The Company One Keeps: The Khadr II Litigation in its International and Comparative Legal Context

• Main Author: Smith, Robert
• Other Authors: Kent, Roach
• Language: en_ca
• Published: 2011
• Subjects: Constitution; Judiciary; Executive; Remedies; 0398
• Online Access: http://hdl.handle.net/1807/31453

This thesis examines the extent to which the judiciary can intervene into the executive branch’s power over foreign affairs. This thesis focuses on the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Omar Khadr, 2010 SCC 3 where Omar Khadr requested the judiciary to order the executive branch to request his release from American custody in Guantanamo Bay, Cuba. The Supreme Court refused Khadr’s request, but issued a declaratory order stating that Khadr’s rights had been violated by the Canadian government. This thesis places this decision, and its follow-on litigation, in its international and comparative context by examining the international law of diplomatic protection as well as three cases, one from the United Kingdom, one from South Africa and one from West Germany. After examining the context, this thesis concludes that the Supreme Court’s decision, although flawed, was reasonable.