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LAWS 3208 (1)

Renata Watkin, LAWS 3208 International Trade Regulation Midterm Exam Review

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LAWS 3208
Renata Pimentel Watkin

LAWS 3208A Midterm Exam Review1Describe the two theories on the relationship between domesticintl law Explain how Canadian constitutional law affects the negotiationimplementation of intl obligationsThe two theories are the monistic and dualistic theories The monistic school states that intl law and domestic law are part of the same system In a pure monist state intl law does not need to be translated into national law it is just incorporated and have effects automatically in national or domestic laws The act of ratifying an intl treaty immediately incorporates the law into national law and customary intl law is treated as part of national law as well Intl law can be directly applied by a national judge and can be directly invoked by citizens just as if it were national law A judge can declare a national rule invalid if it contradicts intl rules because in some states the latter have priority In Germany treaties have the same effect as legislation and by the principle of Lex posterior only take precedence over national legislation enacted prior to their ratification The dualistic school states that domestic law and intl law are independent from each other and mutually exclusive in order for intl law to be translated into domestic law Without this translation intl law does not exist as law Intl law has to be national law as well or it is no law at all If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty then it violates intl law But one cannot claim that the treaty has become part of national law Citizens cannot rely on it and judges cannot apply it National laws that contradict it remain in force According to dualists national judges never apply intl law only intl law that has been translated into national law For example the UK has follows the dualistic principle whereby intl law is only part of British national law once it is accepted in national law However some nations such as the US theres a mixed monistdualist system intl law applies directly in US courts in some instances but not othersCanada adopts the dualistic approach treaties must be enacted into law by Parliament before they can affect private rights and be applied by courts In Canada this prerogative is exercised by the federal executive branch of government as the Crowns representative As such the executive branch is the only branch of government with the authority to negotiate sign and ratify international conventions and treaties As Canada is a federal country the constitutional authority to negotiate and make a treaty may differ from the authority to implement it Section 92 13 of the Constitution Act of 1867 grants provinces the power to regulate certain economic activities There are some problems with Canadian constitutional implications For example where intl commitments are made in areas of shared federalprovincial jurisdiction the implementation of international agreements will fall partly upon provincial legislatures and gives rise to gov procurement Provincial participation and consent in negotiationssuch as provinces active role in the CETA negotiationsis the best way to ensure compliance at the provincial level That is significant as the federal government will be held liable for lack of provincial implementationviolation of intl commitments as under intl law the central government of a federal state is responsible for the implementation of all the intl obligations of the state Canada has resorted to the inclusion of a Federal State Clause in agreements that involve one or more areas of provincial jurisdiction where it commits Canada to the treaty only on a phased basis as individual provinces agree to be bound However that poses a problem as the Convention on the Law of Treaties stipulates that a party cant invoke the provisions of its internal law as justification for its failure to perform a treaty A 27
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