Customary International Law and Common Law Courts

• Author: François Larocque
• Profession: University of Ottawa Faculty of Law
• Pages: 123-150

CHAPTER

FOUR

Customary

International

Law

and

Common

Law

Courts

“

International

law

is

part

of

our

law,

and

must

be

ascertained

and

administered

by

the

courts

of

justice

of

appropriate

jurisdiction,

as

often

as

questions

of

right

depending

upon

it

are

duly

presented

for

their

determination."

—

Justice

Gray

1

A.

INTRODUCTION

Whereas

previous

chapters

sought

to

describe

and

assess

the

US

ex



perience,

the

remainder

of

this

book

is

aimed

at

working

out

the

legal

desirability

and

feasibility

of

US-style

transnational

human

rights

liti



gation

in

the

UK

and

Canada

having

regard

to

four

jurisdictional

issues.

Thus

Chapter

4

examines

the

historical

foundations

and

contemporary

implications

of

one

of

transnational

human

rights

litigation

’

s

working

premises,

namely,

that

customary

international

law

forms

part

of

the

common

law,

which

may

in

turn

provide

plaintiffs

with

a

cause

of

action

with

respect

to

breaches

of

well-established

and

accepted

inter



national

norms

protecting

individuals.

Chapter

5

is

an

inquiry

into

whether

and

to

what

extent

transnational

human

rights

claims

can

be

reconciled

with

traditional

rules

of

jurisdiction,

choice

of

law,

and

justiciability.

Chapters

6

and

7

discuss

the

particular

problems

that

arise

in

connection

to

the

doctrines

of

forum

non

conveniens

and

state

immunity,

respectively,

given

that

transnational

human

rights

claims

usually

implead

the

foreign

state

concerned

and

always

involve

con



duct

committed

in

its

territory.

In

each

of

these

chapters,

Canadian

1

Tbe

Paquete

Habana,

175

U.S.

677

at

700

(1900)

[Paquete

Habana].

123

124

•

CIVIL

ACTIONS

FOR

UNCIVILIZED

ACTS

and

English

jurisprudence

and

doctrine

are

analyzed

with

reference

to

their

US

counterparts

and

the

requirements

of

international

law.

As

outlined

above,

the

present

chapter

examines

the

proposition

that

customary

international

law

is

part

of

the

law

of

the

land

and

that

common

law

courts

may

ascertain,

interpret,

and

apply

that

law

in

appropriate

cases.

2

3

The

reception

of

customary

norms

in

the

national

legal

order

—

referred

to

here

as

the

principle

of

incorpora



tion

—

is

a

tenet

of

Anglo-American

legal

systems.

The

summary

man



ner

in

which

the

rule

is

often

invoked,

sometimes

without

citation

of

precedent

or

authorities,

underscores

its

axiomatic

character

but

also

makes

its

analysis

somewhat

more

difficult?

Clearly,

it

is

not

a

self-

evident

proposition,

requiring

no

formal

demonstration

of

its

truth.

But

the

principle

’

s

vintage

and

long

line

of

authoritative

support

help

to

explain

its

widespread

present-day

judicial

acceptance.

The

his



torical

roots

of

incorporation

need

to

be

explored

since

the

principle

constitutes

part

of

the

foundation

of

the

transnational

human

rights

litigation

phenomenon

in

the

US.

The

principle

has

also

been

raised

in

Canadian

and

English

cases.

Generally

speaking,

plaintiffs

bring

civil

claims

in

municipal

courts

for

violations

of

international

norms

because

it

is

assumed

that

those

courts

possess

the

authority

to

ad



minister

that

body

of

law.

Finally,

the

implications

of

incorporation

will

also

be

considered

with

respect

to

both

the

municipal

judicial

task

and

the

wider

role

national

judiciaries

are

playing

in

the

twenty-first

century

international

legal

order.

2

Ian

Brownlie,

Principles

of

Public

International

Law,

6th

ed.

(Oxford:

Oxford

Uni



versity

Press,

2003)

at

41-44

[Brownlie];

James

Crawford,

“

Decisions

of

British

Courts

during

1976-1977

”

(1977)

48

Brit.

Y.B.

Int

’

l

L.

333

at

357-59;

Edwin

D.

Dickinson,

“

Changing

Concepts

and

the

Doctrine

of

Incorporation

”

(1932)

26

A.J.I.L.

239

at

239-60

[Dickinson];

Louis

Henkin,

“

International

Law

as

Law

in

the

United

States

”

(1984)

82

Mich.

L.

Rev.

1555

at

1555-1569

[Henkin];

Hersch

Lauterpacht,

“

Is

International

Law

Part

of

the

Law

of

England?

”

in

Elihu

Lauter-

pacht,

ed.,

The

Collected

Papers

ofHerscb

Lauterpacht,

vol.

2

(Cambridge:

Cambridge

University

Press,

1975)

at

537-69

[Lauterpacht];

Gibran

van

Ert,

Using

International

Law

in

Canadian

Courts,

2d

ed.

(Toronto:

Irwin

Law,

2008)

c.

6

[van

Ert];

John

Westlake,

“

Is

International

Law

a

Part

of

the

Law

of

England

”

(1906)

22

Law

Q,

Rev.

14

at

14-26

[Westlake].

3

See

for

example,

Bouzari

v.

Islamic

Republic

of

Iran

(2004),

71

O.R.

(3d)

675

at

para.

65

(C.A.)

[Bouzari

2004];

Campaign

for

Nuclear

Disarmament

v.

The

Prime

Minister,

[2002]

EWHC

2759

at

para.

23;

Rosalyn

Higgins,

“

Dualism

in

the

Face

of

a

Changing

Legal

Culture

”

in

Mads

Andenas

&

Duncan

Fairgrieve,

eds.,

Judicial

Review

in

International

Perspective

(The

Hague:

Kluwer

Law

International,

2000)

at

19.