The Continuing Relevance of International Law in Canada.

AuthorParcasio, Marjun
PositionFeature: How We Make Our Laws

To some Canadians, international law may be perceived as an amorphous body of law with little, if any, direct impact on their day-to-day life. After all, international law was historically referred to as the "Law of Nations": the laws which governed the conduct of sovereign states as actors on the international plane. What relevance could international law possibly have to a farmer harvesting crops for export just outside of Lethbridge, an immigrant living in the Edmonton suburbs or a member of the Kapawe'no First Nation?

A surprising amount, in fact. International law is received into the Canadian legal system in a number of different ways, which can have important consequences on commerce, the development of infrastructure, the protection of civil liberties, and so on. For instance, the trade agreements that the Government of Canada signs with other nations may provide Canadian businesses with access to new products and markets. Moreover, international law is no longer just concerned with state-to-state interactions; it is well-accepted that individuals are also subjects of international law, which has implications on their treatment under international human rights law. The place of international law in Canada and in litigation before the Canadian courts is certainly not insignificant and should not be understated.

Sources of International Law

It is perhaps first worth considering what we mean when we talk of "international law". The sources of international law are set out fully in Article 38, paragraph 1 of the Statute of the International Court of Justice, but for our purposes we will consider the two main sources:

* treaties, i.e. agreements between states; and

* international custom, also known as customary international law, which requires the existence of a general practice of states that is accompanied by a belief by states that they are bound by that practice as a legal obligation (known as opinio juris).

Sometimes a rule of international law is readily apparent--for instance, one can turn to the UN Convention against Torture and identify the obligation requiring states to prevent acts of torture in their respective jurisdictions. In other respects, it can be difficult to determine whether international law even exists. For example, scholars and legal experts may sometimes dispute whether the practice of states is sufficiently consistent so as to constitute a rule of customary international law, or may have difficulty...

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