Enforcing international conventions and customary international law in Canada.

• Author: McKay-Panos, Linda
• Position: Special Report on International Law

International courts, such as the International Court of Justice at The Hague, deal with international disputes between States, not between individuals. Very recently, in 2002, the International Criminal Court came into being to deal with individual acts of genocide and serious human rights violations (approximately 90 countries have signed on to this process). Often, people ask, "What is the point of having a body of international law if people who believe the state (their government) has violated their legal rights cannot use a court system to enforce these rights?" The short answer is that international laws are enforced in Canada, but they are often enforced in different ways.

Generally, enforcing international law using traditional methods, such as going to court, is difficult if not impossible. This is because international law relies heavily on voluntary compliance by individual states, and upon the influence that the international community (states and international organizations) and non-government organizations (such as Amnesty International) may exert on individual states (R. Bilder, "An Overview of International Human Rights Law" in H. Hannum, ed., Guide to International Human Rights Practice (Philadelphia: University of Pennsylvania Press, 1984) (Bilder)).

How is international law enforced in Canada? The particular method and level of enforcement depends upon whether the international law has been incorporated into Canadian laws, whether the applicable rule is part of customary international law (which is like a form of international common law), whether federal and provincial governments have agreed to amend domestic law so that it is consistent with international treaties, or whether the international legal provisions have been relied upon by Canadian courts in some fashion.

Enforcement of Treaty Law

Express Implementation

The most effective way to enforce international law is through action within each state's own legal system. If Canadian domestic law provides an effective system of remedies for violations of international law, the weight of Canada's legal system can be used to support compliance with international rules. Many international laws require that signatory states incorporate the relevant obligations into their national law, and that they provide domestic remedies. (Bilder).

If an international convention or treaty has been expressly incorporated into domestic legislation, it can be enforced in the same way that domestic Canadian law is enforced. For example, Canada has incorporated the Geneva Conventions into domestic law. Subsection 3(1) of Canada's Geneva Conventions Act provides that everyone who commits a grave crime (e.g., torture, willful killing) is guilty of an indictable offence and can be liable to life imprisonment. Thus, a person contravening this Act, would be subject to...