Canada - Thinking Outside the Dualist Box? Surely Not Yet!
F.M. Palombino (ed.), Supremacy of International Law vs. National Fundamental Principles – A Comparative Law Perspective, Cheltenham U.K.: Edward Elgar Publishing, Forthcoming
Posted: 15 May 2017 Last revised: 19 Jul 2017
Date Written: May 10, 2017
In this context, the very premise of the ipso facto supremacy of international law, when it comes to see its relationship with domestic law, is contestable ontologically as just reflecting the dominant international viewpoint. The Treatment of Polish Nationals case, as well as the Vienna Convention on the Law of Treaties (article 27) and State Responsibility Draft Articles (articles 3 and 32), reflect this international take on normative supremacy between the two legal spheres or (to put it more in line with a Kelsenian monist epistemology) within the so-called global legal world.
From a domestic point of view, relying on dualism as a meta heuristic tools for the international-national interface, the principles of the supremacy of Parliament and the rule of law keep the authority over applicable normativity within the sovereignty of national states. Hence, if there is a conflict between international and domestic law, the latter will prevail within the national legal sphere. In a sense, just like international law claims and posits supremacy on the international plane, fundamental constitutional principles in Anglo-Saxon public law call for maintaining the supremacy of domestic law. The chSupra note apter first addresses (section I), these fundamental principles at play regarding interlegality in Canada.
Of course, these principles do not prevent international law from having a role, sometime a material one, at the domestic level when interpreting and applying national normativity. On the contrary. In Canada, since the 1999 decision in the Baker case, the definite trend is for much greater use of international law by our courts and tribunals. A summary of the two main techniques used by the judiciary, within the methodology of legal interpretation, will be discussed (section II). They are the interpretative argument of context and the presumption of conformity with international law (our “Charming Betsy” rule). They are often resorted to by our national courts not only to resort to international law, but also to reconcile the two sets of normativity, instead of having one trumping the other.
However, in case of normative incompatibility – whether constitutional domestic rules are involved or not – national law will take precedent over international law, be it customary or treaty based. Three court cases from the last fifteen years shall be used (section III) to substantiate the hypothesis that, from a domestic perspective, national law remains supreme in Canada. They are the Ontario Court of Appeal decision in the Ahani case and the Supreme Court of Canada decision in the Suresh case, both rendered in 2002, as well as the recent decision from our highest court in the 2014 Kazemi case. As far as operationalization of international law, by it by means of interpretative context or through the presumption of conformity, these cases will show that, when push comes to shove, these techniques preserve the supremacy of domestic law over international law.
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