces a greater degree of influence in Canadian treaty matters than the States have in Australia:
in Canada a distinction between the power of the Federal Government to negotiate and its power to implement has of necessity spawned a welloiled machine of communication between the Provinces and, ultimately, the people - those who were interested in any particular treaty - and the Federal Government itself. The necessary recognition on the part of the Federal Government that it cannot steamroll through implementation legislation - as perhaps one may characterise the position here - has necessitated a greater communication between provincial and federal bodies.8
A3.7 The Canadian Provinces have tried to argue that, as they have the exclusive power to implement certain types of treaties, so they must have the power to negotiate such treaties. However, at present it is the Federal Government which continues to represent the whole of Canada in international relations.9
A3.8 Germany's constitutional arrangements are quite different to Australia's. This includes its provisions with respect to treaty making and implementation.
A3.9 Article 32 (1) of the German Basic Law gives the Federation responsibility for Germany's international relations, and Articles 58 and 59 give the Federal Government responsibility for entering into treaties.
A3.10 However, Article 32 of the German Basic Law also provides that:
(2) Before the conclusion of a treaty affecting the special interests of a Land, this Land must be consulted in sufficient time.
(3) Insofar as the Länder have power to legislate, they may, with the consent of the Federal Government, conclude treaties with foreign states.10
The Federal and Länder Governments have disagreed on whether or not the power set out in Article 32 (3) is exclusive to the Länder, or whether it is to be exercised by them concurrently with the Federal Government's exercise of the general power for international relations.11
A3.11 This disagreement was resolved by the 1975 Lindau agreement. Under the terms of this agreement, the Länder agreed to allow the Federation to negotiate treaties on subjects within the legislative domain of the Länder. In return, the Federal Government agreed to obtain the consent of the Länder prior to ratification of such treaties.12
A3.12 Article 25 of the German Basic Law provides that the general rules of international law shall be part of federal law, overriding inconsistent Federal or Land laws. Once a treaty has been ratified, its terms become part of Federal law.13
A3.13 If a treaty affects the political relations of the Federation, or if it seeks to alter rights or liabilities under domestic law which would normally require legislation for their alteration, then the treaty will require the approval of the Bundestag (the lower house of the German Parliament).14 If a treaty seeks to alter the legislative or constitutional competence of the Länder, it must also be approved by the Bundesrat (the upper house, whose members are appointed by Länder Governments).15
A3.14 A treaty dealing with subject matter within the exclusive competence of the Länder may be implemented only by the Länder Governments and Parliaments.16
A3.15 These arrangements seem to give the Länder a greater degree of control over the impact of international agreements on their affairs than is the case for the Australian States. Professor Cheryl Saunders expressed such an opinion to the Committee:
as I understand it, there is an open question about whether the German Länder has an international personality that would enable it [to] enter into treaties in its own right. Because of that open question, the federal government was stimulated to enter into co-operative arrangements over treaty making with the Länder, which might be more balanced than the arrangements in Australia. That little spark of doubt about whether there is power at the subnational level sometimes works wonders, but the question is unresolved.17
A3.16 A significant difference between the situations in Australia and that in the United States is that the United States Congress is given an important role in the ratification of treaties. Section 2 of Article 2 of the United States Constitution provides that the President
shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two thirds of the Senators present concur.
The Senate consists of two representatives from each State.
A3.17 The general practice is for the President to negotiate and sign agreements before presenting them to the Senate for approval. However, it is common for the President to consult with individual Senators, particularly members of the Senate Foreign Relations Committee (which has responsibility for leading the Senate approval process), during the course of negotiations.18
A3.18 Article VI of the United States Constitution provides that the ratification of a treaty shall make it part of Federal law:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
A3.19 The real situation in United States treaty making practice is not as simple as these constitutional arrangements make it seem.
A3.20 Although the US Constitution provides that treaties become part of the "law of the land", the United States Supreme Court has developed a doctrine of the distinction between self-executing and non-self-executing treaties. Some, but not all, treaties execute themselves, that is, come into force at domestic law simply by being ratified by the Senate. Other require legislation for their implementation. The general principle is that a treaty is self-executing if its provisions prescribe a specific rule by which the rights of private citizens may be determined, and if it is clear from its text that the treaty is intended to be self-executing.19 A more vaguely or generally worded treaty will be non-self-executing.
A3.21 A treaty which does execute itself has the same status of an act of Congress, and so prevails over earlier Federal legislation20 and all State constitutions and laws.
A3.22 A treaty which does not execute itself will require legislation to be passed if it is to be fully implemented as part of domestic law. It is also possible for the Senate to approve a treaty on condition that it not be self-executing,21 and even on condition that an instrument of ratification not be lodged until implementing legislation has been passed.22 Legislation implementing a treaty must be passed by both Houses of Congress.23
A3.23 In addition to the distinction between self-executing and non-self-executing treaties, not all international agreements entered into by the United States, which would be regarded as treaties at international law, are regarded as treaties under United States law. There are two categories of these other agreements.
A3.24 Congressional-Executive Agreements are international agreements signed by the President and approved by a simple majority of both Houses of Congress. The Congress may give the President the authority in advance to enter the agreement, or may approve a completed agreement submitted to it.24
A3.25 This process is often used for trade agreements, as Section 8 of Article I of the United States Constitution gives Congress the power to regulate commerce with foreign nations.25
A3.26 The other category of international agreement is that of Sole Executive Agreements, which are entered into by the President alone, on the basis of his supreme executive authority.26 These agreements usually relate to matters such as foreign relations or defence, which do not affect the rights and obligations of citizens,27 or are agreements pursuant to an existing treaty.28
A3.27 All these agreements form part of Unites States law, and prevail over inconsistent State law.29 Legislation requires that Congress be notified within sixty days of the entry into force of such an agreement.30
A3.28 The role of the Senate and Congress in making international agreements, and the resultant possibility of conflict between the President and Congress, means that
The mere fact of the US government's signing a treaty does not mean it will or can be implemented in that country.31
Indeed, the US has signed a number of treaties, such as the United Nations Convention on the Rights of the Child, with regard to which no Congressional action, and hence no subsequent domestic effect, has been forthcoming. Treaties before the Senate do not lapse at the end of a legislative session, and hence can remain before the Senate for years or even decades without there being any mechanism to force the Senate to either accept or reject the instrument.32
A3.29 The international relations of the United States are the sole province of the Federal Government. Section 10 of Article I of the United States Constitution expressly forbids any State from entering into a treaty, alliance or confederation, and forbids the States from entering into any agreement or compact with another State, or with a foreign power.
A3.30 The role played by the Congress, and particularly the Senate, in the scrutiny and approval of United States treaties, ensures that treaty making in the United States creates no democratic deficit. However, there is no formal role for the States to play.
A3.31 This was not always the case. Until the passage of the Seventeenth Amendment in 1913, which provided for popular election of the Senate, the Senate consisted of members appointed by the State legislatures. It is for this reason that it was the Senate which was given Constitutional power to control entry into treaties.33 However, popular election of the Senate has altered its role from that of a House directly representing the interests of the States.
1Commonwealth Attorney-General's Department, Submission to the Inquiry by the Senate Reference Committee on Legal and Constitutional Affairs into the External Affairs Power, p 36; Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995, p 151, para 10.35.
2Commonwealth Attorney-General's Department, above n 1, p 36; Trick or Treaty?, above n 1, p 151, para 10.36.
3Commonwealth Attorney-General's Department, above n 1, p 36; Trick or Treaty?, above n 1, p 151, para 10.39.
4Commonwealth Attorney-General's Department, above n 1, p 36; Trick or Treaty?, above n 1, p 151, para 10.39.
5Commonwealth Attorney-General's Department, above n 1, p 36.
6Attorney-General (Canada) v Attorney-General (Ontario) [1937] AC 326.
7Commonwealth Attorney-General's Department, above n 1, p 37.
8Minutes of Evidence, FSRC, June 30th 1997, p 626 (per Dr D Kinley).
9Trick or Treaty?, above n 1, p 151, para 10.38.
10"Land" is the name for a German State; the plural is "Länder".
11Trick or Treaty?, above n 1, pp 153-4, para 10.54; Commonwealth Attorney-General's Department, above n 1, pp 40-1.
12Commonwealth Attorney-General's Department, above n 1, p 41; Trick or Treaty?, above n 1, p 154, para 10.54.
13Trick or Treaty?, above n 1, pp 155, 156-7, paras 10.59, 10-64-10.66.
14Commonwealth Attorney-General's Department, above n 1, pp 39-40; Trick or Treaty?, above n 1, pp 154-5, paras 10.57-10.60.
15Commonwealth Attorney-General's Department, above n 1, p 40; Trick or Treaty?, above n 1, pp 155, para 10.60.
16Trick or Treaty?, above n 1, p 156, para 10.62.
17Minutes of Evidence, FSRC, June 30th 1997, p 579 (per Professor C Saunders).
18Commonwealth Attorney-General's Department, above n 1, pp 38-9; Trick or Treaty?, above n 1, p 167-8, 170, paras 10.111-10.113, 10.123-10.124.
19Commonwealth Attorney-General's Department, above n 1, p 38.
20Trick or Treaty?, above n 1, p 170, para 10.121.
21Commonwealth Attorney-General's Department, above n 1, pp 38, 39; Trick or Treaty?, above n 1, p 109, para 10.118.
22Commonwealth Attorney-General's Department, above n 1, p 38.
23Ibid, p 39.
24Ibid, p 38; Philip Alston , "Reform of Treaty-Making Processes: Form over Substance?" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, pp 10-11; Trick or Treaty?, above n 1, p 168, para 10.115.
25Trick or Treaty?, above n 1, p 168, para 10.115.
26Ibid, p 169, para 10.114; Alston, above n 24, p 11; Commonwealth Attorney-General's Department, above n 1, p 38.
27Trick or Treaty?, above n 1, p 168, para 10.114.
28Commonwealth Attorney-General's Department, above n 1, p 38.
29Alston, above n 24, p 11.
30Commonwealth Attorney-General's Department, above n 1, p 39.
31Peter Durack, The External Affairs Power, The Federalism Project Issues Paper No 1, Institute of Public Affairs, 1994, p 11.
32Commonwealth Attorney-General's Department, above n 1, p 38.
33Ibid, p 39.
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