Customary International Law and Common Law Courts

AuthorFrançois Larocque
ProfessionUniversity of Ottawa Faculty of Law
Pages123-150
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,
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT