From laggard to leader: Canadian lessons on a role for U.S. states in making and implementing human rights treaties.

• Author: Bell, Koren L.

1. INTRODUCTION

   Human rights treaty-making and implementation pose special challenges for federal states. The unique quality of human rights--inherent, universal, urgent, and compelling--and the existence of entrenched domestic rights-protecting instruments give rise to complexities that distinguish these treaties from their international counterparts. Of particular and problematic significance for federal states is the fact that human rights treaties "made" by the national government often implicate the relationship between the individual and the sub-unit government, requiring substantive compliance at the local level. In Canada and the United States, the distinctive nature of human rights has colored the process of treaty-making and implementation, posing delicate legal, political, and practical questions about the division of powers in these federal states. In response to these challenges, Canada has worked to resolve the apparent tension between its federal structure and international human rights law, while the United States has accepted and exploited a zero-sum relationship between the two.

   At the advent of the U.N. system and the creation of the human rights instruments following World War II, both countries responded to the obstacles posed by their federal systems with a policy and practice of non-adherence. In the early 1970s, Canada changed course, transitioning to a path of engagement marked by the will to balance federalism with respect for international human rights law. To honor both values, Canada developed a discrete mechanism that addressed the challenges posed by human rights by recognizing a new role for the provinces in the treaty process. In the years since, the Federal-Provincial-Territorial Continuing Committee has facilitated continuous, dialectical consultation between the federal and sub-unit governments at all stages of the treaty process, making critical contributions that have enabled Canada to emerge as a human rights leader.

   Canada's transition to a course of leadership contrasts sharply with the second path of qualified adherence pursued by the United States. This approach assumes an antithetical relationship between federalism and human rights law, building layers of resistance to meaningful ratification and substantive compliance in order to enable the foreign policy gains of signing treaties while minimizing political costs. Qualified adherence has produced a highly complex and uncertain treaty scheme, badly in need of rationalization and reform, along with substandard performance that has earned the United States a reputation as one of the world's human rights laggards.

   The valuable lesson from the Canadian experience is that the meaningful, structured inclusion of sub-unit voices in the dialogue on human rights can work to dissolve the antagonism between federalism and international human rights law, benefiting each. This Note will argue that the United States would gain from a similar mechanism that would recognize a new role for the states in the human rights treaty process by facilitating "dialectical federalism."(1) The unique challenges posed by human rights and the uncertain state of the present scheme create a compelling case for a discrete mechanism that would complement the formal scheme, making informal--but far-reaching--political, pragmatic, and symbolic contributions to the human rights treaty process in the United States.

   In Part II, this Note surveys treaty-making and implementation in Canada and the United States. Part III contrasts the relationship between federalism and international human rights law in Canada and in the United States, highlighting Canada's workable balance and the United States' zero-sum approach. Finally, Part IV draws on the Canadian experience to recommend a discrete role for the U.S. states in human rights treaty-making and implementation.

2. TREATY-MAKING AND IMPLEMENTATION: CANADA AND THE UNITED STATES

   As a highly decentralized federation,(2) Canada's treaty scheme is perhaps the most complex in the world.(3) Federal powers of treaty-making and implementation are not concurrent, and jurisdiction over treaty implementation is subject to the ordinary constitutional division of powers. Formally, the "watertight compartments"(4) of Canadian federalism remain intact in the realm of foreign affairs. In the case of human rights, an area of near exclusive provincial jurisdiction, Canada's sub-units retain special constitutional and political significance for the treaty process.

   In contrast, the United States boasts a treaty scheme in which the federal government's powers to make and implement treaties are coextensive, and jurisdiction over activities reserved to the states in the Tenth Amendment becomes immaterial in the treaty context. Formally, Canada's scheme of "watertight compartments" is anathema to a U.S. treaty process in which "state lines disappear."(5) As a result, unlike their Canadian counterparts, the American states enjoy limited constitutional relevance to international affairs. However, the states retain crucial political significance in the treaty process, particularly in the realm of human rights, which holds like implications for sub-unit authority in the United States.

   1. Canada

      1. Historical Overview

         The foundation of Canadian federalism is the Constitution Act of 1867, the British North America Act (BNA). Like the U.S. Constitution, the BNA divides legislative powers between national and sub-unit governments. Unlike its U.S. counterpart, however, the BNA vests residual competence in the national parliament,(6) while the provinces enjoy exclusive jurisdictional competence over several important areas, including "Property and Civil Rights in the Province" and "Generally all Matters of a merely local or private Nature in the Province."(7)

         A 1937 opinion rendered by Lord Atkin in Attorney-General for Canada v. Attorney-General for Ontario (the Labour Conventions case)(8) definitively established the law on treaties. At issue was whether the federal Parliament had the authority to implement obligations incurred pursuant to the government's treaty-making power. Significantly, the subject matter of the treaty--the labor conventions adopted by the International Labour Conference and ratified by the government of the day--involved an area clearly within provincial competence. Writing for the Board, Lord Atkin established three key principles: 1) there is no discrete category of "treaty legislation" that the federal government can claim as a federal head of power; 2) where the subject matter of the treaty falls within provincial legislative competence, only the province can enact implementing legislation; and 3) only through federal-provincial cooperation could Canada execute international obligations implicating provincial heads of power.(9) Lord Atkin acknowledged that this scheme, born in a unitary state, could become more "complex" when applied to federal states such as Canada.(10) Nevertheless, the opinion closed with a metaphor expressing deep faith in the sanctity of the division of powers and the possibility of federal-provincial collaboration. "While the ship of state now sails on larger ventures and into foreign waters," Lord Atkin stated, "she still retains the watertight compartments which are an essential part of her original structure."(11)

      2. In Practice

         Labour Conventions established an unwieldy treaty scheme. Despite great controversy and judicial "tweaking" of the doctrine,(12) however, it has remained good law. Formally, Parliament has gained no power to legislate in matters otherwise of provincial jurisdiction simply because an act seeks to implement international treaty obligations. The judicial review of treaty-implementing legislation is subjected to the same division-of-powers inquiry applied to other laws, and this analysis will often require provincial implementation.

         In practice, the treaty-making and implementation process is more nuanced and contentious than the formal scheme would suggest. The Governor General in Council exercises the treaty-making power for the Crown, acting almost invariably on the advice of the Prime Minister and his Cabinet,(13) who are responsible to the popularly elected House of Commons. As a matter of law, "parliamentary consent is not required to enter into an international agreement": the power to negotiate, conclude, and ratify treaties is the sole authority of the executive.(14)

         Due to its parliamentary system, Canada's executive is usually able to ensure the adoption of implementing legislation for subject matter that falls within federal jurisdiction. Parliament's primary role comes into play after the executive has ratified a treaty. In general, a ratified treaty will bind Canada internationally but will only have domestic force if it is implemented by legislation.(15) Although some treaties involve subject matter that makes subsequent legislation unnecessary,(16) the general rule requiring legislative implementation to incorporate conventional international law into domestic law poses the complex parallel question of what constitutes treaty-implementing legislation.(17)

         The Court's jurisprudence seems to require, at minimum, an express reference to a convention in order to consider a statute as implementing legislation.(18) However, the Department of External Affairs has suggested a more flexible, trifurcated approach to identifying legislation as "treaty-implementing":

         Treaties require implementing legislation to make them effective in

         domestic law.... If it is necessary to change domestic law in order

         to enable Canada to discharge its treaty obligations this may be

         done in a number of ways:

         (a) by enacting the required legislation without express reference to the treaty ...

         (b) by legislation which makes reference to the treaty but without expressly enacting its provisions ...

         (c) by incorporating into law the treaty or the relevant provisions.(19)

         ...