international canada treaty executive legislative-power
Can the Canadian administration (&quot;government&quot;) enter into international agreements, treaties etc. binding Canada without legislative ratification?
<p>According to <a href="https://en.wikipedia.org/wiki/Sweden%E2%80%93NATO_relations#cite_ref-96" rel="nofollow noreferrer">Wikipedia</a> citing a CBC <a href="https://www.cbc.ca/news/politics/sweden-finland-nnato-joly-1.6455446" rel="nofollow noreferrer">coverage</a> Canadian Minister of Foreign Affairs, Mélanie Joly told to reporters that &quot;[u]nder the Canadian system the government, the executive branch, has jurisdiction and there's no need to go through Parliament [to secure ratification of Canada's agreement to the accession of Finland and Sweden to NATO]&quot;.</p>
<p>Is this the exception to the rule or effectively, or the administration (government) can effectively rule by decree over the legislation so long as it merely implements duties resulting from international treaties or agreement?</p>
<p>Or is the exception due to the technicality that Canada's duty towards NATO is already established, and the accession of Finland and Sweden is &quot;merely&quot; an amendment of Canada's agreement to those underlying NATO treaties?</p>
<p>I would personally be surprised if the Canadian administration (&quot;government&quot;) could enter into any international obligations without a sort of ratification in the legislative branch.</p>

<p>Yes. See <a href="https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/200845E" rel="nofollow noreferrer">this article</a> for some information about the treaty making process:</p>
<blockquote>
<p>In Canada, the treaty-making process is controlled by the executive branch of the federal government, while the Parliament of Canada (“Parliament”) is often responsible for passing legislation to implement international treaties at the federal level.</p>
<p>...</p>
<p>Although this entire process is controlled by the executive branch, the federal government does involve Parliament in this stage of the treaty-making process by tabling treaties and relevant explanatory documents for debate in the House of Commons.</p>
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<p>So while the executive branch can enter into treaties at will, they can't create or alter domestic laws without legislative approval. For example, if a treaty required that Canada make certain things illegal, then the legislature would have to pass legislation making that thing illegal to make Canada compliant with its treaty obligations.</p>
<p>Approving a new NATO member wouldn't affect domestic law at all, as there is no bill the legislature would need to pass to implement it. It would effect military operations, but the executive branch already has the power to decide military strategy (the King is the commander-in-chief of the military, he delegated those powers to the governor general, and the governor general by convention only acts on the advice of the Cabinet).</p>
<p>Note that unlike many other countries (such as the US), the Canadian constitution is mostly silent on the topic of international treaties, only mentioning treaties agreed to by the UK on behalf of Canada (at the time the constitution was written, Canada couldn't agree to treaties itself), so there are no constitutional requirements for the legislative branch to approve any treaties.</p>
<p>Also note that treaty implementing legislation is almost always passed, since the executive branch needs to maintain the support of a majority of the legislature. If the legislature doesn't pass implementing legislation, then the legislature would also be very likely to pass a no-confidence motion, which would usually trigger a new election.</p>

<p>I believe you are conflating ratifying a treaty with it having affect in domestic law.</p>
<p>Here is an excerpt from the Supreme Court of Canada explaining the distinction and the process of giving effect to a treaty in domestic law.</p>
<p>Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (CanLII), at paras 158-59, <a href="https://canlii.ca/t/j5k5j#par158" rel="nofollow noreferrer">https://canlii.ca/t/j5k5j#par158</a>, retrieved on 2022-09-08:</p>
<blockquote>
<p>[158] In Canada, each order of government plays a different role in the process of entering a treaty. <strong>Significantly, it is the executive which controls the negotiation, signature and ratification of treaties, in exercise of the royal prerogative power to conduct foreign relations.</strong> Its signature manifests initial consent to the treaty framework, but does not indicate consent to be bound by specific treaty obligations; that latter consent is given by ratification. It is only when a treaty enters into force that the specific treaty obligations become binding. For multilateral treaties, entry into force usually depends on the deposit of a specific number of state ratifications. <strong>If a treaty is in force and ratified by Canada, the treaty binds Canada as a matter of international law (Brunnée and Toope, at pp. 14‑15).</strong></p>
<p>[159] Many treaties do not require a change in domestic law to bind the state to a course of action. <strong>Where it does, however, and even when internationally binding, a treaty has no formal legal effect domestically until it is transformed or implemented through a domestic‑law making process, usually by legislation</strong> (Harrington, at pp. 482‑85; Currie, at p. 235). <strong>Giving an unimplemented treaty binding effect in Canada would result in the executive creating domestic law — which, absent legislative delegation, it cannot do without infringing on legislative supremacy and thereby undermining the separation of powers. Any domestic legal effect therefore depends on Parliament or a provincial legislature adopting the treaty rule into a domestic law that can be invoked before Canadian courts</strong> (Currie, at p. 237). For example, the environmental commitments in the North American Free Trade Agreement, Can. T.S. 1994 No. 2 (entered into force January 1, 1994) (“NAFTA”) were implemented by provincial governments through a Canadian Interprovincial Agreement (Harrington, at pp. 483‑84). The formalities associated with treaties respect the role that each order of the state is competent to play, in accordance with the separation of powers and the principle of legislative supremacy.</p>
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