Book Review
Canadian Treaty-Making. By A. E. Gotlieb. Toronto: Butterworths. 1968.
Pp. xi, 107. $7.50.
It is pleasant to review this book by an author who extended
me considerable courtesy in a briefing which his division in External
Affairs gave me on the Canadian system of treaty recording, and who
was at the time writing it. The impression made upon me of the
efficiency of that system, which I have since proposed to Carib-
bean countries, is of a measure with the quality of the book, which
organizes with clarity the somewhat intractable material in an
area where legal theory and administrative practices are not easily
reconciled.
The work is a manual on the procedures of Canada in the making
of treaties, and it stops short of a discussion of Canadian practices
in the matter of reservations, and refrains from entering upon
Canadian policy in respect of the theory of treaty law in matters
such as jus cogens. Nor does it go into depth in those areas of
constitutional law respecting treaties which have been considered
by Canadian courts, and by the Privy Council in respect of Canada,
in particular in the distinction between legislative enactment and
legislative approval of a treaty.
The use made of statistics is the most fascinating as well as
the most original virtue of the book, and here implications are to
be drawn for international practice generally. I was surprised at
how few treaties have been called by that name, and that this is
as true of the period 1919-1945 as from 1945, and also of the pro-
portion of treaties and agreements which do not require ratification,
or which come into force on approval –
and again, how consistent
this has been since the External Affairs Department was founded
in 1909. Another statistic which I found interesting is that of the
total number of treaties made by Canada compared with the total
number of treaties which the United Kingdom had applied to even
the most important colonial territories prior to independence. Be-
tween 1946-1965 Canada concluded 730 treaties, and other research
indicates that it is a successor to several hundred British treaties.
The treaty lists supplied by Whitehall to the newly independent
States, and covering a period from 1654 to 1960 or later contain
less than 500 treaties.
McGILL LAW JOURNAL
[Vol. 15
As a contribution to comparative federalism this study is also
interesting. It discloses that the constitutional inhibitions on treaty
implementation in federal States has not brought about a signifi-
cantly worse treaty making record than in the case of many non-
federal States, and that, at least statistically, Canada seems to have
largely circumvented the problem by the procedures discussed in
the book. But Canada, like Australia, has been reticent about private
law treaties, many of which are important in facilitating interna-
tional commercial transactions, and this may be, as in Australia,
due to the inertia of a federal system. A quantitative rather than
a qualitative examination is thus not entirely revealing. Inciden-
tally, Australia is listed on page 74 with the United States as a
federal State in which the federal legislature can implement treaties.
Australian practice ‘has been so reticent that in fact Australia and
Canada seem to be in much the same constitutional position, and
the same procedures tend to be followed.
The Ihlen Declaration’ may not warrant the conclusion that
there is a general rule about oral treaties, and the author refrains
from entering into the labyrinths of tacit agreements and agree-
ments made in excess of power. He does consider that many inter-
departmental agreements are not governed by international law, and
then hints at the problem whether the Provinces could be sued if
they enter into them. He has no doubt that the Provinces have no
direct treaty power.
There is a schedule of instruments concerned with treaty-making.
A competent officer of every Foreign Ministry should be inspired
by this book to undertake a comparable survey. Then international
lawyers would have a clearer picture than they now have of the
trends in treaty-making practice.
D. P. O’CONNELL *
‘At p. 22.
* Professor of International Law, University of Adelaide.
