Chapter 10

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

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:

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:

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:

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:

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:

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:

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:

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:

  1. 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.
  2. 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.
  3. 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.
  4. V. Leary, International Labour Conventions and National Law, Martinus Nijhoff, 1982: p 29.
  5. V. Leary, International Labour Conventions and National Law, Martinus Nijhoff, 1982: p 29.
  6. 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.
  7. 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.
  8. 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.
  9. For further detail, see Constitution of Belgium, art. 67.
  10. Constitution of Belgium, Article 72.
  11. Constitution of Belgium, Articles 127-128, and Article 130.
  12. Constitution of Belgium, Articles 134 and 39.
  13. M. Maresceau, 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: at pp 4-5.
  14. M. Maresceau, 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: p 5.
  15. M. Maresceau, 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: pp. 6-7.
  16. Maresceau, M., 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: p. 8.
  17. M. Maresceau, 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: p 12.
  18. Information provided by Mr Jeroen Van Nieuwenhove, Belgian Senate.
  19. See: M. Maresceau, 'Belgium', in F. Jacobs and S. Roberts, The Effect of Treaties in Domestic Law, London, Sweet & Maxwell, 1987: pp 16-20.
  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.
  21. P. Hogg, Constitutional Law of Canada, 3rd ed., 1992: p 297.
  22. P. Hogg, Constitutional Law of Canada, 3rd ed., 1992: pp 297-298.
  23. P. Hogg, Constitutional Law of Canada, 3rd ed., 1992: p 284-285.
  24. P. Hogg, Constitutional Law of Canada, 3rd ed., 1992: p 285.
  25. Attorney-General (Canada) v Attorney-General (Ontario) [1937] A.C. 326.
  26. See, e.g. P. Hogg, Constitutional Law of Canada, 3rd ed., 1992: pp 292-297.
  27. For examples of treaties see: Hansard, SLCRC, 16 May 1995, pp 433-434, per Senator O'Chee.
  28. 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.
  29. 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.
  30. 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.
  31. 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.
  32. 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.
  33. 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.
  34. 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.
  35. 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.
  36. 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.
  37. 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.
  38. 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.
  39. 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.
  40. 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.
  41. 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.
  42. K. Holloway, Modern Trends in Treaty Law, Stevens and Sons, London, 1967: p 196.
  43. The Constitution of India (As modified up to the 1st of March, 1993), Lok Sabha Secretariat, 1993: pp 291-305.
  44. 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.
  45. K. Holloway, Modern Trends in Treaty Law, Stevens and Sons, London, 1967: p 195.
  46. H.M. Seervai, Constitutional Law of India: A Critical Commentary , 3rd ed., N.M. Tripathi Private Ltd, Bombay, 1983: p 170.
  47. H.M. Seervai, Constitutional Law of India: A Critical Commentary 3rd ed., N.M. Tripathi Private Ltd, Bombay, 1983: p 172.
  48. Luzius Wildhaber, Treaty-Making Power and Constitution: An International and Comparative Study, Heilbing and Lichtenhahn, Basel, 1971: p 34.
  49. K. Holloway, Modern Trends in Treaty Law, Stevens and Sons, London, 1967: p 195.
  50. 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.
  51. 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.
  52. 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.
  53. 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.
  54. V. Leary, International Labour Conventions and National Law, Martinus Nijhoff, 1982: p 49.
  55. 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.
  56. 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.
  57. 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.
  58. 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.
  59. V. Leary, International Labour Conventions and National Law, Martinus Nijhoff, 1982: p 122.
  60. 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.
  61. 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.
  62. 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.
  63. Hansard, SLCRC, 14 June 1995, p 748, per Mr Gulson.
  64. 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.
  65. 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.
  66. 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.
  67. The constitutionality of this process is discussed in B. Ackerman and D. Golove, 'Is NAFTA Constitutional?' (1995) 108 Harvard Law Review 801.
  68. 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.
  69. 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.
  70. 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.
  71. 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.
  72. 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.
  73. 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.
  74. L. Levy, K. Karst, and D. Mahoney, (eds), Encyclopedia of the American Constitution, MacMillan Publishing Co., New York: p 1911.
  75. 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.
  76. 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.
  77. See for example: Hansard, SLCRC, 2 May 1995, per Mr R. Walsham.
  78. See for example, Hansard, SLCRC, 16 May 1995, p 380, per the Hon. E. Evatt.
  79. Hansard, SLCRC, 14 June 1995, p 621, per Mr J. Daley.