scholarly journals Ahani v. Canada: A Persuasive Dialogue within the Courts

Refuge ◽  
2003 ◽  
pp. 120-129
Author(s):  
Adrian Di Giovanni
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Canadian Law ◽  
The Supreme Court ◽  
The Status ◽  
Peremptory Norms

This paper is a comment on Ahani v. Canada (OCA). Canadian courts are presently involved in a dialogue over the role of international law domestically. The courts’ own grappling with various norms of international law, however, has helped to clarify and reinforce the status of these norms. In Baker v. Canada, the Supreme Court gave a new prominence to the “persuasive approach” of applying international law. Ahani demonstrates that while the persuasive approach has begun to be internalized into Canadian law, the courts are still at odds with how persuasive international law should be. To complicate this account, the Supreme Court’s discussion in Suresh of peremptory norms of international law demonstrates that an over-emphasis on the “persuasive” approach can in fact weaken the role of international law domestically. At the same time, the dialogue within the courts is linked to a much more general dialogue. The importance of cases such as Ahani ultimately stretches beyond the domestic context.

The Problems and Promise of Spraytech v. Hudson

2002 ◽  
Vol 39 ◽  
pp. 371-385
Author(s):  
Gibran van Ert
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Precautionary Principle ◽  
Supreme Court Of Canada ◽  
The Precautionary Principle ◽  
The Supreme Court ◽  
The Status

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.

The Status of the Bihari Community in Bangladesh under Domestic and International Law

2018 ◽  
Vol 25 (4) ◽  
pp. 664-678
Author(s):  
Md. Kamrul Hasan Arif
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Country Of Origin ◽  
International Organisations ◽  
Citizenship Status ◽  
The Supreme Court ◽  
The Status ◽  
Different Parts

The problems concerning the Bihari community is one of the oldest long-standing issues between Bangladesh and Pakistan. In 1971, after the independence of Bangladesh, the Bihari lost their citizenship. Presently, they are stateless and living in various camps in different parts of Bangladesh. This community wanted to be repatriated to their own country, Pakistan, but it denied them citizenship status, although a large number have been repatriated to Pakistan as their country of origin. Recently, in March 2015 the Supreme Court of Pakistan rejected the issue of stranded Pakistanis in Bangladesh regarding repatriation or taking these people back. This article has tried to determine the status of the Bihari community, what a lasting solution might be, and what the role is of international organisations in helping this community under domestic and international law.

Domesticating Treaties in the Legal System of South Sudan – A Monist or Dualist Approach?

2020 ◽  
Vol 28 (3) ◽  
pp. 378-400
Author(s):  
Ruben S. P. Valfredo
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
South Sudan ◽  
Status Quo ◽  
Treaty Ratification ◽  
The Supreme Court ◽  
The Status ◽  
Mixed Approach ◽  
International Conventions

This article examines the approach for the domestication of treaties in South Sudan. Such examination is undergone in light of the theories for the domestication of international law norms into the domestic legal systems of state members of the international community. The article establishes that the approach in South Sudan is not clearly indicated, and seems to be inconsistent with regard to the practice of various institutions linked to the domestication of treaties process in South Sudan. However, the article expands on two foundations: the status quo and the ‘ought to be’ approach. The article argues that the approach as it exists seems to be a monist rather than a dualist approach. This is evident from the indicators of South Sudan's constitutional, legislative and judicial settings such as the text of the Transitional Constitution of South Sudan 2011, the treaty ratification process, the practices of the National Legislative Assembly in respect of international conventions and a judicial circular issued by the Supreme Court of South Sudan. Furthermore, the article advances that the ‘as ought to exist’ approach needs to be a clearly mixed approach, partly monist and partly dualist. Such approach combines the advantages associated with each approach in one place. The article recommends that there is a need to have a well informed, well established and clear status in respect of the domestication approach guided by the various arrangements and settings highlighted above. It may also take account of the various states’ attitudes towards international law and the legal school of thought which forms the basis of South Sudan legal system. Such recommendation could be materialised via an act of parliament, a regulation or a practice manual.

Self-determination—Canada—Quebec—right to secede under constitutional law and public international law—role of international law in Canadian courts

1999 ◽  
Vol 93 (2) ◽  
pp. 519-525 ◽  
Author(s):  
Bernard H. Oxman ◽  
Stephen J. Toope
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Federal Authority ◽  
Unilateral Declaration ◽  
Legal Context ◽  
The Supreme Court

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.Supreme Court of Canada, August 20, 1998.In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.

The Complexity of Sabbatino

1964 ◽  
Vol 58 (4) ◽  
pp. 935-951 ◽  
Author(s):  
Richard A. Falk
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Judicial Decision ◽  
Partial Analysis ◽  
The Supreme Court ◽  
Supreme Court Decisions

Banco Nacional de Cuba v. Sabbatino is a seminal decision, interpreting significantly the role of a domestic court in an international law case. At the same time, it avoids reaching definitive results. Very little is settled once and for all by the Supreme Court. This realization prompts caution. Sabbatino will not yield an authoritative interpretation, except, perhaps, as a consequence of subsequent Supreme Court decisions. A commentator must be content, therefore, with the less dramatic claims of provisional and partial analysis. Those that claim more are misleading us. The complexity of Sabbatino is almost certain to poison hordes of over-clarifiers who are descending upon this major judicial decision as vultures upon a freshly dead carcass.

The Status of Non-Implemented EEA Law in Iceland: Lessons from the Judicial Reactions of the Supreme Court to International Law

2011 ◽  
Vol 80 (4) ◽  
pp. 425-458
Author(s):  
Ólafur Ísberg Hannesson
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Direct Effect ◽  
Legal Status ◽  
European Convention ◽  
Trade Association ◽  
European Economic Area ◽  
European Free Trade Association ◽  
The Supreme Court ◽  
The Status

AbstractIn October 2007, the European Free Trade Association (EFTA) Court confirmed that the doctrines of direct effect and primacy could not be generated by the European Economic Area (EEA) Agreement alone. Rather, the effects of non-implemented EEA provisions were to remain in the hands of the EFTA States. Hence, the relevant question is what weight should be accorded to such norms in domestic law? The Icelandic Supreme Court has yet to take a stance on the direct effect question relation to incorrectly or insufficiently transposed EEA law. The issue has, however, been addressed several times in connection with the European Convention on Human Rights, before its incorporation. In order to address the unclear legal status of EEA norms in Icelandic law, this contribution takes a closer look at the judicial attitude of the Supreme Court taken towards international law in general and the Convention in particular. The perceived differences between EEA law and the Convention have made it easy for observers to dismiss such comparison on the grounds that the two kinds of legal regime are not readily comparable. The article questions these apparent differences by pointing out that EEA law in fact shares all of the features of the Convention that led judges to enforce it in the Icelandic legal order.

The Expanding Role of the Supreme Court of Canada in International Law Issues

1997 ◽  
Vol 34 ◽  
pp. 89-102 ◽  
Author(s):  
Gérard V. La Forest
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Issues ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Public And Private ◽  
National Courts ◽  
The Supreme Court ◽  
The World

SummaryThe rapid globalization that marks our era has resulted in increasing demands for the legal resolution of disputes arising out of interstate activities. National courts throughout the world have been significantly affected by this development. This article describes the recent expansion of the work of the Supreme Court of Canada in relation to transnational legal issues, including issues of public and private international law, human rights, admiralty law, and issues of private law having international ramifications. It traces the Court's evolving approach to international law issues and its willingness to reformulate its principles to meet modern conditions and to foster compliance with its norms. The more cosmopolitan attitude thereby generated has worked in concert with the Court's increasing willingness to rely on comparative law techniques in assuting in the resolution of issues of a localized character.

The Democratizing Force of International Law

2018 ◽  
Author(s):  
Neha Jain
Keyword(s):  
Supreme Court ◽  
International Law ◽  
International Community ◽  
The State ◽  
Constitutional Rights ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Status ◽  
Indian Supreme Court

This chapter argues that international law has served as a useful tool for the Indian Supreme Court in fulfilling aims that have little to do with the court’s purported status as an organ of the international community. Rather, the Supreme Court has appropriated international legal norms to pursue primarily domestic goals. This chapter proceeds as follows. Section II gives an overview of the status of international law in the Indian constitutional scheme. Section III analyzes the creative uses of international law by the Indian Supreme Court to fill in and add to the content of constitutional rights and guarantees, enabling its encroachment into domains that are normally the prerogative of the legislature and the executive. Section IV puts forward a possible explanation for this appropriation of international legal norms and suggests that international law has performed a legitimizing function in the Supreme Court’s articulation of its vision of the state.

The diminishing status of international law in the decisions of the Israeli Supreme Court concerning the Occupied Territories

2020 ◽  
Author(s):  
Tamar Hostovsky Brandes
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Administrative Law ◽  
The Past ◽  
The Supreme Court ◽  
The Status ◽  
Occupied Territories ◽  
The Government ◽  
Israeli Supreme Court ◽  
Governing Law

Abstract This article examines the attitude of the Supreme Court of Israel towards international law in the past decade, focusing on cases concerning the Occupied Territories. It compares the decisions of the past decade to those of the preceding decade, which were characterized as developing a “jurisprudence inspired by international law.” The article argues that the status of international law in decisions that regard the Occupied Territories has, overall, declined. While the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Court’s decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law. As a result, the distinction between the Occupied Territories and Israel is blurred. The article argues that this shift is consistent with a deliberate eradication of the distinction between Israel and the Occupied Territories by the legislator and the government. While the article does not argue that the Court intentionally supports this eradication, it does argue that it facilitates it.

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