Archive for the ‘R. v. Hape’ Category

My New Article in the Canadian International Lawyer

October 21, 2011

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

A pdf copy of the article is available for download here.

Chanakya Sethi, “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R. v. Hape”

October 19, 2011
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 Chanakya Sethi (Osgoode Hall Law School – York University) has posted “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R. v. Hape”, The Dalhousie Journal of Legal Studies, Vol. 20, No. 1, 2011. Here’s the abstract:

In the recent case of R. v. Hape, the Supreme Court of Canada concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially. The Court’s decision has been faulted by scholars of both constitutional and international law as being deeply problematic. The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew, Does the Charter follow the flag? The author concludes that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter – far from being anathema to international law – is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application.

 Download a .pdf copy of the paper via SSRN here.

Corporate Liability under International Law: U.S. and Canadian perspectives

January 10, 2011

On September 17, 2010, the United States Court of Appeals for the Second Circuit released its decision in Kiobel v. Royal Dutch Petroleum ,(06-4800-cv, 06-4876-cv). In a 2-1 split decision, the Court ruled that the Alien Torts Statute (ATS) grants U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations. Essentially, the majority opinion held that corporations cannot be sued under the ATS for violations of customary international law because “the concept of corporate liability . . . has not achieved universal recognition or acceptance of a norm in the relations of States with each other.”  (Slip op. at 49).

*Warning: This is a lengthy post (more…)

When is a Treaty really a Treaty? New Article on Medellin v. Texas

August 16, 2009
When is a Treaty really a Treaty? That is the question posed in the United States Supreme Court decision in Medellin v. Texas on the nature of American sovereignty and its international law commitments. The U.S. Supreme Court held, in part, that “while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on that basis.”

There has been a considerable amount of academic commentary on whether the Medellin v. Texas decision has put the status of a number of existing U.S. treaties into question: see, Blawgosphere Covers Medellin v. Texas from Blawg’s Blog by Bill Gratsch .

In his new article, Law(Makers) of the Land: The Doctrine of Treaty Non-Self-Execution (Harvard Law Review, forthcoming), David H. Moore (Brigham Young University Law) takes up the gauntlet in reply to Carlos Manuel Vazquez’s article Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties. Here is the abstract:

This essay responds to Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008). Focusing on the authority of the lawmakers of the land, rather than on treaties’ status as law of the land as Professor Vázquez does, this essay concludes that the Foster brand of nonself-execution (which assumes that a treaty may, in the absence of a clear statament, indicate that the treaty is domestically unenforceable) is supported by the Constitution, consistent with longstanding precedent, a coherent part of the non-self-execution doctrine, and endorsed by the Supreme Court’s decision in Medellín v. Texas, 128 S. Ct. 1346 (2008).

From a Canadian perspective, due to Canada’s consitutional division of powers, there is no self-execution issue. In R. v. Hape, a Canadian Charter or Rights & Freedoms case with an international law element, the majority expressly approved the doctrine of adoption qua reception of customary international law into Canadian domestic law. While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.

However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Perhaps the following excerpt offers a glimmer of clarity:

“68 Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada. Its ability to pass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue of parliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it would violate international law and offend the comity of nations. However, in light of the foregoing discussion of the jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court’s jurisprudence, Canadian law can be enforced in another country only with the consent of the host state.”

Readers may also be interested in an article by Armand de Mestral and Evan Fox-Decent entitled “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law” in THE GLOBALIZED RULE OF LAW: RELATIONSHIPS BETWEEN INTERNATIONAL AND DOMESTIC LAW, Oonagh Fitzgerald, et. al. eds., Irwin Law, 2006.

Antonin I. Pribetic

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