L'évolution des rapports entre le droit canadien et le droit international un demi-siècle après l'affaire des conventions internationales de travail

Author(s):  
A.L.C. De Mestrall

SummaryThis article reviews the suggestion implicit in two recent obiter dicta of the Supreme Court of Canada and the widely held view in English Canada that the Labour Conventions Reference was wrongly decided, and that parliament should have exclusive jurisdiction to implement any treaty. It is argued that reversal of this rule would constitute a fundamental change in the nature of the Canadian federal system; is not warranted by any functional argument and has never been requested by the principal interested party, namely the government of Canada. It is also argued that the only proper way to make such a change is by way of formal constitutional amendment. Given the existence of a host of treaties covering every imaginable field of human conduct, a blank cheque to parliament to implement any treaty would in effect constitute one of the most major changes of the Constitution in our hutory. Among the problems considered is that of the extreme fluidity of the concept of a treaty in international law. The author suggests that other avenues exist for the expansion of federal legislative jurisdiction to implement treaties in the field of international trade if this is necessary.

1999 ◽  
Vol 48 (2) ◽  
pp. 447-457
Author(s):  
David P. Haljan

In the aftermath of the 1995 referendum on Quebec unilateral secession,1the then Minister of Justice, Allan Rock, proposed that the legality of a province's attempting to secede unilaterally be referred to the Supreme Court of Canada for a judicial opinion, pursuant to that Court's special advisory jurisdiction.2Accordingly, on 30 September 1996, the Governor General in Council submitted three questions of law, discussed in detail below, concerning the legal authority of Quebec, under both Canadian and international law, to secede from the Canadian federation. In addition to the government of Canada, two provinces, the two territories, and a number of special interest groups and individuals (all given leave to intervene) submitted written arguments and rejoinders over the course of 1997.3The government of Quebec did not participate in the hearing and submitted no argument. Accordingly, the Court appointed an (from Quebec) to represent the secessionist interest. The Court heard argument from 16 to 19 February 1998. On 20 August 1998 the Court released its unanimous opinion, rather earlier than expected.4The Court rejected the legal right of Quebec to separate unilaterally under Canadian constitutional law, and the right to do so under international law as recognised in Canada. Given the latter holding, the Court did not consider further the third question relating to reconciling a possible conflict between the two legal orders. The following extended case comment proposes to outline and discuss briefly the reasoning of the Court, in what is a significant exercise of judicial power in the service of constitutional affairs. The structure of this comment will follow that of the Court's resaoning, dealing first with a preliminary objection, then turninh to question 1(introduction and discussion) and then to Question 2 and 3.5


AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.


2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.


2019 ◽  
pp. 335-342
Author(s):  
Joseph J. Arvay ◽  
Alison M. Latimer

On January 17, 2018, a historic decision put Canada at the forefront of an international movement against solitary confinement. A trial judge found that administrative segregation is a form of solitary confinement and that it causes some inmates physical harm and places all inmates subject to it in Canada at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. This chapter describes the Canadian litigation and the findings of the trial judge with respect to the laws’ constitutional invalidity. The decision of the trial judge was largely upheld by the British Columbia Court of Appeal. The Canadian Parliament has now enacted a new law that purports to abolish solitary confinement but the authors are skeptical that the new law will pass constitutional muster because it is still too restrictive of inmate rights. It is expected that the government will seek leave to appeal to the Supreme Court of Canada.


Author(s):  
Gibran van Ert

SummaryIn Spraytech v. Hudson, the Supreme Court of Canada made a bold declaration on the status of the precautionary principle in international law. While the methodology of the majority is open to criticism, the judgment is a welcome clarification of the court’s groundbreaking decision in Baker v. Canada and, building on that case, offers the prospect of a truly internationalized Canadian jurisprudence. In a postscript to this comment, the judgment of the Supreme Court of Canada in Suresh v. Canada is briefly considered.


Author(s):  
Wendy A. Adams

SummaryThe distinction between formal and essential validity in Anglo-Canadian choice of law regarding marriage is an illogical bifurcation that unnecessarily invalidates same-sex relationships contracted in foreign jurisdictions. The Supreme Court of Canada has recently reformulated certain rules of private international law, taking into account both the constitutional and sub-constitutional imperatives inherent in a federal setting and the need for order and fairness when co-ordinating diversity in the face of increasing globalization. Reform of the choice of law rules regarding the validity of foreign marriages should proceed accordingly with the result being that a marriage valid where celebrated is valid everywhere. No principled reason exists to deny recognition to same-sex relationships validly contracted in other jurisdictions, nor to differentiate between the rights and obligations arising from the legal status of same-sex and different-sex relationships.


2020 ◽  
Vol 59 (5) ◽  
pp. 747-810
Author(s):  
Russell Hopkins

In a judgment delivered on February 28, 2020, the Supreme Court of Canada held (by majority, 7–2) that Canadian common law does not contain an all-encompassing doctrine of non-justiciability based on foreign acts of state; and (by a narrower majority, 5–4) that alleged breaches of customary international law (CIL) arguably provide a novel cause of action in tort. The court held that claims against a Canadian mining corporation related to alleged violations at a mine in Eritrea could proceed to trial.


AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 215-219 ◽  
Author(s):  
Dwight Newman

International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.


2015 ◽  
Vol 32 (1) ◽  
pp. 121
Author(s):  
David DesBaillets

The case of Tanudjaja v. Attorney General, represents an unprecedented opportunity for Canadian legal scholars to examine the right to adequate housing in the Canadian human rights context. It is the only legal challenge that broaches directly the right to housing under Canadian law, basing its arguments on two key elements contained in Charter of Rights and Freedoms: sections 7 and 15. Moreover, the case represents an attempt by the claimants to bolster their Charter claim with reference to housing rights found in international human right’s law. For Canadian housing rights’ scholars, this decision, though ultimately quite negative in its conclusions, demonstrates the need for a better understanding of the intersection between international legal norms on human rights on the one hand, and the Charter, on the other. It does not, however, adequately portray the full extent of the former’s influence on the latter, as Justice Lederer of the Ontario Superior Court of Justice, failed to address the importance of international legal doctrine with respect to the interpretation of positive social and human rights in the Canadian legal context. In particular, he ignored the growing body of Charter related cases and precedents in Canadian jurisprudence that shed light on the complex relationship between fundamental human rights enshrined in various international legal documents and the recognized positive obligations they impose on the government of Canada to implement them under such long established treaties as the Covenant of Economic Social and Cultural Rights.   In this comment, the author makes a critique of the analysis undertaken by Judge Lederer with regards to the relevance of international human rights norms in the context of Tanudaja, by comparing it with past Charter jurisprudence involving the impact of these on Canadian human rights claims.  L’affaire Tanudjaja c. Attorney General est une occasion unique pour les spécialistes en droit du Canada d’examiner le droit à un logement adéquat dans le contexte des droits de la personne protégés au Canada. Il s’agit du seul litige dans lequel le droit au logement en droit canadien est abordé directement sous l’angle de deux dispositions clés de la Charte canadienne des droits et libertés : les articles 7 et 15. De plus, dans cette même affaire, les demandeurs ont tenté d’étoffer leur allégation fondée sur la Charte en invoquant les droits au logement reconnus dans le droit international sur les droits de la personne. Pour les spécialistes en matière de droits au logement au Canada, malgré les conclusions plutôt négatives qui y sont tirées, cette décision illustre la nécessité de mieux comprendre l’interaction entre les normes juridiques internationales sur les droits de la personne, d’une part, et la Charte, d’autre part. Cependant, elle ne décrit pas adéquatement l’ampleur de l’influence des premières sur la seconde, puisque le juge Lederer, de la Cour supérieure de justice de l’Ontario, n’a pas abordé l’importance de la doctrine juridique internationale relative à l’interprétation des droits sociaux et humains positifs dans le contexte juridique canadien. Plus précisément, il a ignoré le nombre croissant de décisions canadiennes liées à la Charte qui ont mis en lumière la relation complexe entre les droits humains fondamentaux garantis dans différents documents juridiques internationaux et les obligations positives reconnues que ces textes imposent au gouvernement du Canada en ce qui a trait à la mise en œuvre de ces droits en conformité avec des traités d’aussi longue date que le Pacte international relatif aux droits économiques, sociaux et culturels. Dans ce commentaire, l’auteur critique l’analyse que le juge Lederer a menée au sujet de la pertinence des normes internationales à l’égard des droits de la personne dans le contexte de l’affaire Tanudaja, en comparant cette analyse à des décisions antérieures concernant la Charte et faisant état des répercussions de ces normes sur les revendications fondées sur les droits de la personne au Canada. 


2020 ◽  
pp. 45-53
Author(s):  
Quetziquel Flores Villicaña

Article 49 of the Mexican Constitution establishes the tripartite division of the government where by each of the three divisions has certain enumerated powers that serve as checks and balances in a democracy. In the present work we will not analyze the jurisdictional powers of the Judiciary, but instead the legislative powers of the Supreme Court, as well as certain investigation powers whitin as well as how it worked and in which important cases such powers were exercised, as well as the constitutional amendment of June 10, 2011. Another power that we will analyze of the Supreme Court is the power to issue general agreements. Most notably, we will analyze the general agreements 10/2000 and 5/2001 for their impact on functions of the Supreme Court.


Sign in / Sign up

Export Citation Format

Share Document