Session V Flashcards
What does monism dictate about the relationship between domestic and international law?
Who takes this position?
certain forms of IntL are automatically part of domestic law - specific legislation is not required for these forms of IntL to become operational on the domestic level (monist)
Intl and dom belong to the same legal order
Position of continental European states with regards to treaty and customary IntL
What does dualism dictate about the relationship between domestic and international law?
Who takes this position?
Certain forms of IntL become part of domestic law only insofar as they are transformed through specific legislation - dualist approach cuz it presumes that dom and IntL are mutually distinct
Dualism (context of TREATY LAW NOT CUSTOM LAW) is the established position in Britain and states that have received great amounts of British law (canada)
What does it mean for Canada to take an “adoptionist” stance on Int customary law? How is treaty law different?
This means Canada views custoary international law as part of Canadian domestic law - does not need to be incorporated into dom legal order by means of specific legislation (already a part of Canadian law)
Treaty law = transformationalist, requires implementation through specific legislative action in order to become part of Canada’s dom legal order - treaty law needs to be implemented in order to be transformed into Can law
What level of government in Canada has control of treaties?
Only executive has the authority to sign and ratify intL treaties and only fed legislature has the authority to transform such treaties through specific legislation to that effect
Why does s. 92 of the 1867 Constitution act complicate treaty powers? what happens in this case?
If a given treaty concerns issues relating to matters that fall under this section they may be subject to provincial jurisdiction - what happens if this occurs is unclear
Why is it potentially problematic that treaties be negotiated, drafted, signed and ratified by executive? How is parliament implicated?
Is this concern justified?
Possibly undemocratic - ability to circumvent the power of the legislature
They may consult parliament but and seek approval but they are not legally obligated to do so
Nah not really, since treaty law is transformative Fed legislatures still have power to actually employ contents
What is the importance of the Paquette Habana 1900 case?
Classic illustration of standard American stance in regard to customary IntL
When is a state most likely to apply IntL?
When it is at its weakest - rough correlation
Describe paquette case? What was the ruling?
U.S declared war against span and imposed a blockade of Cuba (Spanish occupation)
2 Spanish fishing boats, no ammunition aboard taken as prizes of war
US supreme court rules against keeping them - under customary IntL seizure is unlawful
