Application of non-implemented international law by the Federal Court of Appeal: Towards a symbolic effect of para. 3(3)f) of the Immigration and Refugee Protection Act


The reception of international law into domestic law is known for its uncertainties but one can safely say, without being controversial, that the traditional, dualist model which found its roots in the distinction between implemented and unimplemented international law is evolving. One of the great challenges faced by academic scholars today is to find new ways of theorizing this evolving reality while at the same time remaining sufficiently pragmatic to be of use to judges in their day-to-day tasks. In recent years, scholars have suggested many ways of conceptualizing the new role of international law in domestic law, including an approach based on the persuasive authority of international law, a second based on the role of international law as part of the context of adoption of domestic law, a third focused on the discretionary power of the judge, a fourth based on a comparative law analogy, a fifth which attributes weight according to the pedigree of the international instruments, and so on. 1

One of the greatest areas of confusion is the question of the reception of non-implemented international law in domestic law. These instruments include all treaties signed by Canada, and those signed and ratified by Canada. Throughout this article, we refer to non-implemented international law as a body of treaty law which binds Canada on the international scene, but which has not been implemented into Canadian law.

Under the dualist theory to which Canada adheres, only treaties that have been implemented into domestic law are actually …

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