Stephane Beaulac

Au Canada, la réalité juridique est complexe : organisation constitutionnelle, structure fédérale, législation quasi-constitutionnelle; en outre, à la tradition anglo-saxonne de common law s’ajoute, dans la province de Québec, le droit civil (pour le droit privé). Toutes ces ramifications doivent être prises en considération dans l’étude au pays du...

With two exceptions, Canada's written Constitution is silent on international agreements and treaties. This is because Canada was a British Dominion rather than a sovereign state at the time of Canadian Confederation in 1867, and its foreign affairs were conducted on its behalf by the Imperial British government in the years immediately following C...

The paper argues that the main reason why there was once a need for domestic courts in Canada to invoke the methodology of treaty interpretation relates to the common law-based exclusionary rule on preparatory work (or travaux préparatoires). The hypothesis is that, now that this rule has been set aside, the methods of interpretation are exactly th...

The immense performative power of the rule of law has been at work for some time at the international level, notably in UN promotion efforts, in both development and transition fields. This is a conceptual paper which explores the possible heuristic models for the rule of law to help discuss the hypothesis of the empowerment of domestic courts, at...

The hypothesis at the centre of the paper is that the type of legal language favoured in legislation has a direct impact on the methodology of interpretation. The contemporary experience in Canada, with both civil law and common law traditions, is used to show that opening up legal language justifies greater judicial participation in the realisatio...

Enregistrement audio de "Coalitions ou (ré)élections? Atelier sur la dissolution parlementaire et la responsabilité ministérielle", tenu à l'Université de Montréal le 21 janvier 2009 CRÉUM, CRDP

The matrix within which the states operate and international affairs are conducted continues to be based on the Westphalian model, with its external-internal dichotomy. Consequently, the constitutional mandate of domestic courts is to interpret and apply domestic law, not international law. It is if, and to the extent that national legal rules of r...

The modern articulation of the constitutional principle of the rule of law is credited to A.V. Dicey, who identified three essential elements of what is generally considered a formal version of the concept. Namely, (1) to be ruled by law, not by discretionary power, (2) to be equal before the law, private individuals as well as government officials...

The paper challenges the proposition that customary international law is automatically a part of the common law in Canada and, by extension, other countries of the Anglo-Saxon legal family. It proposes a more nuanced approach which is better in keeping with the divergent natures of international and national law. The point of focus is a major flaw...

Since the 1999 decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), the issue of the national application of international law has taken centre stage. The argument here is that international treaty norms, although not binding, ought to play an important role in the contextual interpretation of domest...

The so-called "Westphalian" model of international legal order, based on the Peace of Westphalia, has had a profound social effect by suggesting that a new international system came into being with the end of the Thirty Years War in 1648. This system has defined not only the present state of international society but also the present state of inter...

Cajuns and other Louisianians alike celebrated this year the 200th anniversary of the so-called purchase. The purpose of the paper is to examine the principles of territory transfers in international law at the time of the Louisiana purchase in early 19th century, in an attempt so see whether the cession by Napoleonic France to the United States of...

The paper examines the so-called constitutio Westphalica based on the Peace of Westphalia which ended the Thirty Years War in 1648. It is suggested that, much before William Penn's or Abbe de Saint-Pierre's projects at the turn of the 18th century or even Immanuel Kant's ambition at the turn of the 19th century, the two treaties of Westphalia repre...

The present paper examines the latest developments at the Supreme Court of Canada on the role of international law in the interpretation of statutes in this common law jurisdiction. The discussion focusses on the 2002 decision in Schreiber, revolving around an issue of sovereign immunity, but analyses also other recent cases on the domestic use of...

The paper examines the history of the mental-social phenomenon that is the word 'sovereignty' and how it was utilised to develop public international law. It focuses on the seminal work of Emer de Vattel, 'Droit des Gens,' published in 1758. The argument is that 'sovereignty,' which had been introduced and used in relation to internal governance, w...

Le mot `souverainet'' procure un exemple fort del''effet smiologique du langage,c''est--dire de son pouvoir social dans leprocessus continu et continuel de crationde la ralit humaine. Le textepropose d''examiner ce signe linguistique l''poque de son introduction par Bodin, au16ime sicle, mettant en lumireson impact social sur la conscience commune...

Reprinted with permission of the Publisher from The Canadian Yearbook of Internation Law, 41 by Don McRae © University of British Columbia Press 2003. All rights reserved.

The article was first published in the McGill Law Journal. Un résumé en français est disponible. The exclusionary rule which prohibits references to parliamentary materials as an aid to statutory interpretation has been applied for decades in most common law jurisdictions. The House of Lords handed down its fundamental decision in Pepper v. Hart wh...

Un résumé en français est également disponible In the last 20 years, Elmer Driedger’s “modern principle” has emerged as THE expression of the Supreme Court of Canada’s preferred approach to statutory interpretation. The authors examine this fundamental development in Canadian law, including the variable relations between Driedger’s quote and the Co...

The word ‘sovereignty’ provides a forceful example of the social power of language as an organic instrument playing a leading role in the continuous and continuing process of creating and transforming human reality. The paper examines a pivotal episode in the history of the word ‘sovereignty’ — its formal introduction in the 16th century by Jean Bo...

The Kyoto Protocol raises constitutional issues for the Canadian federation. Because Canada was a British dominion when it was created in 1867, foreign affairs was not a head of competence. With independence, Ottawa has exercised the authority over the negotiation, conclusion and ratification of treaties. However, the dualistic approach to treaties...