The Alien Tort Claims Act (ATCA) was originally passed as anti-piracy statute back in the 1800s. However, it came back to prominence in the 1980s. The -act states that if you are a non-US citizen your claim can be heard in a federal court, but your claim has to vis either a violation of treaty or a violation of custom.
A type of custom that cannot be avoided.
E.g. a persistent objector cannot opt out of a jus cogens norm.
Jus cogens is in contravention on a strict positivist approach because it does not seem to based on state consent because states are bound by these norms even if they do not consent to them. The existence of jus cogens still remains somewhat controversial, however they have achieved quite an wide scope of acceptance. The notion of jus cogens is that these norms are owed by states to all of the international law community.
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.
In international law, opinio juris requires evidence which usually comes from resolutions. For example, general assembly resolutions. However, just because there is a general assembly resolution, does not mean that the resolution is law itself. There has to be state practice connected to the resolution. In international law general assembly resolutions must be approached with caution.
Some are curious what the law has to say when it comes to making a decision about the care of someone who’s incapacitated. When it comes to the critically ill, when family members and health care providers disagree on the plan of the care, what is the appropriate role of the courts to intervene? Some thoughts.
You could: a) Do what the families say.
- This would mean removal of life support measures without consent constitutes battery. (However, any interference with the body without consent is battery.)
– the law is also obsessed with the autonomy of the individual. The needs of the family is largely irrelevant within the legal model.
Another scenario b) Do what the doctors say.
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.
Federal Courts Act s 2(1):
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prereogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96”.
There are exceptions to the above definition:
-if statute gives power to another Court
-if remedy is not provided by Federal Court act e..g habeus corpus application
There are two grounds for judicial review – Procedural and Substantive.
Administrative actor: subject to the principles of admin law. Includes persons or bodies that exercise statutory or prerogative power. Boards, tribunals, etc are usually given authority pursuant to statute.
Judicial review: administrative actors are subject to judicial review. It is part of public law where superior courts under s96 engage in surveillance of lower tribunals to ensure they are acting legally. S96 courts derive their power from s96 of constitution, hence the name. The role of s96 courts in judicial review is part of their inherent authority. Federal courts operate differently they operate as equivalent as s96 court however they have statutory power, not inherent power. When they invented federal courts they took some powers that should belong to s96 courts and gave them to federal courts.
Sample cases where judicial review does or does not apply.