Madam Speaker, I will be sharing my time as the House has already been advised with the hon. member for Toronto Centre—Rosedale.
This treaty is a significant achievement in its own right. It continues the step by step process of building a peaceful world which began during the cold war, in its more enlightened moments, with the progressive treaties toward nuclear and general disarmament and the cessation of nuclear tests.
It should be noted however that in this treaty there has been a significant innovation and that is the involvement of people who are not normally involved in the treaty making process. Jeremy Bentham once said that the law is not made by judge alone, but by judge and company. The company in this case includes the non-governmental organizations, and as has been rightly commented by members of the opposition, the late Princess Diana and others. It has been a citizens' movement in which the force of public opinion has carried the momentum to produce a treaty written off as something taking many years, but it has been completed really in 12 months with the ceremony that will take place in Ottawa in December.
We have made history in a certain sense and it will continue. The democratization of foreign affairs and treaty making I am sure will continue because of this significant first step.
A second point I will make, which has already been commented on in this debate, is that this is a short treaty. This is a succinct treaty and a treaty that has teeth. It is something that goes to the gamesmanship of making treaties. There is a way of getting treaties through a diplomatic conference by making them mellow, open ended or vacuous, whatever phrase one would like to use. One can rally an enormous consensus but there is nothing in the treaty.
This is a treaty that has teeth in it. A deliberate decision was made by our government and I think by the NGOs and others participating that it was better to have a treaty that stated something even if it meant that some significant states would be absent from the treaty's signature and ratification. We have pushed ahead on that basis. Some will notice that what started with a relatively small number of countries now has reached over 100 and that is a rather significant achievement in itself.
In Canada treaty making and treaty ratification are the two steps necessary to give international law validity to our signature to a treaty and they are executive acts, as has been noted already. The parliamentary process is limited to adopting the very important implementing legislation but it does not affect the validity of the treaty as international law. However that is not true of all countries and that is why in approaching our own steps in international law making, the signature which will come formally in the next two weeks and the ratification which could be the same day, we have felt it necessary and desirable to press ahead with the treaty implementing legislation.
We want to send a message to other countries where the legislature is involved, the United States as part of its Constitution with the Senate involved, to get their act together. If they are going to take part in the law making, then they must get their legal adhesion to the treaty completed. If it means the signing, ratification and the legislation, get it done as quickly as possible.
I direct attention to what is called the attrition factor in treaty making and the law making of treaties. I cite the famous law of the sea convention to which Canadian diplomats contributed so much. It was to become law when ratified by 60 countries. It was signed in 1982 by 102 countries but it took 14 years to get 60 of those 102 to ratify it and make it law. I could cite the first of the big terrorist control conventions, the Tokyo convention of 1963 on aerial piracy. That was to become law when ratified by 12 countries. It took eight years to get 12 countries.
In our case with this treaty 40 states are necessary to ratify it to give it legal effect. Then it takes effect six months after the 40th instrument of ratification. We would like to complete the whole process beginning to end in a year. That is why the momentum this Parliament is establishing with the consent of all parties is so vital.
There is another matter on which I should comment because I think we are helping consolidate law in the making. That is to say, what is the effect? Some people have said that we have left out some of the principal manufacturers and exporters of land mines. Some who might transfer to other countries are not bound. Is that not a treaty with gaps in it?
Let me simply say that as a matter of international law going back to the dissenting opinion of the greatest of the judges of the International Court of the post-war period, Judge Manfred Lachs, a treaty even when not ratified by a country may become binding on that country simply because of the sheer preponderance of other countries who have ratified. That is to say, it ranks either as customary international law or it ranks in some cases as a superior form of international law, jus cogens. It may be binding on non-ratifiers or non-signatories and in the World Court case concerned it was West Germany. I simply cite that that was an avant-garde opinion in 1969 when it was uttered in the World Court. It is no longer avant-garde and is acquiring an increasing acceptance. We will find that jurists in Canada will be making that argument.
If we can get 100, 120 or 140 countries to sign and ratify, it will be somebody with great temerity who would say we could ignore the treaty provisions.
Let us put it this way. There is an educational value in signing and proclaiming acts of this sort and making them law even for those who do not sign them. Countries are very concerned about their international law image. We are already finding this with countries we have approached to ask if they will join the treaty. They are saying no, but maybe they can regard themselves and say that they will be bound by certain parts of it even though they do not sign and ratify the treaty as a whole.
Here I simply say that the International Court of Justice in its decision in nuclear tests established a principle of law that unilateral declarations of intention to be bound by principle, law, treaty or anything else of that sort can become legally binding entities.
In fact the French government was held bound by a declaration made by its president, Giscard d'Estaing, and its foreign minister even though perhaps at the time they did not realize the significance that was given to it.
We think there is an educational value in going ahead. That is one of the reasons we took this risk. It is better to have a treaty with teeth in it even if it leaves out the United States, China and Russia. It is better to have that than a vague, open ended treaty.
We are relying on the fact that many countries or some countries who have said they cannot for national political reasons sign and ratify the treaty yet say they believe they can adopt certain parts of it. We are going to encourage that.
This is law in the making. Therefore in a second sense the innovation made by bringing in non-governmental people and participatory democracy, we are making new international law. I commend the adoption of this legislation to this House.