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The Challenge of Internalizing International Conventional Law: the Experience of Australia, England and Canada with Ratified Treaties

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Chapter Summary

The Supreme Court deployed two ratified treaties, the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), via the Charter, to read down the scope of the section of the Immigration Act that implements the exception to non refoulement in the Refugee Convention. The Canadian courts, in Baker and Suresh, have accorded a wholly different degree of respect and domestic impact, compared to the Australian and English courts in Teoh and Ahmed, to ratified treaty obligations. Canadian decision-makers are bound to take affirmative account of relevant international treaties binding on Canada, weighing the impact of their purposes and values to their full intrinsic worth, in balance with all other contextually relevant factors. Such a purposive regard for ratified but unimplemented treaties is a functionally effective solution to the challenge of their internal impact in domestic law.

Keywords: Australian court; Canadian court; Convention Against Torture (CAT); English court; ICCPR; Immigration Act; non refoulement; ratified treaties; Refugee Convention



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