Protocol for Federal, Provincial and Territorial Consultations on the Potential Adherence to International Human Rights Treaties

On this page

• Definitions
• Background
• Purpose
• Principles
• Application
• Process - Roles and Responsibilities

Definitions

• “Adherence” – the legal methods by which Canada consents to be bound by a treaty as a matter of international law, including definitive signature^{Footnote 1}, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, “or by any other means if so agreed.” (Vienna Convention on the Law of Treaties, Article 11).
• “Canada” – Canada is the subject with the legal personality at public international law. Canada as a sovereign state holds international legal personality and therefore has the capacity to enter into legally binding obligations under public international law.
• “federal government” – the federal order of government within Canada, as established by Canadian law including the Constitution. The federal government, in the exercise of the Crown prerogative, may adhere to international human rights treaties on behalf of Canada.
• “Federal, Provincial and Territorial Table on Human Rights” – the Continuing Committee of Officials on Human Rights (CCOHR), the Senior Officials Committee Responsible for Human Rights (SOCHR) and the Forum of Ministers on Human Rights (FMHR).
• “implement”, “implementing” and “implementation” – refer to the ongoing process by which a state gives effect to its international human rights obligations within its domestic legal system, including through federal, provincial, or territorial legislation, policy, and programs. In Canada, the domestic implementation of obligations under international human rights treaties is governed by Canada’s federal system and the jurisdictional division of powers among federal-provincial-territorial (FPT) governments established by the Constitution. Where the federal government, acting on behalf of Canada as a state, adheres to an international treaty, it consents to Canada being bound by those international obligations as a matter of international law. The federal government, provinces and territories are only bound by the obligations in domestic law if those obligations are incorporated into domestic law. Implementation may entail amending or introducing federal, provincial or territorial legislation to give effect to international treaty obligations in federal, provincial, or territorial law. It is worth noting that most human rights treaties contain provisions that fall within provincial or territorial jurisdiction; and federal, provincial, and territorial legislatures retain jurisdiction to determine the content of federal, provincial or territorial legislation respectively. Canada’s practice for international human rights treaties is to rely, whenever possible, on existing domestic laws, policies and programs to fulfill its international treaty obligations.
• “international treaty” – an international agreement concluded between States in written form and governed by international law. (Vienna Convention on the Law of Treaties, Article 2(1)(a))
• “provincial and territorial governments” – the thirteen provincial and territorial governments within Canada.

Background

Treaty-making on behalf of Canada is an exercise of the Crown prerogative that falls to the federal government. The implementation of international human rights treaties falls under the jurisdiction of the federal-provincial and territorial (FPT) governments according to the powers established by the Constitution. FPT governments have a shared interest in deliberations about whether Canada should adhere to a new international human rights treaty.

Domestic and foreign policy priorities are at the core of decisions regarding which international human rights treaties are a priority for adherence. These decisions are also informed by recommendations from international human rights bodies, international and domestic partners and stakeholders, and provincial and territorial (PT) governments when the provisions of the treaties relate to matters within their jurisdiction.

Decisions on whether to adhere to an international human rights treaty have to date followed a longstanding practice supported by the modalities of the CCOHR, which were updated and approved in 2017 by FPT Ministers responsible for Human Rights. The modalities state that PT governments are to be consulted when the federal government is considering adherence to international human rights treaties that include provisions within their jurisdiction. Although this practice of FPT consultation is longstanding, the steps usually followed in the course of the consultation between the federal government and PTs have not been set out in a document explaining the process.

As part of its Third Universal Periodic Review before the United Nations Human Rights Council in 2018, Canada voluntarily committed to “initiate a transparent process for ongoing consideration by federal, provincial and territorial governments of adherence to human rights treaties that Canada is not yet a party to.”

Purpose

This document is a statement of intent, documenting the common understanding of how FPT consultations on potential adherence should be conducted.

Its purpose is to:

1. Outline the FPT consultation process with the view to Canada potentially adhering to international human rights treaties; and,
2. Identify the roles and responsibilities of the different contributors in this collaborative effort.

This document benefits all governments by:

• Documenting the shared understanding of the process, roles and responsibilities of intergovernmental consultation and collaboration;
• Making the process transparent;
• Facilitating timely consideration of human rights treaties; and
• Helping manage the associated workload of the FPT Table on Human Rights and the respective FPT governments.

Principles

The following principles are to guide FPT governments during the process for potential adherence to international human rights treaties:

Transparency

• FPT governments make every effort to disseminate publicly available information about the treaty review and adherence process.

Collaboration

• FPT governments collaborate to achieve common goals

Confidentiality

• Information provided by FPT governments remains confidential to ensure positive intergovernmental relations and collaboration unless all governments agree to sharing specific information.

Application

• This protocol is intended for use by members of the FPT Human Rights Table and relevant FPT departments when collaborating towards potential adherence to international human rights treaties.

Process - Roles and Responsibilities

Step 1. Identify international human rights treaties for potential adherence

• The identification of an international human rights treaty for potential adherence can come through different routes. For example, it can be identified by Global Affairs Canada (GAC), by another federal department, or by a PT government which would express its desire for Canada to adhere to a particular international human rights treaty through discussions at the FPT Table on Human Rights.
• In all cases, these discussions are supported by analysis, including the recommendations from international human rights bodies, national and international stakeholders, and Indigenous Peoples.
• The federal Department of Canadian Heritage (PCH) will inform the PT governments, through the SOCHR and the CCOHR, of the federal government's wish to consider adherence to an international human rights treaty.
• The instrument in question should be agreed upon by the FPT Table on Human Rights and integrated into its Strategic Framework.

Step 2. Communicate intention to consider adherence to an international human rights treaty

• If a public announcement of the federal government’s interest in the potential adherence to the international human rights treaty is planned, GAC informs PCH, which coordinates the FPT Table on Human Rights, of the public communication prior to its release.
• PCH will share this information with PT governments through the CCOHR and the SOCHR prior to release.

Step 3. Initiate engagement and consultations

• The federal policy lead department, through PCH, negotiates timelines for intergovernmental consultations with PT governments concerning the international human rights treaty to respect the deadlines of the review processes of each government.
• The PCH SOCHR co-chair sends SOCHR the request for the consideration by PT governments of Canada’s potential adherence to the international human rights treaty as well as a discussion paper. CCOHR members receive a copy of the message.
• The discussion paper may include questions for federal departments and PT governments to consider or respond to, including on their current law, policies and programs in areas falling within the scope of the treaty.
• The federal government will engage or consult with Indigenous partners, civil society organizations, and other stakeholders and PTs may do the same within their jurisdictions according to their individual policies and processes. They may then include those views in their feedback on the international human rights treaty being considered.

Step 4. Analyze current FPT law, policies and programs

• Guided by the discussion paper and the questions contained therein, FPT governments analyze their respective law, policies and programs to determine whether they would support and be in a position to implement the treaty being considered.
• If PT governments have questions or concerns, they submit them to PCH through the CCOHR or SOCHR. The inquiries are then directed to the federal policy lead department, which responds in writing with support from the Department of Justice and Global Affairs Canada.
• PT governments advise PCH of the results of their analysis in writing and include in their responses answers to the questions in the discussion paper.
• Subject to any legal requirements, all information shared amongst FPT governments is kept confidential, unless the governments agree together that specific information can be shared with stakeholders, partners or other contributors.

Step 5. Work to obtain FPT government consensus

• Officials from the federal lead department will endeavor to report to PT officials on the results of the consultations in steps 3 and 4, via the FPT Table on Human Rights.
• To the extent possible, governments should work to obtain a consensus on the continuation of the process towards potential adherence.
  • If potential inconsistencies with the treaty's obligations are identified, options for complying with the obligations are developed. Consideration is given to whether FPT legislation, regulations and/or policies must be enacted or amended, or
  • whether, where allowed under the treaty, a statement of understanding or reservation, the latter of which excludes or modifies the legal effect of a particular treaty provision, should be entered upon ratification or accession. As a matter of policy, however, Canada seeks to avoid broad reservations to international human rights treaties.
• Should significant impediments (i.e., legislative, policy, etc.) to implementing the international human rights treaty be identified by PT governments on elements within their jurisdiction, and/or consensus on whether to implement the treaty is not reached, PCH will facilitate further discussions through the FPT Table on Human Rights to determine next steps.

Step 6. Seek written support from PT governments

• The federal government seeks a policy mandate to move forward with adherence, or for signature as a first step. If a federal policy mandate is received, the federal government will seek to obtain written support for signature or adherence to the international human rights treaty from the PT governments when the treaty falls under their jurisdiction. This will generally be done by the Minister of Canadian Heritage, who will communicate with the PT Ministers Responsible for Human Rights.
• Each PT government has its own process for seeking written support and these processes vary across provinces and territories.
• Canada should adhere to an international human rights treaty only when the federal government has received confirmation that provincial, territorial and federal legislation and policy are generally in compliance with the treaty or that jurisdictions will amend or introduce legislation to be substantially in compliance with any obligations in the treaty prior to adherence.
• If new implementing measures in domestic law, policies, or programs are considered advisable under a particular treaty, the federal government will seek to allow for adequate timelines for each FPT government to prepare and implement the necessary legislation, regulations, and/or administrative measures. PTs will confirm that these elements have been put in place in writing to PCH prior to Canada’s adherence to the treaty.

Step 7. Completion of Canada’s domestic treaty adoption process and confirmation of the adherence to the human rights treaty

• Following the completion of all necessary steps of the FPT consultation process and those of Canada’s domestic treaty adoption process (e.g., tabling the treaty in Parliament under the Policy on Tabling of Treaties in Parliament, obtaining Order(s)-in-Council for legal authority for adherence), Canada will carry out the international action necessary to adhere to the treaty (e.g., deposit of an instrument), and PCH will inform PTs through the CCOHR and the SOCHR once Canada’s adherence to the human rights treaty occurs.