₁ This issue is also very much alive in other common law countries, such as Australia, Great Britain, and New Zealand. See Riesenfeld, S. A. and Abbott, F. M. (eds.), Parliamentary Participation in the Making and Operation of Treaties — A Comparative Study (Dordrecht: Martinus Nijhoff, 1994)Google Scholar; Donaghue, S., “Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia” (1995) 17 Adelaide L. Rev. 213 Google Scholar; Mason, A., “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 Public L. Rev. 20 Google Scholar; Conforti, B. and Francioni, F. (eds.), Enforcing International Human Rights in Domestic Courts (The Hague: Martinus Nijhoff, 1997)Google Scholar; Keith, K., “The Application of International Human Rights Law in New Zealand” (1997) 32 Texas Int’l L.J. 401 Google Scholar; Keith, K., “The Impact of International Law on New Zealand Law” (1998) 6 Waikato L. Rev. 1 Google Scholar; Gobbi, M., “Drafting Techniques for Implementing Treaties in New Zealand” (2000) 21 Statute L. Rev. 71 CrossRefGoogle Scholar; and Openkin, B. R., “Constitutional Modelling: The Domestic Effect of International Law in Commonwealth Countries — Part I” (2000) Public L. 607.Google Scholar For an general assessment of the situation in some countries on the European continent, see Conforti, B., “Notes on the Relationship between International Law and National Law” (2001) 3 Int’;l L. Forum 18.Google Scholar

₂ Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [hereinafter Baker].

₃ See, among others, Kindred, H. M., “Canadians as Citizens of the International Community: Asserting Unimplemented Treaty Rights in the Courts,” in Coughlan, S. G. and Russell, D. (eds.), Citizenship and Citizen Partiapation in the Administration of Justice (Montreal: Thémis, 2002), 263 at 284,Google Scholar who wrote that the “judgement in Baker v. Canada has carried Canadian courts into new territory” and that, indeed, the “role of unimplemented treaties is [now] better defined.”

₄ Indeed, pre-dating Baker, the Canadian Council on International Law [hereinafter CCIL] organized in 1998 a congress on the topic. See CCIL, The Impact of International Law on the Practice of Law in Canada — Proceedings of the 27th Annual Conference of the Canadian Council on International Law, Ottawa, October 15–17, 1998 (The Hague: Kluwer Law International, 1999). Going back further to 1996, one may recall that former La Forest, Justice Gérard, in “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Canadian Y.B. Int’l L. 89, at 100,Google Scholar famously wrote that Canadian courts “are truly becoming international courts” and that, already in his 1988 paper, “The Use of International and Foreign Material in the Supreme Court of Canada,” in CCIL, Proceedings of the 1988 Conference of the Canadian Council on International Law (Ottawa: CCIL, 1988), 230 at 230, the Supreme Court of Canada was one of the most “cosmopolitan of national courts” in regard to the foreign material upon which it relied. Even in the 1970s, Ronald St. J. Macdonald wrote an influential piece entitled “The Relationship between International Law and Domestic Law in Canada,” in Macdonald, R. St. J., Morris, G., and Johnston, D. M. (eds.), Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88,Google Scholar in which he examined the doctrine of incorporation in Canada as well as the domestic status of both conventional law and customary law.

₅ See Knop, K., “Here and There: International Law in Domestic Courts” (2000) 32 New York U.J. Int’l L. & Pol. 501.Google Scholar

₆ See Slaughter, A.-M., “Governing the Global Economy through Government Networks,” in Byers, M. (ed.), The Role of Law in International Politics — Essays in International Relations and International Law (Oxford: Oxford University Press, 2000), 177 Google Scholar; and Slaughter, A.-M., “A Typology of Transjudicial Communication” (1994) 29 U. Richmond L. Rev. 99.Google Scholar

₇ See Glenn, P., “Persuasive Authority” (1987) 32 McGill L.J. 261.Google Scholar

₈ Toope, S. J., “The Uses of Metaphor: International Law and the Supreme Court of Canada” (2001) 80 Canadian Bar Rev. 534 at 540.Google Scholar Later, he wrote: “The Supreme Court’s telling of the story of international law in Canada will depend upon old and new metaphors, the old metaphor of binding law and the new metaphor of persuasive authority. Both metaphors must be employed, but not usually at the same time or in the same way. “ Ibid., at 541.

₉ Toope, S. J., “Inside and Out: The Stories of International Law and Domestic Law” (2001) 50 U. New Brunswick L.J. 11 at 11.Google Scholar See also Brunnée, J. and Toope, S. J., “A Hesitant Embrace: The Application of International Law by Canadian Courts,” in National Judicial Institute, Federal Court of Canada Education Seminar: Domestic Impact of International Instruments (conference held in Ottawa on January 31, 2003) [paper on file with author].Google Scholar

₁₀ Ibid., at 18 [emphasis in original].

₁₁ For instance, consider the following excerpt from Brunnée and Toope’s paper delivered at the Federal Court seminar, where they admit taking the “standpoint of international law” and speak of the “bindingness of international law.” They write: “From the standpoint of international law, then, the Baker decision puts into the spotlight two questions about the bindingness of international law. How should courts approach international treaty norms that are binding on Canada, but, absent implementation, not directly applicable in Canada? How should they approach norms that do not bind Canada internationally but that nonetheless reflect important international values” (supra note 9 at 45) [emphasis added].

₁₂ Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Toronto and Vancouver: Butterworths, 1994).Google Scholar

₁₃ Côté, P.-A., Interprétation des lois, 3rd ed. (Montreal: Thémis, 1999).Google Scholar

₁₄ In the third edition of Construction of Statutes (supra note 12), Sullivan had three-and-a-half pages on the “Compliance with International Law” in the chapter entitled “Presumption of Legislative Intent” (ibid., at 330–33), as well as eight pages on the use of international conventions as “extrinsic aids” (at 459-66). In the third edition of Côté (supra note 13), international law occupied two-and-a-half pages in a sub-section on norms of a higher level, which are considered as contextual elements of legislative interpretation; ibid., at 466–68.

₁₅ Sullivan, R., Sullivan andDriedgeron the Construction of Statutes, 4th ed. (Markham, Ontario and Vancouver: Butterworths, 2002).Google Scholar Chapter 16, entitled “International Law” has twenty pages, three headings, and twelve sub-headings.

₁₆ Currie, J., Public International Law (Toronto: Irwin Law, 2001).Google Scholar

₁₇ Kindred, H. M. et al. (eds.), International Law — Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Emond Montgomery, 2000).Google Scholar

₁₈ Both Currie and Kindred et al., supra note 16 and 17 respectively, have a separate chapter on the domestic use of international law, of twenty-five pages and eighty pages respectively. Among other important questions, they discuss the interaction of international law and national law, the dualist and monist theories of international law reception, the different status of conventional law and customary law, and the conflicts between international law and domestic statutory law.

₁₉ Statute of the International Court of Justice, 26 June 1945, U.N.T.S. 961, Can. T.S. 1945 No. 7 (entered into force on 24 October 1945), at Article 38, enunci-ates the sources of international law [hereinafter ICJ Statute].

₂₀ See, for instance, van Ert, G., Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002), at 4.Google Scholar

₂₁ Ordon Estate v. Grail, [1998] 3 S.C.R. 437.

₂₂ Ibid., at 526 [emphasis added].

₂₃ LeBel, L. and Chao, G., “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (2002) 16 Supreme Court L. Rev. (2nd) 23 at 62.Google Scholar

₂₄ This proposition has prompted stark, and somehow cavalier, criticism from some authors. See, for instance, G. van Ert, supra note 20, at 35: “In my view, Knop’s equation of international law with foreign law is simply unsupported by the weight of Anglo-Canadian authority. The rule of judicial notice described above — and much else in this work besides — directly refutes this approach. Knop’s mistake is to assume that international law is not binding, and to derive from that assumption the further view that the relevance of international law in Canada is not based on its bindingness. But international law is binding.”

₂₅ Knop, supra note 5, at 520 [emphasis added].

₂₆ Ibid., at 515.

₂₇ Ibid., at 535.

₂₈ “Rub” is indeed the word Toope himself used in describing the effect that Knop’s paper had on him — see Toope, supra note 8, at 535.

₂₉ Ibid., at 536.

₃₀ Ibid.

₃₁ Ibid., at 540.

₃₂ Toope, supra note 9, at 18 [emphasis added].

₃₃ Toope and Brunnée, supra note g, at 46 [emphasis in original].

₃₄ Ibid., at 66 [footnotes omitted].

₃₅ It is useful to distinguish between, on the one hand, international law as a set of rules regulating the relations between states and, on the other, international law as a set of rules that can have an impact on domestic law that governs people. The former is what could be referred to as “international international law” and the latter “domestic international law.” Justice Louis LeBel and Gloria Chao called the former “principles of public international law qua binding law,” as opposed to “their application in the domestic legal order.” See LeBel and Chao, supra note 23 at 62. On the binding character of international law on sovereign states, see generally Brownlie, I., Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990), at 1–2.Google Scholar

₃₆ See Toope, supra note 8, at 540: “To construct the ‘foreign,’ one must accept the continuing influence of the dying metaphor of national sovereignty” [emphasis added].

₃₇ See Ohmae, K., The End of the Nation State — The Rise of Regional Economies (New York and London: Free Press, 1996)Google Scholar and Guehenno, J.-M., The End of the Nation-State (Minneapolis and London: University of Minnesota Press, 1995), at 108.Google Scholar

₃₈ See Fukuyama, F., The End of History and the Last Man (New York: Free Press, 1992).Google Scholar The “end of history” thesis holds that the end of the Cold War constitutes compelling evidence that a worldwide consensus has emerged in favour of capitalism and liberal democracy. For a critique of this argument, see Derrida, J., Specters of Marx — The State of the Debt, the Work of Mourning, and the New International (New York and London: Routledge, 1994), 56 ff.Google Scholar For an interesting parallel between Fukuyama’s claim and some international law scholarship, see Marks, S., “The End of History? — Reflections on Some International Legal Theses” (1997) 8 European J. Int’l L. 449.CrossRefGoogle Scholar

₃₉ That is, “idea-force.” See Fouillée, A., L’évolutionnisme des idées-forces (Paris: Félix Alean, 1890), at XI.Google Scholar

₄₀ See, generally, Beaulac, S., “The Westphalian Legal Orthodoxy— Myth or Reality?” (2000) 2 J. History Int’l L. 148.CrossRefGoogle Scholar

₄₁ Falk, R. A., Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, US: Transnational Publishers, 1998), at 4 Google Scholar [emphasis added]. See also Redslob, R., Histoire des grands principes du droit des gens—Depuis l’antiquité jusqu ‘à la veille de la grande guerre (Taris: Rousseau, 1923), at 213 Google Scholar: “Avec le traité de Westphalie commence une nouvelle époque dans l’histoire du droit des gens” [footnotes omitted].

₄₂ Janis, M. S., “Sovereignty and International Law: Hobbes and Grotius,” in Macdonald, R. St. J. (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), 391, at 393 Google Scholar [emphasis added]. Likewise, see also Franck, T. M., The Empowered Self — Law and Society in the Age of Individualism (Oxford and New York: Oxford University Press, 1999), at 5.Google Scholar

₄₃ de Vattel, E., LeDroit des Gens; ou Principes de la loi naturelle appliqués à la conduite & aux affaires des Nations & des Souverains, 2 vols. (London: n.b., 1758).Google Scholar See also the English translation by Chitty, J. and de Vattel, E., The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (Philadelphia: Johnson Law Booksellers, 1863).Google Scholar

₄₄ On this point, in the modern context of international law, see Schabas, W. A., “Twenty-Five Years of Public International Law at the Supreme Court of Canada” (2000) 79 Canadian Bar Rev. 174, at 176.Google Scholar

₄₅ See Beaulac, S., “Emer de Vattel and the Externalization of Sovereignty” (2003) 5 J. History Int’l L. 237.CrossRefGoogle Scholar

₄₆ See, generally, Beaulac, S., The Power of Language in the Making of International Law — The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden and Boston: Martinus Nijhoff, 2004).Google Scholar However, see P. Allott, , “The Emerging Universal Legal System” (2001) 3 Int’l L. Forum 12, at 17 Google Scholar: “International social reality has overtaken international social philosophy. The Vattelian mind-world is withering away under the impact of the new international social reality. The reconstruction of the metaphysical basis of international law is now well advanced. The deconstruction of the false consciousness of politicians, public officials, and international lawyers is only just beginning.”

₄₇ See Beaulac, S., “On the Saying That International Law Binds Canadian Courts” (2003) 29(3) CCIL Bulletin 1.Google Scholar In fact, even the most forceful advocates of an increased role of international law in Canada acknowledge that “public international law is not a subset of the internal laws of states, but a separate legal system in its own rights.” See van Ert, supra note 20, at 15 [emphasis added].

₄₈ Currie, supra note 16, at 1 [emphasis added].

₄₉ It follows that the assertion that the legislative power of a sovereign state like Canada is competent to “violate” international law is a meaningless statement based on a flawed question that wrongly assume some kind of inherent connection between the international plane and the national level — see van Ert, supra note 20, at 55 ff.

₅₀ Currie, supra note 16, at 1. Contra, see Palmer, G., “Human Rights and the New Zealand Government’s Treaty Obligations” (1999) 29 Victoria U. Wellington L. Rev. 27, at 59 Google Scholar: “For many years international law and municipal law have been seen as two separate circles that never intersect. Increasingly, however, the way to look at them, I suggest, is that they are two circles with a substantial degree of overlap and indeed it can be argued that there is only one circle.”

₅₁ LeBel and Chao, supranote 23, at 24 [emphasis added].

₅₂ Knop, supranote 5, at 504.

₅₃ See Jennings, R. and Watts, A., Oppenheim’s International Law, 9th ed., vol. 1 (London: Longman, 1992), at 254 Google Scholar: “Nevertheless, in principle a state which has incurred international obligations cannot rely on its internal constitutional arrangements as a justification for any failure to comply with those obligations. In respect of treaties this can lead to federal states being unable to become parties” [footnotes omitted].

₅₄ The basic authority for this proposition is the arbitration decision in the Alabama Claims case (United States/United Kingdom) (1873), Moore, Arbitrations, i. 653. This rule was codified in section 27 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 81.L.M. 679 (196g), Can. TS. ig8o No. 37 (entered into force on 27 January 1980) [hereinafter Vienna Convention]. See also Daillier, P. and Pellet, A. (eds.), Nguyen QuocDinh — Droit international public, 5th ed. (Paris: Librairie générale de droit et de jurisprudence, 1994), at 272.Google Scholar

₅₅ Zingrev. The Queen, [1981] 2 S.C.R. 392.

₅₆ Ibid., at 410.

₅₇ Currie, supranote 16, at 193.

₅₈ Ibid.

₅₉ See, for instance, the Australian situation with the Commonwealth of Australia Constitutional Act, 63 & 64 Victoria, c. 12 (U.K.), and the decision of the Australian High Court in Minister for Immigration and Ethnic Affairs v. Teoh (1995), 183C.L.R. 273, at 286–87.

₆₀ Jacobs, F. G., “Introduction,” in Jacobs, F. G. and Roberts, S (eds.), The Effect of Treaties in Domestic Law (London: Sweet and Maxwell, 1987), xxiii, at xxiv [emphasis added].Google Scholar

₆₁ As Chief Justice Antonio Lamer confirmed in Re Provincial Court Judges, [1997] 3 S.C.R. 3, at 68, “the general principle [is] that the Constitution embraces unwritten, as well as written rules.”

₆₂ Constitutional conventions were considered by the Supreme Court of Canada in Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753. See also Heard, A., Canadian Constitution Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991).Google Scholar

₆₃ Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), reprinted in R.S.C. 1985, Appendix II, No. 5.

₆₄ Hogg, P. W., Constitutional Law of Canada, 3rd (student) ed. (Scarborough, ON: Carswell, 1992), at 285.Google Scholar

₆₅ Stephen Toope referred to this principle as “trite law.” See Toope, supra note 9, at 12.

₆₆ It must be emphasized that the present article does not examine the situation with regard to customs.

₆₇ Hogg, supra note 64, at 285. The suggestion recently made that international treaty norms could be implemented through non-legislative means such as government policy measures, albeit virtuous (perhaps), is unsupported by authority — see Brandon, E., “Does International Law Mean Anything in Canadian Courts?” (2001) 11 J. Environmental L. & Prac. 399, at 407 Google Scholar: “Thus a treaty that has been brought into Canadian law through other measures — such as policy — should be of equal status to treaties implemented by specific legislation.”

₆₈ Attorney General for Canadav. Attorney General for Ontario, [1937] A.C. 326, at 347 [hereinafter Labour Conventions].

₆₉ See, for instance, Francis v. The Queen, [1956] 618,at 621; Capital Cities Communications Inc. v. Canada (C.R.T.C.), [1978] 2 S.C.R. 141, at 172–73 [hereinafter Capital Cities]; Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441, at 484.

₇₀ Baker, supra note 2 at 861.

₇₁ Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 [hereinafter Suresh]. See also Beaulac, S., “The Suresh Case and Unimplemented Treaty Norms” (2002) 15 Rev. québécoise d. int’l 221.Google Scholar

₇₂ Suresh, supra note 71 at 38.

₇₃ Charter of the United Nations, June 26, 1945, Can. T.S. 1945 No. 7 (entered into force on 24 October 1945); not published in the U.N.T.S.

₇₄ ICJ Statute, supra note 19. Its predecessor was the Permanent Court of International Justice of the League of Nations, created pursuant to Article 415 of the Treaty of Versailles, concluded on 28 June 1919 — see the English text of the treaty in Parry, C. (ed.), Consolidated Treaty Series, vol. 225 (Dobbs Ferry, US: Oceana Publications, 1969), at 189.Google Scholar There has been a proliferation of courts and tribunals at the international level, especially in the past fifteen years, with over a dozen international judicial or quasi-judicial bodies established. See Brown, C., “The Proliferation of International Courts and Tribunals: Finding Your Way through the Maze” (2002) 3 Melbourne J. Int’l L. 453, at 455–56.Google Scholar

₇₅ On the Canadian judiciary, in general, see Gall, G. L., The Canadian Legal System, 4th ed. (Scarborough, ON: Carswell, 1995), at 181 ff.Google Scholar

₇₆ Constitution Act, 1867, supra note 63.

₇₇ Supreme and Exchequer Courts Act, 1875, S.C. 1875, c. 11. Now, it is the Supreme Court Act, R.S.C. 1985, c. S-26, which provides for the Supreme Court of Canada.

₇₈ For the sake of completeness, it must be added that, of course, Canadian private international law can dictate that foreign domestic law will apply to a particular situation. This does not change the basic proposition, however, because Canadian courts fundamentally resort, even in such cases, to Canadian domestic law in the first instance.

₇₉ For instance, see the following statement that appears to run in the face of the general tenets of international law: “The tendency to look to explicitly international forums, such as the International Court of Justice, for the exclusive enforcement of international law is a mistake. International jurisdiction is not confined to internationally constituted courts in the way that jurisdiction over Japan is reserved to Japanese courts. Rather, international and domestic courts share jurisdiction. Indeed, to distinguish between international and domestic courts is a false dichotomy.” Van Ert, supra note 20, at 5 [emphasis added].

₈₀ ICJ Statute, supra note 19. Sub-paragraph b of Article 38(1) provides, as a source of international law, “the general principles of law recognized by civilized nations.” On general principles of law, see Shaw, M., International Law, 4th ed. (Cambridge: Cambridge University Press, 1997), at 77 ff.Google Scholar

₈₁ Sub-paragraph c of Article 38(1 ) of the ICJ Statute provides that judicial decisions, including those of domestic courts, are a subsidiary source of international law. It may be going too far, however, to argue that, through its decisions, “the Supreme Court of Canada not only applies and interprets public international law, it may also create it — see W.A. Schabas, supra note 44, at 176 [emphasis added].

₈₂ See Brunnée and Toope, supra note 9, at 7, where the authors appositely wrote: “Especially in the context of customary international law, domestic courts participate in the continuous weaving of the fabric of international law.” See also Roberts, A. E., “Traditional and Modern Approaches to Customary International Law: A Reconciliation” (2001) 95 American J. Int’l L. 757.CrossRefGoogle Scholar

₈₃ Schabas, supranote 44, at 176.

₈₄ Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

₈₅ Ibid., at 234.

₈₆ Ibid.

₈₇ LeBel and Chao, supra note 23, at 59.

₈₈ The position defended here is thus reconcilable with La Forest J.’s comments (supra note 4, at 100–1) about the internationalization of our courts.

₈₉ Reference re Secession of Quebec, supra note 84.

₉₀ Ibid., at 235.

₉₁ Ibid.

₉₂ The Supreme Court of Canada referred to the Reference re Powers to Levy Rates on Foreign Legations and High Commissioners’Residences, [1943] S.C.R. 208; Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; and Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86.

₉₈ See Beaulac, S., “Arrêtons de dire que les tribunaux au Canada sont ‘liés’ par le droit international” (2004) 38 Rev. jur. Thémis, forthcoming.Google Scholar

₉₄ Schabas, supra note 44, at 176.

₉₅ See Knop, supranote 5.

₉₆ For the same of completeness, one must mention that it is the very large majority of international treaties that require legislative implementation, but not in any way all of them — see Hogg, supra note 64, at 285: “Many treaties do not require a change in the internal law of the states which are parties. This is true of treaties which do not impinge on individual rights, nor contravene existing laws, nor require action outside the executive powers of the government which made the treaty. For example, treaties between Canada and other states relating to defence, foreign aid, the high seas, the air, research, weather stations, diplomatic relations and many other matter, may be able to be implemented simply by the executive action of the Canadian government which made the treaty” [footnotes omitted]. Moreover, treaties relating to war and peace as well as treaties pertaining to territory transfers do not require implementation through legislation. See Brownlie, supranote 35, at 48; and Macdonald, R. St. J., “International Treaty Law and the Domestic Law of Canada” (1975) 2 Dalhousie L.J. 307 at 308–10 and 313–14.Google Scholar

₉₇ See Sullivan, supra note 15, at 430.

₉₈ Indeed, it has become clear with the majority reasons of Iacobucci, J. in Re Act Respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41,Google Scholar that scheduling an international treaty is not sufficient to directly incorporating it domestically. Using two opinions expressed in Ottawa Electric Railway Co. v. Corporation of the City of Ottawa, [1945] S.C.R. 105, Iacobucci J. wrote: “Although divided in the result, I discern a common thread in the judgments of Rinfret C.J. and Kerwin J., namely, that statutory ratification and confirmation of a scheduled agreement, standing alone, is generally insufficient reason to conclude that such an agreement constitutes a part of the statute itself” (at 109). See also Winnipegv. Winnipeg Electric Railway Co., [ig2i] 2W.W.R. 282 (Manitoba C.A.), at 306.

₉₉ Sullivan, supra note 15,at 434.

₁₀₀ Immigration Act, R.S.C. 1985, c. I–2.

₁₀₁ Convention Relating to the Status of Refugees, 28July 1951, 189 U.N.T.S. 150, Can. T.S. 1969 No. 6 (entered into force on 2 2 April 1954).

₁₀₂ Thomsons v. Thomson , [1994] 3 S.C.R. 551, at 601–2 [hereinafter Thomson].

₁₀₃ Hague Convention of the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N .T.S. 89, Can. T.S. 1983 No. 35 (entered into force on 1 December 1983).

₁₀₄ See Bailey, M., “Canada’s Implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction” (2000) 33 New York U.J. Int’l L. & Pol. 17 at 17–19.Google Scholar

₁₀₅ W. (V.)v. S. (D.), [1996] 2 S.C.R. 108, at 133.

₁₀₆ Sullivan, supra note 15,at 434.

₁₀₇ See Hogg, supra note 64 and accompanying text.

₁₀₈ Re Act Respecting the Vancouver Island Railway, supranote 98, at 110.

₁₀₉ Pfizer Inc.v. Canada, [1999] 4F.C.441 (F.C.T.D.) [hereinafter Pfizer].

₁₁₀ Ibid., at 458 [emphasis added].

₁₁₁ For instance, see section 3 of the United Nations Foreign Arbitral Awards Convention Act, R.S.C. 1985, c. 16 (2nd supp.); and section 3(1) of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41.

₁₁₂ Such clear intention to implement, however, is not necessarily conclusive — see Antonsen v. Canada (Attorney General), [1995] 2 F.C. 272 (F.C.T.D.), at 305–6.

₁₁₃ Re Act Respecting the VancouverIsland Railway, supra note 98, at 110. See also Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. (F.C.A.), at 546–47 and 551–52.

₁₁₄ MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134, at 171, per Chief Justice Boris Laskin.

₁₁₅ Pfizer, supra note 109.

₁₁₆ Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 U.N.T.S. 3 [hereinafter WTO Agreement].

₁₁₇ World Trade Organization Agreement Implementation Act, S.C. 1994, c. 47.

₁₁₈ Pfizer, supra note 109, at 460.

₁₁₉ See R v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 [hereinafter Crown Zellerbach]; and R. v. Hydro-Quebec, [ 1997] 3 S.C.R. 213.

₁₂₀ Also known as “incorporation by complacence.”

₁₂₁ See Ebbesson, J., Compatibility of International and National Environmental Law (London: Kluwer Law International, 1996), at 206.Google Scholar

₁₂₂ See Weiser, I., “Effect in Domestic Law of International Human Rights Treaties Ratified without Implementing Legislation,” in CCIL, Thelmpact of International Law on the Practice of Law in Canada — Proceedings of the 27th Annual Conference of the Canadian Council on International Law, Ottawa, October 15–17, 1998 (The Hague: Kluwer Law International, 1999), 132, at 137–39.Google Scholar

₁₂₃ Brandon, supra note 67, at 418.

₁₂₄ Ibid.

₁₂₅ Brunnée and Toope, supra note 9, at 29.

₁₂₆ See, for instance, Canada’s report to the United Nations Human Rights Committee, sitting under the first Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967), Can. T.S. 1976 No. 47 (entered into force on 23 March 1976) — Human Rights Committee, Consideration of Reports Submitted by States under Article 40 of the Covenant: Fourth Periodic Report of States Parties Due in 1995: Canada, U.N. C.C.P.R.O.R., 1995, U.N. Doc. CCPR/C/103/Add.5.

₁₂₇ Compare these arguments with the following ones by Brunnée and Toope: “Two considerations suggest that the [passive incorporation] approach is both correct and compatible with legitimate concerns over the proper roles of the executive, legislators, and the judiciary. First, where a treaty does not actually affect domestic law, the concern that the authority of Parliament or the provincial legislature could be usurped by federal executive action seems misplaced. In any event, it remains open to Parliament or provincial legislatures to deviate from treaty provisions through explicit statutory action. Second, where no legislative action is required to bring domestic law in line with Canada’s treaty commitments, it seems absurd to insist on explicit statutory implementation. This applies with even greater force when Canada, in international forums, reports its implementation of treaty commitments, as it does regularly, for example, in the human rights context.” Brunnée and Toope, supra note 9, at 30–31.

₁₂₈ International Covenant on Civil and Political Rights, supra note 126.

₁₂₉ Ahaniv. Canada (Attorney General) (2002), 58 O.R. (3d) 107 [hereinafter Ahani]. The Ahani case was considered with the Suresh case at the Supreme Court of Canada, the decisions in which were handed down on 11 January 2002. Unlike the latter, the petitioner Ahani was not given a new deportation hearing and, having exhausted all domestic remedies, he petitioned the United Nations Human Rights Committee under the Optional Protocol to the International Covenant of Civil and Political Rights, supra note 126. The international instance requested Canada to stay the deportation until the full consideration of Ahani’s case, which was refused by the federal government. The second Canadian judicial proceeding, which reached the Ontario Court of Appeal (the Supreme Court of Canada refused leave to appeal), was asking for an injunction to suspend his deportation order, which was refused.

₁₃₀ Optional Protocol, supra note 126. See, on petitions under the Optional Protocol in general, Schabas, supra note 44, at 193–95.

₁₃₁ See, for instance, Kindred, supra note 3, at 265: “Yet nowhere to date is there legislation explicitly implementing within Canada such fundamental international human rights conventions as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child” [footnotes omitted]. This is the generally accepted view in Canada, which contrasts with that expressed by van Ert, supra note 20, at 186: “It is true that there is no such thing as the ICCPR Implementation Act. To conclude from this, however, that Canadian law does not implement the ICCPR is, at best, an oversimplification and, at worst, simply wrong.”

₁₃₂ Ahani, supra note 129, at para. 31, per Laskin J.

₁₃₃ Ibid., at para. 33.

₁₃₄ See Justice Rosenberg’s reasons, Ibid., at para. 73, which read as follows: “On the legal side, they [the federal government et al] invoke the established principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law. The Covenant, while ratified, has never been incorporated into Canadian domestic law and therefore does not create legal obligations enforceable in Canada.”

₁₃₅ See Openkin, B. R., “Constitutional Modelling: The Domestic Effect of International Law in Commonwealth Countries — Part II” (2001) Public L. 97, at 109,Google Scholar who wrote: “A concern that judges should not be seen to be implementing treaties by the ‘back door’ has been expressed in other cases as well. It demon-strates a judicial sensitivity to the primacy of parliament and the corresponding need for caution in superintending the relationship between the external and internal legal order” [footnotes omitted]. See also Higgins, R., “The Relationship between International and Regional Human Rights Norms and Domestic Law” (1992) 18 Commonwealth L. Bulletin 1268, at 1274–75.Google Scholar

₁₃₆ Driedger, E. A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at 87.Google Scholar

₁₃₇ Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, at 580 [emphasis added]. Iacobucci J. cited the following cases: Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at 578; Quebec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3, at 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at 40–41; R. v. Gladue, [1999] ι S.C.R. 688, at 704; R. v. Araujo, [2000] 2 S.C.R. 992, at 1006–7; R. v. Sharpe, [2001] 1 S.C.R. 45, at 74–75 [hereinafter Sharpe]; and Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at 101–2.

₁₃₈ Will-Kare Paving & Contracting Ltd. v. Canada, [2000] 1 S.C.R. 915, at 934. Major J. cited the following two cases: 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at 810–11 and 832; and Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at 578.

₁₃₉ R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, at 883.

₁₄₀ Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, at para. 20.

₁₄₁ R, v.Jarvis, [2002] 3 S.C.R. 757.

₁₄₂ Ibid., at para. 77.

₁₄₃ On the “plain meaning rule” (or “literal rule”) in general, see P.-A. Côté, supra note 13, at 357–86.

₁₄₄ Pollock, F., Essays in Jurisprudence and Ethics (London: Macmillan, 1882), at 85.Google Scholar

₁₄₅ Stone, H., “The Common Law in the United States” (1936) 50 Harvard L. Rev. 4, at 15.CrossRefGoogle Scholar

₁₄₆ See, on this point, Beaulac, S., “Le Code tivil commande-t-il une interprétation distincte?” (1999) 22 Dalhousie L.J. 236, at 251–52Google Scholar; and Beaulac, S., “Parlia-mentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?” (1998) 43 McGill L.J. 287, at 310–12.Google Scholar

₁₄₇ Zander, M., The Law-Making Process, 4th ed. (London: Butterworths, 1994), at 121.Google Scholar

₁₄₈ See Lester, A., “English Judges as Law Makers” (1993) Public L. 269, at 272,Google Scholar who explains the old English approach thus: ‘Yet they [courts] decided that, to avoid ‘making laws,’ they were compelled to give effect to the ‘plain and unambiguous’ language of a statute, no matter that words are rarely plain or unambiguous in real life, and no matter how absurd might be the result of such a literal interpretation.”

₁₄₉ Pepperv. Hart, [1993] A.C. 593 [hereinafter Pepper].

₁₅₀ Ibid., at 617.

₁₅₁ Bennion, F. A. R., Statutory Interpretation — A Code, 4th ed. (London: Butterworths, 2002), at 500.Google Scholar

₁₅₂ Ibid, [emphasis added].

₁₅₃ Hillsy. Canada (Attorney General), [1988] 1 S.C.R. 513.

₁₅₄ 2747–3174 Quebec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. gig [hereinafter Régie des permis d’alcool].

₁₅₅ Ibid., at 1002.

₁₅₆ Harvard Collegev. Canada (Commissioner of Patents), [2002] 4 S.C.R.45.

₁₅₇ Ibid., at para. 154. Bastarache J. refered to the opinion of IacobucciJ. in Rizzo äf Rizzo Shoes Ltd. (Re), supra note 137, at 41. In addition, to the same effect, see the dissenting opinion by Bastarache, and LeBel, JJ. in Macdonellv. Quebec (Commission d’accès à l’information), [2002] 3 S.C.R. 661, at 698 Google Scholar, which reads: “[T]he interpretation of an Act cannot be based simply on its wording.”

₁₅₈ Driedger, supra note 136, at 3 [emphasis in original].

₁₅₉ Sullivan, supra note 15, at 259 [emphasis added].

₁₆₀ See also Sullivan, R., “Some Implications of Plain Language Drafting” (2001) 22 Statute L. Rev. 145, at 147–49.Google Scholar The author wrote: “Virtually everyone who studies language and communication agrees that, contrary to these assumptions, different readers bring different levels of competence and different contexts to their reading” (at 149) [footnotes omitted].

₁₆₁ Sullivan, supra note 15, at 259. This proposition was again recently affirmed by Bastarache and LebelJJ., dissenting, in Macdonellv. Quebec (Commission d’accès à l’information), supra note 157, at 698: “The plain meaning of the words will not be of much value if the court considers it without regard to the context of the statutory provision and the purposes of the Act.”

₁₆₂ See Côté, supra note 13, at 355, where the author wrote: “Sans aller jusqu’à prétendre que les mots n’ont pas de sens en eux-mêmes, on doit admettre cepen-dant que leur sens véritable dépend partiellement du context dans lequel ils sont employés” [footnotes omitted]. A similar somewhat qualified position was expressed by the American author Eskridge, W. N. Jr., “The New Textualism” (1990) 37 U.C.L.A. L. Rev. 621, at 621 Google Scholar: “The statute’s text is the most important consideration in statutory interpretation, and a clear text ought to be given effect. Yet the meaning of a text critically depends upon its surrounding context.”

₁₆₃ The French author Jacques Derrida has developed his ideas on deconstruction in several books, including Derrida, J., Positions (Paris: Minuit, 1972)Google Scholar; Derrida, J., Marges de la philosophie (Paris: Minuit, 1972)Google Scholar; and Derrida, J., De la grammatologie (Paris: Minuit, 1967).Google Scholar

₁₆₄ Graham, R. N., Statutory Interpretation — Theory and Practice (Toronto: Emond Montgomery, 2001), at 62–63.Google Scholar

₁₆₅ See Sullivan, supra note 15, at 421–39.

₁₆₆ Ibid., at 262 [emphasis added]. See also Simard, J., “L’interprétation législative au Canada: la théorie à l’épreuve de la pratique” (2001) 35 Rev. jur. Thémis 549, at 583 ff.Google Scholar

₁₆₇ Kindred, supra note 3, at 271.

₁₆₈ This black-or-white approach to the domestic use of international law is illustrated by the decision of the Judicial Committee of the Privy Council in Chung Chi Cheung v. The Queen, [1939] A.C. 160, at 168, where Lord Atkin expressed the following view: “The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into domestic law, so far as it is not inconsistent with rules enacted by statutes or finally determined by their tribunals. “In Canada, see the reasons of Justice Andrew MacKay of the Federal Court in José Penerà E. Hijos, S.A. v. Canada (Attorney General), [1997] 2 F.C. 84, at 100 (F.C.T.D.), who wrote that “[i]n construing domestic law, whether statutory or common law, the courts will seek to avoid construction or application that would conflict with the accepted principles of international law.”

₁₆₉ See Côté, supra note 13, at 465: “L’interprète doit favoriser l’interprétation d’un texte qui permet de le concilier avec les textes qui énoncent des règles de niveau hiérarchique supérieur. On présume que le législateur n’entend pas déroger à ces règles, qu’il s’agisse de règles du droit international (1), de règles qui conditionnent la validité du texte (2) ou de règles énoncées dans certains textes de nature fondamentale (3).”

₁₇₀ See Sullivan, supra note 15, at 421: “Although international law is not binding on Canadian legislatures, it is presumed that the legislation enacted both federally and provincially is meant to comply with international law generally and with Canada’s international law obligations in particular.” In international legal literature, see also Vanek, D. C., “Is International Law Part of the Law of Canada?” (1960) 8 U. Toronto L.J. 251, at 259–60Google Scholar; Toope, supra note 8, at 538; and H.M. Kindred, supra note 3, at 269–70.

₁₇₁ Maxwell, P. B., On the Interpretation of Statutes (London: Sweet and Maxwell, 1896), at 122.Google Scholar See also, in England, Corocraftv. Pan American Airways, [1968] 3 W.L.R. 1273, at 1281 (C.A.), where Lord Denning wrote that there is a “duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it.” In international legal literature, see also Lauterpacht, H., “Is International Law a Part of the Law of England?” (1939) Transactions Grotius Society 51.Google Scholar

₁₇₂ Danielsv. White and The Queen, [1968] S.C.R. 517,at 541 [emphasis added].

₁₇₃ Schreiberv. Canada (Attorney General), [2002] 3 S.C.R. 269, at 293–94. See als°> on the Schreiber case, Beaulac, S., “Recent Developments on the Role of International Law in Canadian Statutory Interpretation” (2004) 25 Statute L. Rev. 19.CrossRefGoogle Scholar

₁₇₄ See also the decision of the Judicial Committee of the Privy Council in Colico Dealings v. Inland Revenue Commissioners, [1962] A.C. 1, at 19, where Viscount Simonds said: “My Lords, the language that I have used is taken from a passage of p. 148 of the 10th edition of ‘Maxwell on the Interpretation of Statutes’ which ends with the sentence: ‘But if the statute is unambiguous, its provisions must be followed even if they are contrary to international law.’”

₁₇₅ Schavernoch v. Foreign Claims Commission, [1982] 1 S.C.R. 12 [hereinafter Schavemoch].

₁₇₆ Ibid., at 1098. See also, to the same effect, the reasons by Chief Justice Boris Laskin in Capital Cities, supra note 69, at 173.

₁₇₇ On this point, see Beaulac, S., “Recent Developments at the Supreme Court of Canada on the Use of Parliamentary Debates” (2000) 63 Saskatchewan L. Rev. 581, at 602.Google Scholar

₁₇₈ See, generally, Nutting, C. B., “The Ambiguity of Unambiguous Statutes” (1940) 24 Minnesota L. Rev. 509.Google Scholar

₁₇₉ Pepper, supra note 149, at 620.

₁₈₀ See, on this general issue, Zander, supra note 147, at 121–27; Eskridge, W. N., Dynamic Statutory Interpretation (Cambridge, MA: Harvard University Press, 1994), at 38–41 Google Scholar; Singer, N. J., Statutes and Statutory Construction, vol. 2A, 5th ed. (New York: ClakBoardman Callaghan, 1992), at 5–6 Google Scholar; van de Kerchove, V., L’interprétation en droit — Approche pluridisciplinaire (Brussels: Facultés universitaires St-Louis, 1978)Google Scholar; Horackjr, F. E., “In the Name of Legislative Intention” (1932) 38 West Virginia L.Q. 119, at 121 Google Scholar; and Radin, M., “Statutory Interpretation” (1930) 43 Harvard L. Rev. 863, at 869.CrossRefGoogle Scholar

₁₈₁ Régie des permis d’alcool, supra note 154, at 997 [emphasis in original].

₁₈₂ National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 [hereinafter National Corn Growers].

₁₈₃ Schavernoch, supra note 175, at 1098.

₁₈₄ NationalCorn Growers, supra note 182, at 1371 [emphasis added]. Similarly, see Hunt, M., Using Human Rights Law in English Courts (Oxford: Hart, 1997), at 40,Google Scholar where the author writes: “So instead of asking if there is ambiguity which can be resolved with the ‘assistance’ of international law, on this approach the court should ask, having automatically considered the international law alongside the national law, whether the domestic law is unambiguously (in the sens of irreconcilably) in conflict with the international norms.”

₁₈₅ See Sullivan, supra note 15,at 437–38.

₁₈₆ R.v. Zingre, [1981] 2 S.C.R. 392, at 409–10.

₁₈₇ Sharpe, supra note 137.

₁₈₈ 114957 Canada Ltée (Spraytech) v. Hudson (Town), [2001] 2 S.C.R. 241 [hereinafter Spraytech].

₁₈₉ Sullivan, supra note 15, at426.

₁₉₀ Baker, supra note 2 at 861.

₁₉₁ Sullivan, supra note 12, at 330 [emphasis added].

₁₉₂ This passage, at Ibid., reads: “First, the legislature is presumed to comply with the obligations owed by Canada as a signatory of international instruments and more generally as a member of the international community. In choosing among possible interpretations, therefore, the court avoid interpretations that would put Canada in breach of any of its international obligations.”

₁₉₃ See Beaulac, S., “L’interprétation de la Charte. Reconsidération de l’approche téléologique et réévaluation du rôle du droit international,” in Beaudoin, G.-A. and Mendes, E. (eds.), The Canadian Charter of Rights and Freedoms, 4th ed. (Toronto: Carswell, 2004, forthcoming).Google Scholar This is an aspect of the Baker case that Jutta Brunnée and Stephen Toope also noticed, but which they used to argue that the majority should have resorted to the old approach of the presumption of conformity with international law. See Brunnée and Toope, supra note 9, at 42–43.

₁₉₄ Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537.

₁₉₅ Ibid., at 558 [emphasis added].

₁₉₆ Ibid, [emphasis added].

₁₉₇ See, however, Brandon, supra note 67, at 443, who wrongly dissociated, on the one hand, the way in which the parliamentary authority implemented an international treaty law and, on the other, the intention of Parliament in regard to the transformation of such norms in the domestic legal system. She writes: “It is contended that the method of implementation is less important than are indications of an intention to implement.”

₁₉₈ See footnotes 97–106 and accompanying text.

₁₉₉ These categories borrow, in part, from the following excerpt in Macdonald, supra note 96, at 311: “A treaty may be implemented by legislation in one of three ways: first, Parliament may translate the treaty into a number of statutes or amendments to existing statutes; second, it may enact a general law which uses the key terms of the treaty; finally, it may directly enact the treaty, with an appropriate preamble, into English law.”

₂₀₀ See Sullivan, supra note 15, at 430, where she writes: “Although it becomes part of domestic legislation it retains its identity as an instrument of international law. It carries its international law baggage with it.”

₂₀₁ Pushpanathanv. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at 1019–20, per Bastarache J. [hereinafter Pushpanathan]. See also R. c. Parisien, [1988] 1 S.C.R. 950, at 958; Crown Forest Industries Ltd. v. Canada, 1995] 2 S.C.R. 802, at 827; and R v. Palacio (1984), 7 D.L.R. (4th) 112, at 120 (Ontario C.A.). In Thomsons. Thomson, supra note 102,at 577, La Forest J., for the majority, wrote that, except for travaux préparatoire. “By and large, international treaties are interpreted in a manner similar to statutes.” On this point, see also Kindred et al, supra note 17, at 202.

₂₀₂ Vienna Convention, supra note 54. It is interesting that in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 713 ff., La Forest J. appears to use the rules of treaty interpretation (in particular, those concerning travaux préparatoires), without mentioning the Vienna Convention in order to assist in interpreting the Immigration Act (supra note 100).

₂₀₃ Schabas, supra note 44, at 178. See also, interestingly, Sullivan, supra note 15, at 430–31: “In interpreting an incorporated provision, the court appropriately looks to international law materials and to interpretations of the incorporated provision by international courts or by courts in other jurisdictions.”

₂₀₄ Having said that, like any other interpretative argument, a contextual element such as international law can never be “determinative” on the construction of a statutory provision. Accordingly, the following statement by Brunnée and Toope, supra note g, at 26, appears questionable: “When a treaty has been explicitly transformed into Canadian law, its provisions should be determinative in the interpretation of domestic legislation” [emphasis added].

₂₀₅ Pushpanathan, supra note 201.

₂₀₆ Immigration Act, supra note 100.

₂₀₇ Convention Relating to the Status of Refugees, supra note 101.

₂₀₈ Thomson, supra note 102.

₂₀₉ Child Custody Enforcement Act, S.M. 1982, c. 27 (now R.S.M. 1987, c. C360).

₂₁₀ Hague Convention of the Civil Aspects of International Child Abduction, supra note 103.

₂₁₁ See Schavernoch, supra note 175, at 1098, where EsteyJ. wrote: “Here the regulations fall to be interpreted according to the maxims of interpretation applicable to Canadian law generally.” See also Crowon Zellerbach, supra note 119, where the Supreme Court of Canada interpreted the federal statute at issue as a domestic piece of legislation, although it was indirectly implementing an international agreement. See also, at the Federal Court of Canada, R. v. Seaboard Lumber Saks Co., [1994] 2 FC. 647 (F.C.T.D.).

₂₁₂ Sullivan, supra note 15,at 431 [emphasis added].

₂₁₃ W. (V.)v. S. (D.), supra note 105.

₂₁₄ Act Respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q., c. A-23.01.

₂₁₅ Hague Convention of the Civil Aspects of International Child Abduction, supra note 103.

₂₁₆ Pfizer, supra note 103.

₂₁₇ World Trade Organization Agreement Implementation Act, supra note 117.

₂₁₈ WTO Agreement, supra note 116.

₂₁₉ See also the following decision, in similar circumstances and to the same effect, by the Quebec Court of Appeal, UL Canada Inc. v. Procureur du Québec, 500-09-008256-992, 1 October 2003.

₂₂₀ See footnotes 57-72 and 107-35 and accompanying text.

₂₂₁ Capital Cities, supra note 69, at 188.

₂₂₂ R. Sullivan, supra note 15, at 457.

₂₂₃ Ibid, [emphasis added].

₂₂₄ As stated at the outset of the present article, no position is taken with regard to the domestic role of international customary law nor, for that matter, of the general principles of international law.

₂₂₅ See footnote 94 and accompanying text.

₂₂₆ In Baker, supra note 2 at 861, L’Heureux-DubéJ. famously wrote: “I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions there have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review” [emphasis added].

₂₂₇ Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448, Can. T.S. 1992 No. 3 (entered into force on 2 September 1990).

₂₂₈ Immigration Act, supra note 100.

₂₂₉ Ibid.

₂₃₀ Convention on the Rights of the Child, supra note 227.

₂₃₁ Re Canada Labour Code, [1992] 2 S.C.R. 50.

₂₃₂ North Atlantic Treaty Status of Forces Agreement, Can. T.S. 1953 No. 13.

₂₃₃ Re Canada Labour Code, supra note 231.

₂₃₄ Sullivan, supra note 12, at 464 [emphasis added].

₂₃₅ For a definition of “soft-law,” see Chinkin, C. M., “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 Int’l & Comp. L.Q. 850, at 851 Google Scholar: “Soft law instruments range from treaties, but which include only soft obligations (’legal soft law’), to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organisations (’non-legal soft law’), to statements prepared by individuals in a non-governmental capacity, but which purport to lay down international principles” [footnotes omitted].

₂₃₆ Brunnée and Toope, supra note 9, at 62.

₂₃₇ Spraytech, supra note 188.

₂₃₈ Bergen Ministerial Declaration on Sustainable Development in the ECE Region, 6 August 1990, Doc. A/CONF.151/PC/10, reprinted in (1990) 1 YB. Int’l Environmental L. 429.

₂₃₉ Cities and Towns Act, R.S.Q., c. C-19, as amended.