International Human Rights Treaty Adherence Process in Canada
Under international law, a state may agree to be legally bound (“adhere”) to an international human rights treaty through signature and ratification or through accession.
When a state signs a treaty, it agrees to refrain from acts which would defeat the object and purpose of the treaty, even though the state is not yet legally bound by the specific terms of the treaty. Signature of an international human rights treaty also creates an expectation that the state will eventually ratify the treaty.
When a state subsequently ratifies a treaty, it formally commits itself to implement the provisions of the treaty.
Accession has the same effect as ratification. It differs only in that it does not require signature or any other prior step.
The federal process for adherence to any international human rights treaty generally involves the following steps:
- The Department of Justice reviews the provisions of the treaty, in consultation with the Department of Foreign Affairs and International Trade, to determine the scope of the obligations outlined in the treaty;
- The Department of Justice and affected federal departments review federal legislation, regulations, policies and practices (to determine if they meet the treaty obligations, or whether new measures may be required);
- If potential inconsistencies with the treaty's obligations are identified, options for complying with the obligations are developed; consideration is given to whether legislation, regulations and/or policies must be enacted or amended, or whether, where allowed under the treaty, a reservation, which excludes or modifies the legal effect of a particular treaty provision, should be entered upon ratification or accession; as a matter of policy, however, Canada seeks to avoid broad reservations to international human rights treaties;
- If an obligation set out in the treaty is unclear, Canada may consider, where possible under the treaty, entering an interpretative declaration in order to define the obligation;
- Where a human rights treaty also relates to matters that fall under provincial and territorial jurisdiction, the federal government will generally seek the formal support of all provincial and territorial governments prior to adherence to such a treaty. Provincial and territorial support is sought to ensure effective domestic implementation of Canada's international obligations. In such cases, provincial and territorial governments conduct a similar review of their legislation, regulations, policies and practices;
- The federal government may also consult with Aboriginal groups, especially if the treaty being considered involves Aboriginal areas of jurisdiction or authority;
- The federal government may consult with civil society, non-governmental organizations, Aboriginal organizations and other interested parties to seek the views of Canadians before adhering to the treaty;
- Once the federal government's consultation and review process is completed, the federal government decides whether Canada should become a party to the treaty Where a treaty also relates to matters that fall under provincial and territorial jurisdiction, a decision in favour of adherence may be conditional upon receipt of formal support from provincial and territorial governments; and
- As of January 28, 2008, where consideration is given to ratify or accede to an international treaty, that treaty will be tabled in Parliament to allow Members of Parliament to consider the matter and express views, if they so wish. More information on this new process can be found at: Policy on the Tabling of Treaties in Parliament.
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