Home Research Projects Governance Beyond Borders Publications Discussion Paper - Crossing Borders: Law in a Globalized World Questions for Discussion

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Governance Beyond Borders

Publications

LAW-MAKING, LEGITIMACY AND ACCOUNTABILITY

Treaty Negotiation

1. Who should negotiate Canada’s treaties? Should there be a formal role for parliamentarians and non-governmental representatives? If so, what should this role be?
   
2. Is the government’s current approach to public consultations on Canada’s international negotiating positions sufficient? With whom should the government consult? What should Parliament’s role be? Should the process be a formal or informal one? Should the approach differ depending on the type of treaty, its potential impact or other factors?
   
3. More generally, what steps should the government take to communicate both internally and externally the scope and nature of current and upcoming international obligations to Parliament, sub-national authorities and Canadians?

   The Role of Sub-national Governments

4. What are the advantages and disadvantages of the current consultation process with the provincial, territorial and Aboriginal governments? Should it be improved? Should there be a formal, mandatory means of involving sub-national levels of government in treaty negotiations concerning matters within their jurisdiction?

   Ratification

5. Should there be a formal process of Parliamentary endorsement before the federal executive branch binds Canada as a matter of international law? If so, what form should this process take?
   
6. Should the Canadian approach to ratification require that subnational governments themselves endorse a treaty on matters within their own jurisdiction, prior to Canada binding itself in international law? Would the consent of the executives suffice, or would the legislatures be required to provide the requisite consent? What would happen if some sub-national governments approved, but others rejected a treaty?
   
7. To what extent, if any, should sub-national governments have the power to negotiate directly and ratify treaties that are within their sphere of jurisdiction?

   Determination of Customary Law

8. What process should Canada use to develop positions on which norms have customary international law status?

   Approach to Soft Law and Review Mechanisms

9. How should Canada develop positions on soft law instruments? Should the same process be used for soft law and treaties? Should these positions be devised in close consultation with stakeholder groups, parliamentarians and officials from other levels of government?
   
10. What are the pros and cons of the government’s current approach to preparing reports on performance to international bodies? When Canada reports to international bodies charged with assessing Canada’s compliance with international obligations, with whom should it consult? What process should be followed?
    
11. Should there be a formal domestic mechanism to review whether Canada is meeting its obligations?

    Implementation of Treaties

12. How should Canada deal with the dilemmas of dualism? Should treaty dualism be replaced by a more “monist” approach to treaty law: automatic implementation of treaty law into the law of Canada? If so, how would this be achieved? To preserve the role of legislatures, would this change necessitate a more formal means of parliamentary/sub-national approval of treaties before the government binds Canada as a matter of international law?
    
13. What standards should be applied in deciding whether a treaty has been implemented into domestic law?
    
14. What status should be accorded to an unimplemented treaty by the courts?

    Acceptance of Customary Law

15. What rules should apply governing the acceptance of customary international law into the law of Canada?

    SOVEREIGNTY, JURISDICTION AND UNEVEN ACCESS TO JUST OUTCOMES

    International Remedies

16. Should Canada promote greater use and effectiveness of international remedies both domestically and internationally?
    
17. Should Canada give more domestic legal force to non-binding decisions rendered by international treaty bodies? For example, should Canada be more willing to accord “views” of international human rights treaty bodies more legal force in domestic law?
    
18. Should the government do more to publicize the existence of international remedies?

    Remedies in Canada

19. Should Canada create civil causes of action tied to international wrongs? If so, how should it do so? Would this require each province to act, since the provinces have constitutional jurisdiction over “civil rights and property”?
    
20. Should Canada be prepared to accord Canadian courts jurisdiction to hear civil trials that deal with the most serious violations of international rights, irrespective of where they occur?
    
21. What implications should transnational litigation have for Canadian rules of evidence, when witnesses and evidence may be located elsewhere and not be easily brought to Canadian courts?

    State Immunity

22. In what circumstances should Canada limit state immunity? If it does, how should it do so in a fashion that responds to the rules of state immunity that exist in international law? What would be the impact on a state’s diplomatic relations?

    Enforcing Remedies

23. Should Canada take the position domestically and internationally that damages awarded in a fair, foreign trial concerning an international wrong of whatever character (and not just concerning contractual matters) may be enforced by a domestic court? What are some of the advantages and disadvantages?

    Regulating Overseas Activities

24. Should Canada be more active in regulating the overseas activities of Canadian actors? If so, what values should prompt this extraterritorial regulation: established international human rights norms; established international labour rights; domestic environmental standards, etc.?
    
25. To determine if a law should have extraterritorial scope, should there be different considerations for civil and criminal law matters?
    
26. Procedurally, how would extraterritorial regulation work? How can difficulties in enforcement and evidence-gathering across borders be resolved?
    
27. How should Canada respond to the application of foreign extraterritorial laws to Canadians? What principles should guide this determination?