International Law

Question 1

Define international law

Answer 1

The law between sovereign states

Regulates certain aspects of state-individual relationship such as setting international minimum standards of treatment

Question 2

Sources of international law

Answer 2

International conventions (treaties)
Customary international law
General principles of law
Soft laws (laws in the making)
Unilateral declarations made by state actors

Question 3

Define treaty

Types of treaties (based on parties involved, based on obligations)

Answer 3

An agreement in writing between states with an intent to be governed by international law
Can be bilateral (Canada and 1 other country), multilateral (3 or more countries) or plurilateral (1 country and group of countries)
Can be contractual (quid pro quo) or constitutive (obligations are owed regardless of any exchanges between countries)

Question 4

Define dualism

Answer 4

International treaty cannot be enforced within domestic courts unless it is first transformed into domestic law by the adoption of domestic legislation implementing the treaty
International law must be altered to transform state obligations into obligations governing individuals within states
Usually used by states following British common law system

Question 5

Steps to treaty implementation in Canada

Answer 5

1. Canada signs treaty to express political support
2. Canada ratifies treaty (agrees to be legally bound)
3. 21 day tabling/discussion period where opposition party can raise concerns and government decides whether domestic legislation needs to be implemented
4. If government decides to proceed, Dept of Foreign Affairs will bring treaty into effect

Question 6

When Canada acts illegally (international perspective)

Answer 6

If Canada ratifies a treaty but doesn’t implement it into Canadian law and then acts inconsistently with it, it is acting illegally from international perspective but not from a domestic one
Could be because subject matter is provincial jurisdiction and the provinces fail to legislate, or it is federal jurisdiction but there is not enough political will

Question 7

Why Canada uses dualism

Answer 7

Canadian treaty implementation must respect federal provincial division of powers, as outlined in Constitution
While the federal executive does have exclusive power to conclude treaties on behalf of Canada, dualism is needed as a compromise when the treaty matter falls under provincial jurisdiction

Question 8

Pushpanathan v. Canada 1998

Answer 8

Case where they referenced original treaty
Claimant claimed refugee status under Immigration Act but claim was denied because he had acted ‘contrary to the purposes and principles of the United Nations’ (drug trafficking)
Court referred back to original treaty to determine scope and meaning of that phrase
Concluded that the drug charges did not violate the stipulations of the Immigration Act

Question 9

Baker v. Canada 1999

Answer 9

Case where they referenced original treaty
Claimant was deported to Jamaica but applied for an exemption under Immigration Act because she had Canada born dependent children
Main question: if Immigration Act doesn’t directly reference Rights of the Child treaty that Canada ratified, does this case still need to prioritize the best interests of the child?
Court ruled that a ‘reasonable exercise of humanitarian and compassionate power’ (stated in Immigration Act) required the immigration authorities to consider the best interests of the child

Question 10

Define monism

Answer 10

International law is automatically incorporated into domestic law without any need for domestic legislation
Conduct of individuals are regulated by both international as well as domestic law
International law precedes domestic law in case of conflict
Usually used in states with civil law tradition
Long term goal is to create unified global system

Question 11

Canada and monism

Define customary international law

Answer 11

Canada is monist wrt. customary international law
Customary intl law = unwritten law that is binding on all states and cannot be changed
Since custom is like common law, domestic legislation can trump custom

Question 12

Criteria for customary intl law (objective element, 4 parts)

Answer 12

There must be widespread, consistent and generally uniform practice
Generality: state practice doesn’t need to be universal, but needs to be widespread enough to encompass states with varying cultures/legal systems/economics
Uniformity/consistency: no need to be perfectly consistent, because if a state violates the rule and defends its conduct by appealing to exceptions within the rule then that is evidence that the state feels bound by the rule
Relevance: some states are more important than others in determining widespread and general state practice
Duration: long duration of state practice isn’t required, but if there is only a short time between when a country claims a custom emerged and now then that country needs to prove extensive and uniform state practice

Question 13

Comparativist and categorist approaches

Answer 13

Comparativist = survey the practice of as many states as possible
Categorist = survey a representative selection of a range of different states

Question 14

Criteria for intl law (subjective element)

Answer 14

Evidence of opinio juris
There is a state sense that this state practice is mandatory and that transgression of this obligation will result in sanctions –> the state is acting out of legal obligation

Question 15

How to prove customary intl law and opinio juris

Answer 15

Diplomatic correspondence
Government press statements
Summit reports
Ministerial statements
Speeches before UN bodies
Government statements in national legislature
Government submissions to courts

Question 16

Municipality of Saint John v. Fraser Brace Overseas Corporation 1958

Answer 16

Case involving customary intl law
Saint John demanded that US pay taxes on construction materials and land lease in Saint John
Customary law exempts representatives of foreign governments from paying tax
SSC ruled that Canadian tax law should be interpreted to be consistent with this custom

Question 17

Adoptionist approach to customary intl law

Answer 17

Courts may adopt rules of customary intl law as common law in order to base their decisions upon as long as there is no legislation that directly conflicts with the custom

Question 18

Principle of respect for sovereignty

Answer 18

Each state has the right to be free from intrusion by other states and to be regarded as equal
Principles of non intervention and equality

Question 19

Comity

Answer 19

The informal acts performed/rules observed by states out of mutual goodwill

Question 20

R. v. Hape 2007

Answer 20

Case where customary intl law was adopted
Hape was convicted of money laundering, claimed that his Charter right to be secure against unreasonable search and seizure was violated when the RCMP conducted warrantless searches of his property in the Turks and Caicos
Principles of non intervention and state equality was adopted to determine scope of extraterritorial application of the Charter
Principle of comity was adopted, which enxourages state to respect the way in which the other state chooses to provide assistance within its border
In interpreting the scope of application of the Charter, courts should seek compliance with intl law

Question 21

Antiracism in Canada

Answer 21

Canada ratified Universal Declaration of Human Rights in 1948 prohibiting racial discrimination
Prohibited racial discrimination in s.15 of the Charter

Question 22

Mack v. Canada 2000

Answer 22

Case where historical racism in Canada was addressed, court referenced intl treaties
Claimants sought damages for the head tax Canada levied on Chinese immigrants between 1885 and 1923
Government sought to strike the pleadings as disclosing no reasonable course of action

Charter rights cannot apply retrospectively (Chinese Immigration Act repealed in 1947, Charter created in 1985)
Court held that it was unclear in 1947 whether there was an international custom that governments were legally obliged to provide redress for violations of international human rights norms
Courts also noted that the international norms the claimants’ argument relied on did not exist in 1947

Question 23

Recommendations on how Canada should address racism against African Canadians (6)

Answer 23

Issue apology and consider reparations for African Canadians for enslavement
Legally recognize African Canadians as distinct group in society
Take steps to preserve history of enslavement and contributions of African Canadians
Ensure accurate reflection of historical facts in educational materials to avoid negative stereotypes of African Canadians
Ratify international conventions on anti discrimination and protection of vulnerable persons (various)
Create national department of African Canadian Affairs