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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 31 same about a non-binding international instrument for which no compliance is required. Unless or until the Declaration is recognized as legally binding on states as a matter of customary international law, common law courts will not incorporate its provisions through judicial decision. In short, the Declaration’s two obvious entry points into Canadian law are complicated, if not wholly foreclosed, by its apparently non-binding status at international law.13 THE CROWN IS NOT A SOURCE OF LAW Another argument against Canadian courts treating the Declaration as determinative or even significant in domestic law is its origin as an executive act. A structuring principle of Canadian law’s reception of international legal norms is that the Crown is not a source of law. When Coke C.J. held, in Archbishop of York and Sedgwick’s Case (1612), that “the King could not by His grant alter the law of the land”,14 the claim was courageous and controversial. By 1689 it was the premier article of the Bill of Rights.15 Today it is the reason why Canadian treaty obligations do not take direct effect in domestic law but require implementing legislation. To recognize domestic legal significance in a purely executive act, backed not by statutory authority (as in the case of regulations or other delegated legislative powers) but only by the royal prerogative over foreign affairs, would circumvent a historic principle of Westminster-model constitutionalism. The Declaration was adopted by a 2007 vote of the General Assembly. Canada, together with Australia, New Zealand and the United States, voted against. One hundred and forty-four states voted in favour, and eleven abstained. The four anti-Declaration states have all since come around. While they cannot change their votes, they have signaled their endorsement of the Declaration through public pronouncements. Canada’s endorsement came in two stages. On November 12, 2010 the federal government published a statement declaring its support of the Declaration as “an aspirational document” that is “non-legally binding” and “does not reflect customary international law nor change Canadian laws”.16 Then on May 10, 2016 the federal government announced that Canada “was now a full supporter, without qualification” of the Declaration and reaffirmed its “commitment to adopt and implement the Declaration in accordance with the Canadian Constitution”. Both the 2010 and the 2016 announcements were unilateral acts of the federal executive in exercise of its undoubted power to conduct foreign affairs. No input from Parliament or the provincial legislatures was sought, and none was required, for “the conduct of foreign affairs lies with the executive branch of government.”17


Jan Advocate 2017
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