mod 4 - international law Flashcards
1
Q
dualism
A
- international sphere and domestic sphere = separate
- international treaties = important
- treaty cannot be enforced within domestic courts unless first “transformed” into domestic law (within states that follow dualist model, international law has no direct legal effect)
- the international law regulates the conduct and interactions between states and domestic law regulates the conduct and interactions of individuals within states
- generally taken by states that follow the British system (common law, i.e. Canada)
2
Q
treaties
A
- written agreements between countries that are governed by international law
3
Q
treaties may be:
A
- bilateral: those between Canada and one other country
- multilateral: those between three or more countries, generally developed under the auspices of international organizations
- plurilateral: generally entered into between one state and a group of states
4
Q
as a legal matter, treaties may be:
A
- ‘contractual’: concluded between states where the force of agreement is distinct between each party, usually the result of a bargain or ‘quid pro quo’
- ‘constitutive’: so that the obligations involved are owed absolutely regardless of any specific ‘quid pro quo’ among the parties (e.g. UN, Charter)
5
Q
treaty signature and ratification
A
- often two steps that take place before a country becomes bound to a treaty: 1. signature - to express political support, and 2. ratification - to express agreement to be legally bound by the terms of the treaty
6
Q
Canadian policy on the tabling of treaties (2008)
A
a. applies to the tabling of treaties in the House of Commons (not the senate)
b. observes a 21 day waiting period for tabling of legislation implementing a treaty and allows debate about the decision to be bound
c. does not apply to peace treaties, the recognition of states, or treaties pertaining to boundaries
d. in urgent circumstances, may be subject to exemption
7
Q
Canada follows a mixed approach:
A
a. Canada is dualist with respect to most treaties. When Canada ratifies a treaty, Canadian law does NOT automatically change. Canada must transform the treaty into domestic law through domestic implementation legislation in order for the treaty to have domestic legal effect
b. Canada is monist with respect to customary international law
8
Q
transformed treaties
A
- where a treaty has been transformed, its terms have been enacted into Canadian legislation . The treaty can still be used to interpret the domestic law
- Pushpanathan: it is reasonable to examine any underlying international agreement first to clarify any uncertainty in the domestic law. One should strive for an interpretation which is consistent with the treaty, so that the treaty assumes a certain relevance (a. since the purpose of the immigration acts as to implement the refugee convention , the court must adopt an interpretation consistent with Canada’s obligations under that convention
9
Q
untransformed treaties
A
- formally, no influence in Canadian law
- however, in Baker even though Canada had not incorporated the “best interests” requirement from the convention of the rights of the child into Canadian law, a reasonable exercise of “humanitarian and compassionate” power under s. 114 (2) of the immigration act required close attention to the interests and needs of children . The “values” reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. The CRC and other international instruments help show the values that are central to determining whether the decision was a reasonable exercise of the “humanitarian and compassionate” power
- In north Pushpanathan and Baker, international law only had an indirect effect in the sense that it was used to support an interpretation rather than to create specific “rights and obligations”
10
Q
monism
A
- international and domestic sphere = connected, because:
a. the conduct of individuals is regulated by law at both levels - at the domestic level the consequences of individual conduct apply directly to the individuals, and at the international level, the consequences of individual conduct are attributed to states
b. International and domestic law are part of a continuous legal system
c. international law sets the boundaries, within domestic law works ( when conflict, international law prevails) - according to monism, international law (both custom and treaty) is immediately incorporated as part of a state’s domestic law upon ratification
- monist states tend to come from civil law tradition
11
Q
monism and customary international law
A
- Canada is monist with respect to customary international law. Hence, custom is automatically incorporated into domestic common law
- Customary international law is unwritten law binding on all states
- Since custom is like common law, domestic legislation can be enacted to displace/trump custom. As far as possible, domestic legislation is interpreted consistent with customary international law obligations (Saint John v Fraser-brace; R v Hape)
- Customary international law results from a combination of two elements:
a. established, widespread, and consistent practice on the part of states (the objective element)
b. the belief that the practice is obligatory as a matter of law, or opinion juris (the subjective element)
12
Q
Customary international law: state practice 1
A
- state practice is a necessary element of custom, the practice must be widespread, consistent and uniform
- generality factor: ‘widespread’ does not necessarily mean universal adherence to the rule (North Sea continental shelf)
- consistency and uniformity factor: the conduct need not to be undertaken by every state, but so long as it is consistent it will meet the definition of practice. It is sufficient if:
a. it is adequate if conduct is generally consistent with a rule and
b. instances of inconsistent practice are treated as breaches of the rule rather than recognition of a new rule - relevance factor: “specially affected states” - in certain fields of international law, the practice of some states possesses more value than that of others. It is also relevant how non-specially affected states respond to certain practices
13
Q
Customary international law: state practice 2
A
- time factor: the establishment of new custom normally requires time. However, there might be instances when the formation of custom is instant (“instant custom”, fisheries case)
- determining state practice is problematic because, in reality, few states have extensive diplomatic records going back before 1945. Hence, it can be controversial to rely on practice of only a few states for proof of a generally applicable rule of customary international law
- custom may be determined by reference to diplomatic correspondence, government press releases and other practices
- comparativist vs categorist approaches to custom:
a. comparativist approach: involves exhaustively surveying the practice of states
b. categorist approach: involves pointing to a representative selection of practice from among a range of different states
14
Q
Opinion juris
A
- opinion juris is the subjective element of custom
15
Q
slavery in Canada
A
- today international law probity slavery and racial discrimination:
- universal declaration of human rights (1948)
- international covenant on civil and political rights (1966)
- international covenant on economic , social and cultural rights (1966)
- convention on the elimination of racial discrimination (1969) - Canada prohibits slavery and discrimination. The charter of rights and freedoms, section 15(1) provides: “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”
- these treaties and statutory sources of law could be said to reflect customary international law that slavery and racial discrimination are prohibited
