Part IV Federalism, B Federalism in Context, Ch.28 International Treaty-Making and Treaty Implementation

2017 ◽  
Author(s):  
Cyr Hugo ◽  
Mestral Armand de
Keyword(s):  
Federal Government ◽  
Foreign Relations ◽  
Constitutional Law ◽  
International Treaty ◽  
Division Of Powers ◽  
Canadian Law ◽  
Canadian Federalism ◽  
Modus Vivendi ◽  
Tacit Consent ◽  
Treaty Implementation

This chapter discusses the difficult questions surrounding treaties in Canadian constitutional law. The first part examines treaty-making powers, in particular, the lack of explicit constitutional provisions which outline how, and who, may enter into treaties under Canadian federalism. Under the current Canadian modus vivendi the federal government is the entity which exercises foreign relations, including treaty-making. However, Canadian foreign relations are rich and complex, and all provinces engage in some way in foreign relations—with Ottawa’s explicit or tacit consent—particularly through the use of administrative agreements. The second part of this chapter examines treaty implementation in Canada, which must occur according to the usual division of powers under the Constitution Act, 1867 following the Labour Conventions Reference. Moreover, under current law there are at least 13 forms of implementation—meaning that “legislative implementation” will not always be necessary for a treaty to be considered “implemented” under Canadian law.

scholarly journals The Evolution of Canadian Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 85-91
Author(s):  
Isabella Rose Fusco
Keyword(s):  
Federal Government ◽  
Division Of Powers ◽  
Canadian Federalism

Canadian federalism is the division of powers between the federal and provincial governments. This article will outline how over the course of almost 150 years federalism in Canada has evolved from centralized power in the federal government to equal voices between the federal and provincial states. The article will being by looking at the institutionalized authority of federalism within the constitution. The arguments to follow will examine how Canadian federalism slowly went from completely centralized power to equal authority amoungst the provinces. Outlining the evolution of Canadian federalims within Canada. 

Part IV Federalism, A Federalism in Canada, Ch.20 The Spending Power in Canada

2017 ◽  
Author(s):  
Kong Hoi L
Keyword(s):  
Federal Government ◽  
Constitutional Law ◽  
The Political ◽  
Federal Spending ◽  
Constitutional Interpretation ◽  
Middle Ground ◽  
Division Of Powers ◽  
Constitutional Legitimacy

In this chapter, I will argue that the Canadian Constitution authorizes the federal government to spend in areas of provincial jurisdiction and constrains the scope of this power. I will, moreover claim that effective enforcement of these limits requires that the judiciary recognize its institutional limits and that the political branches act with restraint. The arguments advanced will seek to occupy a middle ground, between proponents of an unlimited spending power and critics who would bind federal spending to the limits imposed by the legislative division of powers, strictly interpreted. In staking out this ground, I will undertake an approach to constitutional interpretation that closely examines the sources of constitutional law and carefully considers issues of institutional competence and constitutional legitimacy.

scholarly journals Senate Reform and the Political Safeguards of Canadian Federalism in Québec

2019 ◽  
Vol 28 (1) ◽  
pp. 19-28
Author(s):  
Jean-Christophe Bédard-Rubin
Keyword(s):  
Decision Making ◽  
Political Institutions ◽  
Constitutional Law ◽  
The United States ◽  
The Political ◽  
Decision Making Process ◽  
The Core ◽  
Division Of Powers ◽  
Canadian Federalism ◽  
Core Idea

Unlike in Canada, the doctrine of political safe-guards of federalism is a tantalizing presence in American constitutional law that changing tides and moods have never completely submerged. The core idea is simple: political institutions in the United States have been designed to ensure that interests of the states are represented in the federal decision-making process. Thus, the judiciary does not need to intervene to police the federal division of powers.

scholarly journals Souveraineté et fédéralisme

2005 ◽  
Vol 20 (1-2) ◽  
pp. 237-246
Author(s):  
Gil Rémillard
Keyword(s):  
Federal Government ◽  
Constitutional Law ◽  
Great Difficulty ◽  
Public Law ◽  
Fundamental Concept ◽  
Federal State ◽  
Federal System ◽  
Canadian Federalism ◽  
Definition Of ◽  
Regional Governments

The notion of sovereignty is the most fundamental concept of public law. At the same time, it is one of the main difficulties federalism has to face. Where does sovereignty reside in a federal state ? While this question is not an easy one to answer, knowledge of the manner in which it has been answered in Canadian constitutional law is essential to an understanding of the present constitutional crisis. The most appropriate definition of sovereignty is « jurisdiction to define jurisdictions ». This definition implies the concept of an ultimate authority and its application to a federal system is of great difficulty. Two main theories confront each other. The first one develops the concept that sovereignty should be shared between the federal government and the federated states. The second sees sovereignty as belonging exclusively to the federal government, regional governments merely enjoying some form of autonomy. This paper studies the implications of both theories in Canadian federalism.

The Australian States and Participation in the Foreign Policy Process

1978 ◽  
Vol 9 (3) ◽  
pp. 257-283
Author(s):  
H. Burmester
Keyword(s):  
Foreign Policy ◽  
International Law ◽  
Federal Government ◽  
Policy Process ◽  
Foreign Relations ◽  
International Agreements ◽  
Constitutional Development ◽  
Foreign Governments ◽  
Treaty Implementation ◽  
The Way

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents. The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.

International Agreements and U.S. Foreign Relations Law

2019 ◽  
pp. 155-171
Author(s):  
Jean Galbraith
Keyword(s):  
United States ◽  
Foreign Relations ◽  
Constitutional Law ◽  
Comparative Law ◽  
The United States ◽  
International Agreements ◽  
Constitutional History ◽  
Administrative Reforms ◽  
Administrative Efficiency ◽  
International Commitments

Over its constitutional history, the United States has developed multiple ways of joining, implementing, and terminating treaties and other international commitments. This chapter provides an overview of the law governing these pathways and considers the extent to which comparative law has influenced them or could do so in the future. Focusing in particular on the making of international commitments, the chapter describes how, over time, the United States came to develop alternatives to the process set out in the U.S. Constitution’s Treaty Clause, which requires the approval of two-thirds of the Senate. These alternatives arose partly from reasons of administrative efficiency and partly from presidential interest in making important international commitments in situations where two-thirds of the Senate would be unobtainable. These alternatives have had the effect of considerably increasing the president’s constitutional power to make international commitments. Nonetheless, considerable constraints remain on presidential power in this context, with some of these constraints stemming from constitutional law and others from statutory, administrative, and international law. With respect to comparative law, the chapter observes that U.S. practice historically has been largely but not entirely self-contained. Looking ahead, comparative practice is unlikely to affect U.S. constitutional law with respect to international agreements, but it might hold insights for legislative or administrative reforms.

scholarly journals ATIVISMO JUDICIAL E A SEPARAÇÃO DOS PODERES NO SÉCULO XXI: EXORBITAÇÃO DA FUNÇÃO ATÍPICA DO PODER JUDICIÁRIO

2018 ◽  
Vol 2 (Especial 2) ◽  
pp. 175-180
Author(s):  
Luís Henrique Ramos Alves ◽  
Shirley Oliveira Lima Nomura
Keyword(s):  
Present Article ◽  
General Principle ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Activism ◽  
Division Of Powers ◽  
Federal Constitution

The separation of powers is a general principle of Brazilian Constitutional law prescribed in article 2 of the Federal Constitution following the model idealized by Montesquieu, Executive, Legislative and Judiciary, each of the powers has its respective characteristics and also has its typical and atypical functions. In the system of separation of powers there is a theory called System of Brakes and Counterweights, where it controls the division of powers and ensures that each one acts within its respective sphere of competence. With the passage of time within the Brazilian scenario has been emerging the so-called Judicial Activism, a phenomenon that arises when the judiciary proceeds to intervene proactively in the sphere of competence of other powers. With this, the present article seeks to show judicial activism, focusing on the exorbitance of the atypical function of the judiciary and how this judicial activism is triggered within the system of separation of powers.

The Dilemma of Indigenous Self-Government in Canada: Indigenous Rights and Canadian Federalism

2018 ◽  
Vol 46 (4) ◽  
pp. 669-688
Author(s):  
Richard Stacey
Keyword(s):  
Federal Government ◽  
Indigenous Peoples ◽  
Legal Protection ◽  
Indigenous Rights ◽  
Multicultural Society ◽  
Canadian Federalism ◽  
Sovereign Nations ◽  
Indigenous Sovereignty

Canada's constitutional distribution of authority between the provinces and federal government leaves no room for Indigenous self-government, but there are increasingly vocal calls for change. Whether Indigenous peoples are acknowledged as one of Canada's founding nations alongside its English and French settlers, or are recognized as distinctive peoples within its multicultural society, these calls affirm Indigenous peoples as sovereign nations deserving of at least some of the powers that the provinces have. The Constitution Act 1982 provides a different mechanism of legal protection for Indigenous peoples, recognizing and affirming already existing Indigenous rights. Canada's Indigenous rights jurisprudence, however, pulls against the sovereignty that underlies federalism. The courts have understood Indigenous rights such that accessing their protections denies to Indigenous peoples the autonomy to define themselves as member nations of Canada's multicultural society. As a normative point, this paper argues that we should embrace constitutional Indigenous rights as a vehicle for Indigenous sovereignty, because it brings federalism and Indigenous rights together as a theoretically coherent foundation for Indigenous self-government in Canada. As a descriptive point, the paper argues that the jurisprudence itself already contains the resources to support a sovereignty-affirming reading of the Constitution's Indigenous rights provisions.

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