International law and administrative decisions

AuthorGib van Ert
 International law and
administrative decisions
Administ rative decision-makers of al l kinds may f‌ind themselves in-
volved i n matters concerning Can ada’s t reaty commitments or other
aspects of international law. Spec if‌ic reception ru les applicable to ad-
ministrative decision-making have not yet developed in Canadian law
and may not be necessary. However, the application to adm inistrative
decision-maki ng of such established doctrines as judicia l notice of
international l aw, the implementation requirement, and the presu mp-
tion of conformity presents part icular problems.
. Notice of international law by administrative
ere is a great deal of international law of potential relevance and
interest to C anadian tribunals, boards, commissions, and other ad-
ministrative decision-makers. Labour tribunals m ay wish or be asked
to consider t he many treaties and declarations of t he Internationa l
Labour Orga nization. Human ri ghts tribunals st and to be confronted
with a plethora of international huma n rights instruments. Trade and
competition tribunals may need to inform themselves of developments
in internationa l economic law. ese are some obvious ex amples. Less
obvious, perhaps, are cases where individual government of‌f‌icials exer-
See L. Reif, “ e Domestic Applicatio n of International Hum an Rights Law in
Canada: e R ole of Canada’s National Huma n Rights Institut ions” in O. Fitz-
gerald, ed., e G lobalized Rule of Law: Relat ionships Between Internat ional and
Domestic Law ( Toronto: Irwin Law, ) .
     
cise discretiona ry decision-making powers in circu mstances falling
short of full-blown qu asi-judicial proceedings. Here, too, international
law may be relevant.
Whether administ rative dec ision-makers may or must take no-
tice of internationa l law is an unsettled question. ere c an seemingly
be no single answer, for these bodies v ary enormously in t heir pow-
ers and purposes. One can readily imagine inst ances where regard
to inter national law by a particular administrative body would seem
necessary, or at least unobjectionable, whi le in ot her cases such con-
siderations might seem inappropr iate. A workable approach may be
that where a decision-maker is empowered to decide questions of law,
that power should be read to include releva nt rules of internationa l
law. is approach extrapolates from the presumption of conformity
with internationa l law: since the decision-mak er’s enabling leg islation
is presumed not to violate international l aw, it cannot have been given
the power to do any thing contrary to internationa l law. It must there-
fore have regard to international l aw, i n proper ca ses, to underst and
the ambit of its powers. Whatever the mer its of this suggestion, there
remains only piecemeal authority for it. While there is authority sug-
gesting that cer tain administrative decision-makers must consider
Canada’s international legal obligations in the exercise of their powers,
the breadth of that proposition remains u ncertai n.
ere are clear instances of Canadia n tribuna ls considering and ap-
plying internationa l law. Some tribuna ls, such as the Immigration and
Refugee B oard, are speci f‌ically charged with giving ef‌fect to Ca nada’s
international oblig ations. Other t ribunals take it upon thems elves
to look to international law. A leading example is the Quebec Human
Rights Commission, whic h has frequently made use of international
A similar a pproach was adopted by the Supre me Court of Canada in No va Scotia
(Workers’ Compensat ion Board) v. Martin; Nova Scotia (Workers’ Com pensation
Board) v. Laseur []  SCR  , holding that admi nistrative tri bunals which
have jurisd iction to decide questions o f law arising under a leg islative provisio n
are presumed al so to have jurisdict ion to decide the constitut ional validity o f
that provisio n.
“[I]f Parliament is presume d to intend conformity wit h Canada’s internationa l
obligations, it ma kes little sense to as sume that it granted adm inistrative dec i-
sion-makers d iscretion to ignore thes e obligations”: J. Brunnée & S. Toope, “A
Hesitant Embrace: e Ap plication of Internation al Law by Canadi an Courts”
()  Can YB I nt’l L  at  n. .

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