Could an intergovernmental agreement increase the credibility of Canadian treaty commitments in areas within provincial jurisdiction?

Abstract

Canada’s federal government has exclusive authority to commit Canada to international treaties, but, under the Canadian constitution, compliance with treaty obligations that extend into areas of provincial competence is solely within provincial jurisdiction. As well, while Canada is responsible to its treaty partners if provinces act contrary to Canada’s obligations, the provinces are not directly accountable. The absence of a direct legal requirement to fulfil treaty obligations means that incentives for provincial compliance are weakened and, in turn, that the reliability of Canadian obligations relating to matters within provincial jurisdiction is diminished.

This paper explores the prospects for using an intergovernmental agreement to address the gap between provincial action and federal responsibility. While such an agreement could express each province’s commitment to comply with Canadian treaty obligations, intergovernmental agreements have some inherent weaknesses that make them an imperfect commitment device.