vention relating to economic statistics, and protocol, signed at Geneva on December 14, 1928, was deposited with the Secretariat on July 5, 1937.

TRANSIT

CONVENTION ON THE PAN AMERICAN HIGHWAY 19

Nicaragua

The Director General of the Pan American Union transmitted to the Secretary of State with a letter dated July 27, 1937, a certified copy of the instrument of ratification by Nicaragua of the convention on the Pan American Highway, signed at the Inter-American Conference for the Maintenance of Peace, Buenos Aires, December 23, 1936. The deposit of the instrument of ratification with the Pan American Union took place on July 20, 1937.

United States

On July 15, 1937, the President ratified the convention on the Pan American Highway, signed at the Inter-American Conference for the Maintenance of Peace, Buenos Aires, December 23, 1936.

MISCELLANEOUS

EXHIBITIONS

1

CONVENTION CONCERNING ARTISTIC EXHIBITIONS 1

United States

On July 15, 1937, the President ratified the convention concerning artistic exhibitions, signed at the Inter-American Conference for the Maintenance of Peace, Buenos Aires, December 23, 1936.

'See Bulletin No. 93, June 1937, p. 25.

28

JUDICIAL DECISIONS

CONVENTIONS OF THE INTERNATIONAL LABOR CONFERENCE

DECISION OF THE PRIVY COUNCIL, JANUARY 28, 1937

1

The Attorney General for Canada v. the Attorney General for Ontario and Others

On January 28, 1937, the Privy Council rendered a decision in the case of Attorney General for Canada v. Attorney General for Ontario and Others. This case was an appeal (no. 100 of 1936), by special leave, from a judgment of the Supreme Court of Canada (June 17, 1936) answering questions referred to the Court by order of the Governor General in Council, dated November 5, 1935. The questions referred asked whether the Weekly Rest in Industrial Undertakings Act, 1935, the Minimum Wages Act, 1935, and the Limitation of Hours of Work Act, 1935, or any of the provisions thereof and in what particulars or to what extent, were ultra vires of the Parliament of Canada. The statutes in question, which dealt with matters denoted by their titles, were passed by the Dominion Parliament in accordance with the conventions adopted by the International Labor Organization of the League of Nations in accordance with the Labor Part of the Treaty of Versailles of June 28, 1919. The conventions had been ratified by the Dominion.

In the Supreme Court of Canada, Duff, C. J., Davis and Kerwin, JJ., were of the opinion that, except as to section 6 of the Minimum Wages Act, the three statutes were intra vires. Rinfret, Cannon, and Crocket, JJ., were of the opinion that the acts were ultra vires. The judgments of the Supreme Court were reported at [1936] Can. S. C. R. 461.

The judgment of the Privy Council was that the three acts were ultra vires of the Parliament of Canada and invalid in that the legislation related to matters coming within the class of subject "Property and civil rights in the Province", which was assigned exclusively to the legislatures of the Provinces by head 13 of section 92 of the British North America Act, 1867. The legislation could not be justified under section 132 of the British North America Act, which provided that the Parliament of Canada should have "all powers

1L. R. [1937] A. C. 326.

necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries," because the obligations under the ratified conventions were not the obligations of Canada as a part of the British Empire, but of Canada by virtue of her new status as an international juristic person, and they did not therefore arise under a treaty between the British Empire and foreign countries.

In rendering judgment their lordships stated, in part, that— "Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Par

liament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sanction to any legislative proposals that may subsequently be brought before it. Parliament, no doubt, as the Chief Justice points out, has a constitutional control over the executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose legislature possesses unlimited powers the problem is simple. Parliament will either fulfil or not treaty obligations imposed upon the State by its executive. The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses. But in a State where the Legislature does not possess absolute authority, in a federal State where legislative authority is limited by a constitutional document, or is divided up between different Legislatures in accordance with the classes of subject-matter submitted for legislation, the problem is complex. The obligations imposed by treaty may have to be performed, if at all, by several Legislatures; and the executive have the task of obtaining the legislative assent not of the one Parliament to whom they may be responsible, but possibly of several Parliaments to whom they stand in no direct relation. The question is not how is the obligation formed, that is the function of the executive; but how is the obligation to be performed, and that depends upon the authority of the competent Legislature or Legislatures.

"It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the legislative powers remain distributed, and if in the exercise of her new functions derived from her new international status Canada incurs obligations they must, so far as legislation be concerned, when they deal with Provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure. The Supreme Court was equally divided and therefore the formal judgment could only state the opinions of the three judges on either side. Their Lordships are of opinion that the answer to the three questions should be that the Act in each case is ultra vires of the Parliament of Canada, and they will humbly advise His Majesty accordingly."