Implementing International Conventions – and Their Declarations?

Must, or should, a declaration permitted under an international convention be expressly ‘implemented’ in Canadian law, or is implementation of the convention as a whole sufficient to give legal effect not only to the convention but also to any declaration made by Canada?

It is commonplace that in our legal system, treaties are not self-executing. This means that Canada’s ratification of or accession to an international convention has an effect only in international law, creating an obligation that may be enforceable by remedies provided in the convention itself but not in Canadian courts.

However, the convention will have domestic legal effect once it is implemented by some form of effective legal action in Canada. That is usually by legislation, though it may be by administrative action or even by exercise of the Royal Prerogative, if a convention were to fall within the narrow range left to that legal power.

It is also well established law since the Labour Conventions case in 1937 that the implementation is to be done by the level of government that has the legislative power over the subject matter of the treaty.

Thus for example a convention on banking or insolvency would be implemented solely by federal legislation. The Hague Child Abduction Convention was implemented by provincial legislation, though the federal government has an office that participates in appropriate cases. Sometimes both levels of government legislate, as they did to implement the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The federal statute in that case dealt only with arbitrations to which the federal government was a party or that involved a dispute over marine or admiralty matters (i.e. matters that are federally regulated).

The Hague Service Abroad Convention was implemented in Canada by amendments to the Rules of Civil Procedure (Ontario Rule 17.05), largely in the provinces. It may be that the Hague Legalization Convention about which I wrote last month can be implemented by administrative action to create a system to issue and keep a register of apostilles.

In this context, an interesting question arises about how to give legal effect to declarations under conventions. Declarations are a method expressly permitted by a convention for member states to qualify their participation in some way, usually relating to the scope of application of the convention. For example, the New York Convention allows member states to declare that they will enforce foreign arbitral awards only from countries that will enforce those made in the declaring state: in short, a reciprocity clause. They may also declare that the Convention will be restricted to awards arising from commercial disputes. (Article 3) The Convention on Contracts for the International Sale of Goods (CISG, or Vienna Sales Convention) allows member states to declare that they will restrict the operation of the convention to contracts made by parties both of whom are in member states, and not in respect of parties to whom the convention would apply only because of the operation of conflict of laws rules. (Article 95 declaration about article 1(b) of the Convention.)

When the implementation of a convention depends on provincial action, the provinces can ask the federal government to make declarations for them, and modern conventions generally allow for a targeted approach (through a ‘territorial unit’ or ‘federal state’ clause), so that the convention will apply only to the sub-national units that Canada declares to be included. For example, Ontario’s implementing legislation for the CISG provides that Ontario shall ask the Government of Canada to declare that the Convention applies to Ontario. A convention may be brought into force for some provinces immediately on Canadian ratification and later for others.

The logical consequence of this is that each province can have different declarations. For example, when Canada first ratified the CISG, British Columbia asked for, and got, a declaration that it would restrict the application of the convention as stated above. The convention was not so restricted in its application to other provinces. Some years later, B.C. changed its mind and the declaration was withdrawn. Some effort is made in practice to harmonize the decision on declarations, but as with any ‘uniform’ policies, governments are free to buy in or not.

It is an interesting question just how such declarations ought to be given domestic legal effect. Implementing legislation usually contains a provision like ‘The Convention has force of law in [enacting jurisdiction]’. (That is not strictly necessary; if the law of the jurisdiction does everything the convention requires, then Canada meets its international obligations under the convention, and the convention will be read into that jurisdiction’s law. But that is a topic for another day.)

Must, or should, declarations also expressly be given ‘force of law’ in provincial law, or in the federal statute for federal implementation? Or is the fact of making a declaration sufficient to give the declaration legal effect? The declaration once made is on the record of the organization that is named as depository of the convention. These days the record of declarations is available online from the depository, so it is very easy to find out what declarations have been made by what states or parts of states. For example, here is the list of member states of the CISG. The notes show the declarations. (See note (b) about Canada’s ratification history.)

But the ease of finding out what declarations have been made is not the only factor. There is a difference in kind between the substantive provisions of a convention that can be applied like any statute, and the ‘final clauses’ about how the convention itself is brought into force. Canadian practice is to give the whole convention, including final clauses, the force of law by legislation, rather than trying to pick and choose which clauses a province or the federal government must legislate, and which can be left to international institutions. Nevertheless is the legal effect of giving final clauses ‘force of law’ that anything done pursuant to them also has force of law?

My tentative view is that it is not strictly necessary as a matter of law for the implementing legislation to spell out the effect of any declaration that the implementing jurisdiction wishes to make. Declarations are a device of international law, communications between the member state (which is Canada, not a province) and the depository organization. They affect the application of the convention, but that also is a matter of international law. The impact of that application locally can be discovered by checking with the depository, either for a party within the implementing province or for a party outside the country wishing to transact with the party inside. Implementing the convention itself is a sufficient action for the implementing jurisdiction. Discovering what the convention applies to is a matter for other sources.

That said, is this good legislative practice? Would it not be preferable for the implementing jurisdiction to put all its law in its statute, as it were? (Obviously sometimes the law is in regulations, not just statutes, but regulations are created in the jurisdiction and are readily available from known sources.) It also gives Parliament or the Legislature notice of, and a say in, the choice of declarations, if one puts the request for declarations into the statute.

Sometimes, indeed, the declaration can radically affect the scope of the convention in practice, so it might be thought almost misleading not to mention it in the legislation. For example, the Electronic Communications Convention (EEC) in article 20 allows parties to have its rules apply to a list of named conventions, to all conventions to which the parties are members, only to conventions specifically named in the declaration, or to all conventions except those listed in the declaration. A member state, or part of a member state such as a province, should arguably give notice in its legislation at least if it is going to be more restrictive than the default position, i.e. relying on the application if no declaration is made. When the range of possible applications is this wide, though, maybe even the default application should be signalled in the legislation.

One may contrast the declaration permitted by article 19 of the same Convention. That article allows a member state to restrict the scope of the Convention (a bit like the CISG) to contracts where both parties are in member states, or when the parties have agreed that the convention applies. It is arguable that no express mention need be made of NOT making any restrictive declaration; the Convention should be presumed to apply according to its principal terms, unless specified to the contrary. BC’s legislation to implement the CISG did specify its restrictive declaration (S.B.C. 1990 c. 20 s.2), and when the province changed its policy, it amended its statute accordingly (S.B.C. 1992 c. 31 s.13). Then it asked Canada to change the declaration, and Canada did so.

Article 19 of the ECC also permits member states to exclude from the scope of the convention any matters it declares to be excluded (besides those already excluded by Article 2). Here, a declaration to exclude should arguably be mentioned in the implementing legislation, to make it clear to readers immediately whether the convention is relevant to them or not. However, in the absence of additional exclusions, perhaps no declaration is needed. (In any event, someone contracting with a party in another member state will want to check that state’s declarations, in case its domestic legislation has not been prepared so scrupulously, or in case conventions are self-executing in that state without statutory implementation.

This is a question not only of innate fascination but also of practical importance. The Uniform Law Conference will be asked in August to consider the text of a Uniform Act to implement the ECC. The question of declarations will come up. What should it do? (The text proposed in 2010 is here. The meeting last year accepted the recommendations in principle but left drafting questions for the 2011 meeting.)