Self-determination—Canada—Quebec—right to secede under constitutional law and public international law—role of international law in Canadian courts

1999 ◽  
Vol 93 (2) ◽  
pp. 519-525 ◽  
Author(s):  
Bernard H. Oxman ◽  
Stephen J. Toope
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Federal Authority ◽  
Unilateral Declaration ◽  
Legal Context ◽  
The Supreme Court

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.Supreme Court of Canada, August 20, 1998.In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.

scholarly journals The Impact of the Supreme Court of Canada on Intergovernmental Relations

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Benjamin Goldlist
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Political Resources ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Constitutional Adjudication ◽  
The Impact

The role of the Supreme Court in the practice of Canadian federalism, specifically the extent of its power and the effects of that power, is a hotly contested issue in Canadian political science. While some scholars have argued that the Court has taken on too political of a role that must be restricted, this paper develops the Court as a constitutional ‘umpire,’ whose rulings serve the important, but limited, functions of allocating political resources to incentivize negotiation, and establishing jurisdictional boundaries for said negotiations, leaving specific policy decisions to political, as opposed to legal, actors. Concerning the net outcome of the Court’s jurisprudence on the distribution of legislative powers, this paper illustrates the Court’s overall balancing approach, with grants of power to one level of government met with increases in authority to the other, in all major policy areas. Thus, ultimately shown to embrace both a limited and impartial approach to constitutional adjudication, the Court has done much to enhance its democratic legitimacy and constitutional utility.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

2017 ◽  
Author(s):  
Leclair Jean
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Over Time ◽  
Constitutional Changes ◽  
Political Compromises

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

The Expanding Role of the Supreme Court of Canada in International Law Issues

1997 ◽  
Vol 34 ◽  
pp. 89-102 ◽  
Author(s):  
Gérard V. La Forest
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Issues ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Public And Private ◽  
National Courts ◽  
The Supreme Court ◽  
The World

SummaryThe rapid globalization that marks our era has resulted in increasing demands for the legal resolution of disputes arising out of interstate activities. National courts throughout the world have been significantly affected by this development. This article describes the recent expansion of the work of the Supreme Court of Canada in relation to transnational legal issues, including issues of public and private international law, human rights, admiralty law, and issues of private law having international ramifications. It traces the Court's evolving approach to international law issues and its willingness to reformulate its principles to meet modern conditions and to foster compliance with its norms. The more cosmopolitan attitude thereby generated has worked in concert with the Court's increasing willingness to rely on comparative law techniques in assuting in the resolution of issues of a localized character.

International law in Japanese Courts

2019 ◽  
pp. 536-547
Author(s):  
Hiromichi Matsuda
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Positive Attitude ◽  
Separation Of Powers ◽  
Democratic Legitimacy ◽  
Global Community ◽  
Constitutional Review ◽  
Relative Lack ◽  
The Supreme Court

This chapter examines international law in Japanese courts in the context of separation of powers, treaty-making procedure, and transnational judicial dialogue under the Japanese Constitution. It analyzes international law in Japanese courts in the following four categories: (1) constitutional review of international law; (2) judicial application of international law; (3) consistent interpretation of statutory and constitutional law with international law; and (4) reliance on persuasive authority in constitutional interpretation. Although Japanese courts are reluctant to use international law as binding law, the Supreme Court of Japan recently began actively referring to foreign and international sources as persuasive authorities. Because of the practice of “implementing-legislation-perfectionism” and the relative lack of democratic legitimacy of international law, Japanese courts will probably continue to take a restrictive approach toward applying binding international norms. In contrast, the Supreme Court of Japan is expressing a positive attitude toward transnational dialogue. Japanese courts will probably expand and enhance transnational judicial dialogue in and out of the courtroom. This chapter concludes that Japanese courts have the potential to be one of the interesting benchmarks for whether any existing “global community of courts” can really be global and universal.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

The Problems and Promise of Spraytech v. Hudson

2002 ◽  
Vol 39 ◽  
pp. 371-385
Author(s):  
Gibran van Ert
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Precautionary Principle ◽  
Supreme Court Of Canada ◽  
The Precautionary Principle ◽  
The Supreme Court ◽  
The Status

SummaryIn Spraytech v. Hudson, the Supreme Court of Canada made a bold declaration on the status of the precautionary principle in international law. While the methodology of the majority is open to criticism, the judgment is a welcome clarification of the court’s groundbreaking decision in Baker v. Canada and, building on that case, offers the prospect of a truly internationalized Canadian jurisprudence. In a postscript to this comment, the judgment of the Supreme Court of Canada in Suresh v. Canada is briefly considered.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

Same-Sex Relationships and Anglo-Canadian Choice of Law: An Argument for Universal Validity

1997 ◽  
Vol 34 ◽  
pp. 103-136
Author(s):  
Wendy A. Adams
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Status ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Same Sex ◽  
Choice Of Law ◽  
The Supreme Court ◽  
The Face

SummaryThe distinction between formal and essential validity in Anglo-Canadian choice of law regarding marriage is an illogical bifurcation that unnecessarily invalidates same-sex relationships contracted in foreign jurisdictions. The Supreme Court of Canada has recently reformulated certain rules of private international law, taking into account both the constitutional and sub-constitutional imperatives inherent in a federal setting and the need for order and fairness when co-ordinating diversity in the face of increasing globalization. Reform of the choice of law rules regarding the validity of foreign marriages should proceed accordingly with the result being that a marriage valid where celebrated is valid everywhere. No principled reason exists to deny recognition to same-sex relationships validly contracted in other jurisdictions, nor to differentiate between the rights and obligations arising from the legal status of same-sex and different-sex relationships.

Nevsun Resources Ltd. v. Araya et al. (S.C.C.)

2020 ◽  
Vol 59 (5) ◽  
pp. 747-810
Author(s):  
Russell Hopkins
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Supreme Court

In a judgment delivered on February 28, 2020, the Supreme Court of Canada held (by majority, 7–2) that Canadian common law does not contain an all-encompassing doctrine of non-justiciability based on foreign acts of state; and (by a narrower majority, 5–4) that alleged breaches of customary international law (CIL) arguably provide a novel cause of action in tort. The court held that claims against a Canadian mining corporation related to alleged violations at a mine in Eritrea could proceed to trial.

Sign in / Sign up

Export Citation Format

Share Document