Using International Law in Canadian Courts.

• Author: Cameron, Jamie
• Position: Book Review

The van Ert Methodology of Domestic Reception

Gibran van Ert, Using International Law in Canadian Courts. The Hague: Kluwer Law International, 2002. Pp. xliv, 286 [Softcover $80.00 (U.S.)].

Introduction

To those who might describe themselves as "non-internationalist," international law--what it is, where and how it applies, whether it is law, and why it matters--presents difficult and uncomfortable questions. Absent an anchor in domestic law, which is the stock in trade of Canada's legal community, international law can be dismissed with relative ease: If international obligations bind the executive, critics ask why violations are currently little more than "diplomatic incidents" which may be "politically embarrassing" but are "legally insignificant." (1) From this viewpoint, this chaotic and inaccessible body of law is not considered part of Canadian law, except "as a comparative curiosity, an interesting fiction, or collection of occasionally useful supporting documents." (2)

Gibran van Ert confronts these misconceptions in his recently released book, Using International Law in Canadian Courts. The book is an ambitious project, which seeks to "advance this country's efforts to fulfil with honour the duties of its statehood." (3) For Canada to discharge those duties, the author indicates, it must be understood that international legal obligations bind the entire state, including its legislature and judiciary. Using International Law explains how the integrity of our domestic law depends on its respect for, and compliance with, international law. From that perspective, the book is an exercise in harmonizing bodies of law that have been treated as separate and in tension, if not in conflict, with each other. The author insists that international law is part of domestic law and argues that fulfilling the duties of statehood need not compromise Canada's sovereignty as a nation.

The domestic application of international law is governed by common law rules of reception that Canada inherited from Britain and adapted to local circumstances in the years following Statute of Westminster (4) independence in 1931. Broadly speaking, the two main rules of domestic reception are incorporation and implementation. They are based on the principles of respect for international law and self-government. Under that scheme, customary international law applies domestically through its incorporation into common law doctrine, but treaty obligations do not become binding in Canadian law unless implemented by the federal or provincial legislatures. International law is in tension with the concept of self-government and the two "do not sit easily together." (5) Neither can have free rein over the other, for that would permit one to consume the other, and balance between the two is necessary to ensure the survival of both.

Seeking to explain how that balance should be achieved across a range of reception issues, van Ert writes at a level of abstraction, yet hopes that his work will serve "first and foremost as a guide for practitioners." (6) His book provides a "complete account of the Canadian law of reception in order that courts and counsel tackling questions of international law may proceed from a common starting-point." (7) Van Ert maintains that the law of reception is not "a haphazard collection of ancient case-law overlaid with an equally haphazard modern jurisprudence" but is instead "a complete and internally-consistent system" of rules and principles for the application of international law. (8) To rationalize this system and render it accessible, he employs a "principle-based analysis," which places the "spotlight" on specific questions of domestic reception. (9)

Using International Law is clearly reasoned, but complex and comprehensive in its treatment of the issues. It introduces van Ert as an author who is confident, straightforward, and methodical, without being dogmatic. Internationalists, along with experts on federalism, treaty interpretation, administrative law, and the enforcement of human rights guarantees, should congratulate him before debating "the van Ert methodology of domestic reception". Though the book's painstaking analysis of specific questions of reception cannot be discounted, the creation of a methodology to address these issues should be seen as its primary contribution.

This review approaches the author's methodology of domestic reception from a constitutionalist's perspective. Although the book addresses the use of international law in Canadian courts, it also engages principles of constitutional law, as the balance between respect for international law and self-government unavoidably rests on a conception of institutional role. Accordingly, the domestic reception of international law cannot be disentangled from fundamental issues about institutional relations between the executive, legislative, and judicial branches of government.

The van Ert Methodology of Domestic Reception

Though it is not "self-evidently so," van Ert acknowledges that Canada's rules of reception are "a matter of constitutional law." (10) He gives pause, though, because our written texts are silent on the application of international law. This does not create a "constitutional vacuum", however, for the rules of reception are unwritten principles that are "of a constitutional nature." (11) Whatever the constitutional status of common law reception roles may be, it is clear that the domestic application of international law rests on a series of relationships between institutions. For instance, the executive can bind the state to obligations internationally, but cannot guarantee...