International Law

Paper instructions:
I need 1700 words more written for this assignment. I would also like at least 20 references and if you could rewrite my what I have written so far?

The decision of the Supreme Court in Khadr 2010 has its origins in the judicial review application brought by Omar Khadr to challenge the Canadian government’s refusal to seek his

repatriation from the government of the United States.  In the Khadr case usually the debate boils down to whether there is a domestic legal obligation for the executive to exercise his/her

foreign affairs powers to allow for repatriation.  According to Rangaviz, the usual answer under Canadian law is no.  It is also a truism that Khadr is not protected by domestic Canadian law

because: ‘a state may apply and enforce its laws only where there is consent, where it has effective control of territory, or where some other exceptional basis recognized at international law

exists.’

However, the Supreme Court’s decision in Khadr 2008 held that the CSIS & DFAIT member’s interrogation of Khadr (fully aware of the sleep-deprivation tactics used on him) ‘was liable for

prosecution [and] were illegal under both U.S. and international law.’  The Supreme Court decided that ‘the principles of international law and comity that might otherwise preclude application

of the Charter,’  were not applicable in this case because Canadian officials actively participated in the violation of international human rights law.

In order to constitute a violation of section 7 rights, however, the contribution to the continued detention of Omar Khadr had to be determined to be contrary to principles of fundamental

justice, as those are understood in Canada. Here, the question of particulate interest is whether the Canadian government has a legal obligation to protect Mr. Khadr. This is more commonly

known as the law of diplomatic protection. In order to answer this question, the Court had to examine whether the application was res judicata and if judicial review was required for any

‘decision’ of the court itself.

The international legal context of the requested repatriation remedy is the international law of diplomatic protection.   Customary international law dictates that a state can extend its

protection to their nationals in a foreign territory when the latter have suffered as a result of the wrongful acts of other states.   Of course, it follows naturally that ‘an active contribution to an

injury is readily cognizable as a source of responsibility in international law and liability in domestic law.’   However it is a little more complicated to discern whether a ‘state is obligated to

extend this diplomatic protect to its nationals.’

O’Reilly J. canvassed some recent decisions of the courts of the United Kingdom as well as Hicks v. Ruddock, a decision of the Federal Court of Australia, and Kaunda v. President of South Africa, a

decision of the Constitutional Court of South Africa. Justice O’Reilly concluded that the cases did not identify any clear duty on the part of these states, under either international law or the

common law, to protect their nationals held in detention by foreign states.

However, Justice O’Reilly did agree that Khadr’s s. 7 rights were in violation of IHR laws, to which Canada is a party. Three international human rights treaties, to which Canada is party, were

cited in this part of his analysis: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT”), the Convention on the Rights of the Child (CRC”) and

the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OP CRC Armed Conflict”).

O’Reilly’s analysis of the CRC pointedly allows the reader to understand the human rights obligations of Canada impose a duty on the Canadian government ‘to protect persons in Mr. Khadr’s

circumstances.’ States that are party to IHRL treaties are expected to protect and promote the human rights standards as set out in customary international law. As such, Omar Khadr’s

humanitarian rights were violated in that he was mistreated as a child, held in detention with adults, given no legal counsel and unlawfully detained for an unreasonable amount of time.

However, although Canada may request, and thereby try to promote, foreign state respect for the rights of others within the jurisdiction of the foreign state, Canada cannot itself effectively

protect those rights. In short, unless by the use of force, no state can guarantee that their national’s rights will be ensured or protected while the national resides in another state and is subject

to its effective jurisdiction. Basically, the duties or obligations to protect under the CRC cannot be said to extend outside of the territory or effective jurisdiction of states.

Therefore, the question now is whether Canada has ‘a duty to take steps to try to encourage a foreign State to respect human rights,’ or ‘a duty to take steps to try to protect.’ The Federal

Court of Appeal reached a different decision while handling the question of whether Khadr’s section 7 rights had been abused: the question here is in regards to whether an unlawful interrogation

of Khadr, while in full knowledge of the abusive treatment towards him in Guantanamo constituted a violation of fundamental justice. In affirming that this was indeed the case, Evans and

Sharlow JJ.A., cited the Criminal Code, CAT, and CRC all of which prohibit subjecting individuals to inhumane treatment.

Basically the Federal Court Appeal argued not that Canada had a duty to protect, but rather that Canadian officials who interrogated Khadr were aware of the human rights abuse that was being

perpetrated against him in Guantanamo Bay, and not only did nothing to curb this, but chose to ignore and in fact took advantage of this mal-treatment. Any mention of diplomatic obligation

to protect persons outside Canada is that, ‘Canada had an obligation in the unusual circumstances of this case to request Mr. Khadr’s repatriation.’

Justice Naden’s dissent, offers another view on the case of Omar Khadr. He was critical of O’Reilly’s assessment in ‘finding a duty to protect.’ According to Nadon, Canada had a very limited

ability to protect Khadr, and the IHRL to which Canada is party suffer from the doctrine of extra-territoriality:nowhere in his Reasons does the Judge consider the steps taken by Canada, nor

does he, in my respectful opinion, consider the context of Mr. Khadr’s detention and the extent to which Canada’s ability to protect him was limited. More particularly, in imposing obligations

on Canada, on the basis of international instruments to which Canada is a party, O’Reilly J. failed to recognize the territorial limitation of these instruments.’

In terms of the Supreme Court, in the case of Khadr II it was agreed that his section 7 rights had been infringed upon (the right not to be deprived of life, liberty, and security except in

accordance with principles of fundamental justice), and yet only granted declaratory relief, safely handing the rights of repatriation as a direct matter of the executive’s Crown power over

foreign affairs. As an international legal matter, the remedy of requesting repatriation, which would be available to Khadr based on his Canadian nationality, seems to fall within the realm of

diplomatic protection, rather than an assertion of Charter rights vis-à-vis the Canadian government.

This interpretation is consistent with the trial court’s and the Supreme Court’s citation to the South African case of Kaunda v. RSA, in which a group of South African citizens detained in

Zimbabwe and facing extradition to Equatorial Guinea sought a court order compelling the South African government to intervene on their behalf. In this respect, the dissenting appeals court

judge in Khadr II made a valid point when he indicated that he [could] not see the link between the inappropriateness of the interviews and the remedy of repatriation.”