1 30 1LM 1171 (1991).

2 Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529, [1981] 2 All E.R. 1064.

3 Government of the Democratic Republic of the Congo v. Venne (1971), 22 D.L.R. (3d) 669.

4 Id., [1977] S.C.R. 997 (S.C.C.).

5 R.S.C. 1985, c. S-18, as amended by S.C. 1991, c.

6 28 U.S.C. §1602 et seq.

7 Cargo Ex the Ship “Altra” v. Lorac Transport Ltd. (1986), 28 D.L.R. (4th) 309 (F.C.A.), on appeal from (1984), 9 D.L.R. (4th) 129 (F.C.A.), on appeal from (sub nom) Lorac Transport Ltd v. The “Altra” (1984), 43 C.P.C. 74 (F.C.T.D.).

8 U.S.A. v. Public Service Alliance of Canada et al. (the “Argentia Reference"), S.C.C. File No. 21641 (1991).

9 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, done at London June 19, 1951, entered into force for Canada September 27, 1953, C.T.S. 1953/13, UNTS 199/67; Agreement to Supplement the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces With Respect to Foreign Forces Stationed in the Federal Republic of Germany, done at Bonn August 3, 1959, entered into force for Canada July 1, 1963,C.T.S. 1963/21. U.N.T.S. 481/262, amended October21, 1971, C.T.S. 1974/4, and May 18, 1981, TIAS 10367; and Exchange of Notes Constituting an Agreement Amending the Agreement Between the Parties to NATO Regarding the Status of Their Forces, and the Supplementary Agreement With Respect to Foreign Forces Stationed in the FRG, done at Bonn September 25, 1990, signed by Canada September 25.,1990.

10 Agreement Between the United Kingdom and the United States Relating to the Bases Leased to the United States, done at London March 27, 1941, in force March 27, 1941, B.T.S. 1941/2, applicable to Canada as of April 1, 1949, as a result of the Union of Newfoundland with Canada, C.T.S. 1952/14, and modified in accordance with the recommendations of March 28-30, 1950, of the Permanent Joint Board on Defence by an Exchange of Notes, done at Washington February 13 and March 19, 1952, C.T.S. 1952/14.

11 The Visiting Forces Act, R.S.C. 1985, c. V-2, which in part implements some of the obligations contained in these conventions, may also be relevant. In 1991, the State Immunity Act was amended by S.C. 1991, c. 41, s. 13, to provide that where the provisions of the State Immunity Act and, inter alia, the provisions of the Visiting Forces Act conflicted, the provisions of the State Immunity Act cease to apply to the extent of the conflict.

12 Although, as in supra note 7, the Supreme Court granted sovereign immunity to the United States. The Court states that “a contextual approach is the only reasonable basis of applying the doctrine of restrictive immunity."

13 Reference re Public Service Employee Relations Act. (Aha). (1984), 35 Alta L.R. (2d) 124, (1985) 16 D.L.R. (4th) 359 (Alta. C.A.), aff’d [1987] S.C.R. 313, at 348-359, especially at 349 (S.C.C.); Public Service Alliance of Canada v. Canada (1984), 11 D.L.R. (4th) 337 (F.C.T.D.), aff’d (1984), 11 D.L.R. (4th) 387, 84 C.L.L.C. para. 14,054 (F.C.A.), aff’d [1987] 1 S.C.R. 424 (S.C.C.); and Retail, Wholesale and Department Store Union v. Saskatchewan (1985), 19 D.L.R. (4th) 609, 39 Sask. R. 193, [1985] 1985 5 W.W.R. 97 (Sask. C.A.), aff’d (1984), 12 D.L.R. (4th) 10, [1984] 4 W.W.R. 717, 33 Sask. R. 219, (1985) 10 C.R.R. 1 (Sask. Q.B.), rev’d [1987] 1 S.C.R. 460 (S.C.C.).

14 [1989] 1 S.C.R. 1038 (S.C.C.), where the Court states: “Given the dual function of s. 1 identified in Oakes, Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights. Furthermore, for purposes of this stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective."

15 [1992] 1 S.C.R. 452 (S.C.C.).

16 A similar experience is found in a case involving hate propaganda where international law and international obligations are mentioned no fewer than forty-five times: R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.).

17 Jaffe v. Miller et al., unreported decision of the Supreme Court of Ontario, No. 6103/85, decision of Sutherland J., dated September 17, 1990.

18 Id., on appeal to the Ontario Court of Appeal, File No. C10101.

19 Supra note 1.

20 Supra note 1, Statement of Interest of the United States in Support of Rehearing and Suggestion for Rehearing en Banc, at 1,2, App. at 36a.

21 Unless, of course, that sovereign is really engaging in the regulation of international trade, in which case sovereign immunity still attaches: Millen Indus. Inc. v. Coordination Council for No. American Affairs, 855 F.2d 879 at 885 (D.C. Cir. 1988).

22 The complained of behavior violates, inter alia, the UN Charter, done at San Francisco June 26, 1945, entered into force October 24, 1945, UNTS 1/xvi, arts. 1(3) and 55; the Universal Declaration of Human Rights, GA Res. 217A (III) of December 10,1948, UN Doc. A/810, at 71 (1948); the Convention on the Prevention and Punishment of the Crime of Genocide, done December 9, 1948, entered into force January 12, 1951, UNTS 78/277; the International Covenant On Civil and Political Rights, Annex to GA Res. 2200 (XXI) of December 16, 1966, opened for signature on December 19, 1966, entered into force March 23, 1976, UNTS 999/171, art. 26; and the Draft Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the Working Group on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/1992/48, December 13, 1991, Annex I.

23 The Universal Declaration of Human Rights, id., Preamble; and the Draft Declaration on the Rights of Minorities, id., Preamble.

24 U.S.A. v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1990), Cert. Pet’n to the Sup. Ct. No. 91-712 (October Term, 1991), Reply Brief of the United States, at 9, 10.

25 Signed at Vienna on May 23, 1969, entered into force January 27, 1980, UN Doc. A/Conf. 39/27, Fourth Annex, UNTS 1155/331, arts. 31-33. See also the Commentaries on the Draft Articles, made during the negotiation of the Vienna Convention, UN Doc. A/Conf. 39/Add.2, 7, at 37.

26 No. 88-1791 (S.D. Fla., Aug. 11, 1989).

27 Supra note 1, Petition for Writ of Certiorari.

28 923 F.2d 1528 (11th Cir. 1991), Appendix D, at 29a.

29 109 S. Ct. 683,690(1989).

30 [1982], 40 O.R. (2d) 45, 141 D.L.R. (3d) 456, 459 at 461 (Ont. H.C.J.)

31 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983).

32 Supra note 26. See, in particular, art. 26.

33 For a general discussion of the problem of judicial treaty override, see OECD, Tax Treaty Override (1989).

34 Supra note 1, Respondent’s Brief in Opposition to Petition for Writ of Certiorari, at 13.

35 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by GA Res. 39/46, UN GAOR Supp. at 197, UN DOC. A/39/51 (1985), entered into force June 26, 1987.

36 See, for example, the CSCE Chart of Paris for a New Europe, 16 November 1990, at 2 and 3, respectively, which states that: “[Human rights] protection and promotion is the first responsibility of government…. [and] entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law,” and “everyone will enjoy recourse to effective remedies, national or international, against any violation of his rights."

37 90 U.S. 681 (1991). In this case, the Supreme Court ruled that state officials cannot shield themselves from personal liability where they have violated the rights guaranteed by the Constitution or Civil Rights Act of 1871.