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PART TWO: LAW-MAKING, LEGITIMACY AND ACCOUNTABILITY I. THE SEPARATE SPECIES OF LAW In the modern legal system, two different (and at times separate) species of law exist: international and domestic. A. Domestic Law Domestic law is the body of principles most people encounter most of the time. In Canada, domestic law exists as legislation enacted by the legislatures or made as regulations by the executives. Outside Québec, domestic law also comes in the form of the common law, a body of principles developed by courts through the application of precedent, and persisting most vigorously in the private law areas of torts, contracts and property. At the pinnacle of domestic law is constitutional law. In Canada, constitutional law comes in both written and unwritten forms. Written constitutional law is essentially entrenched legislation, incapable of amendment without special procedures, and given preeminence over conflicting statutory law. Unwritten constitutional law also has this primacy, but is the product of judicial decision-making. B. International Law International law also comes in different flavours. The two most significant sources of international law are treaties and “customary international law”. Put simply, treaties are law-making contracts between states. When the treaty binds two states, it is known as a “bilateral” treaty. When it binds a larger number of states, it is called a “multilateral” treaty. There is no magic to the term “treaty”. Treaties go by a variety of alternate names, including convention, covenant, protocol, agreement, charter, and statute. While there are historical reasons for the use of these terms, the international legal effect of a treaty does not vary according to the word used to describe it. There are literally thousands of treaties, webbing the world together in a complicated pattern of bilateral and multilateral international legal obligations. Some constitute an exchange of promises between states as to how they will act on the international plane. They affect a state’s foreign policy without necessitating changes to domestic law. Others require states to change their internal policies, practices and often laws in order to meet obligations set out in the treaty. Customary international law is a very different concept. Treaties are binding on the states that are parties to them, and generally on no others. Customary international law binds all states, excepting only those that have been sufficiently persistent in rejecting it prior to its emergence as a binding norm. The content of a treaty is discerned from its text. Customary international law is much more amorphous. It is formed by general and consistent state practice, undertaken by states with a sense of legal obligation (called opinio juris). When these two ingredients – state practice and the opinio juris – become sufficiently widespread among the states of the world (a threshold not clearly defined by international law), the practice in question is said to become legally binding as customary international law. A commonly cited example is the Universal Declaration of Human Rights. Originally introduced as a resolution of the UN General Assembly in 1948, the Declaration was intended as a purely aspirational document, without legal force. It was, in other words, “soft” law, a concept discussed in greater detail below. Over time, however, a combination of state practice and an emerging view on the legally obligatory nature of the rights found in the document have prompted many to consider the Declaration customary international law, in whole or at least in part. In 1995, a Canadian minister reported that: “Canada regards the principles of the Universal Declaration of Human Rights as entrenched in customary international law binding on all governments”.4		Support for Democratizing International Organizations […] [W]e asked Canadians how much role the public should have in decisionmaking in international organizations. When we presented respondents with three different levels of democratization, a strong majority opted for the middle position… Canadians do not want to leave things to government (or international organizations) alone, about 1/3 would like the public to be actively involved, but about three in five opt for more transparency and publicity. So long as there is accountability and transparency, Canadians neither believe that one needs to introduce processes for deep forms of public participation, nor believe that international organizations should function according to rules of managerial and corporate governance, whereby the public is shut out. Canadian expectations, therefore, are reasonable: most do not expect to be actively involved in decisionmaking at an international level, but they do expect the kind of transparency that allows them to hold their government accountable. R. Wolfe and M. Mendelsohn, “Embedded Liberalism in the Global Era: Would Citizens Support a New Grand Compromise?” (2004) 59:2 International Journal 261 at 276.
II. LAW-MAKING AND QUESTIONS OF LEGITIMACY A. Domestic Law-Making Domestic law-making is a closely regimented process. We do not set out these procedures in detail in this discussion, instead providing only simplified descriptions. Domestic statutes are passed by the federal and sub-national legislatures, according to their respective powers under Canada’s Constitution. At the federal level, the Parliament is divided into two houses – the Commons and the Senate – and, under the rules of procedure in each chamber, proposed laws are debated and reviewed in both plenary sessions and in parliamentary committees. Members of the public with an interest in the proposed law may appear before these committees to present their views. Parliamentary law-making is generally both open and participatory, giving it credibility and democratic legitimacy. Most successful bills are presented to Parliament by the executive – the government – and are almost without exception shepherded through the parliamentary process with the support of the governing party. Until recently, the governing party in Parliament held a majority in the Commons and an overwhelming majority in the Senate, and therefore government bills faced relatively few obstacles. The executive itself has substantial law-making power delegated to it by Parliament in statutes in the form of regulation-making powers. Federal regulation-making is a reasonably transparent process, including the opportunity for interested parties to comment on the proposal. Should it choose, Parliament could pass new laws retracting the regulation-making authority of the executive, or negating a regulation. Indeed, under recent amendments to federal law, either house of Parliament may revoke a federal regulation by mere resolution to that effect, thereby enhancing the legitimacy of regulatory law-making. Common law is the product of the courts, applying past precedents to new cases. Common law is not, however, the whimsical creation of a few judicial minds. First, precedent does matter, and the judicial appeal hierarchy serves to standardize understandings about the content of that common law and rein in aberrant approaches. Second, common law is subordinate to statutory law. Parliament is free to abrogate a rule of common law by legislating in the area.
B. International Law-Making The process by which international law is made differs dramatically from domestic law-making. In contrast to domestic law, there is very little vetting or discussion of international law by legislators or the public before, during or after the law-making process. The absence of close oversight of international law-making by elected legislators raises obvious questions of domestic democratic legitimacy. 1. Treaties (a) Negotiating Treaties Treaties are the product of negotiations between sovereign states. There is no single way in which an international treaty is negotiated. With many multilateral treaties, the text is first negotiated over the course of many years, then progresses to larger “preparatory conferences” and eventually to full-fledged international conferences at which the states of the world gather to hammer out the final details.		Treaties may be made or concluded by the parties in virtually any manner they wish. There is no prescribed form or procedure, and how a treaty is formulated and by whom it is actually signed will depend upon the intention and agreement of the states concerned. Treaties may be drafted as between states, or governments, or heads of states, or governmental departments, whichever appears the most expedient. M. Shaw, International Law, 9th ed. (Cambridge: Cambridge University Press, 2003) at 815.
(b) Treaty Negotiation as an Executive Branch Prerogative International negotiations are the prerogative of governments, represented by executive branch officials (sometimes supplemented by representatives from industry or non-government organizations with a special interest in the treaty). Under Canadian law, the Minister of Foreign Affairs is charged with “conduct[ing] and manag[ing] international negotiations as they relate to Canada” and with “fostering the development of international law and its application in Canada’s external relations”.5 In practice, specialized federal departments play important and often preeminent roles in negotiating treaties within their area of expertise and responsibility, with Foreign Affairs Canada acting in a coordinating capacity. Negotiations are conducted by officials, and only rarely (and at the last stages) by ministers themselves. Treaties are signed by government representatives given the “full powers” to do so by the federal Cabinet. Government departments do consult with interested parties and members of the public on issues of public policy, including foreign affairs and trade. Nevertheless, treaty negotiation is not always a transparent process. In fact, efforts by members of the public (or even parliamentarians) to obtain information about treaty or other international negotiations may be rebuffed by the government. Canada’s Access to Information Act does not apply to intergovernmental organizations nor to government positions taken during international negotiations.6 Some states may include in their delegations members of the legislative branch. In Canadian practice, however, legislators appear to be rarely involved in direct treaty negotiations. Questions for further discussion: 1. Who should negotiate Canada’s treaties? Should there be a formal role for parliamentarians and non-governmental representatives? If so, what should this role be? 2. Is the government’s current approach to public consultations on Canada’s international negotiating positions sufficient? With whom should the government consult? What should Parliament’s role be? Should the process be a formal or informal one? Should the approach differ depending on the type of treaty, its potential impact or other factors? 3. More generally, what steps should the government take to communicate both internally and externally the scope and nature of current and upcoming international obligations to Parliament, sub-national authorities and Canadians?		The executive branch of the federal government in fact controls all stages of the [treaty-making] process. This control extends to the content of the negotiations, which are often conducted in secret. Moreover, this secrecy is a significant factor in the federal government’s negotiating strategy. Nothing, or almost nothing, is made public before the parties have reached an agreement in principle on the content or even the wording of the treaty. Library of Parliament. International Treaties: Canadian Practice (April 2000, PRB 00-04E).
(c) Treaty Negotiation as a Federal Monopoly Canada’s Constitution divides power between the federal and provincial governments, each (theoretically, at least) maintaining sole jurisdiction over certain areas. For example, the provinces control education, property and civil matters, and the provision of health services, while banking, criminal law, copyright and the military are federal concerns. There is no specific constitutional provision that dictates which level has control over international affairs. In practice, the federal government has claimed and assumed the role of Canadian representative in the international sphere. Still, the federal level cannot pass domestic laws in areas within provincial jurisdiction, even in matters related to international law. Consequently, the federal government needs the help of the provinces to enact legislation giving domestic effect to international commitments in areas of provincial jurisdiction. The scope of involvement in international matters by other levels of government (provincial, territorial, Aboriginal, municipal) is a point of political controversy. Since the 1960s, Québec in particular has rejected the federal monopoly on treaty-making. In 2004, the Bloc Québécois proposed a private member’s bill (Bill C-260) in the House of Commons on treaty negotiation and treatymaking. The bill barred the Canadian government from negotiating or concluding a treaty “without consulting the government of each province” if the treaty dealt with an area within provincial jurisdiction or affected the legislative authority of the provinces. The bill was defeated in September 2005. In speaking against it, government MPs expressed the view that consultation with the provinces was already sufficient. Some observers question whether provinces are sufficiently involved in the treaty-making process. Focusing specifically on trade matters, a Library of Parliament publication commented that “although the provinces are usually kept informed of negotiations on trade agreements, they are only minor participants and, except in rare instances, are completely excluded from the decisionmaking process”.7 “The implication that the bill [Bill C-260] is needed to guarantee consultations with the provinces on treaties in areas of provincial jurisdiction is simply wrong. Nothing could be further from the truth. The practice of the Government of Canada is well established. There are consultations with the provinces at every stage in development of a treaty in areas of provincial jurisdiction. …Simply put, the federal government would not be in a position to ratify a treaty if it could not be reasonably sure that the treaty will be implemented. Thus, when Canada wants to ratify a treaty involving obligations within provincial jurisdiction, the federal executive necessarily consults the provinces. In addition, before such treaties are ratified, the federal government requests the provinces’ written confirmation that they will implement those treaties and that their legislation is in conformity with the obligations contained in those treaties. …It is not uncommon for representatives of provinces and territories to join Canadian negotiating delegations on treaties involving provincial and territorial jurisdictions.” Remarks from Liberal MP Wajid Khan, House of Commons Debates (18 May 2005), 1st Sess., 38th Parl. 1840-1845. The same questions arise with respect to Aboriginal governments. Both federal and provincial governments have been negotiating self-government agreements with Aboriginal peoples. In the 1995 Federal Policy Guide on The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, the government specifies the various areas over which Aboriginal governments and institutions may negotiate jurisdiction. The policy specifically excludes Powers Related to Canadian Sovereignty, Defence and External Relations, including international/diplomatic relations and foreign policy, international treaty-making, and international trade. In a number of recent selfgovernment agreements, however, the federal government has formalized the consultation process in areas specified in the agreement such as fisheries. It has also done so in cases where rights under the agreement are affected by international agreements. For example, the Labrador Inuit Land Claims Agreement reads as follows: 17.27.3 Before consenting to be bound by an International Agreement that may affect a right under the Agreement of the Nunatsiavut Government, an Inuit Community Government or Inuit, Canada shall Consult the Nunatsiavut Government either directly or through a forum. Question for further discussion: 4. What are the advantages and disadvantages of the current consultation process with the provincial, territorial and Aboriginal governments? Should it be improved? Should there be a formal, mandatory means of involving sub-national levels of government in treaty negotiations concerning matters within their jurisdiction?		[…] [T]he federal government accepts that provincial governments are essential to the development of a Canadian position at meetings of many international organizations. They consider that the primary role of representation is exclusively federal, but they do accept that effective negotiating positions cannot be adopted without close cooperation with provincial officials. To do this, they have been willing to adopt a variety of approaches with a view to ensuring that the Canadian position reflects provincial views and will be acceptable to provincial governments. However, they have been unwilling to formalize these arrangements in any kind of public document, still less to enshrine them in legislation or in a constitutional disposition. This reluctance continues to be a source of discontent with provincial officials. In some areas and for some provinces, particularly Québec, the tension between the federal monopoly on international representation and the international dimensions of provincial jurisdiction thus remains a serious point of contention. A. de Mestral, “The Provinces and International Relations in Canada” in J.-F. Gaudreault-DesBiens and F. Gélinas, eds. Le fédéralisme dans tous ses états : Gouvernance, identité et méthodologie / The States and Moods of Federalism: Governance, Identity and Methodology (Cowansville: Éditions Yvon Blais, 2005) 321.
(d) The Ratification Process: Who Binds Canada? As a matter of international law, international treaties bind a state once it has signified consent to be bound. How this consent is expressed varies, but usually takes the form of a simple signature by the accredited government representative or, more frequently with multilateral treaties, signature followed by “ratification”. International law does not dictate the procedure to be followed in completing this ratification. Each state’s domestic law governs this process. In Canada, signifying consent to be bound is the purview of the Governor in Council – essentially the federal Cabinet – operating pursuant to its “royal prerogative”. As a result, the executive may choose to sign and ratify an international treaty, binding Canada as a matter of international law without any recourse to Parliament. Other countries have taken different approaches to law-making. Under the U.S. Constitution, for example, the U.S. government may enter an international instrument of ratification only when a treaty is approved by a two-thirds vote of the U.S. Senate. However, ratification by the Senate is not required for agreements qualified as executive agreements, often used by the United States to bind itself internationally. Nor is this federal monopoly accepted by all constitutional scholars and provinces within Canada. Some observers argue that, under Canada’s Constitution, provinces should be able to negotiate and approve treaties within their sphere of jurisdiction. Belgium, for example, grants sub-federal legislatures substantial power to approve international agreements within their zones of jurisdiction. In 1993 reforms, Belgian regions and communities were granted the power to directly negotiate and bind their own territory in matters related to their areas of jurisdiction. A comprehensive procedure was instituted to ensure a certain degree of coherence in foreign policy between the entities. Democratic reforms in Australia Under the 1996 reforms, all proposed treaty actions must, according to administrative practice rather than legislation, be tabled in Parliament at least 15 sitting days before binding action is taken, although there is some flexibility when circumstances require a shorter or longer time period. Each treaty is tabled with a National Interest Analysis (NIA), a public document prepared by the responsible line agency in consultation with the Department of Foreign Affairs and Trade (DFAT) that sets out the reasons for the proposed treaty action, its obligations and costs, and documents the consultation that has taken place. The tabled treaty (and NIA) is then sent for scrutiny to JSCOT [the Joint Standing Committee on Treaties], a large all-party committee supported by a small secretariat. JSCOT is empowered to inquire into and report upon any treaty matter, whether bilateral or multilateral, and including treaties in the process of being negotiated as well as those that have already been concluded. It can accomplish this mandate through several means, including the holding of public hearings across Australia and the review of submissions from parliamentarians, non-governmental organizations, academics and industry groups, as well as individual citizens. At the completion of its inquiry, JSCOT prepares a report for Parliament containing its advice on whether the treaty should bind Australia and on any other issues that emerged during the review process. These reports, as well as the treaty text, the NIA, the hearing transcripts, and even the submissions received by JSCOT, are all made available to the public (and the world) through the Committee’s website, thereby serving as a useful resource on a treaty’s contents and consequences. To bolster these reforms, Australia also created an on-line treaty database, providing free public access to treaty texts, their ratification records, and NIAs, as well as information on multilateral treaties under negotiation, consideration or review by the Australian government. (footnotes omitted) J. Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making” (2006) 55 ICLQ 121. Questions for further discussion: 5. Should there be a formal process of Parliamentary endorsement before the federal executive branch binds Canada as a matter of international law? If so, what form should this process take? 6. Should the Canadian approach to ratification require that subnational governments themselves endorse a treaty on matters within their own jurisdiction, prior to Canada binding itself in international law? Would the consent of the executives suffice, or would the legislatures be required to provide the requisite consent? What would happen if some sub-national governments approved, but others rejected a treaty? 7. To what extent, if any, should sub-national governments have the power to negotiate directly and ratify treaties that are within their sphere of jurisdiction? 2. Customary International Law Unlike treaties, customary international law is not the direct result of inter-governmental negotiations. It develops more organically, through the cumulative actions of the state members of the international community, undertaken with the required sense of legal obligation (or opinio juris). Unlike domestic common law, no hierarchy of courts is empowered to rule definitively on the existence of a customary rule. In practice, international customary law is often recognized in response to advocacy by powerful and/or influential states, vigorous civil society groups, academic scholarship, and the occasional rulings of tribunals like the International Court of Justice. In some cases, international lawyers, tribunals and states perform only the most perfunctory (if any) empirical analysis of state practice and opinio juris before declaring a principle customary international law. The development of customary international law is, therefore, neither very certain, nor very democratic; international law has no clear rules on when and how these norms arise. Canada’s position in participating in and responding to the question of customary international law is formulated by the federal government. But increasingly, Canadian courts have taken positions on whether particular rules are customary international law. Question for further discussion: 8. What process should Canada use to develop its position on which norms have customary international law status? 3. “Soft” Law Before leaving international law-making, a word should be said about “soft law”. As the previous discussion of the history of the Universal Declaration of Human Rights suggests, the international community at times proposes principles that are not binding law. The UN General Assembly and other international organizations regularly issue declarations and pronouncements that often look and feel like real law. But because those bodies are not empowered to create binding law, these instruments are called “soft” law. It is true that over time, some of these norms evolve into binding international law – particularly in the form of customary international law. However, other principles remain soft law. Yet, even when these principles are not legally binding, they sometimes have enormous moral force. For instance, a resolution of the UN General Assembly, of the UN Human Rights Commission, or an assessment of a country’s human rights performance by one of the bodies established by human rights treaties, have no legal force. Nevertheless, they may affect the behaviour of states intent on avoiding embarrassment and retaining credibility. In any given year, Canada may expend more effort to negotiate and take positions on soft law instruments than to negotiate binding treaties. Canada also invests resources and time anticipating and responding to the non-binding resolutions and determinations of international organs, such as the human rights bodies charged with reviewing this country’s human rights performance. Canadians and non-governmental groups may also focus substantial effort on these principles, sometimes acting with, and sometimes in opposition to, the government. In some cases, the government consults with interested Canadians prior to taking positions on soft law issues. Rarely is Parliament involved in the process. A Senate bill proposed in the last Parliament would have required the government to provide Parliament with reports submitted to the UN on the progress made by Canada in giving effect to the provisions of international human rights instruments to which it is party to and any response by UN bodies to these reports. The bill was unsuccessful. Questions for further discussion: 9. How should Canada develop positions on soft law instruments? Should the same process be used for soft law and treaties? Should these positions be devised in close consultation with stakeholder groups, parliamentarians and officials from other levels of government? 10. What are the pros and cons of the government’s current approach to preparing reports on performance to international bodies? When Canada reports to international bodies charged with assessing Canada’s compliance with international obligations, with whom should it consult? What process should be followed? 11. Should there be a formal domestic mechanism to review whether Canada is meeting its obligations? Soft law is usually the product of international organizations – agencies in which states participate. But as noted earlier, private standard-setting institutions may sometimes be involved in developing law-like standards. Corporate codes of conduct governing company ethical behaviour are one example. These codes have no direct legal force unless incorporated by reference into contracts or law. In some instances, standards set by private bodies may be incorporated into an international legal regime. The WTO Agreement on Technical Barriers to Trade, for instance, accepts that non-governmental “standardizing bodies” may establish “technical regulations” for commercial product standards. Questions arise as to who has access to the formulation of these standards. For example, while business interests may be represented, consumer groups are rarely able to participate. The questions of where private standards suffice, and where more mandatory legal instruments are required, are difficult ones in both domestic and international legal systems. Since at least the 1990s, policy-makers, companies and non-governmental organizations have debated whether voluntary corporate codes of conduct dealing with human rights and environmental performance eliminate the need for more direct regulation of companies. When the foreign operations of companies are at issue, these debates quickly evolve into a discussion about the merits of “extraterritorial” regulation: the regulation of the overseas activities of private actors. Extraterritorial regulation is a matter discussed at the end of this paper. III. INTERNATIONAL LAW AS PART OF CANADIAN LAW As already discussed, for the most part, the executive branch of the federal government negotiates treaties and other international instruments on behalf of Canada. Once a treaty is signed and ratified, Canada is bound and must comply with it or risk being found in contravention. The government must ensure that domestic law does not run counter to international law. How does international law interact with domestic law? The answer depends on the source of the international law: does it come from treaties or from customary law? A. Receiving Treaties into Domestic Law and Questions of Legitimacy 1. “Dualism” and the Separate Solitudes of Domestic and International Law Canada traditionally considers domestic law and treaty law as two distinct universes. By approaching these two spheres of law as separate solitudes, Canada is a “dualist” jurisdiction. An international treaty may require Canada, as a matter of international law, to change its domestic law. But in the dualist tradition, that treaty has no direct effect in domestic law until domestic legislation is passed to “transform” or “implement” it into Canadian law. 2. Dualism as a Rational Reaction to Democratic Legitimacy Questions in International Law-Making At one level, dualism is a sensible philosophy. It seems a necessary response to the Canadian system, where Parliament and the provincial legislatures make laws but where the federal executive branch dominates treaty-making. If treaties entered into by the federal executive had immediate and direct effect as the laws of Canada, the government’s treaty-making power could enable the executive to do an end-run around Parliament’s federal law-making monopoly. By concluding an international treaty requiring, for instance, extended patent protection, the executive would essentially legislate a matter otherwise governed by an Act of Parliament, in this case the Patent Act. In this way, the executive would short-circuit Parliament’s supremacy in law-making. Moreover, if treaties had immediate effect as laws, the federal executive could also dance around the division of powers in the Constitution Act, 1867 by employing its treaty-signing powers to legislate in provincial areas. To avoid these problems, Canadian law insists that treaties be transformed into domestic federal law by an Act of Parliament. In constitutional law, when a treaty deals with provincial matters, it is the provincial legislatures who must legislate the treaty into domestic law. Put another way, dualism responds to concerns about the democratic legitimacy of the treaty-making process by factoring elected legislatures back into the equation. 3. The Dualist Dilemma Dualism may be driven by legitimate concerns. It does, however, create real problems. When Parliament fails to implement treaty law into domestic law the result is an unfortunate legal quandary: Canada is bound by the treaty as a matter of international law, and yet its policymakers need not abide by the treaty under the terms of domestic law. This problem is remedied if the federal government delays ratification until Parliament and the provincial legislatures revise laws to bring them into compliance with the anticipated international obligation. There are, however, a few instances where Canada’s domestic laws remain unmodified, even as new treaties are ratified. Subsequently, when legislators become sensitive to allegations of non-compliance with Canada’s international obligations, they can enact legislation transforming treaty obligations into domestic law. But in so doing, federal and provincial legislators must curb their discretion and implement an agreement ratified only by the federal executive branch. Little practical room remains for a legislator intent on observing Canada’s international obligations to query, amend or reject a bill implementing an international obligation. In summary, when the federal government exercises its power to conclude an international treaty, Parliament and provincial legislatures may face a dilemma in cases where the law is not consistent with the treaty. They may choose to disregard that international obligation, preserving their supreme law-making role in Canadian democracy at the potential cost of Canada’s adherence to an international rule of law. Alternatively, they may implement these international requirements into domestic law, but with their role limited to stamping “approved” onto a treaty concluded exclusively by the federal executive branch. As globalization increases, this dilemma will become progressively more acute.
4. The Uncertainties of Dualist Reception Other problems arise in connection with the concept of the implementation of international law into domestic law. There are no clear rules on when a treaty has been “transformed” or “implemented” into Canadian law. In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet its international obligations through the formulation of policies. When the law needs to be changed subsequent to the treaty, there are clear ways to achieve this; for instance, when legislation names a treaty in its text, or appends it as a schedule to the law. But should such a definite reference be required for implementation? Should a statute’s silence or lack of sufficient detail necessarily mean non-implementation of a treaty obligation?8 Consider this example: Article 3 of the Convention on the Rights of the Child specifies that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Canadian law is replete with references to the “best interests of the child”, albeit without express reference to the Convention. Yet, in a decision addressing an immigration law matter, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) concluded that the treaty had never been implemented.9 The Court did not describe how this implementation might be achieved. However, its approach seems to suggest that for Article 3 to be implemented, every time a statute gives power to a government official, the statute would have to include some reference to the “best interests of the child” standard. Put another way, implementing Article 3 would require changes to a great number of Canada’s statutes.		Explicit implementation of international treaty provisions into domestic legislation has the important advantage of enhancing transparency, accessibility and understanding of the treaty norm among Parliamentarians, litigants, the courts and officials responsible for the administration of the legislation. E. Eid and H. Hamboyan, “Implementation by Canada of its International Human Rights Treaty Obligations: Making Sense out of the Nonsensical”, (Paper presented at the annual meeting of the Canadian Council of International Law, Ottawa, 2004).
5. Recent Judicial Reactions to Dualism Setting the bar high for what courts accept as implementation has consequences. Courts are increasingly prepared to view even unimplemented international treaties as important interpretive aids in understanding Canadian statutes. But this may produce awkward law. Consider, for instance, the Supreme Court of Canada’s decision in Suresh v. Canada (Minister of Citizenship and Immigration).10 In that case, the Court considered whether deportation to torture violated Canadian constitutional law. Canadian immigration law at the time permitted deportation of refugees on national security grounds even when their “life or freedom would be threatened”. It was silent on the question of torture. But the United Nations Convention Against Torture – a treaty which Canada has ratified – expressly bars deportation to torture. The Supreme Court assumed that since this specific prohibition was not replicated in Canadian immigration law, it had not been implemented. It then concluded that, despite this problem, international law still informed the content of the Canadian Charter of Rights and Freedoms. Yet in describing the requirements of the Charter right, the Court failed to meet the requirements of the treaty itself: while the treaty contains an absolute ban on deportation to torture, the Charter right developed by the Court permits such removal in “exceptional circumstances”. The result is a Canadian rule that, while motivated in part by an unimplemented international treaty, is not compliant with it. 6. The Problem of Partial Application The Suresh approach creates real problems: courts are now prepared to seek inspiration from unimplemented treaties. Yet, because Canada’s dualist tradition means these treaties are not really the law of Canada, courts may ignore the actual requirements of these treaties and devise some hybrid standard. The end product may be the worst of both worlds: the partial application of treaties never concretely implemented by the legislature, but in a manner that does not actually comply with Canada’s international obligations. Questions for further discussion: 12. How should Canada deal with the dilemmas of dualism? Should treaty dualism be replaced by a more “monist” approach to treaty law: automatic implementation of treaty law into the law of Canada? If so, how would this be achieved? To preserve the role of legislatures, would this change necessitate a more formal means of parliamentary/sub-national approval of treaties before the government binds Canada as a matter of international law? 13. What standards should be applied in deciding whether a treaty has been implemented into domestic law? 14. What status should be accorded to an unimplemented treaty by the courts? B. Reception and Legitimacy of Customary International Law 1. The Incorporation of Customary International Law Canada’s approach to customary international law is very different from its “dualist” treaty reception doctrines. Once a rule becomes recognized as customary law, it is automatically part of common law. With customary international law, in other words, Canada is a “monist” rather than a “dualist” jurisdiction. But, like the rest of the common law, directly-incorporated customary international law can always be displaced or overturned by a statute that is inconsistent with it. The Ontario Court of Appeal recently summarized the rule this way: “customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation. As much as possible, domestic legislation should be interpreted consistently with those obligations.”11 2. Issues Raised by the Incorporation of Customary International Law Several obvious issues are raised by this approach. First, when a legislature does legislate in a manner that displaces customary international law, Canada may be subsequently in violation of its international obligations. Second, if customary international law is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively. This customary international law is itself created by the international system in an organic rather than negotiated fashion. If customary international law is subsequently incorporated directly into Canadian law by the courts, there may never be any clear and direct input by political branches of government into the rules by which law in Canada is made binding. On a third, related point, since the content of customary international law is sometimes uncertain (and disputed), courts asked to apply it as the domestic law of Canada rely on expert testimony (often competing) from international lawyers and academics, raising further questions of legitimacy. But how offensive these last two phenomena are to Canada’s democratic order may be debated. Certainly, the common law tradition in Canada accepts that courts should have a law-making role, applying a domestic law developed by judges and not legislators. Is this tradition suddenly illegitimate when judges rely on outside experts to guide their deliberations? Question for further discussion: 15. What rules should apply governing the acceptance of customary international law into the law of Canada?