Canada's Treaty-making Process

UNCLAS SECTION 01 OF 02 OTTAWA 000377

SIPDIS

SIPDIS

SENSITIVE

STATE FOR WHA/CAN, L/T

PASS USTR (SULLIVAN, MELLE, GARDE)

E.O. 12958: N/A
TAGS: PGOV ECON KIPR KTIA CA
SUBJECT: Canada's Treaty-making Process

Ref: 04 Ottawa 1982


1. (SBU) Summary: Canada in January 2008 revised its treaty-making
process to include review of all international treaties by the House
of Commons before entry into force. The government, however, will
maintain the legal authority to decide whether to ratify the treaty;
no vote in Parliament is necessary for signing or ratification of a
treaty. This new process could serve as another delay for Canada's
long-anticipated copyright legislation, which is necessary to bring
Canada in compliance with the World Intellectual Property
Organization (WIPO) Internet treaties. End summary.



2. (U) Canada makes treaties only with sovereign states, not with
subdivisions (e.g., provinces, states, cantons) or with departments
of governments (e.g., Department of Transportation, Department of
Energy). This cable outlines Canada's treaty-making process. A
more detailed description is available as "Annex A" at the following
GoC URL - http://www.treaty-accord.gc.ca/Tabling.asp


3. (U) Before commencing negotiations with the other party, the
lead Canadian department or agency must seek a negotiating mandate
from the Cabinet. Once that mandate is granted, the responsible
department, with the approval of the Minister of Foreign Affairs,
may begin negotiation. (In certain cases, the Cabinet has approved
blanket authority for negotiation, such as for Foreign Investment
Protection Agreements, Double Taxation Agreements, Mutual Legal
Assistance Treaties, Extradition Agreements, Social Security
Agreements and International Civil Aviation Agreements, and, in some
rare cases, a general authority for a Minister to negotiate
arrangements exists in statute).


4. (U) Once negotiations with the other party are complete, the
relevant department or agency prepares a submission to Cabinet
seeking policy approval to sign and ratify the treaty, as well as
approval to introduce any legislation necessary to bring the treaty
into effect. If the Cabinet grants policy approval, the Foreign
Minister then submits an "Order in Council" submission to the
Treasury Board committee to seek legal authority to sign the treaty.
(Note: An "Order in Council," or OIC, is the instrument by which
the Governor General, acting on the advice of the Queen's Privy
Council for Canada, expresses decisions. The Treasury Board
fulfills the role of Committee of the Privy Council and is unique in
that it is the only Canadian Cabinet committee created by statute.
End note) The "Order in Council" will also seek an "Instrument of
Full Powers," which grants a particular individual the authority to
sign the specific treaty in question; only the Governor General, the
Prime Minister, and Minister of Foreign Affairs have standing to
sign for Canada without producing an "Instrument of Full Powers."
Subsequently, after additional Parliamentary review (see paras 5 and
6) a second, separate OIC submission goes to the Treasury Board to
obtain legal authority to ratify the treaty.


5. (U) No vote in Parliament is necessary for signing or ratifying a
treaty; the authority to negotiate and enter into agreements is held
solely by the executive. However, the Conservative government on
January 25 announced that it henceforth will table all international
treaties in the House of Commons before taking further steps to
bring these treaties into force. The procedure is similar to
procedures used in the United Kingdom and Australia. The government
nonetheless made clear that it retained the power of ratification,
and that this new procedure would not be binding on successor
Qand that this new procedure would not be binding on successor
governments.


6. (U) Under the new process, the government, after signing a treaty
but prior to ratification, will observe a waiting period of 21
sitting days from the date of the tabling a treaty before taking any
action to bring the treaty into effect. When treaties require
legislative amendment to bring Canada into compliance, the
government has made a commitment to delay the legislation until this
21 sitting-day period has passed. The House may debate the
agreement, if it chooses to do so. Very exceptionally, the
government may bind Canada to a treaty before tabling it in the
House, but in those cases the government has made a commitment also
to inform the House at the earliest opportunity.


7. (SBU) Comment: While the new process is non-binding on future
governments, it will be difficult to abandon it once the Commons has
become accustomed to this role. Of more direct interest to the USG,
the new procedures could complicate the government's efforts to
bring Canadian law into compliance with the WIPO Internet treaties,
which Canada signed in the late 1990's but has not yet ratified.
It remains unresolved whether the WIPO treaties will have to be
tabled in Parliament for the 21-sitting-days before the associated
copyright legislation is introduced. (Canada's failure to implement
and ratify the WIPO treaties has been a key factor in USTR's

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placement of Canada on the Special 301 Watch List.) End Comment.

Wilkins