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Thematic Issue: Power, Workers and the Law

The Canadian Supreme Court on Customary International Law: Lessons for Australia


Samuel Naylor

This article discusses customary international law in Australia. It is the first article to take Canada as a comparative jurisdiction and consider the landmark decision of the Supreme Court of Canada in Nevsun Resources Ltd v Araya (2020) 443 DLR (4th) 183 (‘Nevsun’) from an Australian perspective. The argument advanced is that moving past old precedents on the relationship between customary international law and the common law is only a first step to Australian courts being able to give domestic effect to customary norms. The split in the Canadian Supreme Court in Nevsun points to further issues. These relate to proving custom before domestic courts and defining the boundaries of legitimate judicial function in receiving such norms. Possible solutions to these issues are discussed. This article also ties together recent cases in the High Court and Federal Court which have dealt with questions of customary international law.

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