05 August 2011

Critical Mass

Five years ago, I suggested that the proposed Anglican Covenant might be understood as a new species of Canon Law, analogous to an international treaty. The analogy is straightforward: a treaty is a binding and enforceable agreement among sovereign states who incorporate the undertakings in the treaty into their domestic law; the proposed Covenant is intended as a binding and enforceable agreement among autonomous Churches who would presumably incorporate the undertakings in the Covenant into their domestic Canon Law. If we thus understand the proposed Covenant as a kind of International Canon Law, I suggested, it would be useful to include an expert in international treaty law in the drafting team, to provide a perspective on how to draft such a document.

I know nothing of international law or international treaties beyond what one might read in a newspaper. My area of interest is Canon Law. But usually when I read of a new treaty, it specifies a certain number of signatories required before the treaty comes into force. Consider, for example, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction. Article 17 of that Convention requires 40 states to sign on before it comes into force. Or the Montreal Protocol onSubstances that Deplete the Ozone Layer, which had a more complex formula, requiring a minimum of 11 signatories representing two thirds of the estimated 1986 global consumption of the banned substances, and also specified a date before which the Protocol would not come into force.

I assume that this sort of provision is the norm in a multilateral treaty. The reason is not hard to imagine. A multilateral treaty without a critical mass of signatories isn't of much use, and there's really no point in holding preliminary signatories responsible for maintaining the provisions of a treaty without that critical mass. What constitutes a critical mass depends, of course, on the subject matter of the treaty.

According to section 4.1.6 of the proposed Anglican Covenant, “This Covenant becomes active for a Church when that Church adopts the Covenant through the procedures of its own Constitution and Canons.” There is no specification of a critical mass of signatories required to make the proposed Covenant meaningful. So, evidently now that there are four signatories the Covenant is already in force, for those four at any rate. Already those four Churches are responsible for the undertakings in the Covenant (whatever those might be, given that they are not defined) and are free to make use of the procedures in section 4.2 to “raise questions” either about the meaning of the Covenant or about each others' actions. But would that really be meaningful in the life of the Anglican Communion? Surely, it makes little sense to engage the dispute-settling mechanism before a critical mass of Churches have signed on to the Covenant. Perhaps if Mexico decided tomorrow to raise a question about something the Caribbean was up to – which it could, on the face of it, both Churches having already adopted the Covenant – the Standing Committee might well ask them to wait until a few more Churches have agreed to the Covenant. But how many would that be? Since the Covenant doesn't say, it would be an arbitrary decision of the Standing Committee. (Of course, given the appalling lack of definitions in the proposed Covenant, virtually all decisions of the Standing Committee will be arbitrary.)

Similarly, any of the four Churches could now propose an amendment to the Covenant text, ratification of which by three of them would bring the amendment into force. Again, presumably the Standing Committee would ask them to wait for a critical mass. Under section 4.4.2 the Standing Committee is required to submit any proposed amendment to the Anglican Consultative Council, the Primates' Meeting, and the Covenanting Churches, and then to formulate a recommendation with respect to its adoption. In submitting the amendment to the Covenanting Churches, the Standing Committee could recommend that it is premature to amend the Covenant, but there's no provision in the Covenant allowing the Standing Committee actually to stop a proposed amendment.

For the Canadian Church, in my view, adoption of the Covenant wouldn't really be meaningful unless the Church of England has adopted it already. And it would be awkward for us if the Covenant were to come into force before all the Churches of the Anglican Communion adopt it. This is because of the statement in the Solemn Declaration – the cornerstone of the Constitutional Framework of the Anglican Church of Canada – that we “declare this Church to be, and desire that it shall continue, in full communion with the Church of England throughout the world....” Surely, notwithstanding the Archbishop of Canterbury's comments about a two-track Communion, adoption or otherwise of the Covenant has implications for the nature of our relations with the other Churches of the Anglican Communion.

Is there a critical mass of Churches required before adoption of the Covenant becomes meaningful, and which ought to be required before it comes into force? Should that critical mass of necessity include the Church of England? Should it count not just Churches but also a percentage of the Anglicans in the world? And if there is such a critical mass, why is it not specified in the proposed Covenant itself?

In the absence of such a definition, perhaps it would be useful for each Church proposing to adopt the Covenant to specify a critical mass in the legislation by which it adopts the Covenant. I have in mind a clause such as “the adoption of the Covenant shall become effective for this Church at such time as three quarters of member Churches in the Anglican Communion, representing not less than two thirds of Anglicans, and including the Church of England, shall have adopted the Covenant.” That sort of bypasses section 4.1.6, or at least qualifies it, but at least it would make it clear what the Church in question thought would be a critical mass of signatories before the proposed Covenant is meaningful.


  1. As with much else about this abominable Covenant, the heavy-handed centralisation is accompanied by mind-numbing incompetence.

  2. I agree with the “mind-numbing incompetence” comment. Lawyers would have been helpful in the Covenant Design Group.

    The provision that the Covenant immediately becomes effective upon adoption is supremely stupid and virtually unprecedented in any significant international agreement.

    Characteristic of competently drawn agreements is Article VII of the United States Constitution: “The Ratification of the Conventions of nine States [out of thirteen—thus, just under 70% of the states], shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

    A related bizarre provision of the Anglican Covenant is Section 4.2.8: “Participation in the decision making of the Standing Committee or of the Instruments of Communion in respect to section 4.2 [i.e., the disciplinary procedures of the Covenant] shall be limited to those members of the Instruments of Communion who are representatives of those churches who have adopted the Covenant, or who are still in the process of adoption.” The Covenant does not explain what it means to be “still in the process of adoption.” Because dioceses have been asked to consider and comment on the Covenant, I would argue that The Episcopal Church is “still in the process of adoption.” Presumably, it could consider one paragraph of the Covenant at each triennial General Convention and still be able to participate in disciplining other churches while avoiding exposure to such discipline itself. Need I really point out that this is crazy?

  3. Funnily enough, Lionel, I was just saying the same thing about 4.2.8 in an e-mail a couple of days ago. Since "still in the process of adoption" is not defined, it leaves participation in the dispute-settling process pretty wide open. It seems to me that as long as a Church hasn't actually voted against the Covenant it could still be in the process of adopting it, and thus eligible to play a role in the procedures of section 4.2. At the same time, if it hasn't actually voted to adopt the Covenant, the same Church would be immune to any action being taken against it under section 4.2.

    To get a sense of how perverse this is, consider the Episcopal Church of the Philippines, whose house of bishops have rejected the Covenant, but which to my knowledge hasn't had an actual vote on it by their Synod. Since their Synod hasn't rejected the Covenant, can they be said to be still in the process of adopting it?

  4. Given that Nigeria or Uganda are unlikely to adopt the covenant, a two thirds critical mass rule would probably remove any likelihood of the covenant ever coming into force.
    Of course then you could run the headline "TEC saved by Gafcon votes"

  5. Two thirds is, of course, arbitrary on my part, but the point is clear enough: it would not be meaningful to have a Covenant without very substantial buy-in from other members of the Communion. And it seems to me that it's silly to have the Covenant in force for any Church adopting it (like Mexico and the Caribbean) before a certain threshold is reached.

    Your suggested headline is apt, but it does suggest that the primary purpose of the Covenant is to spank the yank.


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