Les aspects constitutionnels de la ratification des conventions de l’O.I.T. Constitutional Aspects of Ratification of I.L.O. Conventions

Résumé

Le problème de la ratification des conventions de l'O.I.T. par les états fédératifs s'est toujours posé. Après une brève présentation de l'Acte de l'Amérique du Nord britannique, l'auteur examine plus particulièrement le cas du Canada.

Abstract

INTRODUCTION

The International Labour Organization was established in 1919 on the firm belief that universal and lasting peace can only be established if based upon social justice and by eliminating injustice, hardship and privation.

The Conventions and Recommendations adopted by the I.L.O. play an essential part in fulfilling the basic objectives of the organization.

The provisions of Conventions and Recommendations form international labour standards affecting all aspects of conditions of labour.

By the end of 1968 the I.L.O. had adopted 128 Conventions and 132 Recommendations.

Conventions are draft international treaties intended for ratification and when ratified they create binding legal obligations.

Recommendations are not intended for ratification but to provide guidance to governmental policies, legislation and practice.

The making of both Conventions and Recommendations is a function of the I.L.O. Conference. In each case a majority of two-thirds of the votes cast by the delegates present is required for their adoption.

A Convention adopted by the I.L.O. is a draft international treaty. This character of a draft international treaty is not impaired by the fact that owing to the tripartite structure of the I.L.O. (governments, workers, employers) the adoption of I.L.O. Conventions is not subject to unanimous agreement of government delegates of the Member States. The fact that a draft Convention is adopted by a two-thirds majority vote of delegates representing governments, workers and employers is a specific characteristic of the I.L.O.

A Member State of the I.L.O., by ratifying a given Convention, assumes a legal international obligation to the effect that the requirements of a Convention will be met in the ratifying country.

In case of non-compliance with the ratified Convention, a complaint against the ratifying country may be lodged with the I.L.O. either by an industrial association of employers or of workers, or by any other ratifying State. Procedures dealing with such complaints are outlined in the I.L.O. Constitution.

The enforcement of the ratified I.L.O. Conventions is not restricted to the formal complaints mentioned above. By a system requiring periodic reports which are examined by a committee of experts, the I.L.O. exercises very effective supervision of the application of ratified Conventions.

TREATY-MAKING AND TREATY-PERFORMING POWERS

The process of ratification entails :

(1) the formation ; and

(2) the performance,

of the obligations undertaken by a Convention

(or a treaty).

These two aspects are sometimes referred to as the treaty-making and treaty-performing powers.

In countries with written constitutions, these matters are usually dealt with in the Constitution. In the case of unitary States, the position is simple. The national executive (the government of the day) performs ratification, essentially an executive act, with or without consent of the legislative branch of the government (Parliament). In some systems, a ratified treaty may, by the provisions of the Constitution, become automatically a part of the law of the land. In others, it may require — to be internally effective — implementing legislation. This may already exist or may have to be enacted by Parliament.

In the case of federal states, the situation is more complicated. The treaty-making power is normally the exclusive prerogative of the central (federal) government. The implementing (performing) power, in cases where a ratified treaty does not become automatically the law of the land, would be vested in a legislature or legislatures following the constitutional division of powers.

The power of ratifying and implementing I.L.O. Conventions within the Canadian constitutional context has two aspects :

(a) which level of government has constitutional power to ratify I.L.O. Conventions ; and

(b) which level or levels of governments has or have power to implement a

Convention by taking appropriate legislative measures, when necessary.

THE BRITISH NORTH AMERICA ACT, 1867

The B.N.A. Act enacted by the Parliament of the United Kingdom in 1867 and subsequent amendments established Canada as it is known today, and form the written part of the Canadian Constitution. The unwritten part of the Canadian Constitution consists of political conventions and customs which form the unwritten Constitution of the United Kingdom which has been applied in Canada before and after the enactment of the B.N.A. Act.

Some judicial decisions, particularly those rendered by the Privy Council in London in interpreting the provisions of the B.N.A. Act, added an important element to the totality of written and unwritten rules that form the Canadian Constitutional setup.

When, in 1867, the B.N.A. Act was enacted, it was not contemplated that the Dominion of Canada would possess treaty-making powers. At that time, Canada did not possess a separate juristic identity in the field of international relations and the Imperial Government in London was responsible for Canada's international relations.

Therefore, the B.N.A. Act only in one section dealt with the powers of the Parliament and Government of Canada regarding implementation (performance) of international obligations contracted by the Parliament and Government of Great Britain insofar as such obligations were binding Canada. The relevant section 132 of the B.N.A. Act reads as follows :

« The Parliament and Government of Canada shall have all 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 ».

At that time the treaty-making power (that is the creation of international obligations affecting Canada) was understood to be within the exclusive competence of the Imperial Parliament and Government of Great Britain.

When Canada emerged from the First World War as an international person, and through membership in the League of Nations became a full fledged member of the international community of sovereign states, she faced her new international capacities and responsibilities without constitutional provisions regarding the treaty-making and treaty-performing powers that would correspond to her new international status. It was mainly left to judicial interpretation of the B.N.A. Act to fill in the constitutional gaps regarding the formation and performance of Canada's international obligations.

When federal legislation implementing Canada's obligations under the Aeronautic Convention was challenged, the Judicial Committee of the Privy Council upheld the validity of such legislation under section 132 of the B.N.A. Act as being legislation to perform obligations imposed by a treaty between the British Empire and the foreign countries (The Aeronautics Case (1932) A.C. 54). ¹

In the Radio Case (1932) A.C. 304, the validity of the federal radio communication legislation implementing the international Convention was upheld not on the ground of section 132 of the B.N.A. Act, but on the ground that the Convention in question dealt with classes of matters not included within the enumerated classes of the subjects reserved in section 92 of the B.N.A. Act exclusively to provincial legislatures, or even within the enumerated classes reserved to the Dominion Parliament in section 91 of the B.N.A. Act. Moreover, part of the subject matter of the Convention, namely, broadcasting, might come under the heading « Inter-provincial Telegraphs », expressly excluded from section 92 and thus falling within federal jurisdiction ².

THE LABOUR CONVENTIONS CASE (1937) ³

In 1935 the federal government ratified three I.L.O. Conventions the subject matter of which was partly within both federal and provincial jurisdictions, but primarily within provincial jurisdiction under section 92 (13) of the B.N.A. Act, namely, « Property and civil rights in the Province ».

The Conventions in question were :

Convention No. 1 : Hours of Work (Industry), 1919

Convention No. 14 : Weekly Rest (Industry), 1921

Convention No. 26 : Minimum Wage-Fixing Machinery, 1928.

The same year (1935) the legislation implementing these Conventions was enacted by the Parliament of Canada, namely : The Limitation of Hours of Work Act ; The Weekly Rest in Industrial Undertakings Act ; and the Minimum Wage Act.

By the decision of the Judicial Committee of the Privy Council rendered on January 28, 1937, the statutes implementing these ratified Conventions were declared ultra vires of the Parliament of Canada.

This decision of the Privy Council is of primary importance as it dealt with the question of ratification and implementation of the I.L.O. Conventions and international treaties in general within Canadian constitutional framework and the B.N.A. Act in particular.

Considering that the constitutional position established in the judgment of the Privy Council in the Labour Conventions Case is still applied to Canada's approach to ratification and implementation of I.L.O. Conventions, it might be useful to present the main aspects of the judgment.

The main issue that the Judicial Committee of the Privy Council was called to decide was whether the federal statutes implementing the ratified Conventions were valid. It was admitted at the bar that each statute affected property and civil rights within each province.

Nevertheless, the federal government argued that the implementing legislation was validly enacted under the legislative powers given to the Dominion Parliament by the B.N.A. Act, 1867. In particular, it was contended that the legislation could be justified either (1) under section 132 of the B.N.A. Act as being legislation « necessary or proper for performing the obligations of Canada, or any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries » or (2) under the general powers, sometimes called residuary powers granted by section 91 of the B.N.A. Act to the Dominion Parliament to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned by the B.N.A. Act exclusively to the legislatures of the Provinces ⁴.

The latter argument was apparently prompted by an opinion expressed by the Chief Justice of the Supreme Court of Canada (when the case was considered by that Court) that the judgments of the Judicial Committee in the Aeronautics Case and the Radio Case (referred to above) indicated that « jurisdiction to legislate for the purpose of performing the obligation of a treaty resides exclusively in the Parliament of Canada » ⁵.

The provinces (Ontario, New Brunswick and British Columbia) contended :

Regarding the first argument —

(a) « that the obligations, if any, of Canada under the labour conventions did not arise under a treaty or treaties made between the Empire and foreign countries: and that therefore section 132 of the B.N.A. Act did not apply »;

(b) « that the Canadian Government had no executive authority to make any such treaty as was alleged »;

(c) « that the obligations said to have been incurred, and the legislative powers sought to be exercised, by the Dominion were not incurred and exercised in accordance with the terms of the Treaty of Versailles ».

Regarding the second argument —

« if the Dominion had to rely only upon the powers given by s. 91, the legislation was invalid, for it related to matters which came within the classes of subjects exclusively assigned to the Legislatures of the Provinces — namely, property and civil rights in the province » ⁶.

The judgment stressed that it is essential to make the distinction between (1) the formation, (2) the performance, of the obligations constituted by a treaty. It pointed out that « within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action » ⁷. Another rule is that, « unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law » ⁸. If the national executive, the government of the day, decide by the act of ratification to be bound by the obligations of a treaty which involves alteration of law it has to obtain the assent of Parliament to the necessary legislation implementing the treaty obligations. There is no doubt that the creation of the obligations undertaken in treaties is the function of the executive alone. Once such obligations are created, « while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default »⁹

In a unitary state (like the United Kingdom) with a legislature possessing unlimited powers, the problem is simple. Parliament will either fulfil or fail to fulfil treaty obligations imposed upon the state by its executive. The nature of the obligations does not affect the full power of the Parliament to make them into law only if it so chooses. But the problem is complex in a state where the legislature does not possess absolute authority ; or, in a federal state where legislative authority is either limited by a constitutional document, or, even more so when it is divided up between different legislatures in accordance with classes of subject-matter (as in Canada). In this latter case, the obligations imposed by a treaty may have to be performed by several Legislatures. Then the executive has to obtain the legislative assent (implementation) not only of the one Parliament to which the executive may be responsible but also of all other legislatures concerned and to which the executive stands in no direct relation.

The judgment emphasized that the question is not how is the obligation formed, which is the function of the executive, « but how is the obligation to be performed, and that depends upon the authority of the competent Legislature or Legislatures »¹⁰. At this point it should be noted that the Judicial Committee did not consider necessary to rule on the contention submitted by the Provinces that the Canadian government did not have executive authority to ratify the Conventions in question. But, on the other hand, the Judicial Committee noted that no argument was raised that would question « the international status which Canada had now attained, involving her competence to enter into international treaties as an international juristic person » ¹¹.

In declaring the federal statutes implementing the ratified Conventions to be ultra vires of the Parliament of Canada, the Judicial Committee rejected the contentions submitted by the Federal government on the following grounds :

The contention that the implementing legislation was valid under section 132 of the B.N.A. Act was rejected on the ground that the international obligations contracted by ratifying the conventions were not obligations of Canada as part of the British Empire, but of Canada, « by virtue of her new status as an international person », and were not created under a treaty between the British Empire and foreign countries ¹². The judgment admitted that it was not contemplated in 1867 that the Dominion would possess treaty-making powers, but added that it was impossible to stretch section 132 so as to cover the event not contemplated at that time, also, it was impossible to accept the argument that the obligations to perform the conventions arose « under » part XIII of the Treaty of Versailles which dealt with the establishment of the I.L.O. In this respect, the judgment stated that « no obligation to legislate in respect of any of the matters in question arose until the Canadian executive, left with an unfettered discretion,of their own volition, acceded to the conventions, a novus actus not determined by the Treaty » ¹³.

The second argument that the power to enact the contested legislation was based on section 91 of the B.N.A. Act was also rejected. In the opinion of the Judicial Committee, there is no doubt whatsoever that normally the contested legislation came within the classes of subjects by section 92 of the B.N.A. Act assigned exclusively to the legislatures of the Provinces, namely, property and civil rights in the Province. Being so, such legislation is expressly excluded from the general powers given to the Parliament of Canada by the first words of section 91 (Peace, Order and good Government of Canada) ¹⁵.

Further, the judgment rejected the argument that the distribution of powers in sections 91 and 92 of the B.N.A. Act could be disregarded and federal legislation could be justified on the grounds that the legislation in question was concerned with matters of such general importance as to have attained « such dimensions as to affect the body politic » and to have « ceased to be merely local or provincial » and to have « become matters of national concern ». Such argument could only be accepted in some exceptional circumstances such as epidemic of pestilence or the existence of « some extraordinary peril to the national life in Canada », but the situation in Canada at the time of the enactment of the legislation in question was far from such highly exceptional conditions which might over-ride the normal distribution of powers in sections 91 and 92 ¹⁵.

The judgment stressed that for the purposes of sections 91 and 92, which divided the legislative powers between the Dominion and the Provinces, « there is no such thing as treaty legislation as such » ¹⁶.

The distribution of legislative powers is based on classes of subjects. Consequently when a treaty affects a particular class of subjects then the legislative power of performing it is to be ascertained accordingly. The judgment stressed that the distribution of legislative powers between two levels of governments constitutes probably the most essential condition in the « inter-provincial compact » achieved under the B.N.A. Act. Therefore, any claim by the Dominion following ratification of a treaty to legislate on matters reserved to provincial legislatures would « undermine the constitutional safeguards of Provincial constitutional autonomy » ¹⁷.

It is true, the judgment noted, that the federal executive has now the powers of making treaties and assuming international obligations. But if such obligations affect the classes of subjects within provincial jurisdictions enumerated in section 92, their implementation is within the competence of the Provincial legislatures only. In other words, the Judicial Committee added that « the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the Constitution which gave it birth » ¹⁸.

Finally, the judgment stated :

« It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the legislative powers remain distributed, and if in the exercice of her new functions derived from her new international status Canada incurs obligations they must, so far as legislation be concerned, when they deal with Provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of the state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure » ¹⁹.

EFFECTS OF LABOUR CONVENTIONS CASE

The decision of the Judicial Committee of the Privy Council created an awkward situation for Canada. The decision did not affect the validity of ratification of the Conventions in question. Canada remained bound to comply with the provisions of the ratified Conventions but the legislation enacted by the Parliament of Canada, in order to perform the contracted obligations, was declared ultra vires and consequently not valid. There were two courses open to the federal government. Canada could consider the denouncing of these conventions under the terms provided in each of them. Alternatively, Canada could remain bound by the ratifications hoping that the provinces as well as the federal government acting within their respective jurisdictions would enact the necessary legislation implementing the international obligations contracted by the federal executive. The second alternative was adopted. Canada did not denounce the conventions, and legislative action on both levels of government brought us on the whole into compliance with conventions regarding weekly rest and minimum wage-fixing machinery. Regarding Convention No. 1 — Hours of Work (Industry) — full compliance as yet has not been achieved.

The judgment of the Privy Council clarified the constitutional aspects of ratification of the I.L.O. Conventions by indicating how Canada could perform contractual international obligations when subject matters of the conventions fall within exclusive provincial or both federal and provincial jurisdictions.

The approach regarding I.L.O. Conventions, the subject matter of which is within exclusive federal jurisdiction was not affected by the Privy Council decision and several conventions of this kind have been ratified particularly in the field of conditions of employment of seafarers.

Regarding conventions affecting both federal and provincial jurisdictions, the judgment stressed the need of consultation and co-operation with the provinces in order that Canada could not only create, but also fulfil, her international obligations.

PRESENT PRACTICE AFFECTING RATIFICATION

Before proceeding with ratification it has been Canada's policy to first obtain virtually complete legislative conformity with the requirements of a Convention.

When the subject matter of the Convention is within exclusive federal jurisdiction, such conformity can be secured through federal legislation. Up to the end of 1968, Canada had ratified 17 such Conventions.

In situations where the subject matter of a Convention is partly within federal and partly within provincial jurisdictions, conformity depends on the adoption of implementing legislation by all the provincial and the federal governments. This involves close consultation with the provinces to find out whether the legislative provisions in all jurisdictions conform with the requirements of the Convention. Once the federal and provincial governments agree that the Convention has been implemented in all jurisdictions, the federal government proceeds with ratification.

The procedure of consultation makes the provincial governments aware that once a Convention is ratified the fulfilment of Canada's international obligations contracted by the act of ratification will depend on continuous conformity of provincial legislation with the provisions of the Convention. In recent years, following consultations with the provinces, three Conventions have been ratified, namely : Discrimination in Employment and Occupation (ratified in 1964) ; Employment of Women on underground Work in Mines (ratified in 1966) ; and Employment Policy (ratified in 1966). At present the federal government is in final stages of consultation with the provinces regarding ratification of Convention 87 concerning Freedom of Association and Protection of the Right to Organize. Formal concurrence with intended ratification has already been obtained from eight provincial governments.

The aim of the I.L.O. is to have as many I.L.O. Conventions as possible ratified by the Member States. However, the constitution of the I.L.O. takes into consideration the difficult position of federal States in contracting international obligations with respect to Conventions, the implementation of which is within the constitutional jurisdiction of component parts of federal states. The I.L.O. Constitution puts stress on periodical consultations between two levels of government with a view to promoting within the federal state co-ordinated action to give effect to the Conventions (and Recommendations) adopted that would eventually lead to the ratification of such Conventions.

At present there is no formal machinery for consultation with the provinces regarding ratification of I.L.O. Conventions. However, various occasions provide opportunity for such consultation. Often the problem of ratification is being discussed at periodic meetings of federal and provincial deputy Ministers of Labour as well as Ministers of Labour.

Another opportunity to discuss I.L.O. matters and the prospects of ratification is afforded by the annual meetings of the Canadian Association of Administrators of Labour Legislation. Also, it should be noted that the provincial departments of labour are consulted by correspondent in preparing the position of the government of Canada at various stages leading to the adoption of I.L.O. Conventions and Recommendations.

Recently, in response to suggestions made by the provinces and labour organizations, the International Affairs Branch of the Federal Department of Labour initiated a program of preparing detailed analyses of a selected number of Conventions, the degree of their implementation in Canada and action required by all jurisdictions in Canada to bring total legislation in Canada into conformity with international standards. The first publication in this series entitled « Minimum Age for Employment — a study of action required to bring legislation in each jurisdiction in Canada into conformity with International Labour Conventions » was published recently in English and French, and sent to all provincial departments of labour and to employers' and workers' organizations. Other studies in this series are in preparation. Before such study is published, a draft is sent to all provinces for comments to ensure that the provinces agree with the Branch's assessment of their respective legislation within the terms of the selected Conventions.

Through this consultation before the final draft is prepared, provinces have the opportunity to have a critical look at their legislation and in this way all levels of government are involved in critical assessment of their standards as compared with the standards embodied in the Conventions.

It was thought that this kind of publication would create greater awareness in Canada of international standards, and would lead eventually to greater compliance in Canada with I.L.O. Conventions and speed up the process of ratification.

Canada is one of the founding members of the I.L.O. and has been a permanent member of the Governing Body from the very beginning of the organization. For 50 years we have been involved in the process of establishing international labour standards that provide for social justice and better working conditions. It could be argued that in many instances, whether we ratify the I.L.O. Conventions or not, our Canadian standards are the same or better. But, the reverse is also true. In many other instances our standards are below international standards. The whole process of federal-provincial consultation aiming at ratification of I.L.O. Conventions, whether successful or not, is contributing to raising our Canadian standards. Our ultimate aim of ratification is the best guarantee of the observance of international standards in Canada.

1. As referred to in Labour Conventions Case, below.

2. As referred to in Labour Conventions Case, below.

3. Attorney-General for Canada and Attorney-General for Ontario and Others (1937) A.C. 326.

4.lbid., p. 342.

5.lbid., pp. 350, 351.

6.lbid. p. 342.

7.Ibid., p. 347.

8.Ibid., p. 347.

9.Ibid., p. 348.

10.Ibid., p. 348.

11.Ibid., p. 349.

12.Ibid., p. 349.

13.Ibid., p. 350.

14.Ibid., p. 350.

15.Ibid., pp. 352, 353.

16.Ibid., p. 351.

17.Ibid., pp. 351, 352.

18.Ibid., p. 352.

19.Ibid., pp. 353, 354.