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Canadian Federalism and the United Nations

Published online by Cambridge University Press:  07 November 2014

James Eayrs
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Extract

More than three years ago, Professor H. F. Angus published an article entitled: “The Canadian Constitution and the United Nations Charter.” In it he sought to show that the Canadian constitution, which provides for a division of legislative powers between the federal government and the governments of the provinces, will hamper the Dominion in its conduct of foreign affairs in the post-war world. In particular, he predicted that existing constitutional arrangements will obstruct Canada from fulfilling in a responsible manner certain international obligations incurred under the Charter of the United Nations. The immediate causes of this situation are threefold: the assignation by the British North America Act of topics with which international legislation may be concerned to the exclusive jurisdiction of provincial legislatures; the obsolescence of Section 132 of that Act, which governs the treaty-making powers of the Dominion government; and the juridical opinions on the ability of the Dominion government to implement international legislation which were handed down by the Privy Council and which, with the exception of the war years, have governed the situation ever since. One other factor serves to aggravate the problem: the growing importance of international legislation since 1945. Social and economic problems, no longer local or even national in scope, are now of international importance, and require international action for their solution. The recognition by the nations of the world of this fact and its implications is in part indicated by their decision to create the United Nations, its commissions, sub-commissions and affiliated agencies. It is more imperative today than ever before that members of the United Nations be both ready and able to ratify international legislation which the world organization promulgates. Canada may be ready, but she is certainly not able, to provide such implementation.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 16 , Issue 2 , May 1950 , pp. 172 - 183
Copyright
Copyright © Canadian Political Science Association 1950

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References

1 Canadian Journal of Economics and Political Science, vol. XII, no. 2, 05, 1946, pp. 127–35.Google Scholar

2 [1937] A.C. 326.

3 Verbatim Minutes of the Second Plenary Session, United Nations Conference on International Organization, California State Legislature, Special Report (Sacramento, Cal., 1945), p. 38.Google Scholar

4 The personnel of the Canadian delegation is listed in the Report on the United Nations Conference on International Organization, Canada, Department of External Affairs (Conference Series, 1945, no. 2), pp. 9–10.Google Scholar

5 See In re Nakane and Okazake, Supreme Court of British Columbia, [1908] 13 B.C.R. 370 Google Scholar; In re Employment of Aliens: By reference to the Supreme Court of Canada, [1922] 63 S.C.R. 293; Attorney-General for Canada v. Attorney-General for British Columbia, [1924] A.C. 203; The King v. Stuart, [1925] 1. D.L.R. 12; In re Regulation and Control of Radio Communication in Canada, [1931] S.C.R. 541, [1932] A.C. 304; In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54; Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326. This list is by no means exhaustive. A useful compilation of case material is contained in MacKenzie, Norman and Laing, Lionel H. (ed.), Canada and the Law of Nations (Toronto, 1938).Google Scholar Stewart, Robert B., Treaty Relations of the British Commonwealth of Nations (New York, 1939)Google Scholar, comments on most of the important cases and gives a detailed background to the whole subject of the conduct of foreign relations in federal states.

6 Report on the United Nations Conference on International Organization, Canada, Department of External Affairs, p. 42. My italics.Google Scholar

7 Ibid., p. 6.

8 The American stand takes on new significance when viewed in the light of a prophetic commentary by Harold Laski, who expressed the fear that the United States, for constitutional or political reasons, or both, may be unable to live up to the obligations of membership in the United Nations. “If the United States is to choose membership in a body like the United Nations in preference to a return to isolationism or to a military alliance with another great power, it can play its proper part in such an international body only by accepting the limitations such membership must involve …. The distribution of powers in the American constitution must not act as a barrier against the fulfillment of its obligations by the United States …. If, for example, the United Nations General Assembly accepts a recommendation from its Economic Council to abolish all child labour below a certain age, that must become the law in Georgia and Mississippi …. In the light of experience, it is necessary to insist that the federal government take steps to make that application effective, and to answer for its effectiveness to the international body.” Laski, Harold J., The American Democracy (New York, 1948), pp. 527–8.Google Scholar

9 See Gooch, Leland M. and Hambro, Edvard, Charter of the United Nations: Commentary and Documents (Boston, 1947), pp. 192–3.Google Scholar

10 Angus, , “The Canadian Constitution and the United Nations Charter,” p. 131.Google Scholar

11 British North America Act, s. 93 (10).

12 Canadian Statement on Teaching of the United Nations. Quoted in Canada and the United Nations, 1947 (Ottawa, 1948), pp. 235–6.Google Scholar See also the Record of the General Assembly, Committee Three, November 10, 1947.

13 Universal Declaration of Human Rights. Reprinted in External Affairs, vol. I, no. 1, 01, 1949, pp. 18–22.Google Scholar

14 Canadian Statement on the Universal Declaration of Human Rights. Reprinted in External Affairs, vol. I, no. 1, 01, 1949, p. 23.Google Scholar

15 Ibid., p. 24.

16 Canadian Statement on Teaching of United Nations, pp. 236-7.

17 Angus, , “The Canadian Constitution and the United Nations Charter,” p. 135.Google Scholar

18 Ibid., pp. 132-3.

19 See Després, Jean-Pierre, Le Canada et l’organisation internationale du travail (Montreal, 1947), chap. XI.Google Scholar

20 Innis, Harold A., Political Economy in the Modern State (Toronto, 1946), p. 269.Google Scholar