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1. Regional Custom
Asylum case – court examines if there was a customary rule that allowed asylum to be sought in this fashion. First court determined that regional custom had to comprise the dual contents of state practice and opinion juris. Important, however, that Silence CANNOT Constitute State Practice in regional custom. One must create regional customs actively, not passively.

2. Persistent Objection
If one objects persistently, then one is not subject to custom. For example, the USA has persistently objected to Canada’s claim that northwest passage is part of internal waters.

The basis of the Nicaragua case: what happens when there is the same rule of law in customary law and treaty law.

1. COEXISTENCE The main conclusion from this case is that the two sources of law can continue to co-exist. Just because a norm also exists in treaty law, does not mean that the source from customary law is not extinguished. For example the law of use of force flows both from treaty law and customary IL.

2. TREATY –> CUSTOM Treaty activity can constitute state practice for the formation of a customary norm. One has to be very clear in analyzing state conduct whether states are only acting under their treaty obligations or whether adherence to treaty obligations has grown to include opinion juris and broader state practice. A good example of this is UNCLOS (UN convention on law of high seas). A lot of UNCLOS provisions have become customary IL. States that are not part of UNCLOS are bound by some of the provisions of the Convention. For a treaty to create custom you need non treaty parties acting as if they are bound by the treaty.

3. CUSTOM –> TREATY custom can be restated in a treaty format. When a treaty codifies customary IL, the treaty is restating customary IL.

4. CONTRACT –OUT A treaty can be used to contract out of customary IL. There are however certain obligations that no state can contract out of i.e. jus cogens norms.

The main critiques of Customary International Law are that the two requirements of state practice and opinion juris are too simplistic. There is not enough guidance from scholarship vis what is meant by these two requirements. Customary IL is in the ‘eye of the beholder’. There is no reason for the rule of custom or lack thereof. The science of customary law is lacking. Guidance from ICJ is vague. Opinion juris is also vague.

Continue reading Critique of Customary International Law

Fundamental issues

Division of Powers.

Impacts how health system is structured. Recent decision in QB CA summarizes federal and provincial responsibilities regarding health care. At issue is whether assisted human reproduction should be federally or provincially regulated. The federal government has traditionally placed this matter under the criminal law head of power. If defeated, they may try to classify it under POGG power. However, that would be a difficult argument as POGG is not used very often, and it would be difficult to argue that this is a matter of national concern.

Federal heads of power: criminal law. POGG, spending power (i.e. collection and distribution of taxes), quarantine and border control, patent, defence, penitentiaries, immigration. As we can see, the federal role is indirect, supervisory.

Provincial heads of power: hospitals (92.7); medical profession and the practice of medicine (92.13 – property and civil rights; 92.16 – matters of a local and private nature); education (s93) – includes professional regulation.

At issue here, reproduction is held to be under provincial regulation. Human reproduction is not an ‘evil’, hence cannot be regulated by federal criminal law power. On the other hand, true prohibitions, such as stem cell research can rightly be under the federal criminal head of power.

Canada Health Act. Central piece of federal legislation for health care. Canada Health Act does not prohibit anything explicitly, but rather relies on conditional funding. If programs meet criteria then they are funded. If programs do not meet the criteria then they are not funded.   The act lists five program criteria and conditions that provinces must follow in order to receieve their federal transfer payments: public administration, comprehensiveness, universality, portability, and accessibility. There are two additional conditions which must be met: first, feds are entitled to specific information ; and second, the province must “give recognition” to the federal government in all health documents.

Continue reading Legal Framework of Health Care System in Canada