Reception of International Law in Domestic Law
| Author | John H. Currie |
| Pages | 218-264 |
CHA PTER 6
RECEPTION OF
INTERNATIONAL LAW
IN DOMESTIC LAW
A. THE INTER NATIONAL/NATIONAL
LAW INTERFACE
Having reviewed the origins, nature, subjects, and sources of inter-
national law, it is now appropriate to consider the international legal
system’s interaction with national, or domestic, legal systems. What is
the connection, if any, between international and domestic law? Does
international law, which is primarily concerned with regulating the
conduct of states, have domestic legal effect within states? Does it cre-
ate rights and obligations for sub-national actors such as indiv iduals,
corporations, and government organs? If so, how and why?
To inquire into the effects of one legal system on or in another is, of
course, to ask a legal question. Its answer will depend on rules that de-
termine, as a matter of law, how one legal system treats another. Given
that a single subject or situation will potentially be governed by more
than one system of law, most, if not all, legal systems have developed
such rules to address these situations of potential overlap and conflict.
These rules often dictate which system of law will apply or “trump”
in particular circumstances, although sometimes such rules will avoid
the conflict by variously aligning the two legal systems for the purposes
of resolving a particular problem.
Given that each legal system may be expected to develop its ow n
set of rules for regulating its interaction with other legal systems, it i s
218
Reception of Inter national Law in Domestic L aw 219
evident that one cannot determine, in the abstract, the way in which
legal systems will interact. Rather, the answer to the question “how will
legal systems A and B interact?” will depend on whether one is asking
the question from within the framework of legal system A — complete
with its rules governing interactions with other legal systems — or
from within t he framework of legal system B — again, with its own set
of rules governing interactions with other legal systems. Each legal sys-
tem may develop incompatible rules for resolving which system of law
applies in what circumstances, g iving rise to the potential for yet fur-
ther conflict. The point, however, is that how two or more legal systems
will interact will var y depending on which legal system’s rules for re-
solving this issue are applied; that is, on one’s legal frame of reference.
Transposing this to the relationship between international and do-
mestic legal systems, the nature of that relationship w ill thus depend
on whether one is considering the issue from the perspective of inter-
national or domestic law. For example, we have already seen a number
of instances where an international legal rule is deemed by internation-
al law to prevail over a conflicting rule of domestic law.1 This does not,
however, prejudge the answer that might be given to the same question
by the relevant domestic legal system. Considering the issue from that
perspective, it might well be that intern ational law would be consid-
ered subordinate to the dictates of the domestic legal system.
Moreover, while there is only one international legal system, there
are nearly two hundred national legal systems (not to mention those
operating within federal units which make up federal states) and thus
the nature of the interaction between inter national and domestic law
will potentially vary with each such national or domestic legal system.
While one domestic system might, as above, deem a conflicting rule of
international law to be subordinate to the domestic legal rule, another
might yield entirely to the international rule. It all depends on the rules
of interaction adopted by each domestic legal system.
1 For example, the ru le of treaty law providing t hat domestic legal impedi ments
are no excuse for fa iling to perform a bindin g treaty obligation: see Ar ticle 27
of the Vienna Convent ion on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331
(entered into force 27 January 1980) [Vienna Convent ion] and discussion in
Chapter 4, Section G(1). Of course, it will not alw ays be the case that inte r-
national la w deems its rules to overr ide conflicting domestic norm s. There are
instance s in which even internation al law subordinates its elf to the dictates of
domestic legal sy stems. For example, the legal per sonality of political or ter ri-
torial unit s such as provinces wit hin federal states depend s, in the internationa l
legal system, upon whet her and to what extent these u nits are entitled under
the domestic con stitution to conduct their own foreig n affairs.
PUBLIC INTERNATIONA L LAW220
It would of course be a monumental task to try to describe the rules
governing the relationship between ever y domestic legal system and
international law. However, it is possible to describe here two broad
theoretical models that have been advanced to explain, or argue for,
the appropriate relationship between international and domestic legal
systems. We will see that, in the present practice of states, elements of
both theoretical models are present. We will then turn to consider in
some detail, by way of illustration, the particular rules developed by
the Canadian legal system to govern its own relationship with inter-
national law. It bears repeating, however, that those rules are peculiar
to the Canadian legal system and do not necessarily apply to the rela-
tionship between other domestic legal systems and international law.
B. PRINCIPAL THEORETICAL MODELS
DUAL ISM vs. MONISM
While there are many ways of theorizing about the interaction between
international and domestic legal systems, the two main theoretical
models developed by international lawyers are known as “dualism”
and “monism.”2
The first of these, dualism, was championed by such international
legal philosophers as Hegel.3 As its moniker suggests, this model focus-
es on the peculiar nature of the international legal system and draws
a rigid distinction between it and domestic legal systems. In its purest
form, dualism emphasizes that international and domestic law govern
distinct subjects, regulate discrete subject matter, and emanate from
different sources. Dualism posits that international and domestic legal
systems exist in complete legal isolation from one another. Neither is
superior to the other such that, in the event of a conflict between the
2 For a concise overv iew of the monist-dualist debate a mong international
lawyers gener ally, see G. Fitzmaurice, “The Genera l Principles of Internat ional
Law: Consider ed from the Standpoint of the Rule of L aw” (1957-II) 92 Rec. des
Cours 5 at 68– 85.
3 G.W.F. Hegel, Natural Law: The Scientific Ways of Treating Law, its Place in Moral
Philosophy, and its Relation to the Positive Scie nces of Law, trans. by T.M. Knox
(Philadelphia: Un iversity of Philadelphia Pre ss, 1975); see also L . Oppenheim,
Internati onal Law: A Treatise, vol. I, 8t h ed. by H. Lauterpacht (London: Long-I, 8th ed. by H. Laute rpacht (London: Long-
mans, 1955) at 37–39; K. Strupp, “Règles générales du d roit de la paix” (1934-I)
47 Rec. des Cours 263 at 389– 418.
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