Customary International Law in Domestic Courts: Imbroglio, Lord Denning, Stare Decisis

Abstract

The paper challenges the proposition that customary international law is automatically a part of the common law in Canada and, by extension, other countries of the Anglo-Saxon legal family. It proposes a more nuanced approach which is better in keeping with the divergent natures of international and national law. The point of focus is a major flaw in the reasoning by Lord Denning in the Trendtex case, which is responsible for the general belief that international customs obey the logics of monism. His Lordship held that dualism could not apply to customs (unlike treaties) because of the doctrine of precedents in common law; monism is the model, otherwise stare decisis would mean that changes in the normativity on the international plane could not be reflected in the domestic law. But nowadays, stare decisis does not mean (assuming it once did) that old precedents will stand in the way of allowing judge-made law to evolve. Arguably, this was already the situation when the Trendtex case was decided in 1977, thus making Lord Denning's ruling fall flat.

Keywords: International Law, Reception Law, Stare Decisis, Lord Denning

JEL Classification: K33, K39