Flux and Fragmentation in the International Law of State Jurisdiction: The Synecdochal Example of Canada’s Domestic Court Conflicts Over Accountability for International Human Rights Violations
Chapter 10, in O.-K. Fauchauld & A. Nollkaemper, eds., The Practice of International and National Courts and the (De-) Fragmentation of International Law (Oxford: Hart Publishing 2012)
28 Pages Posted: 25 Jul 2012
Date Written: 2012
Any serious exploration of unity and fragmentation in public international law must consider the normative basis of one of the fundamental tools of state action on the international plane: jurisdiction. And no better illustration of the fluctuating application of jurisdiction may be had than to take a national sample – such as Canada – of domestic courts’ struggles to establish accountability for human rights conduct and abuses abroad. The paradigms of the law of jurisdiction, as with the vast corpus of international law, originally responded to the needs of the traditional verities of a legal system based around the state – states as sovereign, unitary entities, in relationships of mutual respect for their equality, independence and co-existence. The associated principle, recognised by the Permanent Court of International Justice in the Steamship Lotus case, that a state was free to exert jurisdiction in the absence of a prohibitive rule, was sufficient in times when national legal systems concerned themselves nearly exclusively with individuals within their territorial or national control. Even as international human rights law flourished in the latter half of the twentieth century, the central idea was that states owed each other obligations to guarantee rights to their own citizens and residents, and so breaches were to be handled internally. The law was premised on police enforcing a state’s law within its borders, and residents being able to seek redress before local courts.
In explanation of these assertions, this chapter will review the principles of state jurisdiction as a precursor to exploring first the public law contest and then the private law stand-off in the Canadian courts around the extension of jurisdiction to protect human rights abroad. It will conclude with reflections on the fragmentation of the international law of jurisdiction that this Canadian synecdoche reveals.
Keywords: human rights, international law, jurisdiction
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