THE DOCTRINE OF ADOPTION OF CUSTOMARY INTERNATIONAL LAW: A FUTURE IN CONFLICTING DOMESTIC LAW AND CROWN TORT LIABILITY

Abstract

In R v Hape, the Supreme Court of Canada recently stated that the doctrine of adoption of customary international law operates in Canada such that prohibitive rules of custom are incorporated into domestic law in the absence of conflicting legislation. Yet, in that case, it was not necessary for the Court to decide what adoption means or when conflicting legislation arises. This article attempts to do so. It puts forward a framework for ascertaining conflicting legislation. It then submits that adoption, properly understood, points in one principal direction: the tortious liability of the Crown for violations of customary international law.