International Law and Statutory Interpretation: Up with Context, Down with Presumption
in O.E. Fitzgerald et al. (eds.), The Globalized Rule of Law – Relationships between International and Domestic Law, Toronto: Irwin Law
35 Pages Posted: 13 May 2017
Date Written: 2006
After recalling the theoretical basis of the interaction between international law and domestic law and the parameters of Driedger’s “modern approach” (section 2), the discussion focuses on the two means by which domestic courts can resort to international law, namely the presumption of legislative intent and the contextual argument of statutory interpretation (section 3). Recent case law from the Supreme Court of Canada is then analyzed to show that there is an identifiable trend in favour of considering international law as legislative context, a strategy better suited to maximize the role of such legal norms in statutory interpretation, rather than through a presumption of intent (section 4). Finally, the conclusion offers frank comments on why the idea that the presumption of conformity better serves the “cause” of the domestic use of international law is wrong.
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