International law, unlike municipal or domestic law, does not have a legislative body to promulgate binding principles. International law is limited further by the fact that there is no one tribunal with jurisdiction to resolve all international disputes. The role of the primary existing tribunal, the International Court of Justice, is restricted to resolving only those disputes jointly referred to it by recognized nation states. The existence and nature of an international rule of law is not always easy to determine in the absence of a legislative body. The accepted sources of international law are set out in the Statute of the International Court of Justice. In ascertaining the law in a given dispute, the court first looks to see if there is an applicable treaty (an international convention) between the parties. Where none exists, the court then looks to international custom, as evidenced by state practice. In order for a practice to be a binding custom, it must be both uniform and obligatory, rather than a matter of convenience. If the court is unable to apply an international treaty or custom, Article 38.1 provides for subsidiary means of determining rules of law. These include reference to judicial decisions and the work of scholars. The decisions of international courts and tribunals are not binding except between the parties in respect of the particular case. The decisions of municipal courts (i.e., courts of each nation) also are not binding in international disputes. Rules of law derived from treaties take precedence over rules of law derived from custom, and general principles of domestic law are subordinate to both. Canadian courts can and do apply rules of international law, provided they do not conflict with statutes or some fundamental constitutional principle. In R. v. Sioui, [1990] 1 S.C.R 1025, the Supreme Court of Canada clearly reiterated prior statements that international law need not be referred to in order to resolve matters arising from Indian treaties. The existence and validity of an Indian treaty are not dependent upon its meeting the test of an international treaty cognizable at international law. However, that does not mean that international law is irrelevant where Aboriginal rights are concerned. On the contrary, we believe that international law has evolved over the years a number of principles which are useful when considering the contemporary Aboriginal situation in Canada and in concluding what is the most appropriate course of action to take in the future. TOP
Posted on: Mon, 05 May 2014 08:06:46 +0000
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