From BC Guide to Watershed Law & Planning
Every so often there’s a big international conference and a bunch of countries get together and write an international agreement to protect the environment, and everyone feels warm and fuzzy inside. But what actually happens? And what do those international agreements actually do on the ground?
What is International Law
Unlike Canadian law, International law is focused on how nations behave towards each other. Thus treaties are usually focused on how countries will resolve their disagreements and problems without going to war or making trouble for each other in other ways. However International Law can also be about setting international standards about how nations will behave to their respective citizens or environments.
International law can be established through treaties. Treaties are agreements between two or more countries that set out, much like a contract, how those countries will behave towards one another. Bilateral treaties (sometimes called conventions or covenants) are agreements between two countries, while multi-lateral treaties are between many countries.
A treaty is intended to be binding, and the countries that sign it will then go through a formal process of “ratification” before it becomes binding on them. The actual process of ratification varies from country to country (see below for a discussion of Canada’s ratification process). Many multi-lateral treaties will not become law until a certain number of nations ratify the treaty.
There are also international statements and documents that are not intended to be binding. For example, the countries participating in an international conference will often prepare a “declaration” of what they have agreed upon and hope to accomplish. However, without an intention to ratify the declaration, the agreement will have moral and political weight only.
In addition to treaties, the accepted standards of behaviour of nations can become part of the “customary international law” – norms of accepted international behaviour. While there is frequently some controversy as to what is part of customary international law, international bodies look to how often the standard appears in treaties, in declarations, and whether the nations attempt to demonstrate respect for the standard in their behaviour.
Treaties between countries can create agencies, tribunals, courts and other bodies to carry out what has been agreed upon in the treaty.
The best known and largest example of this is the United Nations, which was created through the “United Nations Charter” and which contains representation from all the national governments of the world. The United Nations was intended to bring together all the world’s nations to resolve problems without the need for war. Under the United Nations are a variety of programmes aimed at implementing the spirit of a wide range of international agreements.
However, many other treaties and agreements create different types of institutions. Different types of international bodies can:
- Govern – The best known international institution is the United Nations, created by the United Nations Charter, envisioned as something of a global government bringing the government of all the World’s nations together.
- Administer – A variety of international bodies exist to administer programmes created under international instruments. In some cases the body carries out the programmes directly, while in others it provides coordination and funding to others to carry the programme forward.
- Judge – Treaties often set up mechanisms for deciding disputes about the implementation of the treaty. The mechanism may be a permanent international tribunal or court, or it can be an ad hoc committee formed only when there is a dispute between two countries. Some institutions judge disputes between countries, while others will hear complaints from individuals about countries.
Canadians and International Law
The federal government is responsible for negotiating international treaties with other nations. The Department of Foreign Affairs and International Relations (DFAIT) frequently takes the lead in negotiating such agreements, although other federal departments may also play a role if the agreement relates to their focus.
Once negotiated, an international agreement must be “ratified”, indicating that the government of Canada intends to abide by it. Ratification is done by the federal cabinet (the Executive). No approval is required from Parliament or the provincial governments.
However, while ratifying a treaty means that Canada agrees to abide by the treaty, it does not mean that the treaty automatically becomes part of Canadian law (enforced by the Canadian courts). A treaty becomes binding on individuals and the government in Canadian courts, the treaty must be implemented. Implementing a treaty means passing legislation to enact the requirements of the treaty in Canadian law. See, for example, the federal Migratory Birds Convention Act, which implements the Migratory Birds Convention.
This two-step process occasionally causes problems. A treaty that is binding on Canada may not be enforceable by Canadian citizens. In some cases the constitutional authority for implementing a treaty may lie with the provinces. In such cases it can be difficult to all 10 provinces to implement the necessary legislation (although the federal government may be able to pass its own laws in such cases). In other cases the Canadian government doesn’t pass any implementation legislation, arguing that existing Canadian laws are already consistent with the new treaty obligations (which may, or may not, be correct).
This is not to say that a treaty will have no impact on Canadian law unless implemented. It is clear that in some cases the judge-made common law will be influenced by treaties signed or principles of customary international law. And if there are doubts about the true meaning of a Statute it will sometimes be interpreted in accordance with international law. However, the Courts will not enforce international law unless the Canadian law provides for it in some way.
Some treaties create their own enforcement mechanisms. Thus, even if the Canadian courts will not enforce the agreement, an international tribunal might be able to rule against Canada if it ignores an international agreement. The best known examples of such tribunals are in trade agreements, such as the North American Free Trade Agreement, which allow investors to sue a government to recover lost investments (a process which has been criticized by environmentalists). However, Multilateral Environmental Treaties generally do not create such enforcement powers.
Related Guide Pages:
For More Information about International Law:
- Introduction to International Conventions and Protocols to Protect the Environment [Note: the procedure described for Canadian ratification on this website is incorrect, although the basic concepts appear useful.]
- The United Nations Environment Programme website
- United Nations Treaty Handbook
- “Canada Treaty Information” and “Canada and International Organizations” on the Department of Foreign Affairs and International Trade website
- “Interaction between International and Domestic Human Rights Law: A Canadian Perspective”– A legal paper by Elisabeth Eid, a lawyer with the Department of Justice.