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Law 2101
Mysty Sybil Clapton

Class 2: The Monist Approach to Integrating International Law into Domestic Law November 26,2013 • Dualism ( division between international and domestic law): Questions to Consider Should it make a difference whether the SCC refers to an untransformed treaty to: 1. Determine the outcome of a case directly by using it as the relevant law upon which it relies? 2. To remedy gaps and ambiguities in domestic laws? Those international laws that haven’t been put into domestic law- yes from the point of view of the majority 3. To overturn a rule otherwise enforceable under domestic law? If we have domestic law saying one thing and an international ratified treaty that is not put into domestic law saying another thing- no • Monism: Overview • There is no division between the international and domestic systems of law- • The legal system as an organic whole. There is a continuum between the international and domestic levels. – one informs the other • International law is automatically incorporated into domestic law without any need for domestic legislation. In other words, international law has direct legal effect within a domestic legal system and forms part of the domestic law of the state. • International law is domestic law • International law is domestic law, for monists • What is there is a clash between international law and domestic law? • If domestic law is different from international law, then most monist systems have a rule in place: in the event of a conflict between the international and domestic laws, the international law prevails. – international law applied as domestic law • As you will see, Canada adopts a different approach from this traditional monist approach. Canada: Monist Approach for Customary International Law • For Canada, customary international law automatically forms a part of Canadian law. • In other words, customary international law enters Canadian domestic law directly, without the need for transformative legislation. Customary International Law: General Definition • Unwritten law • Binds all states and cannot be altered by any state • Ex: customary law that prohibits genocide (targeting of individuals on basis of ethnicity, race, commonalty) e.g.: the holocaust: no state in the world can change this, doesn’t matter if they don’t believe, they cannot opt out • Other examples include torture, and diplomats having immunity in other countries • Can involve treaties as well as unwritten laws Customary International Law: Legal Definition Customary international law has 2 elements: 1. Sufficiently general and widespread state practice- cant have customary law unless its sufficiently widespread and all states practice it 2. Evidence of opinio juris – a sense on the part of states that this state practice is mandatory. Apsychological feeling by states that the practice is obligatory, and that, if usage is departed from, some sort of sanction will – or ought to – fall on the transgressor state. – They feel like the law being discussed is obligatory and if they didn’t they would be sanctioned in some way Customary International Law: State Practice In order to prove state practice, must show: 1. General and widespread nature of the practice; and 2. Uniformity of practice. Courts will also take into account time duration of the practice (how long states have been following that practice). State Practice: how to prove “general and widespread?” • Look at the number or distribution of states following the relevant practice. There are 193 un state members, you would literally count how many of theses states are doing this practice The International Court of Justice (ICJ) ruled on this in the North Sea Continental Shelf case (Germany v. Denmark): is the claiming of continental shelf customary international law? • When assessing the extent of state practice, the ICJ counted the number of countries that had delimited their continental shelves. • It also suggested that the practice of some states (those with coasts) counted more than non-existent practice of land-locked states (who have less interest, they have no ocean, their opinion is less relevant). • State practice does not need to be universal (not all 193 states), but needs to be “widespread enough”, encompassing states with different political, economic and legal systems. Explanation of a Continental Shelf- where coastline starts, the water is relatively shallow for an amount of distance and then goes down to drop. Continent extends under water for a certain distance State Practice: Uniformity • Uniformity means consistency or homogeneity of practice among practicing states. – they will look at if it actually consistent or if it is done only sometimes, which is not uniform • Also look at whether those states adopting the relevant practice remain constant in their adherence, or drift in and out of usage. • No need to be perfectly consistent: if a state acts contrary to the rule, but defends its conduct appealing to exceptions or justifications contained within the rule, then this is also evidence that the state feels bound by the rule and that its practice would otherwise be in conformity with the rule. State Practice and Uniformity: Ratifications of the UN ConventionAgainst Torture - most states disagree, but it still happens. The fact it happens doesn’t take away from the state practice its when they acknowledge they did it • State Practice: Time Duration • Long duration of state practice is not required, but: • If there is only a short time between when a country claims a custom emerged and now, then that country needs to prove extensive and virtually uniform state practice, including states most affected. State Practice: Example of Time Duration The International Court of Justice has considered time duration as part of state practice in the Fisheries Case (UK v. Norway) (1951): Norway was trying to find its fishing boundaries, UK decided they didn’t like this..60 years later, they never protested until then • Norway used a method of drawing straight lines across bays as a starting point for measuring its sea territory. • For over 60 years, UK did not oppose, and others did not, either. • This was taken by the ICJ as evidence that states did not view this method as contrary to international law. • UK then protested in 1933. • ICJ said that the UK should have objected sooner because the passage of time strengthened Norway’s position. State Practice: Mixed State Practice • What if many states do not follow a customary law rule but still consider the rule to be binding? This is called mixed state practice, because the state says one thing and does another, but the state knows that what it is doing is illegal. The ICJ has considered mixed state practice: North Sea Continental Shelf case (Germany v. Denmark) (1969): • ICJ suggests that the practice of some states (those with coasts) counted more than non-existent practice of land-locked states. • If the practice is mixed, then the actions of those states most affected count more heavily. Mixed State Practice: Guantanamo Bay Example • Many forms of torture, the UN condemned this • USAsad we agree torture is outlawed under international law but what we were doing was not torture, they tried to show water boarding and what they were doing was not torture • They were clearly doing it on an institutionalized basis, but totally d
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