Professor René ProvostDirector

Mcgill Centre for Human Rights and Legal Pluralism

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Outline

• 1. Relative Autonomy of PIL and ML• 2. Basic Principles on the Place of PIL in ML• 3. Interpretation, Expectation, Declaration

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1. RELATIVE AUTONOMY OF PIL AND ML

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Dualism

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Monism

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2. BASIC PRINCIPLES ON THE PLACE OF PIL IN ML

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Trendtex Trading v. Central Bank of Nigeria

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Hape c. Canada SCC 2007• 39. Despite the Court’s silence in some

recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation.

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Hape c. Canada SCC 2007• 39 … The automatic incorporation of such rules is

justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.

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Baker c. Canada SCC 1999• 69. International treaties and conventions are

not part of Canadian law unless they have been implemented by statute... I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law.

• 70. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.

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Baker c. Canada 1999 (diss)• “an international convention ratified by the

executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation” (para. 79) “lest we adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch” (para. 80).

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Suresh c. Canada SCC 2002• 60. International treaty norms are not, strictly

speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.

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3. INTERPRETATION, EXPECTATION, DECLARATION

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Hape c. Canada 2007

o 53…. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.

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Hape, para. 53• Driedger … explains that the presumption has two aspects.

First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation.

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Ex parte Ahmed 1998 UK CA I will accept that the entering into a treaty by the

Secretary of State could give rise to a legitimate expectation on which the public in general are entitled to rely. Subject to any indication to the contrary, it would be a representation that the Secretary of State would act in accordance with any obligations which he accepted under the Treaty. This legitimate expectation could give rise to a right to relief, as well as additional obligations of fairness, if the Secretary of State, without reasons, acted inconsistently with the obligations which this country had undertaken

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Suresh SCC 2002

• 119. It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning. Given Canada’s commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)(b) stage of the proceedings. More particularly, the phrase “substantial grounds” raises a duty to afford an opportunity to demonstrate and defend those grounds.

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Re Justice pénale pour adolescents CAQ 2003

• [102] Il paraît évident que, sur les stricts plans judiciaire et juridique, une telle déclaration n'est susceptible d'aucun effet direct, compte tenu du pouvoir du Parlement de légiférer même à l'encontre des termes d'une convention que le Pouvoir exécutif aurait ratifiée.

• [105] Sur le plan interne, elle n'aurait non plus aucun effet contraignant. Elle pourrait tout au plus servir d'outil de pression et d'influence pour amener le Parlement à modifier les dispositions litigieuses. Encore là, les effets du jugement revêtiraient un caractère essentiellement politique.

• [105] Sur le plan interne, elle n'aurait non plus aucun effet contraignant. Elle pourrait tout au plus servir d'outil de pression et d'influence pour amener le Parlement à modifier les dispositions litigieuses. Encore là, les effets du jugement revêtiraient un caractère essentiellement politique.

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Vriend c. Alberta CsC 1998• 138 As I view the matter, the Charter has given rise to a more dynamic interaction

among the branches of governance. This interaction has been aptly described as a “dialogue” by some (see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives (see Hogg and Bushell, supra, at p. 82). By doing this, the legislature responds to the courts; hence the dialogue among the branches.

• 139 To my mind, a great value of judicial review and this dialogue among the

branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

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CONCLUSION

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Anne-Marie Slaughter

• The primary State actors in the international realm are no longer foreign ministries and heads of state, but the same government institutions that dominate domestic politics: administrative agencies, courts, and legislatures. The traditional actors continue to play a role, but they are joined by fellow government officials pursuing quasi-autonomous policy agendas. The disaggregated State, as opposed to the mythical unitary State, is thus hydra-headed, represented and governed by multiple institutions in complex interactions with one another abroad as well as at home.

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