Canadian Federalism and Treaty Powers : : Organic Constitutionalism at Work / / Hugo Cyr.

• Superior document: Collection "Diversitas"
• VerfasserIn: Cyr, Hugo,
• Place / Publishing House: Bruxelles, Belgium : : Peter Lang International Academic Publishers,, 2009.
• Year of Publication: 2009
• Language: English
• Series: Collection "Diversitas".
• Physical Description: 1 online resource (305 pages).

With the increased mobility and interdependence brought on by globalisation, governments can no longer deal effectively with what were traditionally regarded as «domestic issues» unless they cooperate among themselves. International law may once have been a sort of inter-state law concerned mostly with relations between states, but it now looks increasingly inside state borders and has become, to a large degree, a trans-governmental law. While this creates significant challenges even for highly-unified «nation-states», the challenges are even greater for federations in which powers have been divided up between the central government and federated states. What roles should central governments and federated states play in creating and implementing this new form of governance? Using the Canadian federation as its starting point, this case study illustrates a range of factors to be considered in the appropriate distribution of treaty powers within a federation. Professor Cyr also shows how - because it has no specific provisions dealing with the distribution of treaty powers - the Canadian constitution has «organically» developed a tight-knit set of rules and principles responding to these distributional factors. This book is therefore both about the role of federated states in the current world order and an illustration of how organic constitutionalism works.

Table of Contents

Preface11(2) -- Introduction13(20) -- The Voluntarist and the Organic Constitutional Perspectives 33(18) -- An Exercise in Conceptual Maintenance 51(10) -- PART I. Stepping Out of the Footsteps of the Empire The Labour Conventions Case 61(40) -- The Factual and Legal Context of the Labour Conventions Case 61(6) -- ``There is Only One Heir to the Mother Country'': the Federal Government's Sovereignist Arguments 67(4) -- ``But We Are Equally Sisters'': The Provinces' Federalist Arguments 71(9) -- Ontario 72(4) -- New Brunswick 76(2) -- British Columbia 78(2) -- ``Canada is a Federation'': The Judicial Committee of the Privy Council 80(21) -- Distinguishing Between Making and Implementing Treaties 82(1) -- Making Treaties on Provincial Matters: A Silent Overruling 83(6) -- Executive Roles in Implementing Treaties 89(2) -- Section 132 Constitution Act, 1867, Only Applies to Imperial Treaty Obligations 91(1) -- No Treaty Powers in Section 91 of the Constitution Act, 1867 91(3) -- The Irrelevancy of the ``National Concern'' Doctrine 94(2) -- Cooperative Federalism and ``Watertight Compartments'' 96(5) -- PART II. Trying to Find Our Own Path Beyond the Labour Conventions Case Treaty-Making in the Canadian Federation 101(116) -- Rebutting the Case for Plenary Federal Treaty-Making Powers 104(77) -- The Evanescent Legal Arguments in Favour of Federal Plenary Treaty-Making Powers 104(1) -- The Letters Patent of 1947 104(4) -- The Prerogatives of the Crown 108(22) -- Constitutional Conventions and Constitutional Usage 130(6) -- International Law and International Legal Personality 136(23) -- The Solid Policy Arguments Against Plenary Federal Treaty-Making Powers 159(1) -- Many Ways to ``One Voice'' 159(6) -- The Need to Align Power with Expertise 165(6) -- The Need to Align Power with Democratic Accountability 171(1) -- The Subsidiarity Principle, Existential Communities and Functional Regimes 172(9) -- Making the Case for Provincial Treaty-Making Powers 181(36) -- The Self-Portraits of Provincial Involvement in International Relations 186(10) -- The Legality of Provincial International Involvements and Treaty-Making 196(1) -- At Canadian Constitutional Law 196(3) -- At International Law 199(12) -- A Plausible Legal Foundation for Federal Treaty Powers in Relation to Provincial Matters: Provincial Delegation 211(6) -- Treaty Implementation in the Canadian Federation 217(42) -- Section 132 Cannot be Judicially Revived 218(10) -- Section 91 and the Federal Powers Over ``Peace, Order and Good Government'' 228(11) -- Extra-Territoriality or the ``Sufficient Connection'' Doctrine 239(13) -- Constitutional Amendments 252(7) -- Conclusion259(8) -- Bibliography267.