The Domestic Application of International Law in Canada

Legal Norms ◽

The Supreme Court ◽

Minimum Requirements ◽

International Obligations ◽

This chapter describes how public international legal norms are received into Canadian domestic law. The rules governing international law’s reception in Canada originate in British constitutionalism and English common law. But the Supreme Court of Canada has developed this tradition by insisting that international law is part of the context in which Canada’s domestic laws are enacted. This has led to a notable openness to internationally informed legal arguments and a strong commitment to the interpretive presumption that domestic law conforms with the state’s international obligations. While treaties still require legislative implementation to take direct effect in domestic law, they can have indirect interpretive effects even without legislation. Customary international law does not require legislation; it is automatically incorporated by the common law. Even Canada’s leading constitutional instrument, the Charter of Rights and Freedoms, seems now to be interpreted according to a presumption that it at least meets the minimum requirements of international human rights law. Traditional judicial avoidance techniques such as the act of state and political question doctrines are notably absent in Canadian reception jurisprudence. Courts still find ways to disregard international law in particular cases, but the trajectory is toward using it.

Nevsun Resources Ltd. v. Araya et al. (S.C.C.)

International Legal Materials ◽

10.1017/ilm.2020.38 ◽

2020 ◽

Vol 59 (5) ◽

pp. 747-810

Author(s):

Russell Hopkins

Keyword(s):

Supreme Court ◽

International Law ◽

Common Law ◽

Supreme Court Of Canada ◽

The Supreme Court

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.

The Shifting Pendulum: Foreign Investors’ Liability Under Canada’s Common Law for Breaches of Customary International Law

Canadian Journal of Law and Society / Revue Canadienne Droit et Société ◽

10.1017/cls.2021.11 ◽

2021 ◽

pp. 1-19

Author(s):

Jason Haynes

Keyword(s):

International Law ◽

Supreme Court Of Canada ◽

Foreign Investors ◽

Human Rights Abuses ◽

Modern Slavery ◽

The Supreme Court ◽

Unlawful Conduct ◽

The Relationship ◽

Abstract In February 2020, the Supreme Court of Canada rendered a decision—Nevsun Resources Ltd. v. Araya, 2020 SCC 5—that can properly be described as revolutionary. In Nevsun, the court found that a Canadian corporation operating in a host state, Eretria, could be liable under Canadian domestic law for human rights abuses committed in Eritrea under customary international law, as incorporated into Canadian domestic law. The decision merits special attention because it is likely to fundamentally change the relationship between foreign investors, host states and the residents of host states adversely affected by investors’ unlawful conduct which amount to modern slavery.

Nevsun Resources Ltd. v. Araya

The American Journal of International Law ◽

10.1017/ajil.2020.103 ◽

2021 ◽

Vol 115 (1) ◽

pp. 107-114

Author(s):

Beatrice A. Walton

Keyword(s):

Human Rights ◽

Supreme Court ◽

International Law ◽

Common Law ◽

Supreme Court Of Canada ◽

Human Rights Abuses ◽

National Courts ◽

The Supreme Court ◽

Right Of Action

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽

10.1017/aju.2021.8 ◽

2021 ◽

Vol 115 ◽

pp. 135-139

Author(s):

Kirsty Gover

Keyword(s):

International Law ◽

Legal Status ◽

Indigenous Rights ◽

Supreme Court Of Canada ◽

Constitutional Rights ◽

The Supreme Court ◽

Potential Impact ◽

Human Rights Norms ◽

Domestic Law ◽

Court Of Appeal

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.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

Meždunarodnoe pravosudie ◽

10.21128/2226-2059-2021-2-25-39 ◽

2021 ◽

Vol 11 (2) ◽

pp. 25-39

Author(s):

Vera Rusinova ◽

Olga Ganina

Keyword(s):

Human Rights ◽

Supreme Court ◽

International Law ◽

Supreme Court Of Canada ◽

International Human Rights Law ◽

Human Rights Law ◽

International Human Rights ◽

Public International Law ◽

The Supreme Court ◽

International Human

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.

Sources of International Law in Domestic Law

10.1093/law/9780198745365.003.0053 ◽

2018 ◽

Author(s):

Cedric Ryngaert

Keyword(s):

International Law ◽

Social Relationships ◽

Court Decisions ◽

International Courts ◽

Legal Norms ◽

State Practice ◽

Municipal Court ◽

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

COMMON LAW RIGHTS: BALANCING DOMESTIC AND INTERNATIONAL EXIGENCIES

The Cambridge Law Journal ◽

10.1017/s0008197316000258 ◽

2016 ◽

Vol 75 (2) ◽

pp. 220-243 ◽

Cited By ~ 1

Author(s):

Eirik Bjorge

Keyword(s):

Human Rights ◽

International Law ◽

Common Law ◽

The Supreme Court ◽

Protection Of Human Rights ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

Proportionality Test ◽

Principle Of Legality

AbstractThe protection of human rights through common law principles and values has a greater potential than has been recognised hitherto. First, the adoption at common law of the proportionality test of interferences with rights shows that, when human rights are at issue, the courts will apply an exigent test, allowing interferences only if, amongst other things, a less intrusive measure could not have been used. Secondly, the principle of legality, along with common law constitutionalism as developed recently by the Supreme Court, now means that there is a common law pendant to the rule in s. 3(1) of the Human Rights Act 1998. Thirdly, in cases where the protection offered by the Act is displaced by obligations under the Charter of the United Nations, there is no displacement of common law rights, which continue to operate. Fourthly, common law rights are more open to the influences of the customary international law of human rights than are Convention rights. These factors combine to mean that the future of common law rights is an auspicious one.

Kosovo to Kadi: Legality and Legitimacy in the Contemporary International Order

Ethics & International Affairs ◽

10.1017/s0892679414000082 ◽

2014 ◽

Vol 28 (1) ◽

pp. 105-113 ◽

Cited By ~ 1

Author(s):

Ruti Teitel

Keyword(s):

International Law ◽

National Level ◽

International Norms ◽

Legal Norms ◽

Normative Force ◽

Positive Law ◽

State Consent ◽

United Nations Charter ◽

Whence does international law derive its normative force as law in a world that remains, in many respects, one where legitimate politics is practiced primarily at the national level? As with domestically focused legal theories, one standard answer is positivistic: the law's authority is based on its origin in agreed procedures of consent. This is certainly plausible with respect to treaty obligations and commitments that derive from the United Nations Charter, but it leaves customary international law vulnerable to legitimacy critiques—of which there is no shortage among international law skeptics. Even with respect to conventional international norms, such as treaty provisions, there is often a sense that such consent is democratically thinner than the public consent to domestic law, particularly fundamental domestic law, constitutional norms, and derivative principles of legitimate governance. State consent in international law, in this view, is often a very imperfect proxy for democratic consent to international legal norms. While it is obvious to international lawyers why (as a matter of positive law doctrine) state consent should make international norms prevail over domestic norms to which there is arguably deeper democratic consent, persistent critics of international law have questioned whether this should be so as a matter of legitimacy.

In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800007566 ◽

2002 ◽

Vol 39 ◽

pp. 117-209 ◽

Cited By ~ 4

Author(s):

Robert Wai

Keyword(s):

Supreme Court ◽

International Law ◽

Law Reform ◽

Supreme Court Of Canada ◽

Private International Law ◽

International Treaties ◽

Public International Law ◽

Liberal Internationalism ◽

The Supreme Court

SummaryThis article discusses four judgments of the Supreme Court of Canada that transformed private international law in Canada and represent a striking episode in the internationalization of law — a form of judicial activism in the name of the international. It is argued that these cases evidence a mode of internationalization by internationalist policy consciousness that is distinct from, although often complementary to, internationalization via the mechanism of international treaties or changes in customary international law. The key features of this approach suggest some resemblances to the vision found in the traditions of liberal internationalism, Canadian internationalism, and public international law. The article cautions against several general dangers in the use of this approach in law reform and adjudication and uses two specific doctrinal issues in private international law to demonstrate what a richer policy discourse concerning internationalism would be.

Part II Constitutional Domain, Ch.10 International Law

The Oxford Handbook of the Australian Constitution ◽

10.1093/law/9780198738435.003.0011 ◽

2018 ◽

Author(s):

Donaghue Stephen

Keyword(s):

International Law ◽

Common Law ◽

International Treaty ◽

Administrative Action ◽

Form Part ◽

History Of ◽

International Obligations ◽

The Common ◽

This chapter focuses on issues associated with international treaty obligations within the Australian constitutional context. It first examines the established principle of the common law of England that the provisions of a treaty do not form part of domestic law unless incorporated into domestic law by statute, before discussing the drafting history of the Constitution as well as the ramifications of that history. The chapter then turns to the power of the Commonwealth Parliament to enact legislation to implement Australia's treaty obligations. It also briefly addresses the relevance of international law to the interpretation of the Constitution itself. Finally, this chapter examines the role that international law plays in the interpretation of legislation that wholly or partly incorporates international obligations into domestic law, and the effect of such obligations on administrative action taken pursuant to such statutes.