International and Foreign Legal Research

AuthorTed Tjaden
With increasing globalization, most Canadian lawyers will regularly
be exposed to some aspect of international or foreign law. Despite its
growing importance, however, many Canadian lawyers lack experi-
ence in researching in this area. Therefore, the goal of this chapter
is to introduce international and foreign legal research and provide
a good overview of relevant print and online resources for effectively
conducting this type of research.1 Material in this chapter is divided
into the following sections:
A. The importance of international and foreign law
B. Tips for conducting international and foreign legal research
C. Researching conf‌lict of laws
D. Print and online secondar y sources of international law
E. Print and online primary sources of international law
F. Researching the domestic laws of foreign countries
G. Sample questions and suggested approaches
1 This chapter inc orporates, with perm ission, material fr om Ted Tjaden, “The
Best Onli ne Sources for International a nd Foreign Law” in Bonnie Fish, e d,
You’ve Got the Whole World in Your Hands: Using the Internet to Exp and the Bound-
aries of Legal Research (Toronto: Ontario Ba r Association, 200 4).
Canadian court s are increasingly looking to international treaties and
conventions as an indication of standards and norms that should be
used in interpreting and applying Charter standards in the Canadian
context. In Baker v Canada (Minister of Citizenship and Immigration),2
for example, Madam Justice l’Heureux-Dubé wrote that “the values re-
f‌lected in international human rights law may help inform the con-
textual approach to statutory inter pretation and judicial review,”3 even
where, as in that decision, the Canadian Parliament had not yet imple-
mented the Convention being considered. Likewi se, in Suresh v Canada
(Minister of Citizenship and Immigration),4 the Supreme Court of Can-
ada looked to international treaties dealing with the prohibition of de-
porting persons to countr ies that allow torture in assessing whether
the government was justif‌ied in deporting a Sri Lankan refugee to his
home country where he might be tortured:
International treaty norms are not, st rictly speak ing, binding in
Canada unle ss they have been incor porated into Canadi an law by
enactment. However, in seeking the meaning of the Canadian Con-
stitution, the court s may be informed by inter national law. Our con-
cern is not with Canada’s internationa l obligations qua obligations;
rather, our concern is with t he principles of fundamental just ice. We
look to international law as evidence of these principles and not as
controlling in itself.5
More recently, in R v Hape,6 the Supreme Court of Canada had to
determine whet her the Charter applied to se arches and seizures con-
ducted in the Turks and Caicos in an investigation of a Canadian on
charges of suspected money laundering. To answer this, the Court
looked to principles of state jurisdiction under international law and
the principle of the comity of nations. In dismissing the appeal of the
accused and ruling that the Charter did not apply, Justice LeBel held
“the principles of non-intervention and territorial sovereignty may be
3 Ibid at para 70. See als o Gib van Ert, Using International L aw in Canadian Courts,
2d ed (Toronto: Irwin Law, 2008); Oonagh Fitzger ald, The Globalized Rule of
Law: Relationships be tween International an d Domestic Law (Toronto: Irwin Law,
200 6).
5 Ibid at para 60.
Internation al and Foreign Legal Rese arch 179
adopted into the common law of Canada in the absence of conf‌lict-
ing legislation.”7 He also conf‌irmed the “well-established principle of
statutory interpretation th at legislation wil l be presumed to conform to
international law” and that in “interpreting the scope of application of
the Charter, the courts should seek to ensure compliance with C anada’s
binding obligations under international law where the express words
are capable of supporting such a construction.8
Likewise, with the increase in global business and trade, most
lawyers will be required to have some familiarity with international
and foreign law, regardless of their area of practice. What they need
to be familiar with can range from international trade issues governed
by the World Trade Organization (WTO) or the North American Free
Trade Agreement (NAFTA), to international intellectual property laws
governed by World Intellectual Property Organi zation (WIPO) conven-
tions, to international e nvironmental treaties, to internat ional child ab-
duction conventions, to name but a few examples. Recent literature in
Canada is full with examples of the increasing domestic application of
international and foreign law.9
7 Ibid at para 46.
8 Ibid at paras 53 and 56.
9 See, for example, Nicole Duval Hesler, “L’inf‌luence du droit internationa l sur la
Cour d’appel du Québec” (2013) 54 Cahiers de Droit 177; Chanakya Seth i, “Does
the Charter Follow t he Flag? Revisiting Con stitutional Extr aterritorialit y after
R v Hape” (2011) 20 Dalhousie Journal of Legal Studies 102; Maureen Webb, “The
Constitution al Question of Our Time: Extr aterritorial Applicat ion of the Char-
ter and the Afgha n Detainees Case” (2011) 28 National Journal of Constit utional
Law 235; Oliver Jones, “The Doctrine of A doption of Customary Internat ional
Law: A Future in Con f‌licting Domestic Law a nd Crown Tort Liability” (2011)
89 Canadian Bar Re view 401; François Larocque, Civil Action s for Uncivilized
Acts: The Adjudicative Jur isdiction of Common Law Courts in Transnation al Human
Rights Proceedings (Toronto: Irwin Law, 2010); Donald Rennie & Ramona Rot hs-
child, “The Canadia n Charter of Rights and Freedoms and Canadian Off‌icials
Abroad” (2009) 47 Supreme Court Law Revie w (2d) 127; Amir Attaran, “H ave
Charter, Will Travel? Extrater ritoriality in Const itutional Law and Can adian
Exceptionali sm after R v Hape” (2008) 87 Canadian Bar Re view 513; John Cur-
rie, “Khadr’s Twist on Hape: Tortured D eterminations of the Ex traterritorial
Reach of the Can adian Charter” (2008) 46 Canadia n Yearbook of Inter national
Law 307; Noemi Gal-Or, “R v Hape: Inter national Law before the Supreme Cou rt
of Canada” (2008) 66 Advo cate 885; John Currie, “ Weaving a Tangled Web:
Hape and the Obfus cation of Canadian Rece ption Law” (2007) 45 Canadian
Yearbook of Internatio nal Law 55; Gib van Ert, “Hape: Intern ational Law Expand s
Reach into Formerly D omestic Areas of Law” The L awyers Weekly (24 August
2007) 9; Myra Tawf‌ik, “No Lon ger Living in Splendid Isolat ion: The Globaliza-
tion of National Cour ts and the Internation alization of Intellect ual Property Law”
(2007) 32 Queen’s Law Journal 573; Lorra ine Weinrib, “A Primer on Internation al

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