Thursday, 25 October 2007
Customary law directly applies in Canada
The Supreme Court of Canada has clarified the direct application of customary international law within domestic law, in R. v. Hape, issued in June of this year: http://scc.lexum.umontreal.ca/en/2007/2007scc26/2007scc26.html. For a comment on it in the International Legal Materials, see: http://asil.org/ilpost/infocus/071025.pdf. According to the Court, while Parliament has clear constitutional authority to pass legislation governing conduct by Canadians or 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. Since it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law, in interpreting the scope of application of the Charter, a court should seek to ensure with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.