International law and administrative decisions

• Author: Gib van Ert
• Pages: 287-310



 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

decision-makers

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. .