e reception of other
sources of international
law
Treaty and custom are by far the most signicant sources of inter-
national law. ey are also t he only two sources for which the common
law has developed clear reception rules. ere is, therefore, little ca se
law on the reception of other international lega l sources. I briey con-
sider the reception or non-reception of these other sources here.
8.1 General principles of law (ICJ Statute article 38(1)(c))
As noted in Chapter , internationa l tribuna ls may apply “the general
principles of law recognized by civilized nations” (per artic le ()(c)
of the Statute of the International Cour t of Justice ) to resolve
controversies for which no applicable treaty or customar y rule may
exist. e Supreme Court of Can ada has noted that this source of inter-
national law “refers to principles of municipa l law.”
is is a pragmatic a nd potentially useful source of law at the inter-
national level, but its relevance to a domestic cour t is questionable. Do-
mestic legal systems usually do not experience gaps in the law of the
sort contemplated by general principles. (Even in intern ational law,
cases in which there is a need to supplement treat y and custom by gen-
eral principles are rare.) Furthermore, to the extent that general pr in-
ciples in international l aw derive from or are developed from analogies
to domestic law, there is seemingly no need for a domestic court to
[] Can TS no .
Re Newfoundland Cont inental Shelf, [] SCR [Re Newfoundland Cont inental
Shelf] at .
• The reception of other so urces of international law
have regard to them. In short, general pr inciples of law recognized by
civilized nations are presumably already est ablished in Canad ian law
without the need to receive them from internationa l law. ere is no
established common law rule, a nalogous to the incorporation doctrine
for custom or the implementation requirement for treaties, to explai n
the interaction of domestic law and general pri nciples. ere seems to
be no need for such a rule.
8.2 Judicial decisions (ICJ Statute article 38(1)(d))
In the international lega l system, judicial decisions are not themselves
law. ey are only a subsidiar y means for the determinat ion of rules of
law. Consistently with this subsidiary status, there is no specic com-
mon law rule governing or ex plaining the reception of foreign or inter-
national judicia l decisions on questions of international law in domestic
law. at is not to say, however, that Canadi an courts cannot have re-
gard to such decisions. ey appear to do so w ith increasing frequency.
As noted in Chapter , judicia l decisions in internationa l law are
not binding on anyone but the parties. ey are l ikewise not binding on
the Canadia n courts that have occasion to consider them. In Mugese ra
v Canada (Minister of Citizenship and Immigration), the Supreme Court
of Canada took the unusua l step of partially overru ling one of its own
decisions to accord better with subse quent international jurisprudence
on the elements of a crime again st humanity. But the court did not take
this step out of legal obligation; rather, as it ex plained,
ese tribuna ls have generated a unique body of authority whic h co-
gently reviews t he sources, evolution and applicat ion of customar y
internationa l law. ough the decisions of the IC TY and the ICT R
are not binding upon thi s Court, the exper tise of these tribuna ls and
the authority in respe ct of customar y internationa l law with whic h
they are vested sug gest that their ndings shou ld not be disregarded
lightly by Ca nadian cour ts applying domestic legislative prov isions,
On “general pri nciples of law recognize d by the community of nation s” in
Charter s (g), see M Freeman & G va n Ert, International Human Ri ghts Law
(Toronto: Irwin Law, ) at .
See Chapter , Section .(d).
