Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

Significant Change in Canada's Procedures to Approve International Agreements

On January 25, 2008, Canada announced that it was introducing important and significant changes to its current policies and procedures for the signing of international agreements.

The Minister of Foreign Affairs, Maxime Bernier, announced:

"As of today, all treaties between Canada and other states or entities, and which are considered to be governed by public international law, will be tabled in the House of Commons .... This reflects our government's commitment to democracy and accountability.  By submitting our international treaties to public scrutiny, we are delivering on our promise for a more open and transparent government."

The news release concerning the announcement further indicates:

"A treaty creates legal obligations for Canada under international law and the government believes that further engaging Parliament in the international treaty process will give it a greater role in ensuring that these treaties serve the interests of all Canadians.  Under the new process, members of the House of Commons may review and discuss the treaty - examining, debating or voting - before Canada formally agrees to ratify it."

For a copy of the news release, please click on the following link -

The Backgrounder emphasizes that the executive branch of Government, and not the Members of Parliament, will maintain responsibility for negotiating the international treaty.  It appears that once the bureaucrats and the appropriate Minister have completed negotiations, the international treaty may be signed.  The international treaty would then be tabled in the House of Commons and circulated to all Members of Parliament.  The Member of Parliament responsible for the international treaty will wait 21 days for the other Members of Parliament to review the international treaty and raise issues for debate.  After the 21 day period, the Government can take steps to ratify the treaty.

It appears that this new policy will apply to all free trade agreements, all agreements at the World Trade Organization, all FIPAs (Foreign Investment Promotion and Protection Agreements), the conventions of the United Nations, maritime conventions, and any other agreement governed by public international law.  The wording appears very broad in nature - it will not be long before the accusations are flying that the Prime Minister or a Minister has failed to follow this policy.  My predictions for 2008 are that Canadian Members of Parliament will be having a thorough discussion on what is covered by "public international law".

It may also be predicted that there will be greater uncertainty for business.  Often the Canadian negotiators announce that a free trade agreement of FIPA has been signed and then the agreement is not made public for a period of time while the Government's legal team scrubs the document.  Now, under the new procedures, the international treaty will be tabled and its failures on a variety of topics (e.g., human rights, environment, labour, anti-bribery, gender, SMEs, manufacturing jobs, transparency, dispute settlement, etc.) will be debated and discussed. 

Most trade agreements are negotiated and there are always those who benefit and those who do not in any bargain.  Those who do not gain and those who lose at the end of the negotiations will undoubtedly provide details to their MPs who are responsible for raising the interests of those in their constituency.

Further, in a litigious society (and Canada is a litigious society), the Canadian businesses who do not gain or lose out will have time to file Notices of Intent to arbitrate under Canada's FTAs and FIPAs (those that contain an investor-to-state dispute settlement regime), the NAFTA Side Agreements of labour and environment or other dispute settlement procedures.

Finally, so long as the Government of the day is a Minority Government, the differing approaches to trade and foreign policy will undoubtedly lead to some interesting and long debates.

While transparency and accountability are vital, the changes should be expected to slow the international treaty process and make more work for government relations specialists and lawyers.

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