International and Foreign Legal Research

• Author: Ted Tjaden
• Pages: 177-209

177

CHA PTER 7

INTERNATIONAL

AND FOREIGN

LEGAL RESEARCH

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).

LEGAL R ESEARCH AND W RITING178

A. THE IMPORTANCE OF INTERNATIONAL

AND FOREIGN LAW

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

2 [1999] 2 SCR 817.

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).

4 [2002] 1 SCR 3.

5 Ibid at para 60.

6 2007 SCC 26.

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