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Raising the stakes: A look at the constitutional implications of receiving customary international law domestically

Posted on:2008-09-30Degree:LL.MType:Thesis
University:University of Toronto (Canada)Candidate:Montague, MartinFull Text:PDF
In Canada and England customary international law is received directly into their law (incorporation). In Australia, customary international law is recognized only as a legitimate source of common law (transformation). The reception of customary international law has received relatively little academic and judicial attention in these common law states, unlike in the United States, where there has been extensive discussion of the constitutional issues.;The author concludes that neither an incorporation approach, nor a transformation approach is nuanced enough to deal with the stakes. Accordingly, the author argues that a statute should be enacted which prescribes how judges incorporate customary international law as part of the common law.;Using the United States' analysis as a basis, the author argues that the doctrine of separation of powers and democracy are "stakes" and are crucial factors for any common law country when considering the reception of customary international law.
Keywords/Search Tags:Customary international law, Common law, Stakes
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