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Jan Advocate 2017

30 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE This is not to deny the potential importance of General Assembly resolutions in the recognition and development of international law. As Sands and Klein put it, resolutions “can embody a consensus of opinion about what the law is so that, indirectly, they become evidence of international law.”6 One of the best known examples of this phenomenon is the Universal Declaration of Human Rights 1948,7 a General Assembly resolution recognized today as largely declaratory of customary international law. There are other examples.8 To say that UNDRIP is not formally binding on Canada as international law is not to exclude the possibility that its text, or parts of it, may come to be regarded as declaratory of international legal norms. But it is hard to know if we are there yet,9 and most General Assembly declarations never get there at all. If UNDRIP is not international law, it does not attract the two leading Canadian doctrines for the reception of international law through judicial action, namely the interpretive presumption of conformity with international law and the incorporation of customary international law by the common law. The presumption of conformity is one of the most well-settled principles of contemporary Canadian law; hardly a year goes by without the Supreme Court of Canada affirming and applying it. Most recently, in B010 v. Canada (Citizenship and Immigration), the Chief Justice noted that “the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted” and that “to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law”.10 This interpretive rule depends on the norm in issue being legally binding on Canada at international law. The normative basis for interpreting domestic law in light of international considerations is evidently lacking where the international consideration at issue is not a legal obligation of the state. Similarly, the ancient doctrine of incorporation, whereby common law courts recognize and give effect to rules of customary international law as part of the common law where not pre-empted by statute, is founded upon the obligatory nature of the rule as a matter of international law. When Lord Mansfield declared that “the law of nations will be carried as far in England, as any where”,11 or when, for that matter, Rand J. quoted Lord Mansfield saying so and added, “in this country, in the 20th century, in the presence of the United Nations and the multiplicity of impacts with which technical developments have entwined the entire globe, we cannot say anything less”,12 the logic and power of these claims turned crucially on the imperative of complying with international law. Neither judge would have said the


Jan Advocate 2017
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