The Dualist Approach to Integrating International Law into Domestic Law
November 21, 2013
What do I mean by International law?
"Treaty means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument,
or in two or more related instruments and whatever its particular designation."
• Vienna Convention on the Law of Treaties, article 2:
(1) International agreement in writing;
(2) Between states [or between a state and an international organization such as
(3) Formed with an intent to be bound; and
(4) Governed by international law.
As long as it meets these points, it can be considered a treaty
Treaties set out laws bound by all those who agree
(2) Customary International Law
Bilateral, Multilateral and Plurilateral Treaties
• Bilateral treaties: those between Canada and one other country. (such as a free
trade agreement between Canada and Columbia)
• Multilateral treaties: those between three or more countries generally developed
under the auspices of international organizations. (more often what Canada joins,
negotiated through international organizations such as the UN human rights,
most important is the United Nations Charter)
• Plurilateral treaties: generally entered into between one State and a group of
States. (Not necessarily international organizations involved)
Treaties are best known source of international law NAFTA (North American Free
Trade agreement), The Rome Statute, The Boundary Water treaties draws the border
between Canada and the U.S.A. The Kyoto Protocol
Signature and Ratification
Once a treaty has been negotiated and legalized, there are often two steps that take place
before a country becomes bound by a treaty:
1. Signature – to express political support; and
2. Ratification – to express agreement to be legally bound by the terms of the treaty.
Monism and Dualism: Theories about how international law gets incorporated into
domestic law. Monism: international law is immediately incorporated as part of a state’s
domestic law – for example, in the case of a treaty, upon a state ratifying that treaty, if it
is a modest country. No dichotomy
• If conflict between domestic and international law, international law wins.
Domestic law that doesn’t fit will be rid of
• Most monist countries are civil law countries
Arguments by Monists:
• International and domestic law are part of a continuous legal system, they are all
integrated into each other
• Law is an organic whole: international law sets the boundaries of what states can
and cannot do, and then states operationalize that in domestic law.
• If a country ratifies a law, it may as well be incorporated into domestic law, it is
more consistent and uniform
Dualism: there is a strict separation between the international and the domestic
spheres of law. International law does not enter domestic law until it is changed into
domestic law. The states believe that international law is completely different than
Most common law countries take this approach
Arguments by Dualists:
• Domestic law regulates relations between individuals within a state, and
international law governs states.
• International and domestic law regulate discrete subject matter: domestic law
covers issues relating to individuals within a state, whereas international law
covers issues relating to statetostate interaction.
• State law individuals (domestic). Under international, all states are equal, and
they exist side by side
• Retains sovereignty of state
Entry of International Law into Domestic Law
• Monism: Automatic incorporation: International legal rules are automatically
incorporated into domestic law.
• Dualism: International law must be transformed into domestic law through a law
making process [usually legislation].
• International law has no direct effect on a domestic legal system. The domestic
legal system creates a new rule of its own which mirrors the international rule.
What is Canada’s practice?
Canada: Dualism Approach for Treaties
• When Canada ratifies a treaty, Canadian law does not automatically change. • Canada must transform the treaty into domestic law done through domestic
Canada’s Policy on Tabling of Treaties in Parliament
• Once a treaty has been (ratified) signed by Canada, the Minister of Foreign
Affairs creates a memo explaining the treaty and what it means for Canada.
• Minister provides the memo and a copy of the treaty to the House of Commons.
• Then there is a waiting period of at least 21 sitting days during which Members of
Parliament can debate the treaty and whether Canada should ratify.
• After the 21 sitting days, the government can introduce legislation to