21

Looking at this map of signatories to the Hague Convention/Apostille Convention, one can see that Canada is the only Western nation (as well as the only NATO nation, etc.) to not be a signatory.

map of members to the Apostille Convention

Why is this? Canada certainly has acceded to many other treaties, and the convenience and non-controversial nature of apostilles, especially as compared to the hassle of legalisation, would seem to make signing on a no-brainer. Furthermore, every single one of Canada's "peer countries" is a party, and Canada is usually a strong supporter of multilateral international agreements.

What political factors have prevented Canada, uniquely, from becoming part of the Apostille Convention?

6
+50

Good question, and something that has been puzzling me also for some time. Some info can be extracted from the answers of Canada to regular questionnaires of the Hague Conference (which were generally held as preparation for Special Commissions on the functioning of the Apostille Convention). It shows the devolved character plays a role, and that becoming a party is being (or has been) discussed. But how this explains such a long time period is not fully clear.

Devolved character:
The Hague Apostille Convention does not have a devolved entity clause, which allows certain devolved jurisdictions to become a party, while others do not. Such a clause has been added in several Hague Conventions afterwards (eg the 1985 Hague Trust Convention, which is now in force for 9 Canadian jurisdictions, which became party at different dates).

At the 2003 Special Commission questionnaire, Canada indicated that a convention amendment allowing for such a clause would be helpful: "A federal clause would facilitate Canada’s becoming a party to the Hague Convention of October 5, 1961, Abolishing the Requirement of Legislation for Foreign Public Documents, because then the consent of all the provinces/territories would not be required."

Becoming a party
Becoming a party is (or has been) studied as has been indicated in the questionnaires of

  1. 2008: "Canadian provinces and territories are at present considering the desirability of implementing the Convention."
  2. 2012 and 2016 In both years, on the question whether becoming a party is being studied, the answer was: "Yes. The timetable and outcome of the study are not determined."
  • That's a good answer and worthy of a bounty. I'm curious why devolvment was not ans issue in the US for signing/ratification... the Wikipedia article has an example of an apostille issued by Alabama, so clearly the convention did impinge on the powers devolved to US states. – Fizz Aug 10 '18 at 2:44
  • That might be because of Missouri v. Holland, "that the powers reserved to the States under the 10th amendment constitute no bar to the exercise of the treaty power." So basically the Federal government and Congress can sign & ratify treaties that impose obligations on the US states without asking the latter for any approval/permission. I.e. the powers devolved to US states get "un-devolved" back the federal institutions when it comes to international treaty making. – Fizz Aug 10 '18 at 15:44
5

OK - A little research.

It does have to do with the Federal/Provincial structure in Canada. In particular, the Federal government has no powers in family/probate/etc. law. Those powers belong to the provinces, and the there is no so-called "Federal State Clause" in the BNA act (what was the constitution in 1961) or the 1982 constitution. As a result, the Federal government cannot bind the provinces to do anything in that domain as part of a treaty. I believe that the "Supremacy Clause" of the constitution acts as the "Federal State Clause" in the US (that's a guess).

It appears that there's a movement to get Canada to sign that treaty somehow.

Here are some references: Blog entry about Apostilles in Canada - (read the comment by John Gregory) which points to A section in a Google Book of an International Law book

Original Post follows (the wild/educated guess version):

Canada has two legal systems for non-criminal law. Quebec civil law is based on the French Napoleonic traditions. In every other province, law is based on the traditions and rules of British common law. They are very different (a simple example, the word "notary" has a very different meaning in Quebec than it does in the rest of Canada or in the US (perhaps excluding Louisiana)).

In addition, getting this to work would require the cooperation of all of the provinces (and in particular, Quebec). Getting an agreement like this in place may not be worth the effort and (political capital) expense. Never under-estimate the complications of getting the federal government and all the provinces to agree to something in Canada.

  • Down-voters, please, explain the down vote. From where I stand, the answer does seem to shed some light on the subject. – grovkin May 30 '18 at 0:28
  • 1
    @grovkin it's unfortunately just a "wild guess", which is unhelpful. Possible explanations, without evidence, tell us absolutely nothing about the situation. Plus, the legal systems/federalism explanation seems odd given that many civil law countries are party to the treaty, and that the US, which has also a mixed system (with louisiana) managed to get all 50 states to sign on. Without sources, the answer does nothing.. – Curiousity May 30 '18 at 15:19
  • OK, I updated my post. I was mostly kinda-sorta right, but not quite. – Flydog57 May 31 '18 at 21:51
  • @Flydog57 For a start, it is absolutely incorrect to say that the federal government has no power in family law; [in fact, the federal government has exclusive jurisdictions in many aspects of family law, most notably marriage (though not the solemnisation of marriage) ](en.wikipedia.org/wiki/Canadian_family_law). Additionally, the linked book explains that the US simply chooses not to use federal/state clauses, and it's not a matter of supremacy. – Curiousity Jun 1 '18 at 0:13
  • 1
    Most importantly, the linked blog admits that it has no explanation for the failure to adopt the apostille by the provinces, especially since no one uses legalisation. The total lack of use of legalisation discussed in the blog leaves more questions; "the provinces haven't signed it" doesn't answer the question of "Why?" If the answer is just "inertia", then there should be a source for that; otherwise, there must be some reason for the opposition. I appreciate your effort, but this simply doesn't answer the question in my opinion. – Curiousity Jun 1 '18 at 0:15

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .