The International Constitution

Abstract

This essay locates current debates in Canada on the constitutional dimensions of labour market regulation in light of a dramatic transformation in Canada’s constitutional relationship with international law. Unlike the constitutions of some countries, the Constitution of Canada is silent on the domestic legal status of international law. Traditionally understood, Canada is a dualist jurisdiction, whereby an international treaty obligation does not become domestic law unless it has been implemented in domestic legislation. This traditional view of the domestic implications of international law, however, has gradually but steadily been replaced by a much more porous understanding of the boundary between the international and national legal spheres. The essay argues that one of the consequences of this transformation is that the legal capacity of provincial legislatures to tailor labour market regulation to the interests of capital, engage in regulatory competition with other provinces, and experiment with new forms of regulating employment relations, is now curtailed by international standards that receive constitutional expression regardless of whether they have been implemented in domestic legislation. More generally, the essay explores the nature of Canadian constitutionalism in an age of post-dualism.