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Reception of International Law in Canada

The subject of how standards of civic international law are received into domestic legal structures is basically an issue of constitutional law. In some parts, the Canadian piece of legislation is similar to the American and the British ones. Resembling the American custom, the Canadian constitution is based in great part on judicial review of governmental action against printed constitutional models. Also similar to the British custom, the Canadian constitution also consists of an essential unwritten component. The written portion of the Canadian constitution does not refer to international law in any way, instead, it is found in the unwritten section.

The major Canadian legal principle relating to their approach to international law is the English rule, instituted during civil war and insurgency, that the Crown is not a basis of law. While treaty-crafting is an entirely governmental act, law-making is a totally parliament act. In the Canadian constitution the king’s act is not regarded as law which is contrary to the American acknowledgment of some law-making authority residing in the president. Thus if treaties are executed by the president, and the president cannot make law, then they must not be law. Canadian and England countries have constantly stated that a treaty is not itself a basis of domestic law. To state the suggestion in American phrasing, no Canadian treaty is self executing, it requires legislative execution if it is to have any legal impact in Canadian law. This approach to the local reception of treaty customs, normally termed as dualism, does not completely express the Canadian reception structure. In Canada, policies of conventional international law are directly integrated into the common law without legislative act. Additionally, the dualism method of treaties is significantly qualified by legal interpretive practices.

Since there are no legal requirements relating to how treaties must be executed, Canadian parliaments are free to undertake an entirely functional approach. The only regulation is the practical prerequisite that the execution technique chosen must be adequate to discharge the state’s duties. The constitutional code that no treaty should be self-executing is the main dissimilarity between the Canadian and American reception methods. Another important difference involving Canadian and U.S. methods of reception arises since Canadian law does not recognize any policy by which judiciary submits to governmental interpretations of global legal subjects. Rather, Canadian judiciary seems to regard international legal issues as issues to be solely determined by courts. Thus Canadian courts have constantly decided upon international issues themselves but without any proposition that they give greater weight to the government’s position. A precise account of treaty execution in Canadian courts nowadays must recognize the received doctrines while also taking into consideration the modern practices of Canada‘s courts, parliament and executive. Thus, Canadian judiciary play a very significant role in enforcing the state‘s treaty duties, though mainly through circuitous ways like implementing legislation.

The incorporation principle could be more significant in theory than in practice. Only a small fraction of Canadian cases have acknowledged rules of conventional international law as critical in the outcome of disputes, probably for several simple reasons. First, majority of customary international laws does not have significance to local legal disputes. Customary laws tend to outline the rights and authorities of nations against other nations. Second, proving support for an alleged custom by the obligatory degree of state practice is very complicated especially in an Ontario trial court.