Ecuador opens its borders to universal citizenship: a step forward on the way to equality of peoples?

In principle, open borders might tend toward the respect of international equality; but in practice it does not necessarily provide more equality for vulnerable populations. It can actually enable profiteers to benefit from less supervised borders and trick desperate people into leaving their home for the American dream. Opening borders may not be enough: if an immigrant finds himself inside the country but excluded from the local community, like those who do not have papers in Ecuador, he may not be illegal but he is not legal either. Future experiences of open-borders may be more positive, who knows; but the Ecuadorian situation can hardly be called a success.[i]

Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens…

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Criticizing the field of international investment law: A simple story made complex

The system of international investment law is often criticised by civil society organizations and legal academics. The Guardian recently described this system as a “legal weapon that gives corporations the edge on government”; it emphasized that there is a “growing concern among legal experts” that the investment regime “favours corporations over the public interest, puts sovereignty at stake, is chronically lacking in transparency and accountability and has been mis-sold to many developing countries that only realize exactly what they have signed up for when they get sued.”[1]

A Public Statement on the International Investment Regime, signed by a group of forty eight academics from around the world, has added, “We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability”. [2] It argues, inter alia, that investment treaty arbitrations are unfair and unbalanced,[3] and that states should withdraw from investment treaties.[4] International investment law has even been described by a distinguished academic as “a law of greed”.[5]

Although perhaps somewhat exaggerated, these critiques are certainly not baseless. Several recent developments, most notably the disputes between tobacco giant Philip-Morris and the governments of Australia and Uruguay, indeed demonstrate how foreign investors can…

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Residency Requirement Upheld for Marijuana Cafes in the Netherlands; Case C-137/09

Last year, the European Court of Justice (“ECJ”) released its decision in Case C-137/09, Josemans v. Burgemeester van Maastricht, concerning restrictions on who is permitted to patronize restaurants and cafes which sell marijuana in the Netherlands.[1] While the Netherlands generally prohibits the possession of marijuana, certain establishments are permitted to sell small amounts of the drug so long as they comply with certain regulations. Title III of the Treaty Establishing the European Community (“EC Treaty”) establishes the fundamental right of the free movement of citizens of each Member State throughout the European Union (“EU”), meaning that the Dutch restaurants and cafes which sell marijuana have become a magnet for those living in states where recreational marijuana use is more strictly prohibited.[2] In order to combat the “public nuisance” caused by an influx drug tourists, the municipal council of Maastricht imposed a requirement that cafes selling marijuana only allow Dutch residents to enter their establishments; Marc Michel Josemans, the owner of “Easy Going” coffee shop, brought a suit against the municipal council, claiming that the requirement violated, inter alia, Articles 12, 18 and 49 of the EC Treaty.

Article 12 of the EC Treaty (now Article 18 of the Treaty on the Functioning of the European Union) outlines the general prohibition on Member States enacting laws which discriminate on the basis of nationality. The ECJ has interpreted the non-discrimination provisions of…

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UN blacklist a stain on international justice

Abousfian Abdelrazik has overcome another hurdle in his long struggle for justice.

On November 30, the Montreal resident was finally removed from the United Nations Security Council 1267 List. The blacklist imposes an asset freeze, travel ban and arms embargo on alleged associates of Al Qaida and the Taliban.

But despite his new freedom, Abdelrazik’s fight is far from over.

Still outstanding are a $27-million lawsuit against the Canadian government, a constitutional challenge to the legislation implementing the 1267 list sanctions, and an apology from the Canadian government for its role in Abdelrazik’s almost decade-long saga that could have been written by Kafka.

Arriving in Canada as a refugee, Abdelrazik was given Canadian citizenship in 1995. He returned to Sudan, where he is a dual citizen, to visit his sick mother in 2003. There he was arrested, imprisoned, interrogated, and tortured. He was never charged with any crime and was eventually cleared by both the Sudanese government and Canada’s RCMP and CSIS of any criminal wrongdoing.

However the Canadian government refused to issue Abdelrazik a passport to return to Canada, using the 1267 List as an excuse. Abdelrazik’s name had been added to the list in 2006 at the request of the United States.

Abdelrazik spent the next 14 months sleeping on a cot in the Canadian embassy. Finally in 2009, Federal Court of Canada judge Russel…

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Netzai Sandoval, un jeune avocat mexicain, se lance contre Goliath

Un avocat de 28 ans, Netzai Sandoval, a déposé le 25 novembre une plainte à la Cour pénale internationale contre des membres du gouvernement mexicain ainsi que des cartels de la drogue. En 8 mois de travail, il a amassé de la preuve sur 470 violations du droit international, montant un dossier de 700 pages. Il a reçu les signatures de 23 000 citoyens  mexicains pour appuyer sa plainte, ce nombre ayant aujourd’hui augmenté à 27 000. Toute l’information sur la plainte est disponible sur leur blogue.

Les plaintes déposées à la CPI proviennent généralement d’États. L’avocat a ainsi présenté une plainte avec l’objectif que Luis Moreno Ocampo, le Procureur en chef de la CPI, ouvre une enquête selon son pouvoir discrétionnaire de le faire (art. 15 du Statut de Rome). Le Procureur devra donc évaluer le sérieux de la preuve, et s’il est d’avis qu’il dispose de bases raisonnables pour ouvrir l’enquête, il devra demander une autorisation de la Chambre préliminaire. Celle-ci se prononcera également sur la base raisonnable de la demande.

Les violations auxquelles il réfère sont traduites par Global Voices, un blogue francophone : « Nous réclamons que la Cour enquête sur les disparitions, le recrutement d’enfants de moins de 15 ans, sur les exécutions sommaires opérées par des soldats, sur la mutilation en tant que forme d’intimidation, sur les attaques perpétrées contre la population civile, sur les déplacements…

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Trade v. Health; on Tobacco, Caffeine, and Turkey Tails

Governments around the world often struggle to find an appropriate policy balance between removing barriers to trade while simultaneously ensuring that they enact laws which protect the health of their citizenry. The tension between these two policy goals can often be averted; clarity as to policy objectives will enable a better determination of appropriate legal mechanisms to achieving a government’s goals. A few recent trade law developments highlight the challenges of regulation aimed at promoting health concerns in light of the World Trade Organization (WTO) obligations.

In Australia, the Tobacco Plain Packaging Act 2011 is an innovative piece of legislation which aims at discouraging the use of tobacco products by requiring uniform plainness in packaging.[1] The act would require cigarettes to be sold in packaging which would not allow tobacco companies to use their own labels, and consequentially constrain their ability to market their brand image. The government’s stated goal is to reduce tobacco consumption, particularly among young individuals.

Members of the WTO’s Technical Barriers to Trade (TBT) Committee discussed this piece of legislation at a meeting earlier this month, with over a dozen members voicing formal objections to the act.[2] The objecting states argue that Australia’s evidence of the effectiveness of the proposed act is suspect, and thus unnecessarily restricts trade.[3] It is important to note that many of the objecting states do not export tobacco to Australia, and…

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Depoliticizing international criminal law

Realists frequently challenge the legitimacy of public international law as a bona fide legal discipline, contending that it is merely a political tool wielded by powerful states to enforce their diktats on the third-world. To Louis Henkin, “law is politics;”[1] elaborating on that theme, John Austin posited that international law is not really “law” because breaches do not engender legally-enforceable sanctions.[2] Such positions merit due attention, as they pose a serious challenge to efforts to promote adherence to international legal norms.

To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such…

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Review of Dennis Edney’s Lecture: “The Rule of Law in an Age of Terror”

“Human rights have a dysfunctional relationship with justice. The language is certainly beautiful, but it’s all dressed up with nowhere to go,” charged Dennis Edney in a scathing lecture at the Faculty of Law at UBC on September 15.

Edney worked from 2004 to 2011 on Omar Khadr’s defence against charges stemming from the July 2002 firefight death of a US soldier. Khadr, who is Canadian, was 15 at the time. American forces interrogated him for three months in the US-operated Bagram Theatre Detention Facility in Afghanistan, before transferring him to Guantanamo Bay, where he remains. In 2005, Khadr’s chief interrogator from Bagram, US Sergeant Joshua Claus, was found guilty of offences relating to the routine torture and homicide of Bagram prisoners. Claus received a five-month prison sentence. He testified at Khadr’s military trial in 2010.

In April 2009, the Federal Court ruled that Canada was complicit in the US’s torture of Khadr and ordered Ottawa to seek his repatriation. The Federal Court of Appeal concurred, but the Supreme Court ruled 9-0 that though Canada was violating Khadr’s human rights, it was not obliged to seek his repatriation.

In October 2010, after insisting on his innocence for years, Khadr pled guilty in a military trial to terrorism-related offences, in exchange for a promise from Canada to repatriate him by October 2011 to serve the rest of his prison sentence in…

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L’accès aux médicaments antirétroviraux en contexte de crise de la santé publique et les obstacles posés par le droit international de la propriété intellectuelle

Chaque année, près de 2,7 millions de nouvelles infections au virus de l’immunodéficience humaine (VIH) sont rapportées et près de 2 millions de personnes en meurent (1). Les experts observent toutefois que les pics des nouvelles infections et de la mortalité annuelle sont maintenant derrière nous (1) et que les chiffres montrent une diminution globale de l’incidence du VIH/sida au niveau mondial (2). Un plus grand accès aux médicaments antirétroviraux (ARV) et une baisse de leur prix en faveur des populations des pays en développement (PED) est en grande partie responsable des progrès récents. Les ARV, en plus d’être les médicaments préconisés par les médecins  partout dans le monde pour un traitement efficace de la maladie, jouent un important rôle préventif en diminuant notablement les probabilités de transmission du virus (2, 3).

L’accès aux ARV est donc capital pour les PED, dont les populations ont les plus hauts taux d’incidence (4). Il y a près de dix ans, les ARV n’étaient que peu ou pas accessibles aux victimes de la maladie dans les PED, coûtant près de 10 000 $ par année pour chaque patient (5, 6). La société civile ainsi que certains membres de la communauté médicale internationale, outrés par l’attitude des grandes compagnies pharmaceutiques[1], ont donc dû prendre les choses en main afin de modifier l’ordre du jour politique global et  réitérer l’importance d’agir contre les ravages que…

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“Mapiripán Massacre Scandal” Affair

A scandal happened recently relating to an Inter-American Court of Human Rights (IACHR) case, raising interesting issues of lawyers’ ethics, among others. Here is a summary of the facts drafted by Lawyers Without Borders Canada (LWBC), coming from the statement they have made concerning the recent events.

“A recent testimony of Ms. Mariela Contreras is at the root of the present affair. Ms. Contreras declared before the Colombian justice system in 2002, and before the Inter- American Court on Human Rights (IACHR), in 2005, that she had lost her husband and two sons in the massacre perpetrated by paramilitaries in July 1997 in the village of Mapiripán, with the complicity of regular military forces. On October 25th, 2011, she testified at Court that she had in fact lied and fraudulently benefited from the monetary compensation paid by the Colombian State as a result of the historical ruling in this case.”[i]

LWBC has not been personally involved in the case, so critics were not aimed at the organization in particular. LWBC is however closely linked to the Colectivo de abogados « José Alvéar Restrepo » (CAJAR), with whom they are partners in several projects. CAJAR is a Colombian human rights law firm, and they were representing some victims in the Mapiripan case in front of the IACHR, Ms. Mariela Contreras being one of those alleged victims. LWBC has thus expressed…

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