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Balancing liberty and security
The balance between individual liberties and national security was the subject of much discussion at the first-ever Symposium on Counter-Terrorism and Civil Liberties last week at McGill University’s Faculty of Law. The conference, co-hosted by the Human Rights Working Group, the Arab Law Students Association, the Muslim Law Students Association, the Comparative Constitutional Law Society, and the Centre for Human Rights and Legal Pluralism, brought together prominent policy-makers, practitioners, academics, and members of the public for an engaging series of lectures and panel discussions.
The panels revolved around three central themes: the securitization of immigration policy, the role of civilian oversight of intelligence and security agencies, and Canadian intelligence cooperation with the United States in the war on terror. The challenge from the point of view of the organizers was to avoid creating a “false dichotomy” between security and civil liberties. While panelists approached the issues from a wide range of perspectives, all acknowledged the seriousness of both the threat of terrorism and the erosion of constitutionally-protected freedoms, and proposed various mechanisms for bridging the two. “We have to recognize that it is the responsibility of states to ensure that citizens are able to exercise their rights,” said Paul Kennedy, former chair of the Commission of Public Complaints against the RCMP, “terrorism is a direct attack, a direct threat, on those very rights and freedoms. The challenge for the state is to craft…
Death and… Capital Gains Taxes
A new year, a new US budget. This year, the name of the game is payback – paying back for all the extravagant government spending over the past year. On President Obama’s budget agenda is a variety of tax revisions and increases following Bush tax cut expirations aimed at Wall Street and America’s affluent in order to fund the on-going expensive public spending, aimed at pulling America out of the global recession. While much of the American public is occupied with the move to reinstate higher progressive taxes for the upper-end earners (as high as 39.6 percent for singles earning more than $200,000 a year), that isn’t the only major change Obama is looking to make.
Obama is looking to implement progressive increases in capital gains tax. The plan would initially raise the tax from 15 percent to 20 percent. But what does this mean for the market?
Capital gains tax is traditionally viewed as a method by which the government can encourage more long-term investments. The classic example of a capital gains investment is the purchase of property. By offering investors a lower rate of tax, the government can effectively stimulate these supposedly more-secure, longer term investments. The low capital gains tax was one large factor leading to the build up of the housing market boom. But now, we are facing the aftermath of the housing market bust. People aren’t buying and selling…
Fear and Loathing of E-Vegas
There’s no such thing as problem gambling. I should know – during the Winter Olympics alone I won over $7,000 by gambling, and that’s not even including my wagers on Olympic sports. Of course I spent $22,000, but you have to understand that winning comes in cycles, and I think I’m heading back into a hot streak now. It’s complicated – the point is people who enjoy gambling have things under control.
Why, therefore, do we need laws regulating or banning gambling? The fact that problem gambling is a myth takes care of a Hartian positivist/utilitarian justification. This leaves only Fuller and his “natural law”, which in this case amounts to antiquated Victorian morality. With such a foundation, I’d bet that today’s gambling laws are little different in substance from those of a hundred years ago.[1]
Such questions are all the more relevant today because of the rise of online gambling. Anyone who has watched movies on Megavideo knows that there are two rules: 1) there’s a 72-minute limit, and 2) popup ads for a certain gambling website – let’s call it “MartyMoker.com” – are ubiquitous. But are these kinds of betting sites legal? The truth is that in Canada today the answer is not entirely clear.
The situation is complex because online gambling by its nature involves cross-border transactions. It is clear that running an unregulated online casino from within Canadian territory…
Habitual Residence in the EU?
Habitual residence faces considerable uncertainty in the EU. Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003). Habitual residence is the key factor in determining jurisdiction. This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.
a. Habitual Residence in the ECJ
The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far. The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency. Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday. While still in Finland in October 2005, they applied for public housing.
In November, a local welfare agency removed the children to a childcare unit. The mother unsuccessfully challenged this action in a Finnish court. On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland. The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child. Distinguishing between presence and habitual residence,…
The true nature of BITs (at least as I see it…)
On February 19-20 a conference which dealt with recent developments in the field of international investment law took place at Sydney University.[1] About sixty speakers from all around the world gathered for two intensive days of exchanging ideas, debating pressing issues and discussing what seems to be an emerging sub-field of international law. One important trend that was highly emphasised during this conference was the recognition that international investment law is far more public in nature than it was considered to be in the past. The effects of foreign investment on public interests such as the environment, human rights and labour standards are now obvious and the tension between the protection of investments on the one hand, and the governments’ interests in regulating these sensitive fields on the other, is often emphasised in academic writings and arbitration awards.
The conceptual change that international investment law seems to have gone through has not however reached one very fundamental point. To my great surprise, speakers continually repeated the same old mantra concerning the main objective of investment treaties: the objective of investment treaties, so it was argued, is the protection of investors. This, I would argue, carries the same amount of logic as claiming that the objective of preparing a salad is cutting tomatoes. While it is true that Bilateral Investment Treaties (BITs) are designed to provide a protective and stabile environment for investors,…
How the Iranian government breaches its own constitution and still receives the praise of countries during the UN’s seventh Universal Periodic Review
The UN Human Rights Council carried out its seventh Universal Periodic Review on Iran, on February 15, 2010.[1] The UNHRC provided a world forum to country representatives, willing to express their official stand on Iran’s human rights profile and to make recommendations. A close analysis of the Draft Report of the Working Group on the Islamic Republic of Iran, where 53 delegations made statements, reveals certain patterns in the positions of some of the states that took part in the Working Group.[2] These particular states, as discussed below, did not acknowledge the latest human rights abuses in Iran. Just the contrary, they recognized progress on Iran’s human rights record. The failure to acknowledge the latest suspensions of human rights in the Islamic Republic demonstrates how states’ economic priorities of trading with the second biggest oil exporter in the world can effectively undermine the entire international human rights enforcement scheme.
Before discussing the states in question, it is worth mentioning two examples of the latest human rights violations in Iran. In the examples discussed below, the Iranian government suspends human rights by breaching provisions of the Iranian constitution. The use of judicial and military methods like prolonged imprisonment, forced confessions and the utility of legislative techniques aimed at reducing women’s civil rights, all contravene Iranian constitutional guarantees. According to unofficial statistics, there are more than 1000 political prisoners in Iran.[3] In contravention of article 37…
Canada Actively Less-than-Active on Aboriginal Rights in the International Scene
September 13, 2007, was a day like any other, full of political brouhahas from the various corners of the world: then-President Bush addressed the nation on the way forward in Iraq; North Ireland introduced a cattle ear tags numbering system;[1] and Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples.
The Declaration put before the United Nations that day was the result of a process that started in 1985 with the UN Working Group on Indigenous People, given the broadly defined mandate to “give attention to the evolution of international standards concerning indigenous rights”. The general contents of the Declaration include “both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others”. The final vote at United Nations General Assembly that day tallied 143 countries voting in favour of the Declaration, 11 abstentions, and 4 against (Canada, United States, New Zealand, and Australia). While Canada has made various strides in recognizing the rights of its aboriginal peoples, its vote on September 13 provides an example how an overly conservative and protectionist mindset can lead us a step backwards in recognizing the historical wrong-doings to a significant part of Canada’s population.
The Canadian Government provided two broad reasons for voting against the Declaration. The first reason was procedural. During the drafting stage of the Declaration, Canada felt that there was inadequate consultation on several provisions. Agreement within…
BY Philip Duguay
FILED UNDER
Environment
Public International Law
Sustainable Development
South Africa will Strain to Reach its Commitments to the UNFCCC
The last several years have provided for challenging times in South Africa. The country is struggling to find its place in the world in the post-Apartheid age. President Jacob Zuma’s recent State of the Nation address was long on rhetoric, mainly that which extolled the accomplishments of Nelson Mandela (who made a rare public appearance that evening) and the stewardship of the slightly rusty ruling African National Congress party. However, he said very little in the speech to help lay out a firm strategy for economic and social success.
One of the greatest problems in South Africa is that outside of major urban centres the population has only limited access to reliable energy sources. This flies in the face of South Africa’s international energy commitments because ESKOM, which nearly holds a complete monopoly in South African energy production, also provides 45% of the entire continent’s electricity. Of course, this is ‘the dark continent’[1], but South Africans are feeling a power pinch as export demands have been met at the expense of domestic power shortages.
After hosting the World Summit on Sustainable Development in 2002, South Africa made strong legal commitments to reduce its carbon footprint via the United Nations Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol entered into force here in 2005. Despite a rocky start, the South African government recently announced major plans to reduce emissions.
Interestingly, Article 24 of the South African Constitution…
Eroding Impunity for International War Crimes: Criminal Tribunals or National Reconciliation Commissions?
Next week, the International Criminal Tribunal for the Former Yugoslavia is hosting a conference to look back at the 17 years of criminal trials they have held since their founding. Looking back and looking forwards at the legacy of the ICTY and truly calculating its impact is a daunting prospect. Since its creation, the ICTY has been charged with prosecuting the most egregious violations of international humanitarian law during armed conflicts in the Balkans in the early 1990s. The UN Security Council established the Tribunal with Resolution 827 in 1993, with the conviction that “the prosecution of those most responsible for the commission of atrocities during the conflicts would contribute to the restoration of peace and security in the former Yugoslavia.”
Almost two decades later, the spectre of armed conflict no longer looms on the horizon for the former Yugoslav republics, but questions of nationalism and identity are still pervasive. Today’s peace in the Balkans is an uneasy one, punctuated by political flareups. The 2008 declaration of independence by Kosovo is but one example of the recent history of contested outcomes; the matter is still before the International Court of Justice.
But perhaps the ICTY has helped to entrench the notion of turning to courts – whether domestic or international – as a recourse for grievances. “Assessing the Legacy” of the ICTY considers exactly these questions. Although the Tribunal has indicted over 160 person, including…
Power, Politics, and the Adoption of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS)
Intellectual Property Watch (IP Watch) recently reported that discussions of the World Intellectual Property Organization’s (WIPO) Standing Committee on the Law of Patents (SCP) broke down due to disagreement between developed and developing countries.[i] This is but a current example of the ongoing conflict between developed and developing countries over international patent law. The recent origins of this conflict stem from adoption of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) of the World Trade Organization (WTO) in 1994. Under TRIPs, the approximately 150 member states of the WTO committed to adopt, inter alia, global minimum standards for intellectual property (IP) laws.
TRIPS has been controversial from the start. Developing countries and advocates for the ‘intellectual commons’ are of the view that TRIPS jeopardizes developing country access to knowledge and essential medicines that are critical to their well-being and growth.[ii] In contrast, some developed countries, in particular the US, are of the view that TRIPS did not go far or fast enough in establishing a global IP regime: the US is pushing developing countries to accept standards that go further than TRIPS in the bilateral and regional free trade agreements that have flourished as WTO negotiations have stalled.[iii]
The developing countries have legitimate concerns. They are net technology importers and must thus establish and maintain IP systems which will be of little benefit to them in the short term, while reducing their…
