Class 2: The Monist Approach to Integrating International Law into Domestic Law
• Dualism ( division between international and domestic law): Questions to
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
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
• 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
• As you will see, Canada adopts a different approach from this traditional monist
Canada: Monist Approach for Customary International Law
• For Canada, customary international law automatically forms a part of Canadian
• 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:
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
• 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
• 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