Reception of International Law in Domestic Law
| Author | John H. Currie |
| Profession | Faculty of Law University of Ottawa |
| Pages | 193-227 |
CHAPTER
6
RECEPTION
OF
INTERNATIONAL
LAW
IN
DOMESTIC
LAW
A.
THE
INTERNATIONAL-NATIONAL
LAW
INTERFACE
Having
reviewed
the
origins, nature, subjects,
and
sources
of
interna-
tional law,
it is
appropriate
to
consider
the
international legal system's
interaction with national,
or
domestic, legal systems. What
is the
con-
nection,
if
any, between international
and
domestic
law?
Does interna-
tional
law, which
is
primarily concerned with regulating
the
conduct
of
states, have domestic legal
effect within
states? Does
it
create rights
and
obligations
for
sub-national actors
such
as
individuals, 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
legal rules
that
determine,
as a
matter
of
law,
how one
legal system treats another.
Given
that
a
single
subject
or
situation will
often
be
governed
by
more
than
one
system
of
law, most,
if not
all, legal systems have developed
rules
to
address these
situations
of
potential overlap
and
conflict.
These rules will
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.
Now,
given that each legal system
may be
expected
to
develop
its
own set of
rules
for
regulating
its
interaction with other legal systems,
it is
evident that
one
cannot determine,
in the
abstract,
the way in
which
193
194
PUBLIC
INTERNATIONAL
LAW
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
the
framework
of
legal system
B —
again, with
its
own set of
rules governing interactions with other legal systems. Each
legal
system
may
develop incompatible rules
for
resolving which sys-
tem
of law
applies
in
what circumstances, giving rise
to the
potential
for
yet
further
conflict.
The
point, however,
is
that
how two or
more
legal
systems will interact will vary depending
on
which legal system's
rules
for
resolving this issue
are
applied.
Transposing this
to the
relationship between international
and
domestic legal systems,
the
nature
of
that relationship will 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
interna-
tional
law to
prevail over
a
conflicting rule
of
domestic
law.1
This
does
not, however, prejudge
the
answer
to the
same question that might
be
given
by the
relevant domestic legal system. Considering
the
issue
from
that perspective,
it
might well
be
that international
law
would
be
considered subordinate
to the
dictates
of the
domestic legal system.
Moreover,
while there
is
only
one
international legal system, there
are
some
two
hundred national legal systems
and
thus
the
nature
of the
interaction between international
and
domestic
law
will potentially
vary
with each such domestic
or
national legal system. While
one
domestic system might,
as
above, deem
a
conflicting rule
of
interna-
tional
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
rule
of
treaty
law
providing
that
domestic
legal
impediments
are
no
excuse
for
failing
to
perform
a
binding
treaty
obligation:
see
Article
27 of the
23 May
(entered
into
force
27
January
1980)
[hereinafter
Vienna
Convention]
and
discussion above
Chapter
4
(G)(l).
Of
course,
it
will
not
always
be the
case
that
international
law
deems
its
rules
to
override
conflicting
domestic norms.
There
are
instances
in
which
even
international
law
subordinates
itself
to the
dictates
of
domestic
legal
systems.
For
example,
the
legal
personality
of
political
or
territorial
units such
as
provinces
within
federal
states
depends,
in the
international
legal
system, upon
whether
and to
what
extent
these
units
are
entitled
under
the
domestic
constitution
to
conduct
their
own
foreign
affairs.
Reception
of
International
Law in
Domestic
Law 195
It
would
of
course
be a
monumental task
to try to
describe
the
rules governing
the
relationship between every 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, ele-
ments
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 international law.
It
bears repeating, however, that those
rules
will
be
peculiar
to the
Canadian legal system
and do not
necessarily
apply
to the
relationship between other domestic legal systems
and
international law.
B.
PRINCIPAL
THEORETICAL
MODELS
—
DUALISM
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
focuses
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. Nei-
ther
influences
the
other such that,
in the
event
of a
conflict
between
2 For a
concise overview
of the
monist-dualist
debate among international lawyers
generally,
see G.
Fitzmaurice, "The General Principles
of
International Law:
Considered
from
the
Standpoint
of the
Rule
of
Law"
(1957-11)
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
Sciences
of
Law,
trans. T.M. Knox
(Philadelphia:
University
of
Philadelphia Press, 1975);
see
also
L.
Oppenheim,
International
Law:
A
Treatise,
vol.
I, 8th ed. by H.
Lauterpacht (London: Longmans,
1955);
K.
Strupp, "Regies
generates
du
droit
de la
paix"
(1934-1)
47
Rec.
des
Cours
263 at
389-418.
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