L'évolution des rapports entre le droit canadien et le droit international un demi-siècle après l'affaire des conventions internationales de travail

Abstract

SummaryThis article reviews the suggestion implicit in two recent obiter dicta of the Supreme Court of Canada and the widely held view in English Canada that the Labour Conventions Reference was wrongly decided, and that parliament should have exclusive jurisdiction to implement any treaty. It is argued that reversal of this rule would constitute a fundamental change in the nature of the Canadian federal system; is not warranted by any functional argument and has never been requested by the principal interested party, namely the government of Canada. It is also argued that the only proper way to make such a change is by way of formal constitutional amendment. Given the existence of a host of treaties covering every imaginable field of human conduct, a blank cheque to parliament to implement any treaty would in effect constitute one of the most major changes of the Constitution in our hutory. Among the problems considered is that of the extreme fluidity of the concept of a treaty in international law. The author suggests that other avenues exist for the expansion of federal legislative jurisdiction to implement treaties in the field of international trade if this is necessary.