Tort Au Canadien: A Proposal for Canadian Tort Legislation on Gross Violations of International Human Rights and Humanitarian Law
65 Pages Posted: 5 Aug 2009 Last revised: 3 Feb 2010
Date Written: November 1, 2005
Despite Canada's strong rhetoric on the protection of human rights, Canada lacks a meaningful tort scheme for gross human rights violations akin to that of the United States. This article argues that legislation to facilitate tort suits for for gross violations of international human rights and humanitarian law can be consistent with and in fact supports Canada's commitments to human rights, the rule of law and multilateralism. In particular, provincial tort legislation should be one of a panoply of mechanisms in place to punish and deter violations of international humanitarian and human rights law. This article proposes the shape of the legislation with respect to such key considerations as jurisdiction, sovereign immunity and exhaustion. It contends that to comport with Canada's strong backing for the international rule of law and emphasis on multilaterism and international cooperation, this "transnational" human rights legislation must be firmly grounded in international law with respect not only to the human rights norms covered but also to the jurisdictional principles to be applied.
Keywords: Alien Tort Statute, Canada, Alien Tort Claims Act, Torture, Tort, Human Rights
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