Chapter 10
Practices in other Federations [1]
Introduction
10.1 This chapter considers how treaties are made and implemented in
other federations. It falls under paragraph (e) of the Committee's terms
of reference. Brief mention is also made of treaty making in other OECD
countries that are not federations.
10.2 Under each country, a series of questions are asked to ascertain
who has the power to enter into treaties, whether the sub-national jurisdictions
(such as States, provinces, lnder and cantons) can enter into treaties
in their own right, and what influence they have on the treaty making
process. Questions are also asked about whether parliamentary approval
is necessary, and whether parliamentary approval can be made subject
to conditions such as the making of a reservation.
10.3 The issue of the status of treaties in domestic law is also addressed.
In some countries treaties are considered to be 'self-executing', meaning
that if a treaty contains clear rights and obligations, then it automatically
becomes part of the domestic law, when ratified, without the need for
enacting legislation. In some countries treaties are given a higher
status in law than ordinary legislation, but in other countries they
can be overridden by subsequent legislation.
10.4 Finally, each section addresses the question whether Parliament
is involved in the process of denouncing or withdrawing from a treaty.
Argentina
10.5 Argentina is a federation with a bicameral Parliament, known as
the National Congress. The National Congress is comprised of a lower
house, called the Chamber of Deputies, and an upper house, called the
Senate. The Chamber of Deputies is directly elected by the people, and
the members of the Senate are chosen by the provincial legislatures,
for a term of nine years.
10.6 The Executive is comprised of the President, Vice-President and
the Cabinet. The President is elected by an electoral college, which
is itself elected by the direct vote of the people. The President appoints
the Cabinet.
Who has the power to enter into treaties?
10.7 Paragraph 14 of article 86 of the Constitution of Argentina provides
that the President has the power to conclude and sign treaties. The
Congress has no power to initiate treaty negotiations, nor can it interfere
with such negotiations.[2]
Do the Provinces have power to enter into treaties in their own
right?
10.8 Article 107 of the Argentinian Constitution provides that the
Provinces may enter into 'partial treaties' for the purposes of the
administration of justice, economic interests and work of common utility.
However, article 108 provides that the Provinces may not enter into
treaties of a political character. Although the terms of these provisions
are far from clear on their face, it has been asserted that they confine
Provinces to entering into treaties with other Provinces, and that a
Province cannot enter into a treaty with a country.[3]
Is parliamentary approval necessary for some types of treaty?
10.9 Paragraph 19 of article 67 of the Argentinian Constitution provides
that the Congress shall have power to approve or reject treaties concluded
with other nations and concordats with the Holy See. The Constitution
does not specify the method of approval. In practice, the Congress has
approved treaties by passing a law. It uses the same procedure as for
any other law, except that it deals with the treaty as a whole, rather
than by clauses. The treaty is not ratified until the law has been promulgated
and published in the Official Bulletin.
Are treaties self-executing, or is legislation necessary?
10.10 It is not abundantly clear from the Argentinian Constitution
whether treaties are intended to be self-executing. However, it appears
that it is generally accepted that article 31 of the Constitution gives
ratified treaties the force of national law.[4]
10.11 Nevertheless, the Parliament usually amends or enacts legislation,
to ensure that legislation is in conformity with ratified treaties,
so that there are no problems of interpretation[5]
Can the Parliament require reservations to be attached to ratification?
10.12 There is debate amongst constitutional scholars as to whether
the Congress can modify the treaty before it gives approval. Some argue
that it must approve or reject the treaty in the form in which it is
submitted to the Congress, and that to do otherwise would require the
consent of the other parties to the treaty. On the other hand, some
argue that if the Congress seeks to modify the terms of the treaty,
then renegotiation is required, or the modifications should be treated
as reservations to the treaty.[6]
Do treaties override future legislation?
10.13 The Argentinian Constitution provides that treaties prevail over
provincial laws and constitutions. However, it does not specifically
state whether a subsequent federal law could override a treaty obligation
in domestic law. This question was considered by the Argentinian Supreme
Court in 1963, which decided that treaties and federal law have equal
status, and that a subsequent federal law will prevail over an earlier
treaty.[7]
Is Parliament needed to denounce treaties?
10.14 As a matter of practice, Parliament has been involved in approving
amendments to treaties, but has not been involved in the denunciation
of treaties.[8]
What involvement do the Provinces have in treaty making?
10.15 Although the Provinces have limited power to enter into treaties,
under article 107 of the Constitution, treaties are primarily negotiated
and ratified at the federal level. The Provinces are involved in this
process by means of the representatives of the Provinces in the Senate
of the Parliament. As both Houses of Parliament are required to approve
of a treaty before it is ratified, and the Senate is comprised of people
appointed by the legislatures of the Provinces, the Provinces have an
indirect involvement in the ratification of treaties.
Belgium
10.16 Belgium is a parliamentary democracy under a constitutional monarch.
It has a bicameral Parliament, consisting of a Chamber of Representatives
and a Senate. The Chamber of Representatives is directly elected by
the people. The members of the Senate are chosen in different ways.
A majority are elected by the Dutch and French electoral colleges. A
smaller number are designated by the Flemish Community Council, the
French Community Council and the German Community Council. A further
ten Senators are chosen by the Dutch and French language groups in the
Senate.[9] The children of the King, once they have attained the age
of 18, are also Senators by right, and may vote once they are twenty-one.[10]
The Prime Minister is the head of government, and holds office as long
as he or she maintains the confidence of the Parliament.
10.17 The Belgian Constitution was fundamentally revised and renumbered
in 1993. Article 3 of the Constitution divides Belgium into the Flemish
Region, the Walloon Region and the Brussels Region. Article 4 establishes
four linguistic regions, being the French language Region, the Dutch
language Region, the bilingual Region of Brussels-Capital and the German
language Region. Article 115 establishes a French Community Council,
a Flemish Community Council and a German Community Council. There are
also Regional Councils for each of the Regions.
10.18 The French, Flemish and German Community Councils have been granted
jurisdiction in areas such as education, cultural affairs, and matters
relating to the individual, such as welfare, youth and family policy.[11]
The Regions have jurisdiction in those areas conferred upon them by
a specially adopted law.[12]
Who has the power to enter into treaties?
10.19 Article 167 of the Belgian Constitution provides that the King
has the power to conclude treaties, except for those treaties which
pertain to matters within the competence of the Communities and Regions.
A treaty made by the King will have effect only after it has received
the approval of the two Chambers of the Parliament. Under article 106,
no act of the King is effective unless it is countersigned by a Minister
who, in doing so, renders himself or herself accountable for it.
Do the Community Councils or Regions have power to enter into treaties
in their own right?
10.20 Prior to the 1993 amendments to the Belgian Constitution, the
Executives of the Community Councils had argued that where treaties
relate to those areas within the exclusive competence of a Community
Council, then the treaty making power should be vested in them. The
Ministry of Foreign Relations rejected this view, on the basis that
only a nation state can enter into international treaties, and that
the Constitution grants this power to the King.[13]
10.21 The French Community Council had entered into a number of international
'agreements', but the Belgian Government had published a notice stating
that these agreements did not have the status of a treaty and could
not be taken as binding on Belgium.[14]
10.22 Article 167 of the Constitution, as revised in 1993, now explicitly
provides for the Communities and Regions to enter into treaties within
their areas of competence. These treaties may be entered into by the
Government of the Community or Region, but will only have effect after
they have received the approval of the relevant Community or Regional
Council.
Is parliamentary approval necessary for some types of treaty?
10.23 Prior to the 1993 amendments, paragraph 2 of article 68 of the
Belgian Constitution provided that commercial treaties and those which
might affect the nation or individually become binding on certain Belgians,
only became effective after they had received the consent of both Houses
of the Parliament.[15]
10.24 Although parliamentary approval was only necessary to give a
treaty internal effect, and wasn't required as a condition to ratification
of a treaty, it became usual practice for the King to wait for parliamentary
approval in those cases where parliamentary approval was needed, before
ratifying a treaty.[16]
10.25 Approval by the Chambers of the Parliament was given by way of
law, and approval by the Community or Regional Councils was given by
way of decree.[17]
10.26 Under the revised Constitution, article 167 provides that all
treaties entered into by the King, must have the approval of the Chambers
of Parliament before they have domestic effect. The practice has been
retained of only entering into treaties after approval has been given
by the Parliament.[18]
Are treaties self-executing or is legislation necessary?
10.27 Where a treaty which requires parliamentary approval before it
can have domestic effect, is given that parliamentary approval, then
it is usually treated by the courts as being directly applicable by
the courts, without need for any additional legislation. It will depend
on the intentions of the parties to the treaty, and whether the terms
of the treaty are sufficiently precise to be applied directly.[19]
Can the Parliament require reservations to be attached to ratification?
10.28 The Parliament must accept or reject the treaty in its entirety.
As the Parliament's approval is not a necessary prerequisite for ratification
of the treaty (although it is necessary for the treaty to have domestic
effects), it is not within the Parliament's power to require a reservation
to be made prior to ratification.
Do treaties override future legislation?
10.29 The Constitution is not clear on the question of whether treaty
provisions prevail over domestic law. The Cour de Cassation of Belgium
held in 1971 that where a rule of domestic law conflicts with a treaty
provision which has direct effect, the treaty provision has primacy.[20]
Hence, treaty provisions of direct effect will prevail over any prior
or subsequent legislation.
Is Parliament needed to denounce treaties?
10.30 Parliamentary approval of denunciation is not necessary. This
is an executive act.
10.31 The situation is more complicated where the subject matter of
the treaty falls within the competence of the Communities or Regions.
Section 5 of article 167 provides that the King may denounce treaties
which were concluded prior to 18 May 1993, which relate to matters within
the competence of the Communities or Regions, if this is done with the
agreement of the Governments of the concerned Community or Region. A
law is to provide for circumstances where there is disagreement between
the relevant Governments of the Community and the Region.
Consultation of parliament and involvement of parliamentary committees
10.32 The Belgian Parliament has a well-organised Committee system
through which all legislation passes. The Parliament is consulted about
treaties to which its approval is necessary for them to have domestic
effect. Consultation normally takes place before the ratification of
the treaty.
The role of the Community and Regional Councils in the treaty making
process
10.33 Since 1993, the Community and Regional Councils have independent
powers to enter into treaties on subjects within their jurisdiction.
They also have indirect power in relation to treaties entered into by
the Federal Government, through their representation in the Senate.
Canada
10.34 Canada is a federal parliamentary democracy, formed under the
Crown, which has a bicameral Parliament based on the Westminster system.
The Constitution grants certain legislative powers to the Federal Parliament
and certain exclusive legislative powers to the provincial Parliaments.
Who has the power to enter into treaties?
10.35 In 1867 when the Canadian Constitution was enacted, the power
to enter into treaties was a royal prerogative which was exercised by
the British monarch, on the advice of the British Government. As Canada
became independent, the royal prerogative was transferred to the Governor-General
by Letters Patent.
10.36 The treaty making power is now exercised by the Canadian Governor-General,
on the advice of the Executive.
Do the Provinces have power to enter into treaties in their own
right?
10.37 The Canadian Provinces have the power to enter into international
agreements, which do not have treaty status, and therefore are not considered
binding in international law. For example, the Provinces have entered
into reciprocal arrangements with foreign countries for maintenance
arrangements where one spouse is in the Province and the other in the
relevant country.[21]
10.38 The Provinces have argued that as they have the exclusive right
to implement certain types of treaties, they must also have the right
to make those treaties. This view has not been accepted by the Federal
Government, which still continues to make treaties on behalf of Canada.[22]
Is parliamentary approval necessary for some types of treaty?
10.39 There is no legal requirement for the Parliament to give its
approval before a treaty is ratified. Nevertheless, it has been the
practice of Canadian Governments to seek parliamentary approval of important
treaties.[23] Parliamentary approval is given by way of a resolution
of both Houses, rather than the passage of legislation. Between 1946
and 1966 approximately a quarter of treaties were submitted to Parliament
for approval.[24]
Are treaties self-executing or is legislation necessary?
10.40 Treaties are not self-executing in Canada. Legislation is required
if any change to the law is necessary to implement a treaty.
10.41 Section 132 of the Canadian Constitution provides that the Parliament
and government of Canada shall have all the powers necessary or proper
for performing the obligations of Canada or of any Province thereof,
as part of the British Empire, towards foreign countries, arising under
treaties between the Empire and such foreign countries.
10.42 In the Labour Conventions case,[25] the Privy Council
held that section 132 did not give the Federal Parliament power to enact
legislation implementing a treaty, where that legislation covers matters
otherwise within the exclusive jurisdiction of the Provinces. Accordingly,
in some cases where the Federal Government enters into a treaty, it
can only be implemented by legislation enacted by the provincial legislatures.
10.43 The Labour Conventions case has been subject to a great
deal of criticism,[26] and it is uncertain that the principle would
be applied in the same manner today.
Can the Parliament require reservations to be attached to ratification?
10.44 As there is no requirement that the Parliament approve treaties
before their ratification, there is no question of a conditional approval
requiring the Government to make reservations to its ratification.
Do treaties override future legislation?
10.45 As treaties are only implemented by legislation, that legislation
is of equal status with other legislation, and the general rule is that
subsequent legislation prevails over earlier legislation where there
is a conflict.
Is Parliament needed to denounce treaties?
10.46 There is no requirement for Parliament to be involved in the
denunciation of treaties.
Consultation of Parliament and involvement of parliamentary committees
10.47 As noted above, the Government may choose to seek parliamentary
approval of important treaties before ratification. In such cases, parliamentary
committees may be involved in considering the treaty.
The role of the Provinces in the treaty making process
10.48 The role of the Provinces in the treaty making process is largely
derived from the fact that where a treaty covers subjects within the
exclusive legislative jurisdiction of the Provinces, then implementing
legislation can only be enacted by the Provinces. This leads to greater
consultation with the Provinces concerning those treaties which will
need to be implemented by them.
Federal Republic of Germany
10.49 Germany is a federal republic with a bicameral parliament. The
upper house, called the Bundesrat, is comprised of members of the government
of the Lnder (the German States). Each of the Lnder is allocated a
number of representatives, according to its population. The Bundesrat
can reject any bill which affects the powers of the Lnder.
10.50 The lower house, called the Bundestag, is directly elected by
the people. It elects the Chancellor, who is the head of government.
10.51 The head of state is the President. The federal executive consists
of the President, the Chancellor and the ministry.
Who has the power to enter into treaties?
10.52 Article 59 of the Basic Law (the German Constitution) provides
that the Federal President represents the Federation in its international
relations and concludes treaties on its behalf.
Do the Lnder have power to enter into treaties in their own right?
10.53 Paragraph 3 of article 32 of the German Basic Law states that
the Lnder may, with the consent of the Federation, enter into treaties
with countries, concerning matters which are within their legislative
powers. This power covers little more than cultural agreements.
10.54 Prior to 1957, there was disagreement as to whether the Lnder
had exclusive jurisdiction to enter into treaties on subjects within
their legislative jurisdiction, or whether the Federation could also
enter into treaties on such subjects. The Lnder and the Federation
reached an agreement, known as the Lindau agreement, on 14 November
1957, under which the Lnder agreed that the Federation would negotiate
agreements with countries on subjects within the legislative power of
the Lnder, on the condition that it obtain the consent of the Lnder
before the parliamentary procedure begins.[27]
10.55 This Agreement resulted in the creation of a Permanent Treaty
Commission, comprised of representatives of the Lnder. Where a treaty
involves a subject within the legislative jurisdiction of the Lnder,
the Permanent Treaty Commission must give its consent before the ratification
procedure may proceed.[28]
10.56 The Bundesrat and the Lnder claim that the Lindau Agreement
gives them the right to participate in the conclusion of all treaties
which will affect the domestic laws of the Lnder, even if they are
not on subjects within the exclusive jurisdiction of the Lnder. In
the case of the Convention on the Rights of the Child, and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, ratification was delayed and several interpretative
declarations were made, to satisfy the demands of the Lnder.[29]
Is parliamentary approval necessary for some types of treaties?
10.57 Paragraph 2 of article 59 of the Basic Law provides that treaties
that regulate the political relations of the Federation or relate to
matters of federal legislation require the enactment of a federal law
by the bodies competent to pass such federal legislation.
10.58 Treaties that regulate the 'political relations' of the Federation,
include peace treaties, military pacts, non-aggression pacts, and treaties
concerning such issues as disarmament, neutrality and political co-operation.
This category also includes treaties which deal with the political relations
between the Federation and other countries.[30]
10.59 Treaties which 'relate to matters of Federal legislation' include
all those treaties where legislation would otherwise be required to
change the law in the manner required by the treaty. Hence, if the executive
could implement a treaty without legislation, then it is not bound to
seek the consent of the legislature to enter into that treaty. If, however,
the law must be changed, or a law would otherwise need to be enacted
to implement the treaty, then it is necessary to seek legislative approval.
This is a consequence of the fact that treaties are self-executing in
Germany.
10.60 In cases where legislative approval is necessary, the treaty
is laid before both Houses of the Parliament. While the consent of the
Bundestag is necessary in all such cases, the Bundesrat only obtains
a right to veto a treaty where the treaty falls within the legislative
jurisdiction of the Lnder or affects the administrative procedures
of the Lnder. In other cases, the Bundesrat may state its opinion,
but this may be overridden by the Bundestag.[31]
Are treaties self-executing, or is legislation necessary?
10.61 The parliamentary act of approving the ratification of a treaty,
has the additional effect of determining the treaty's effect and status
in domestic law. In giving its consent to the ratification of a treaty,
the Parliament can determine whether the treaty should be directly applicable,
or whether further legislation is necessary before the treaty is to
be implemented.[32]
10.62 In cases where legislation would be within the exclusive power
of the Lnder, then only the Lnder can implement the treaty.[33]
Can the Parliament require reservations to be attached to ratification?
10.63 Although the Basic Law does not specify whether parliamentary
consent to ratification of a treaty can be made subject to the condition
that a reservation is made at the time of ratification, as a matter
of practice, such conditions have been placed on consent. The Legal
Committee of the Bundesrat adopted guidelines for the procedure in 1971,
which are summarised by Frowein and Hahn as follows:
If, as a matter of public international law, the Federal Republic
is entitled to declare a reservation upon ratification, the legislative
organs may give their consent only on condition that a specific reservation
is made. Equally, consent may be linked to the Federal Republic's
ratification of a treaty without reservation. If the text of a treaty
explicitly mentions certain reservations and the legislative organs
do not take a position in that regard, the government is free to deposit
a reservation as it deems proper. To the contrary, if the government
wants to make a reservation not expressly provided for in the treaty,
it has to notify the legislative organs which may or may not qualify
their consent accordingly and with binding effect for the Federal
Government. If upon such governmental notice the legislature does
not qualify its consent, the Federal Government may act in accordance
with its prior notification. Also, if the executive has informed the
legislative organs of a specific conduct with regard to the declaration
of a reservation, it has the obligation to follow that course. If
new circumstances arise that require a change of position, Bundestag
and Bundesrat must receive notice of this development. Finally, all
reservations have to be published in the Federal Gazette.[34]
Do treaties override future legislation?
10.64 The legislation which gives parliamentary approval to the ratification
of a treaty also has the effect of incorporating it in domestic law,
to the extent that it is self-executing. Accordingly, the status of
the treaty provisions is normally the same as that of any other federal
legislation, and will override prior legislation.[35] This also means
that treaty provisions will prevail over laws of the Lnder. However,
if the treaty provisions are implemented by the laws of the Lnder,
because they relate to the exclusive jurisdiction of the Lnder, then
the treaty provisions will be subordinate to Federal laws.[36]
10.65 The Parliament may also legislate to give treaty provisions precedence
over ordinary legislation. One example is the German Tax Code, where
s. 2 provides that the provisions of tax treaties shall take precedence
over tax laws, once the treaties have become part of municipal law.[37]
10.66 Although the Parliament has the power to legislate in a manner
which is incompatible with treaty obligations, the courts have developed
an interpretative rule which presumes that legislation is not intended
to be inconsistent with treaty obligations unless it is clearly expressed
to override the treaty.[38]
Is Parliament needed to denounce or amend treaties?
10.67 It is not clear from the Basic Law whether parliamentary approval
is necessary to denounce a treaty. While some argue that the power to
approve the ratification of treaties necessarily includes the power
to approve the termination of treaties, others argue that the fact that
only approval is expressly stated in the Basic Law means that the Parliament
has no role in denouncing treaties. In practice, the Federal Government
has denounced or terminated treaties without the involvement of the
Parliament.[39]
The role of the Lnder in the treaty making process
10.68 The Lnder have a limited ability to enter into treaties in their
own right, in the areas over which they have legislative power. Under
the Lindau agreement, the Lnder allow the Federal Government to negotiate
treaties on their behalf, but only after their consent has been obtained.
10.69 Paragraph 2 of Article 32 of the Basic Law provides that before
the conclusion of a treaty affecting the special circumstances of a
Land, that Land must be consulted in sufficient time.
10.70 The Bundesrat, which is comprised of representatives of the Lnder,
must also approve any treaty which falls within the legislative powers
of the Lnder or affects their administrative procedures, or their constitutional
position.
10.71 Only the Lnder can implement treaties which deal with subjects
within their exclusive legislative jurisdiction.[40]
India
10.72 India is a federal parliamentary democracy, with a bicameral
Parliament. The Parliament consists of the Rajya Sabha (Council of States)
and the Lok Sabha (House of the People).[41] The members of the Council
of States are elected by members of the Legislative Assembly in each
State, while the members of the House of the People are directly elected
by the population. Both Houses also contain representatives of India's
territories; these representatives are appointed by the President.
10.73 The President of India is elected by an electoral college comprised
of elected members of the two Houses. Article 53 of the Constitution
of India vests executive power in the President; however, article 74(1)
requires the President to act in accordance with the advice of the Council
of Ministers.[42] The Council of Ministers consists of the Prime Minister
and his or her Ministers, and is drawn from members of both Houses.
Ultimately, the Council is accountable to the House of the People.
10.74 Schedule Seven of the Constitution contains the Union List, the
State List, and the Concurrent List, each of which set out the matters
in respect of which the relevant federal and State Parliaments can legislate.[43]
Who has the power to enter into treaties?
10.75 Articles 73 and 246(1), read in conjunction with the relevant
items on the Union List, give the Executive (ie the Council of Ministers)
all the powers necessary to negotiate, enter into, and ratify, treaties.[44]
Article 53 requires that the entry into, and implementation of, treaties
and other international agreements with other countries is to be carried
out in the name of the President.
10.76 Before India gained its independence, the power to enter into
treaties was a prerogative one, exercisable by the British monarch.
In 1935, in accordance with the Government of India Act, this power
was transferred to the Governor-General of India.[45]
Do the States have the power to enter into treaties in their own
right?
10.77 It does not appear that the States can enter into treaties in
their own right; the Union List expressly states that the federal government
enjoys exclusive power to enter into treaties. In addition, the federal
Parliament has, by virtue of Articles 245 and 246, read in conjunction
with Item 97 of the Union List, residual power to make laws with respect
to any matter not mentioned on the States and Concurrent Lists.[46]
The negotiation and entry into treaties and other agreements is not
listed in either the State or Concurrent Lists.
Is Parliamentary approval necessary for some types of treaty?
10.78 Although this is not expressly stated in the Constitution, there
is no requirement to obtain parliamentary approval for treaties or other
international agreements, before ratification. This is irrespective
of the nature of the treaty.
Are treaties self-executing, or is legislation necessary?
10.79 In most cases, ratification is sufficient to make the terms of
the treaty or international agreement part of India's domestic law.
However, legislative implementation of treaties or international agreements
is required where the terms would; affect the rights of individuals,
result in public expenditure, or result in changes to existing domestic
law.[47]
Can the Parliament require reservations to be attached to ratification?
10.80 The Executive is not obliged to consult with Parliament before
ratification;[48] therefore, there appears to be no means by which Parliament
can require reservations to be attached. Even so, the Executive has
attached reservations to ratification, and has supported the insertion
of federal clauses in some international conventions.
Do treaties override future legislation?
10.81 The Constitution is silent as to whether treaties override future
federal legislation. With respect to treaties that have been implemented
by domestic legislation, later legislation will prevail over earlier
legislation wherever there is conflict.
10.82 In the case of the States, federal legislation implementing treaties
will override future State legislation. Article 253 of the Constitution
provides that the federal Parliament has the power:
to make any law for the whole or any part of the territory of India
for implementing any treaty, agreement or convention with any other
country or countries or any decision made by any international conference,
association or other body.
Before article 253 came into force, the federal Parliament did not
have the power to pass legislation to implement the terms of treaties
concerning 'state matters' without the previous consent of the relevant
Governors of Provinces or the Rulers of Federated States.[49]
Is Parliament needed to denounce treaties?
10.83 Again, the Constitution is silent on this matter. However, given
the broad powers of the Executive in this area, it is unlikely that
Parliament would be needed to denounce treaties.
What involvement do the States have in treaty making?
10.84 In practice, it appears that the States have very little role
in the process of treaty making, particularly given that, constitutionally,
no role has been set out for them.
10.85 The States can consult with the federal government through the
Inter-State Council. Established in 1992, the Inter-State Council has
a broad charter, including:
...investigating and discussing subjects in which some or all of
the States or the Union and one or more of the States, have a common
interest;
...making recommendations upon any subject and, in particular, recommendations
for the better coordination of policy and action with respect to the
subject.[50]
10.86 It is unclear whether the Council has been used by the States
as a means of gaining a greater role in the treaty making process. Aside
from the Council, there do not appear to be any other formal mechanisms
for consultation between the States and the federal government with
respect to treaty making.
Switzerland
10.87 Switzerland is a federal republic with a bicameral parliament,
called the Federal Assembly. The upper house, the Council of States,
consists of representatives of the Cantons (the Swiss States). Two members
are elected from each Canton. The lower house, the National Council,
is elected directly by the people, according to population. Executive
power is exercised by the Federal Council, which is headed by the President.
Who has the power to enter into treaties?
10.88 Article 8 of the Swiss Constitution provides that the Confederation
has the sole right to declare war and conclude peace, to make alliances
and treaties, particularly customs and commercial treaties with foreign
states.
10.89 This power has been interpreted as being an independent source
of power, so the Confederation can enter into treaties even if the treaty
deals with an area within the exclusive legislative jurisdiction of
the Cantons.[51]
10.90 Paragraph 8 of article 102 of the Swiss Constitution states that
the Federal Council has the right and obligation to preserve the external
interests of the Confederation, in particular its international relations,
and is generally in charge of external affairs. It is the Federal Council
which negotiates and signs treaties.
Do the Cantons have power to enter into treaties in their own right?
10.91 Article 9 of the Swiss Constitution provides that 'exceptionally',
the Cantons retain the right to conclude international 'agreements'
on matters of public economy, neighborship and police relations, provided
they contain nothing repugnant to the rights of the Confederation or
the other Cantons.
10.92 This article has been interpreted as a concurrent power, and
is therefore subject to the plenary power of the Confederation to enter
into such treaties.[52]
Is parliamentary approval necessary for some types of treaty?
10.93 Paragraph 5 of article 85 of the Swiss Constitution provides
that both Houses of the Federal Assembly have powers to deal with alliances
and treaties with foreign states, as well as the approval of agreements
of the Cantons with each other or with foreign states.
10.94 This provision does not clearly state the role of the Federal
Assembly in the treaty making procedure. However, a practice has been
established whereby all treaties are sent to the Federal Assembly for
approval except for those which fall within the following categories:
- agreements, the conclusion of which the Federal Assembly has authorised
in advance;
- agreements which necessitate a provisional entry into force without
delay; and
- agreements which settle matters of a purely administrative or technical
nature of minor importance and thus are aimed primarily at the authorities
and not at individuals.[53]
10.95 Treaties which fall within these categories are concluded by
the Federal Council without seeking parliamentary approval. All other
treaties must be approved by way of parliamentary decree before they
are ratified.
10.96 In addition to parliamentary approval, certain categories of
treaties may, or must, be put to the people in a referendum. Article
89 of the Swiss Constitution provides that if 50,000 Swiss citizens
who are entitled to vote, or eight Cantons, so demand, then a referendum
shall be held to approve or reject international treaties which fall
within the following four categories:
- treaties concluded for an indefinite period and without possibility
of denunciation;
- treaties which provide for adherence to an international organisation;
- treaties which imply a multilateral unification of law; and
- treaties which are nominated by both Federal Chambers.
10.97 There is a fifth category of treaty which it is obligatory to
put to a referendum. It comprises treaties of adherence to supranational
organisations (such as the United Nations) or organisations for collective
security.
Are treaties self-executing, or is legislation necessary?
10.98 Upon ratification and official publication of the treaty, it
becomes part of Swiss domestic law without the need for further legislation.[54]
This is only the case where the treaty is sufficiently clear and precise
to be self-executing in nature. It is up to the Swiss courts to determine
whether a treaty is capable of being applied as part of Swiss law.[55]
10.99 The Swiss Federal Tribunal (which is the supreme court of the
Confederation) has described the effect of treaties on domestic law
as follows:
International treaties approved by the federal assembly are incorporated
into federal law, and when they create legal rules are obligatory
for the authorities... and citizens, provided that they are directly
applicable... Thus, an individual may invoke a treaty before an administrative
body and the courts if it contains rules of law which are sufficiently
precise to be applied as such in a particular case and to provide
the basis for a concrete decision, the major premise of a legal syllogism
of which the decision will be the conclusion. This is not the case
with a treaty provision which announces a program or lays down general
principles which should guide the legislation of contracting states
and which is addressed not to the administrative and judicial authorities
but to the national legislature.[56]
Can the Federal Assembly require reservations to be attached to ratification?
10.100 The Federal Assembly must approve of, or reject, the treaty
as a whole. It cannot modify the terms of the treaty.[57]
10.101 The Federal Assembly can, however, make its approval subject
to a qualification which requires the Federal Council to make specific
reservations or declarations at the time the treaty is ratified. This
qualification must be contained in the decree which the Federal Assembly
passes.[58]
Do treaties override future legislation?
10.102 There has been conflicting jurisprudence on whether treaty provisions
have equal status with federal laws, or whether they have a superior
status and therefore prevail over subsequent legislation. On the whole,
it appears that treaty provisions are given a superior status, although
the courts have made a substantial effort to read legislation and treaties
in conformity, to avoid any conflict.[59]
Is the Federal Assembly needed to denounce or amend treaties?
10.103 It is the Federal Council which has the power to denounce or
terminate treaties.[60] The question has arisen whether the Federal
Assembly can oblige the Federal Council to denounce a treaty. Although
parliamentarians have attempted to do so, the Federal Council has rejected
the power of the Federal Assembly to bind the Federal Council in this
matter. The Council of States has now included in its standing orders
a provision stating that the Federal Assembly can recommend that a treaty
be denounced, but not order the Federal Council to do so.[61]
Consultation of parliament and involvement of parliamentary committees
10.104 The Swiss Federal Assembly uses its system of preparatory commissions
to keep a check on important treaties during their negotiation and finalisation,
and to subject important treaties to scrutiny.
10.105 Recent proposals to expand the role of these preparatory commissions
with regard to treaties, were made by a preparatory commission of the
National Council, and are summarised by Wildhaber as follows:
It proposed increased and regular information concerning international
developments; a consultation of the External Affairs Commissions of
the Federal Assembly before mandates are given to delegations in international
organisations; a similar consultation with respect to treaty negotiations;
and finally an authorisation of the External Affairs Commissions to
send observers to pending negotiations with respect to treaties or international
conferences. No proposals were made concerning a parliamentary participation
in treaty interpretation, denunciation or termination. The Federal Council
replied that it would endeavour to improve parliamentary information.
It objected to obligatory consultations of parliamentary commissions
before treaty negotiations and also to the inclusion of observers in
the Swiss delegations to international conferences. The Federal Assembly
accepted a tuning down of earlier proposals, and it now seems that a
compromise version will become law, which will enhance parliamentary
participation at an early stage and will stress regular information
and consultation.[62]
The role of the Cantons in the treaty making process
10.106 The Cantons have a limited power, under article 9 of the Swiss
Constitution, to enter into international agreements. Otherwise, the
only manner in which the Cantons are involved in the treaty making process
is through their representatives in the upper house of the Swiss Federal
Assembly. Under article 89 of the Constitution, the Cantons can also
initiate a referendum in relation to certain treaties, if eight of them
propose it.
United States of America
10.107 The United States of America is a federal republic with a bicameral
parliament. The Congress consists of an upper house, the Senate, which
comprises two members elected from each State, and a House of Representatives,
which is directly elected according to population. The Executive is
made up of the President and the Cabinet, which is appointed by the
President.
Who has the power to enter into treaties?
10.108 Clause 2 of Article II, section 2 of the United States Constitution
provides that the President shall have power, by and with the advice
and consent of the Senate to make treaties, provided two-thirds of the
Senators present concur.
Do the States have power to enter into treaties in their own right?
10.109 Clause 1 of Article I, section 10 provides that no State shall
enter into any treaty, alliance or confederation. Clause 3 provides
that no State shall, without the consent of Congress, enter into any
agreement or compact with a foreign power.
Is Congressional approval necessary for some types of treaty?
10.110 Article II, section 2, clause 2 of the Constitution requires
approval by two-thirds of the Senate, before the President can ratify
a treaty. There is no requirement to consult the House of Representatives.
10.111 In practice, a treaty is negotiated by the Executive, and is
only sent to the Senate for approval once it is finalised. President
Washington once consulted the Senate during the negotiation phase of
a treaty, and no President has undertaken this course since.[63]
10.112 Nevertheless, members of the Senate are often personally consulted
during the negotiation stage, and sometimes act as advisers to the negotiation
delegations of the Government.[64]
10.113 Once a treaty is sent to the Senate for its consideration, it
is usually referred to the Foreign Relations Committee. The Committee
conducts an inquiry, holds public hearings, and recommends whether the
Senate should approve the treaty, conditionally approve it or reject
it. The treaty is then referred back to the Senate, where the Committee
of the Whole may consider it, article by article. Votes are taken on
the treaty and any proposed amendments or conditions to ratification.
These votes can be passed by an ordinary majority. It is only the final
vote on the treaty which requires a two-thirds majority before the President
may ratify the treaty.[65]
10.114 The Article II procedure is not the exclusive means of entering
into treaties. The President also has power, under the general executive
power, to enter into 'executive agreements' without the consent of the
Senate.[66] Such agreements usually relate to foreign relations or military
matters, and do not tend to directly affect the rights and obligations
of citizens.
10.115 A third means of entering into treaties is through the Congressional-Executive
agreement process.[67] Under this process the Congress passes a joint
resolution of both Houses, or passes legislation, authorising or approving
the conclusion of an international agreement by the President. The main
difference with the Article II procedure is that there is no requirement
to obtain two-thirds approval of the Senate. There need only be a simple
majority in approval in each House in order to authorise the ratification
of the treaty. This process is often used for trade agreements, as the
Congress has constitutional authority to regulate commerce with foreign
nations under Article I of the Constitution.[68]
10.116 Between 1932 and 1982, 608 treaties were ratified after getting
the consent of a two-thirds majority of the Senate, and 9,548 Executive
Agreements were entered into, either by way of sole Presidential action,
or by agreement with the Congress.[69]
Are treaties self-executing, or is legislation necessary?
10.117 Article VI, section 2 of the Constitution provides that all
treaties made under the authority of the United States shall be the
supreme law of the land, and the judges in every State shall be bound
by them, notwithstanding anything to the contrary in the Constitution
or laws of any State.
10.118 Nevertheless, there is still debate over when a treaty is capable
of being self-executing, and when legislation is necessary to fulfil
the principles set out in a treaty.[70] In some cases the Senate will
qualify its consent to the ratification of a treaty with a declaration
that the treaty shall not be self-executing.[71]
Can the Congress require reservations to be attached to ratification?
10.119 The Senate cannot compel the President to modify a treaty, but
it can give its consent subject to conditions which require the making
of reservations at the time of ratification.
10.120 The Senate may also give its consent subject to an 'understanding'
or 'declaration' as to the interpretation of certain treaty provisions,
or subject to a proviso concerning the internal implementation of the
treaty.[72]
Do treaties override future legislation?
10.121 Article VI of the Constitution provides that treaties shall
form part of the supreme law of the land. Hence a treaty is superior
to inconsistent State laws and State Constitutions. It also prevails
over prior inconsistent federal laws. The more difficult question is
whether a treaty prevails over subsequent inconsistent federal laws.
The Supreme Court has developed the 'last-in-time' doctrine, which means
that federal legislation can override treaty obligations, if the legislation
comes into effect after the treaty obligation comes into effect.[73]
Is Congress needed to denounce treaties?
10.122 The Constitution does not state whether Congress must be involved
in the denunciation of a treaty. However, it is generally accepted that
the power to denounce a treaty is held by the President, as part of
his or her power in relation to foreign affairs, and that Congressional
or Senate approval is not required.[74]
Consultation of Congress and involvement of congressional committees
10.123 Where Senate approval is necessary for the ratification of a
treaty, as a matter of practice, both the Senate Foreign Relations Committee
and individual senators are frequently consulted during the negotiation
process.[75]
10.124 As discussed above, the Foreign Relations Committee usually
conducts an inquiry into a treaty, and then recommends to the Senate
whether the treaty should be approved or rejected, or approved subject
to conditions.
The role of the States in the treaty making process
10.125 Apart from a very limited power to enter into international
agreements, with the approval of the Congress, the only involvement
of the States in the treaty making process is through State representatives
in the Senate.
10.126 There have been, however, recent proposals raised by inter-governmental
relations bodies, to increase State and local government involvement
in the treaty making process.[76]
Treaty making generally in OECD countries
10.127 Two of the principal arguments raised before the Committee against
Parliamentary approval of treaties are:
Australia will enter into less treaties due to parliamentary vetos,
and this will threaten Australia's foreign policy;[77] and
10.128 International experience does not necessarily support these
arguments. Information provided by the Department of Foreign Affairs
and Trade shows that of the eleven OECD countries that have entered
more United Nations Conventions than Australia, nine of them require
parliamentary approval for some categories of treaties. Moreover, the
majority of OECD countries require parliamentary approval of at least
some categories of treaties, and this does not appear to have impeded
their ability to conduct foreign policy.[79]
10.129 The information provided by the Department also shows that in
at least four cases, countries had some sort of parliamentary approval
mechanism for treaties, even though treaties were not self-executing
in those countries.
10.130 The following table was provided to the Committee by the Department
of Foreign Affairs and Trade. The Department noted that amongst those
countries classified as requiring some form of parliamentary approval,
the types of treaties to which this applies vary markedly. The Department
also noted that it does not cover European regional treaties (which
may substitute in some cases for UN treaties) or Australia's regional
treaties.
Country No. of Conventions Parliamentary Are treaties
as at 10/5/95 approval required self-executing?
for certain types
of treaty
1 Denmark 68 Yes No
2 France 66 Yes Yes
3 Netherlands 66 Yes Yes
4 Finland 65
5 Germany 65 Yes Yes
6 Spain 64 Yes Yes
7 Sweden 63 Yes No
8 Austria 62 Yes Yes
9 Italy 62 Yes No
10 Norway 62 Yes No
11 United Kingdom 61 No No
12 Australia 59 No No
13 Greece 55 Yes Yes
14 Mexico 55 Yes
15 Switzerland 54 Yes Yes
16 Luxembourg 53 Yes Yes
17 Belgium 52 Yes Yes
18 Portugal 48 Yes Yes
19 Japan 47 Yes Yes
20 Canada 47 No No
21 Ireland 46 Yes No
22 United States 46 Yes Yes
23 New Zealand 44 No No
24 Turkey 31 Yes Yes
Summary
10.131 Federations deal with treaty making in different ways. It is
important to note that the above review of the treaty processes does
not provide a qualitative assessment of the processes used. It has not
been possible to describe how effectively State or provincial interests
are protected by the treaty making processes. Nor has it proved possible
to describe accurately the implications of the treaty making processes
on foreign policy and the federation's effective participation in the
treaty negotiation process - although some indication is provided by
the table above.
10.132 Most federations confine treaty making to the federal sphere,
however, Belgium has allowed its Regions and Communities powers to enter
into treaties on subjects within their jurisdiction. In Germany, the
Lnder have limited powers to enter into treaties on subjects within
their legislative power, but only with the consent of the Federation.
10.133 When treaties are entered into by the federal level of Government,
the sub-national jurisdictions play an indirect role in the parliamentary
approval of treaties through their representation in the upper house.
This is the case in Argentina, Belgium, Germany, Switzerland, and the
United States of America.
10.134 In Canada, where there is no requirement of parliamentary approval
of treaties prior to ratification, the Provinces are still often consulted,
because only the Provinces have power to implement a treaty with regard
to subjects within their exclusive legislative power.
10.135 A number of federations utilise a system of classification of
treaties which affects how the treaties are treated by the parliaments.
This also indicates that the classification of treaties into categories
is not a completely impractical exercise.
10.136 A large number of countries have a system for parliamentary
approval of treaties before they become parties to them. These countries
are able to subject treaties to a formal system of scrutiny. This currently
does not happen in Australia.
Endnotes:
- The information in this Chapter
has been obtained from a number of sources, including the following
submissions: Mr S. Donaghue, Submission No. 13, Vol 1 pp 141-146;
Mr H. Burmester, Submission No. 75, Vol 4, pp 721-727; Ms S. Tongue,
Submission No. 77, Vol 5, pp 848-849; and Mr K. Baxter, Submission
No. 111, Vol 7, pp 1487-1492. The texts cited in the endnotes have
also been drawn on heavily in this chapter. Although all efforts have
been made to ensure that the information is accurate and up to date,
it is possible that recent constitutional changes have not been taken
into account.
- Jose Maria Ruda, 'The Role of
the Argentine Congress in the Treaty-Making Process', in S. Riesenfeld
and F. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 180.
- Jose Maria Ruda, 'The Role of
the Argentine Congress in the Treaty-Making Process', in S. Riesenfeld
and F. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: pp 178-179.
- V. Leary, International Labour
Conventions and National Law, Martinus Nijhoff, 1982: p 29.
- V. Leary, International Labour
Conventions and National Law, Martinus Nijhoff, 1982: p 29.
- Jose Maria Ruda, 'The Role of
the Argentine Congress in the Treaty-Making Process', in S. Riesenfeld
and F. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: pp 182-3.
- Martin & Cia, Ltda. S.A.
c. Administracion General de Puertos Fallos de la Corte Suprema
257: 99, 6 November 1963, cited in: V. Leary, International Labour
Conventions and National Law, Martinus Nijhoff, 1982, at p 119.
- Jose Maria Ruda, 'The Role of
the Argentine Congress in the Treaty-Making Process', in S. Riesenfeld
and F. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: pp 183-4.
- For further detail, see Constitution
of Belgium, art. 67.
- Constitution of Belgium, Article
72.
- Constitution of Belgium, Articles
127-128, and Article 130.
- Constitution of Belgium, Articles
134 and 39.
- M. Maresceau, 'Belgium', in F.
Jacobs and S. Roberts, The Effect of Treaties in Domestic Law,
London, Sweet & Maxwell, 1987: at pp 4-5.
- M. Maresceau, 'Belgium', in F.
Jacobs and S. Roberts, The Effect of Treaties in Domestic Law,
London, Sweet & Maxwell, 1987: p 5.
- M. Maresceau, 'Belgium', in F.
Jacobs and S. Roberts, The Effect of Treaties in Domestic Law,
London, Sweet & Maxwell, 1987: pp. 6-7.
- Maresceau, M., 'Belgium', in
F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law,
London, Sweet & Maxwell, 1987: p. 8.
- M. Maresceau, 'Belgium', in F.
Jacobs and S. Roberts, The Effect of Treaties in Domestic Law,
London, Sweet & Maxwell, 1987: p 12.
- Information provided by Mr Jeroen
Van Nieuwenhove, Belgian Senate.
- See: M. Maresceau, 'Belgium',
in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic
Law, London, Sweet & Maxwell, 1987: pp 16-20.
- Fromagerie Franco-Suisse "Le
Ski" v Belgian State, discussed in M. Maresceau, 'Belgium',
in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic
Law, London, Sweet & Maxwell, 1987: p 14.
- P. Hogg, Constitutional Law
of Canada, 3rd ed., 1992: p 297.
- P. Hogg, Constitutional Law
of Canada, 3rd ed., 1992: pp 297-298.
- P. Hogg, Constitutional Law
of Canada, 3rd ed., 1992: p 284-285.
- P. Hogg, Constitutional Law
of Canada, 3rd ed., 1992: p 285.
- Attorney-General (Canada)
v Attorney-General (Ontario) [1937] A.C. 326.
- See, e.g. P. Hogg, Constitutional
Law of Canada, 3rd ed., 1992: pp 292-297.
- For examples of treaties see:
Hansard, SLCRC, 16 May 1995, pp 433-434, per Senator O'Chee.
- J. Williamson, A Comparison
of Treaty Making Practices in Australia, the United States, the United
Kingdom and Germany, A Report for the Law Internship Program at
Australian National University, October 1994: p 13.
- J.A. Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 63.
- J.A. Frowein and M. J. Hahn,
'The Treaty Process in the Federal Republic of Germany' in S.A Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 64.
- J. Williamson, A Comparison
of Treaty Making Practices in Australia, the United States, the United
Kingdom and Germany, A Report for the Law Internship Program at
Australian National University, October 1994: p 14.
- J.A. Frowein and M. J. Hahn,
'The Treaty Process in the Federal Republic of Germany' in S.A Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 68.
- J.A. Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 68.
- J.A. Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld,
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 67.
- J.A. Frowein, 'Federal Republic
of Germany' in F.G. Jacobs and S. Roberts, The Effect of Treaties
in Domestic Law, London, Sweet & Maxwell, 1987: p 67.
- J.A. Frowein, 'Federal Republic
of Germany' in F.G. Jacobs and S. Roberts, The Effect of Treaties
in Domestic Law, London, Sweet & Maxwell, 1987: pp 67-68.
- J.A Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 69.
- J.A Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 72.
- J.A Frowein and M.J. Hahn, 'The
Treaty Process in the Federal Republic of Germany' in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 72.
- J.A. Frowein, 'Federal Republic
of Germany' in F.G. Jacobs and S. Roberts, The Effect of Treaties
in Domestic Law, London, Sweet & Maxwell, 1987: pp 66-67.
- S.S. Ahlwalia, 'The Parliament
of India: Its Role Under the Constitution', in C.K. Jain (ed), Constitution
of India: In Precept and Practice, CBS Publishers and Distributors,
New Delhi, 1992: pp 49-50.
- K. Holloway, Modern Trends
in Treaty Law, Stevens and Sons, London, 1967: p 196.
- The Constitution of India
(As modified up to the 1st of March, 1993), Lok Sabha Secretariat,
1993: pp 291-305.
- Madhavsinh Solanki, 'The Constitutional
Aspects of India's Foreign Policy', in C.K. Jain (ed), Constitution
of India: In Precept and Practice, CBS Publishers and Distributors,
New Delhi, 1992: p 362.
- K. Holloway, Modern Trends
in Treaty Law, Stevens and Sons, London, 1967: p 195.
- H.M. Seervai, Constitutional
Law of India: A Critical Commentary , 3rd ed., N.M. Tripathi Private
Ltd, Bombay, 1983: p 170.
- H.M. Seervai, Constitutional
Law of India: A Critical Commentary 3rd ed., N.M. Tripathi Private
Ltd, Bombay, 1983: p 172.
- Luzius Wildhaber, Treaty-Making
Power and Constitution: An International and Comparative Study,
Heilbing and Lichtenhahn, Basel, 1971: p 34.
- K. Holloway, Modern Trends
in Treaty Law, Stevens and Sons, London, 1967: p 195.
- C. Subramaniam, 'A Fresh Look
at the Federal Structure', in C.K. Jain (ed), Constitution of India:
In Precept and Practice, CBS Publishers and Distributors, New
Delhi, 1992: p 195.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law', in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 132.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law', in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 132.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law', in S.A. Riesenfeld
and F.M. Abbott, (eds) Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 134.
- V. Leary, International Labour
Conventions and National Law, Martinus Nijhoff, 1982: p 49.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law', in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: pp 139-140.
- Banque de Credit International
c. Conweil d'Etat du Canton de Genve, Chambre de droit administratif,
13 October 1972, ATF 98 I b 385, quoted in V. Leary, International
Labour Conventions and National Law, Martinus Nijhoff, 1982: p 68.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law' in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 136.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law' in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 137.
- V. Leary, International Labour
Conventions and National Law, Martinus Nijhoff, 1982: p 122.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law' in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 139.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law' in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: p 139.
- L. Wildhaber, 'Parliamentary
Participation in Treaty-Making, Report on Swiss Law' in S.A. Riesenfeld
and F.M. Abbott, (eds), Parliamentary Participation in the Making
and Operation of Treaties - A Comparative Study, Martinus Nijhoff,
1994: pp 136-137.
- Hansard, SLCRC, 14 June
1995, p 748, per Mr Gulson.
- S.A. Riesenfeld, and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p 266.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: pp 266-267.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p. 301.
- The constitutionality of this
process is discussed in B. Ackerman and D. Golove, 'Is NAFTA Constitutional?'
(1995) 108 Harvard Law Review 801.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p 302.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p 302.
- J.H. Jackson, 'United States'
in F.G. Jacobs and S. Roberts, (eds) The Effect of Treaties in
Domestic Law, London, Sweet & Maxwell, 1987: p 141.
- L.F. Damrosch, 'The Role of the
United States Senate Concerning "Self-Executing" and "Non-Self-Executing"
Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p 205. This was done in the case
of the International Covenant on Civil and Political Rights.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: p 268.
- S.A. Riesenfeld and F.M. Abbott,
'The Scope of U.S. Senate Control Over the Conclusion and Operation
of Treaties' in S.A. Riesenfeld and F.M. Abbott, (eds), Parliamentary
Participation in the Making and Operation of Treaties - A Comparative
Study, Martinus Nijhoff, 1994: pp 264-265.
- L. Levy, K. Karst, and D. Mahoney,
(eds), Encyclopedia of the American Constitution, MacMillan
Publishing Co., New York: p 1911.
- J. Williamson, 'A Comparison
of Treaty Making Practices in Australia, the United States, the United
Kingdom and Germany, A Report for the Law Internship Program at
Australian National University, October 1994: pp 6-7.
- J. Kline, 'Managing intergovernmental
tensions: shaping a state and local role in US foreign relations'
in B. Hocking, (ed.), Foreign Relations and Federal States,
Leicester University Press, 1993: p 118.
- See for example: Hansard,
SLCRC, 2 May 1995, per Mr R. Walsham.
- See for example, Hansard,
SLCRC, 16 May 1995, p 380, per the Hon. E. Evatt.
- Hansard, SLCRC, 14 June
1995, p 621, per Mr J. Daley.