Canada v. Khadr: Reflections on the Use of International Law in the Repatriation Litigation

The genesis for this article was anticipation of a discussion of international human rights law by the Supreme Court in its Khadr 2010 repatriation decision, given the approach taken by the two levels of the Federal Court in the analysis of the principles of fundamental justice under section 7 of the Charter. As the Supreme Court’s identification of the relevant principle of fundamental justice in Khadr 2010 makes no reference to international law, the article examines instead the implications of the Supreme Court’s analysis, in R. v. Hape, of state jurisdiction under international law, for the approaches taken by the Federal Court in the Khadr repatriation litigation. The Supreme Court’s approach in Khadr 2010 is at least not inconsistent with its Hape analysis. Its analysis of the principles governing state jurisdiction at international law supports a limited extraterritorial application of both the Charter and state parties’ obligations under international human rights treaties