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Rethinking the Relationship between International and Domestic Law


Armand De Mestral


McGill University - Faculty of Law

Evan Fox-Decent


McGill University - Faculty of Law

April 27, 2009

McGill Law Journal, Vol. 53, No. 4, 2008

Abstract:     
Despite considerable judicial consideration in recent years, the relationship between international law and domestic law in Canada remains uncertain. While Canadian courts frequently invoke the presumption of conformity to claim that domestic law must be read in light of international law, their interpretations of domestic law often fail to respect the full extent of Canada’s international legal obligations. Moreover, Canadian courts rely on an overly restrictive understanding of what it means to implement a treaty in Canada’s domestic law, and as a result they tend to give short shrift to the role international treaties can and should play in Canada’s legal order.

The authors argue in favour of a number of measures that seek to portray international and domestic law as a unity, held together by an overarching commitment to the rule of law. They argue for a more generous understanding of treaty implementation according to which a ratified treaty would be considered “implemented” if, at the time of ratification, there exists sufficient legislative and regulatory authority capable of enabling Canadian officials to comply with Canada’s treaty obligations. They also suggest a variety of means through which federal and provincial legislators could play a more constructive role in the treaty-making process. One option is the development of a Canada Treaties Act that would provide guidance with respect to the specific requirements of treaty negotiation, authorization, and implementation. A less ambitious alternative is the recognition of international law as equal in status to common law. Finally, the authors contend that even in the absence of such steps, Canadian judges and administrative decision makers ought to combine a generous understanding of implementation with a thoroughgoing commitment to the presumption of conformity.

Number of Pages in PDF File: 76

Keywords: International law, reception, implementation, rule of law, treaty, customary law

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Date posted: April 28, 2009  

Suggested Citation

de Mestral, Armand and Fox-Decent, Evan, Rethinking the Relationship between International and Domestic Law (April 27, 2009). McGill Law Journal, Vol. 53, No. 4, 2008. Available at SSRN: http://ssrn.com/abstract=1395915

Contact Information

Armand De Mestral
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
Evan Fox-Decent (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
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