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.)].
Reviewed by Jamie Cameron,
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” 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.” ‘
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.”‘ 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
Professor of Law, Osgoode Hall Law School. E-mail: jcameron@yorku.ca.
McGill Law Journal 2003
Revue de droit de McGill 2003
To be cited as: (2003) 48 McGill L. 347
Mode de reference: (2003) 48 R.D. McGill 347
‘Gibran van Err, Using International Law in Canadian Courts (The Hague: Kluwer Law
to April 1, 2002; for updates and developments see
International, 2002) at 4. Current
2Ibid. at 276 (referring, specifically, to international human rights law).
3Ibid. at 3.
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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 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.”‘ 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.! To rationalize this system and render it accessible, he employs a
“principle-based analysis,” which places the “spotlight” on specific questions of
domestic reception
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
‘Statute of Westminster, 1931 (U.K.), 22 Geo. V, c. 4.
van Ert, supra note I at 6.
(‘lbid.
‘Ibid. at 3.
‘Ibid.
9Ibid. at 11.
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J. CAMERON- THE VAN ERT METHODOLOGY
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.”” 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?”” Whatever the constitutional status of common
law reception rules may be, it is clear that the domestic application of international
law rests on a series of relationships between institutions. For instance, the executive
their
can bind the state to obligations
enforcement as domestic implementation is the prerogative of the legislative branch.
Nor can the courts implement treaty obligations as a matter of judicial initiative; that
authority also rests with the legislature. Under that scheme, the domestic reception of
international law depends, institutionally, on the co-operation of the law-making
branch of government. The problem for van Ert is that respect for international law
suffers under the constraints of self-government. Without challenging the state’s
prerogative to reject international law domestically, he recalibrates the balance to
create a presumption in favour of its reception.
internationally, but cannot guarantee
The following analysis explains how
implications of reception under the division of powers and
the author’s methodology applies to
law and the treaty presumption, before turning to the
customary international
the
constitutional
enforcement of human rights. First, a better understanding of van Ert’s conceptual
framework is required. He envisions the principle of respect as a matter of identity
and membership in the international community.” Over time, that principle has been
embedded in the common law rules of reception: as scholars of Blackstone’s rank
explained, if Britain did not respect international law, it would be isolated “from the
community of civilized states.”‘ 3 Yet, applying the principle of respect for international
‘0 Ibid. at 47.
“Ibid. at 48.
Ibid. at 8.
Ibid. at 7.
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law detracts from self-government because that view of reception binds the state,
inside its own borders, to the will of the international community. At the same time,
the state’s prerogative
to disregard international law and break its agreements
fundamentally subtracts from the principle of respect for international law. Using
International Law shows how Canada can apply
law without
surrendering its prerogative of self-government.
international
Though he makes an exception for the division of powers, van Ert argues that
respect for international law should be Canada’s “default” position. By this he means
that domestic reception should be assumed, and that international law should apply, as
part of Canadian law, unless it offends or causes detriment to the self-government
principle.” Under van Ert’s scheme, self-government prevails only sparingly and by
way of exception. Yet, his methodology does not
institutional
consequences of its default status for institutional law. To the contrary, it rests on
certain assumptions about the nature of institutional roles in this context. Thus, van
Ert argues that the legislatures can defend the principle of self-government by
enacting laws which violate international law or choosing not to implement the
executive’s
legislatures are sovereign and can
disregard it, the role of “asserting” respect for international law is confided in the
judiciary. For that reason, courts risk upsetting the balance between the two principles
of reception when they “take it upon themselves to vindicate self-government rather
than leave that responsibility to the legislature.”‘”
treaty obligations. Because the
ignore
the
From an institutional perspective, the incorporation of customary international
laws that are “demonstrably in place” is less problematic than the implementation of
treaty obligations.”‘ For that reason, the principle of respect for international law has
its “freest reign” in this area, and the incorporation doctrine “invites courts not only to
adjudicate consistently with international law but to adopt international customs as the
rules upon which their adjudication is based”‘ Incorporating customary international
law into the common law does not detract from the principle of self-government
because the legislature has the power to alter or modify the common law by statute.
When it enters the domestic system this way, customary international law remains
subject “to the exercise of self-government through statutory action.”‘ Even so, van
Ert acknowledges
the relationship
between custom and the common law, as well as the common law and statutes, “have
concealed how firmly Canadian law embraces customary international law “”
that “doubts and misunderstandings” about
lbid. at 211.
Ibid. at 219.
“Ibid. at 51.
‘7 Ibid. at 137.
Ibid. at 138.
“‘ Ibid. at 137.
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J. CAMERON- THE VAN ERT METHODOLOGY
Unlike customary international law, treaty obligations implicate relations between
the executive and legislative branches, as well as between the legislatures and the
courts. The general rule of reception is that treaty obligations do not have domestic
effect until implemented by the legislature. Consequently, “[slelf-government’s
suspicion of international law is as much a discomfort with prerogative powers as it is
a wariness of the international law-making process.”‘ The source of this discomfort,
which is traced in British history to contests between the Crown and the emerging
processes of parliamentary democracy, is the fact that the executive does not have the
power to make laws. The Crown prerogative over foreign affairs permits the executive
to enter into treaty obligations that bind the state internationally, but not domestically.
The extent to which such obligations are discharged domestically is within the
province of the legislature. As van Ert explains, “[i]t is not the externality, but the
absence of a deliberative, representative and participatory legislative process, that
founds self-government’s objection to the direct application of international law in
Canada.
2 ,
Implementation of International Law
including
the application of the
to do so, the
its unquestioned sovereignty
In the absence of express language to that effect, it may not be clear whether
legislation implements Canada’s treaty obligations. Answering that question engages
principles of statutory interpretation,
treaty
presumption. Despite
legislature’s
competence to enact statutes in violation of international law is curbed by “an
important practical qualification “‘= In van Ert’s view, the presumption of international
legality, or treaty presumption, “requires our courts to interpret domestic law
consistently with Canadian
those obligations are
implemented or not.” Controversy is inherent in interpretation, and the application of
this presumption is no exception. Two issues of implementation which attract van
Ert’s attention are (1) the so-called ambiguity requirement and (2) the application of
unimplemented treaty obligations in administrative law.
treaty obligations” whether
The Ambiguity Requirement
The perennial debate surrounding the ambiguity requirement is whether the treaty
presumption only applies when domestic legislation is “ambiguous”. The difficulty in
determining when a statutory provision is ambiguous, for the purpose of reception,
has produced a healthy jurisprudence over the years. Yet, the author rejects the
ambiguity requirement because it “erodes the principle of respect for international
20Ibid. at 68.
2 Ibid. at 174.
Ibid. at 65.
23 Ibid. at 121 [emphasis added].
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international
law, without advancing in any important way the principle of self-government ” ‘ In
his view, dispensing with that requirement does not prejudice self-government, as the
legislature can violate
law; to do so, however, it must employ
“unmistakeable language” and not “leave the court to do its dirty work.’ For that
reason van Ert proposes that legislation in violation of international law be subject to a
“no ambiguity requirement.”‘ Though he acknowledges that this version of the treaty
presumption sets aside the implementation requirement, he suggests that it is “only to
a minor extent. 2′ As long as the presumption is rebuttable by the legislature’s clear
and unmistakeable intent to violate international law, its application does not “in any
way prejudic[e] the principle of self-government.” 8
Under this view of reception, however, the executive branch seemingly would
have the power to bind domestic law to international obligations, without any
requirement that such obligations be adopted by the legislatures. Moreover, van Ert’s
methodology would require the courts to enforce implemented and unimplemented
treaty obligations. Instead of asking whether international law has been received in
Canadian law, van Ert assumes reception and places a burden on the legislature to
exercise its power to dissent from international law. Under this methodology, the
legislature’s participation is not a prerequisite of domestic reception.
Application of Unimplemented Treaty Obligations in Administrative Law
On the question of administrative law, the interval between Capital Cities
Communication v. Canadian Radio-Television Commission2′ and Baker v. Canada
(Minister of Citizenship and Immigration)” shows how much ground the principle of
respect for international law has gained over the years. In Capital Cities, a majority of
the Supreme Court rejected the treaty presumption’s application to the Canadian
In stark terms, van Ert describes the majority’s
Radio-Television Commission.’
conclusion that Canada’s unimplemented treaty obligations do not bind administrative
decision makers as being “in direct conflict” with the subsequent decision in Baker, as
well as “unmeritorious … in its own right” ‘ The author discusses Baker at some
length before concluding that the default position of administrative law, “like that of
24 Ibid. at 125 [emphasis added].
Ibid. at 127.
26 Ibid.
27 Ibid. at 218.
2 Ibid. at 130. Note that van Ert’s unmistakeable signal requirement is reminiscent of the late Beetz
J.’s analysis of the emergency branch of peace, order and good government doctrine in Reference Re
Anti-Inflation Act (Canada), [1976] 2 S.C.R. 373 at 459-72, 68 D.L.R. (3d) 452.
29 [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609 [Capital Cities].
[1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker].
3 van Ert, supra note I at 112.
32 Ibid. at 225.
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J. CAMERON-THE VAN ERT METHODOLOGY
Canadian law in general, is respect for international law.”” Though the presumption of
international legality can be rebutted in special cases, he found that the dissenting
opinion in Baker did not advance persuasive grounds for protecting the principle of
self-government in those circumstances:”
Westminster constitutionalists might not be so eager to accept this methodology;
from their perspective, the domestic reception of international law under van Ert’s
is two steps removed from the democratic underpinnings of the self-
model
government rationale. Once the executive undertakes obligations, the courts are
invited, if not required by the author’s approach, to interpret them as binding domestic
law. Yet, neither the executive branch nor the judiciary is democratically accountable;
moreover, as noted above, the legislature is cast under this model in negative terms.
This view presents sovereignty and self-government as elements of raw political
power which obstruct the reception of international laws that are presumed to be
principled in nature.
the division of powers between
Having reached these conclusions, the author defends self-government on one
the federal
question of domestic reception:
government and the provinces. In the Labour Conventions case,” the Privy Council
infamously held that the federal government lacked the constitutional authority to
implement treaty obligations which encroached on provincial jurisdiction under
section 92 of the Constitution Act 1867.” In doing so, Lord Atkin concluded that “an
incursion by the federal government into provincial jurisdiction by means of the treaty
power” was “as much an affront to the self-government principle” as any attempt
would be for the executive to make domestic law in a unitary state. 7 The necessary
result of the Labour Conventions doctrine is the non-performance of treaty obligations
which fall under section 92, except when the provinces decide in their own right to
adopt such obligations.
On this question, one might have expected the author to side with the critics of the
Privy Council. Their support for a federal treaty power would have the effect of
advancing the domestic reception of international law. Van Ert canvases the debate on
federalism and treaty implementation from 1937 to the present and concludes that the
Labour Conventions rule is “the best means of balancing the reception system’s
In his
principle of respect for self-government and respect for international law.’
” Ibid. at 227.
3′ Ibid. See ibid. at 214-26.
“Canada (A.G.) v. Ontario (A.G.), [1937] A.C. 326 (PC.), [1937] 1 D.L.R. 673 [Labour
Conventions].
Constitution Act 1867 (U.K.), 30 & 31 Vict., c. 3, s. 92, reprinted in R.S.C. 1985, App. 1I, No. 5.
37 van Ert, supra note I at 192.
3 See e.g. F R. Scott, Labour Conventions Case, (1956) 34 Can. Bar Rev. 114; V.C. MacDonald,
The Canadian Constitution Seventy Years After, (1956) 15 Can. Bar Rev. 401.
” van Ert, supra note 1 at 206.
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view, any other result would enable the federal government to violate the jurisdiction
of the provinces. This would amount to “an unconsensual imposition of law by one
community upon another, thus denying the imposed community its self-government’
Yet, if the author is correct in his conclusion that Canada has found ways to overcome
it remains unclear why self-
the federalism obstacle
government is compelling on this issue but not others in Using International Law.
to treaty implementation,
His point may be
that
the
removing
federalism constraint for
treaty
implementation defeats provincial self-government. In other instances, such as
application of the treaty presumption, it is difficult for self-government to prevail, but
the principle is not defeated because the presumption is, in theory, rebuttable. Under
the division of powers, however, the provinces would lose jurisdiction under a
principle of interpretation that granted the federal government the constitutional
authority to implement treaty obligations on subjects allocated to the provinces. If the
provinces have the sovereignty to reject international law, within federalism, it is the
constitutionalization of a federal implementation power that threatens the destruction
of their self-government.
Reception of International Human Rights Law and the Charter
The interaction between international and Canadian laws, and particularly the
Canadian Charter of Rights and Freedoms,” has not as yet received the critical
attention it deserves. In addressing that challenge, van Ert explains that his purpose is
to propose a theory that justifies reliance on international standards of the Charter and
domestic human rights context. Before proposing his own theory, he provides an
insightful analysis of the late Chief Justice Dickson’s contribution to the promotion of
international human rights law.”2 There, the author’s model applies the presumption of
international legality, “corrected” by the doctrine of the universality of human rights,
to “assure broad access to international sources and greater respect for international
law. 4 3
Van Ert’s universal presumption of international legality renders respect for
law the default position in Canadian human rights law. Here, as
international
elsewhere in Using International Law, international standards apply until displaced.
The author asks whether domestic guarantees are consistent with international human
rights law, and those that fail the standard must be brought into compliance. Though it
can be rebutted, this presumption of reception and compliance “introduces a serious
domestic commitment to international human rights law by forcing litigants and
40 Ibid.
41 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.t I
[Charter].
42 van Ert, supra note 1 at 252-60.
“3 Ibid. at 270.
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J. CAMERON-THE VAN ERT METHODOLOGY
355
courts to look to that body of law to determine the nature and scope of domestic rights
guarantees.”
The author theorizes that special rules apply to the reception of international
human rights law because of the universality of human rights, the Charter, and the
“perceived priority of human rights over other areas of law.”‘
International human
rights instruments are different from trade pacts and other agreements because “they
It is a mistake to assess
attempt to express the legal significance of being human.”‘
their relevance on the basis of their legal status as binding or non-binding rules.’ It is
the universality of human rights which supports a theory that all but negates the
principle of self-government.
Under van Ert’s methodology, self-government is, at best, a “rarely-used
In this, he makes no pretense
exception to the rule of respect for international law’
of balancing the twin principles of reception. The difficulty, however, is that human
rights guarantees are akin to the federalism constraint of the Labour Conventions rule:
in both instances, the constitutionalization of respect for international law negates
in areas of section 92
self-government. Just as federal treaty implementation
implementation of
self-government,
the
jurisdiction
international human rights law through Charter interpretation undercuts legislative
self-government because the Charter jurisprudence is itself entrenched. The judicial
implementation of non-binding and unimplemented international human rights law is
only subject to self-government in the limited sense that section 33 permits
legislatures to override the Charter guarantees. Even so, some guarantees cannot be
touched and the override must be re-enacted every five years in any case.”
emasculates provincial
Once again, van Ert proposes a methodology which advances respect for
international law by drawing the question of reception further away from the self-
government principle. It is one matter for the executive to undertake treaty obligations
which are not incorporated into domestic law; it is yet another for the courts to bypass
the legislatures, whether under the Charter or human rights statutes, and incorporate
international standards that are unimplemented and may not even be binding on
Canada.
Conclusion
This review concludes with three brief comments. First, whether in agreement
with van Ert or not, and whether an internationalist or not, it would be impossible for
“Ibid. at 274 [emphasis added].
‘ Ibid. at 233.
4Ibid. at 234.
4 Ibid. at 234.
41 Ibid. at 275 [emphasis added].
41 Charter, supra note 41, ss. 33(3)-(5).
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any reader of his book not to gain valuable insight into the domestic reception of
international law. Using International Law is an enormously stimulating book and
represents a remarkable achievement on the author’s part. This does not mean, of
course, that his methodology and its applications should not be closely debated.
Second, from the constitutionalist’s perspective, the ease with which van Ert
discounts or dispenses with the self-government principle is troubling. Though he is
an internationalist whose methodology marks a step forward for the domestic
application of international law, that goal is achieved by minimizing the institutional
and
importance of the democratic process. The powers of the
unaccountable or less accountable branches of government, which are the executive
and the judiciary, are substantially enhanced as a result. Accordingly, its institutional
consequences should play a vital part in any discussion of the van Ert methodology of
domestic reception.
ideological
Finally, van Ert’s objective was, first and foremost, to provide a guide to the use
of international law in Canadian courts which would serve practitioners. Space
constraints have not permitted this review to document the author’s attention to the
structure and details of Canada’s reception jurisprudence. Readers should know that
here, too, he achieved his objective admirably.
