In the eyes of many, regionalism and multilateralism stand stubbornly pitted against one another, despite implicit recognition of the “desirability” of RTAs in Art. XXIV:4 of the 1947 version of the General Agreement on Tariffs and Trade (GATT).[4]

Since the establishment of the Committee on Regional Trade Agreements (CRTA) in 1996, the WTO has scrambled to find ways to effectively control the impact of RTAs. This futile mission to tighten RTA regulation has been driven by a persistent fear of trade diversion, as well as by the assumption that regionalism—and the agreements springing from it—is subordinate to the multilateral regime.

WTO regulation of RTAs has evolved since 1947, notably with the introduction of the 1994 Understanding on the Interpretation of Article XXIV of the GATT 1994 and the creation of the Transparency Mechanism for RTAs in 2006. These regulations remain however, narrow and ambiguous. Article XXIV thus continues its long history of being systematically flouted by member states with the WTO as little more than “an innocent bystander” to the overwhelming spread of regionalism.[5]

Under the GATT 1947, regionalism was permitted as an exception.[7] RTAs were accepted, but only to the extent that they complied with the terms of GATT Art. XXIV. It is this exception ethos that reinforces the “conceptual primacy of multilateralism,” which undermines the legitimacy of RTAs.[8] In many respects, this attitude has contributed to the disregard of GATT Art. XXIV.

It is time to reconceptualize the relationship between the WTO and RTAs. Regionalism is a permanent feature of the multilateral trading regime and “a natural path of human civilization.”[6] WTO regulation of regional trading blocs must begin by acknowledging this firmly entrenched reality. Many discussions of regionalism use the “building blocks” versus “stumbling blocks” rubric to debate the trade creation/diversion effects of RTAs on the multilateral regime. Scholars and policymakers line up along one side or the other, vehemently espousing the benefits or drawbacks associated with regional trading blocs.

These criticisms however, miss the point. Firstly, regional blocs are not necessarily a step on the way to something else; they are an end themselves. Secondly, it is no longer constructive to debate the advantages and disadvantages of RTAs, particularly within this building block/stumbling block paradigm. Doing so artificially narrows the scope of analysis. The impacts of RTAs are part of a single category: effects of regionalism. Separating these effects into the “good” and the “bad” has lost its practical relevance. The WTO should instead focus its efforts on redefining the broader relationship between regionalism and multilateralism. The question remains: where do we go from here?

[2] Ibid.

[3] John Jackson quoted by David A. Gantz in Regional Trade Agreements: Law, Policy and Practice (Durham: Carolina Academic Press, 2009) at 31.

[4] General Agreement on Tariffs and Trade, 30 October 1947, 58 U.N.T.S. 187, Can. T.S.1947 No. 27 (entered into force 1 January 1948) [GATT 1947], Art. XXIV:4.

[5] Richard Baldwin, Multilateralising Regionalism: Spaghetti Bowls as Building Blocs on the Path to Global Free Trade (2006) NBER Working Paper No. 12545 at 37.

[6] Sungjoon Cho, “Breaking the Barrier Between Regionalism and Multilateralism: A New Perspective on Trade Regionalism” (2001) 42:2 Harvard International Law Journal 419 at 419.

[7] Ibid, at 421.

[8] Ibid.

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 would be illegal. But what about Canadians betting on websites based in other countries? At the present time, there seem to be no laws addressing this question. Internationally however, there are several models we could follow.

In the United States, prohibition is the rule. The 1961 Wire Act, which banned gambling using phone lines, has been used by the federal government as the basis for strong action against international gambling websites with American customers. The Unlawful Internet Gambling Enforcement Act updated the Wire Act and required financial institutions not to transfer funds to gambling sites. This led to the arrest of two Canadian heads of an “e-wallet” company which had transferred money from U.S. residents to online casinos. More recently, the Gibralter-based parent company of the aforesaid “MartyMoker” site paid over $100m to the U.S. government after admitting to targeting Americans in its advertising (though the Megavideo ads remain).

Clearly the American government’s efforts are misguided. Having sampled both interpersonal and internet-based gambling, I can attest that the latter is to be preferred. By providing your credit card number to an online gambling site, you only risk personal insolvency – which is much less painful for my thumbs than becoming indebted to a bookie. For this reason, the British approach – legalisation and regulation – is far more practical.

The 2005 UK Gambling Act made online casinos legal, with regulations to keep internet gambling free of crime, fair and open, and to protect minors and vulnerable adults. The British government has even attempted to work with other countries to draft a code of conduct for online gambling sites, though the U.S. did not participate in these talks. An approach similar to Britain’s has been adopted in other EU countries. But if Canada must choose a system, my personal recommendation is to follow the Caribbean nation of Antigua’s lead.

Antigua has made itself a haven for online casino corporations catering to Americans, who make up a majority of their customers despite the U.S. government’s policies. Furthermore, Antigua has actively stood up for the industry. In 2003 Antigua filed a complaint with the WTO against the U.S. for its anti-internet gambling laws, arguing that the laws in question were inconsistent with the U.S.’s obligations to allow for the free flow of goods and services. The American laws were upheld in a 2005 appeal as “necessary to protect public morals or to maintain public order”. However the WTO held that the American Interstate Horseracing Act, which allows for interstate electronic betting on horse races, creates a discriminatory policy, since equivalent international betting is prohibited. The U.S. has been ordered either to allow comparable international gambling (an International Law of the Seabiscuit?), to outlaw all electronic gambling equally, or to pay compensation to other WTO members. So far the U.S. has not implemented the WTO orders, and Antigua now seeks permission from the WTO to violate American intellectual property law as an enforcement mechanism.

Antigua’s openness to online gambling companies isn’t just logical from a legal standpoint, it’s good business. I myself have contributed several hundred dollars to the Antiguan economy just while writing this article. But if Canada followed Antigua’s lead in international electronic gambling, we could be the next E-Vegas! Just imagine: instant access to a wide variety of home-grown internet gambling operations, with all the corresponding social benefits…

In the meantime, if any burly fellows are asking around for someone of my description named Rusty Shackleford, I don’t know anything about it.

THAT'S ME WITH THE ORANGE HAT

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 access, on affordable terms, to necessary technology and drugs. The question thus becomes: How did TRIPS come to be adopted? While there is no single or simple answer to this question, Drahos and Brathwaite, in their article Who Owns the Knowledge Economy: Political Organizing Behind TRIPs[iv] offer one insightful, if sobering explanation.

Drahos and Brathwaite argue that TRIPS was adopted by members of the WTO as a result of a failure of democratic processes. On the one hand, a small group of IP industry leaders successfully convinced the US, the EU and Japan, the dominant patent-holding countries, to adopt stronger IP rights as the central element of their trade agenda.[v] On the other hand, developing countries lacked IP expertise in trade negotiations, they were largely absent from the IP negotiations, and they lacked bargaining power in the face of US trade sanctions and the US-EU-Japan block. Compounding this problem was the fact that the movement to protect the intellectual commons was still under-developed. Where it existed, it was scattered and under-resourced.

The authors set this struggle over intellectual property rights in its modern context. While patent systems were initially designed to confer benefits on inventors, multinational corporations have become the dominant holders of IP rights. IP rights confer monopoly benefits on multinationals. Knowledge based corporations use the power conferred by IP rights to establish ‘knowledge cartels’ to control the use of their patented knowledge, to control the supply of patented products, and to set high prices for their products, which include drugs. They justify the price as reflecting their discovery and development costs.

Once these patents expired and generic manufacturers produced drugs far more cheaply, drug companies expanded into developing country markets as part of their growth strategy. The fact that these countries offered little or no IP protection at the time did not matter because these countries did not have the knowledge capacity to reproduce patented goods. However, as developing countries such as India and Brazil gained technological expertise, they were able to manufacture, far more cheaply, products such as drugs which they and their neighbouring countries urgently needed. Developed countries began to question the costs of drugs in their markets, and thus the relationship between patents and prices. Drug makers saw their market share beginning to erode and, more importantly, their IP asset base threatened.

Drahos and Brathwaite argue that this was the motivating factor that led Pfizer, IBM and other IP-reliant corporations to effectively mobilize their industries and lobby the US (and ultimately the EU and Japanese authorities). Their message was simple: American knowledge and inventions were being stolen by countries which did not have strong IP protection regimes. Widespread adoption of US-style IP protection was necessary to protect American jobs and wealth. The US government ‘bought’ the message, and ultimately compelled developing countries to adopt their IP agenda through the strategic use of unilateral trade threats and sanctions, bilateral agreements, and the WTO.  Despite certain differences in their point of view, the EU and Japan supported the adoption of an ‘international IP code’.

Some developing countries, including India, resisted. However, India’s absence at several critical meetings, and the relentless pressure of key developed countries, meant that the interests of corporate IP holders, now adopted by their governments, prevailed. Drahos and Brathwaite are of the view that, while transnational activism against the use and extension of IP rights has developed, this activism may be too isolated to “force governments to design IP rights that serve the welfare…of citizens.”[vi]

The authors are correct to emphasize the need for concerted efforts. Their cautious outlook is justified by accounts of how poorly TRIPS is suited to developing country needs, and by accounts of how the developed world is continuing to push for enhanced IP rights.[vii] Nonetheless, there are some reasons for hope. Sell and Morin outline how NGOs and developing countries are using discourses of bio-piracy, fairness and access to medicines to successfully restrain TRIPs.[viii] Commentators are turning their attention to how TRIPs can be made to work for developing countries.[ix] De Beer and Harris argue that developing countries are exercising their growing clout and improved tactical capabilities to demand fairness,[x] as is evident in their unwillingness to back down in WIPO, reported by IP Watch, above.

Drahos and Brathwaite’s article provides an insightful account of how this controversial agreement came to be. Their work is part of an important literature that looks critically at intellectual property in a number of ways: by examining the impact of the characterization of the patent’s limited monopoly grant over inventions as private “property rights”; by highlighting how the original intention to incent and reward inventors has been manipulated as IP has become corporately owned; and the role that private interests have played in defining public concerns and policy priorities in the realm of international law. A clear understanding of how power relations structure the role and function of the patent system over time is necessary if the system is to be adapted to meet the needs of developing countries.

[ii] Peter Yu, Five Disharmonizing Trends in the International Intellectual Property Regime, Michigan State Univ. Coll. of Law Legal Studies Research Paper, No. 03-28, 2007. www.ssrn.com|abstract=923177.

[iii] In fact, (source).

[iv] Peter Drahos and John Brathwaite, “Who Owns the Knowledge Economy: Political Organizing Behind TRIPS”, Corner House Briefing Papers, Briefing 32, September 2004. Available online at: http://www.thecornerhouse.org.uk/item.shtml?x=85821

[v] Susan Sell provides a similar analysis of how, in her words, “the IP lobby was particularly effective in translating their private interests into a matter of public interest.”See: Susan Sell, Private Power, Public Law: The Globalization of Intellecutal Property Rights, Cambridge University Press 2003, p. 99. Hereinafter Sell

[vi] Drahos and Brathwaite, supra note iv at page 32.

[vii] See, for example, Susan Sell, supra note v, chapter 6.

[viii] See for example, Sell, ibid; see also Jean-Frédéric Morin, The Strategic Use of Ethical Arguments in International Patent Lawmaking 3 Asian J. WTO & Int’l Health L & Pol’y 518 2008.

[ix] E.g., Sean A Pager, Patents on a Shoestring: Making Protection Work for Developing Countries, 23 Ga. St. U. L. Rev. 755 2006-2007.

[x] Jeremy de Beer, (ed) Implementing the World Intellectual Property Organization’s Development Agenda, Wilfrid Laurier University Press, 2009; Donald P. Harris, TRIPS and Treaties of Adhesion Part II: Back to the Past or a Small Step Forward? 2007 Mich. St. L. Rev. 185,

This latest crisis in Sino-Google relations has taken on international significance beyond just the opening of another front in the ongoing trade disputes between China and the United States, and it represents more than just the latest development in the long-lasting ideological clash between the Chinese government and western internet service providers Google, Yahoo, and Microsoft. And while this isn’t the first time an American corporation has sought to impose its will on a foreign government, this may be the first such standoff that has an ideological or public international law dimension to it. Among other things, it prompted US Secretary of State Hillary Clinton to declare last week that the United States intends to advance “internet freedom” at the United Nations.

One interesting question that comes out of this is whether corporations of Google’s stature will be able to shape the policies of state actors in much the same manner as they can those of industry players. For example, Apple and then Google transformed the wireless industry when they required cellular providers to significantly alter their practices which restricted free access to information as a condition to carrying their newly-developed cell phones; will Google similarly be able to compel the Chinese government to alter its policies concerning access to information by threatening to leave the country? It is a threat the Chinese government must take seriously; aside from the direct economic benefits that China gains from having Google offices in the country, China to some extent relies on services like Google’s to connect its citizens with the rest of the world in areas like business, science, and art – and thereby fuel China’s cultural and economic growth.

Of course, the flip side of this is the vast amount of profits Google stands to forego by removing itself from the Chinese market. China is by far the world’s largest online community, with close to 400 million internet users. Notwithstanding its corporate motto of “don’t be evil,” it seems unlikely that Google would threaten to turn its back on such a large market over a silly ideological dispute over free speech unless 1) the move is nothing more than a negotiating tactic, or 2) it considered its operations in China to lack growth potential. If the move is just a negotiating tactic vis-à-vis the Chinese government, it can be seen as evidence of Google’s footprint in international affairs, even if the bid is ultimately unsuccessful. And if Google doesn’t foresee long-term growth potential in China, one must ask to what extent a free-flowing marketplace of ideas is central to what Google does.

If Google proves incapable of bending China to its will through the sheer force of its economic clout, there are a number of international forums through which Google could further exert pressure on Beijing. The most likely, perhaps, is the WTO. Indeed, a number of American business interests have already begun lobbying for the US Trade Representative to invoke WTO treaties to compel China to relax its internet censorship. These groups allege that China has violated its commitment to allow unlimited and equal access to foreign internet services by essentially requiring such services to either self-censor, in compliance with government guidelines, or relocate outside of China’s borders where they would be subject to limited accessibility behind the “Great Firewall of China” or potentially banned altogether.

Access to information is an area that is currently woefully under-regulated, with norms varying enormously from one place to another based on cultural and market factors. It could be argued that in an information-based and globally-linked society like ours, this is an impediment to trade that the WTO is well-placed to address.

Most countries censor or control information on the basis of moral or political grounds; from a positivist standpoint, it is no less legal for the Chinese government to intercept dissidents’ emails or block news pertaining to certain political events than it is for the US government to monitor the conversations of suspected terrorists or block access to child pornography. However, the ethical question of who should lawfully be able to restrict the flow of information, and on what basis, is still very much open, as evidenced by the ongoing net-neutrality debate in the US and the expanded debate on legitimate limits of free speech. If the present matter is brought before the WTO for mediation, it would first prompt a much-needed general discussion on the question of whether there is a need to regulate access to information on a global level in today’s technological climate, and second go a long way toward determining the principles by which it might be regulated (for example, appealing to UN declarations such as the International Covenant on Civil and Political Rights).

“Africa could rightly be described as the major theatre of contemporary cases of shared sovereignty.”[1]

It is the hope of many African leaders that greater cohesion in African trade will lead to more firm patterns of national development. Formalizing the international trade sector within Africa could lead to greater national tax revenues, a freer exchange of ideas, labour and technology across borders, the stabilization of regional agricultural and natural resource markets, and greater cooperation over shared infrastructure projects such as the creation of highways, waterways development, and even the deployment of green technology such as wind energy projects.[2]

While more flamboyant African leaders such as Muammar Gaddafi stress the need for pan-African unity (Gaddafi even calling for a United States of Africa), smaller regional unification bodies are already active. Most Westerners might be surprised that much of West Africa, the nations of the Economic Community of West African States (ECOWAS), already has a unified currency between fifteen nations. Since its creation by treaty in 1993, ECOWAS trade commissioners from a diverse array of fields attempt to integrate trans-national policies on social affairs, water resources, energy, and security matters. Just as NATO intervenes in foreign conflicts, when civil unrest unfolds in member states, such as recently in Guinea, ECOWAS applies strong diplomatic and military pressure to uphold the rule of law.

The East African Community (EAC) was first launched in 1967, but was then dissolved and later re-launched after a treaty agreement was signed in 1999 between its three original member states: Kenya, Tanzania and Uganda. Burundi and Rwanda later became full members of the EAC. The EAC has worked to harmonize national and municipal laws and strengthen the training of the judiciary within the community. The East African Passport was introduced with the creation of the modern EAC, and alongside efforts to decrease trade tariffs it has been integral to helping people and goods move across borders with relative ease. Citizens of NAFTA countries should be so lucky! The EAC envisages sharp integration in terms of foreign policy and a full monetary union under its common market – although no timetable has been set for this.[3]

Another strong regional body in Africa is the Southern African Development Community (SADC), which was established in its modern form during the waning days of Apartheid via treaty in 1992. The SADC also tackles a variety of issues, including the reduction of drug trafficking, preservation of shared waterways, and legal harmonization. A free trade area was launched in August 2008 and the SADC’s member states are now collectively pursuing investment in their national economies. The relatively light hand applied to the deteriorating situation in Zimbabwe demonstrates that the SADC lacks the diplomatic strength of a body like ECOWAS. Instead, the organization seems to focus on shared goals in economic development more than on the cultivation of shared political institutions.

An interesting development has been the launching of the Common Market for Eastern and Southern Africa (COMESA), which since its creation via treaty in 1993 has fostered closer links between the nations of the SADC and the EAC, among other nations. The United Nations Economic Commission for Africa (ECA) has long pushed for regional integration in this region,[4] which is bound together through aspects of its colonial and post-colonial identity, as well as geographic avenues of trade that makes such integration beneficial to regional development goals.[5] COMESA also extends to other nations not involved in formal regional political integration schemes, such as Ethiopia, Eritrea, Egypt and Libya. However, not all nations of the aforementioned bodies have taken part in COMESA, notably Tanzania who quit its involvement in the year 2000.

It is also notable that the nations of the Maghreb and North Africa have to this date made very few concrete efforts to engage in regional economic integration. While The League of Arab States has as its goal the promotion of commercial relations between Arabic speaking peoples, this has not translated into large-scale economic integration in the Arab world, including North Africa. Rather, the Arab League has served as a socio-political organization. Maghreb states have toyed with the idea of further economic and political integration but planning is still in the development phase.

ECOWAS, the EAC, the SADC and COMESA can all play a role in driving economic development in Africa. In particular, they can help businesses feel safe to expand across borders through more strict and clear regulation and through ensuring that proper arbitration systems are in place. Amazu Asouzu writes that post-colonial African states have traditionally not trusted larger arbitration regimes such as the International Centre for Settlement of Investment Disputes (ICSID). These states viewed “arbitration as an alien system of justice devised to subvert the institutions and interests of developing states.”[6] Political enforcement of such legal mechanisms, through mutually beneficial regional development, can play a role in helping businesses enter new markets, create jobs, and improve the lives of African peoples.

The right to development stresses the indivisibility off human rights, and the inter-linkages between civil and political rights, on the one hand, and economic, social and cultural rights, on the other.[7]

However, this brand of economic development must be coupled with a human rights and social agenda in mind – one that is backed up by diplomatic and military force if national leaders get out of hand. ECOWAS, however belatedly or poorly, has flexed its muscles to bring its member states into line on these issues. The SADC has failed to recognize these principles in its dealings with Zimbabwe. Using a dualistic socio-economic approach, the aforementioned regional bodies can be active members in helping African peoples recognize their collective right to development.

[The author will spend six months in 2010 blogging from Cape Town, South Africa, covering topics related to regional integration issues in African governance, particularly energy, trade, and security concerns.]

[2] Henry Kibet Mutai, Compliance with International Trade Obligations: The Common Market for Eastern and Souther Africa (Boston: Kluwer Law International, 2007) at 104.

[3] Ibid at 119.

[4] Ibid at 129.

[5] Ibid.

[6] Amazu A. Asouzu, International Commercial Arbitration and African States (Cambridge: Cambridge University Press, 2001) at 412.

[7] Tiyanjana Maluwa, International Law in Post-Colonial Africa (Boston: Kluwer Law International, 1999) at 312.

McKay has brought the bill forward in the hopes that it will alter what he sees as an inexcusable state of affairs concerning the global mining industry’s effects on the populations of developing nations.[1] Detractors of the bill note that the extractive sector of Canada has already enacted very stringent Corporate Social Responsibility (CSR) guidelines after the National Roundtables on Corporate Social Responsibility of 2006. For them, more regulation simply re-invents the wheel.[2]

Bill C-300 takes both a ‘reflexive’ and ‘de-centred’ approach to international law. David Doorey describes the role of reflexive law:

“The theory is that a state can influence through indirect means the practices of multinational private actors beyond the borders of the regulating state. The principal regulatory tool to accomplish this task is mandatory disclosure of information about the foreign practices of the multinational actor. … This has implications for the multinational actor, which must reflect upon how the information will be received by actors across the planet and how it may be used by antagonistic forces to harm or impede its own internal goals and objectives. In theory, requiring transparency about global labour practices could contribute to a climate in which the worst employers are punished, and the best rewarded.”[3]

Reflexive law also exists in other regions of Canadian legislation. While it is not entirely similar, the new Crimes Against Humanity and War Crimes Act allowed a Canadian criminal court to try and convict Désiré Munyaneza, a foreign national, for crimes committed overseas. In that vein, our national criminal code has ripple effects overseas. A national law has a foreign deterrent effect.

Doorey goes on to describe the role of de-centred industry regulation:

“The notion of a decentred state supports a pluralist vision of regulation. Regulation that is decentred, or responsive, or reflexive, perceives for the state an indirect role in the governance of complex social and economic matters, a role as facilitator and motivator of the norm-producing potential of non-state actors. Decentred law involves, then, the regulation of the “contextual conditions” of self-regulation, or the “regulation of self-regulation,” but with the instrumental intent of achieving state objectives.”[4]

This type of “de-centred” regulation is far from new in Canadian lawmaking. For example, the Canadian Radio-television Telecommunications Commission has a quasi-appellate oversight power over the Canadian Broadcast Standards Council, which is a privately operated group who supervise and self-impose content regulations on the vast majority of private broadcasters in Canada. Mining companies have begun to collectively self-regulate since the National Roundtables on CSR, but without the government oversight mechanisms Bill C-300 requires.

At its heart, this type of law is not at all ‘international’ in scope. This law would never apply in any international court setting, or affect private arbitration efforts. Yet, all companies drawing finance from Canadian institutions must submit the information requested. In the information age, this could lead to global consequences for companies and the populations they influence and employ. Human rights campaigners often engage in the “politics of shame” to mobilize public sentiment and drive international law forward, and shame actors into more acceptable boundaries of public opinion (and in some cases the law, although the two are not always synonymous). It seems that, in a way, similar motives are behind this piece of legislation.

John McKay noted that Bill C-300 would put only a “teeny-tiny little break” on “some mining companies” in what is undoubtedly a hugely profitable sector. Robert Wisner, a partner at the McMillan law firm in Toronto with a practice in mining and natural resource law, thinks otherwise. He believes that the law would interfere with the jurisdictions of foreign countries. He also believes the bill would regulate extra-territorial affairs, and affects companies disproportionately to their potential relationship with Canadian markets and Canadian pension plan dollars. The bill would make even “good companies” re-think investing in developing countries, something that would hurt their economies through job losses, lack of infrastructure development, and other mining related activities. Wisner contends that this law would function in a punitive fashion for companies, and would not allow foreign legal jurisdictions the time and power they need to develop their own mechanisms for coping with extraction sector malfeasance.  David Doorey agrees with this final sentiment, when he explains that “the most effective way to improve labour practices is to empower local workers and local states to build countervailing powers to that of global and domestic capital … [one must] measure the potential contribution of disclosure regulation by its ability to advance this agenda.”[5]

According to John McKay, this bill will have a very hard time emerging from committee, and even then it stands to have a very difficult time passing through both the floor of the House and the Senate. Professor Richard Janda of the McGill University Faculty of Law, believes that if passed, the law will “send a clear signal that CSR is not simply in the domain of public relations or corporate largesse, but it is in fact part of the framework of norms and rules that can reinforce the social license to operate on which our companies rely, particularly as they operate abroad.”[6]

Policymakers must ask themselves, are they happy with the status quo? If not, such reflexive law might provide a unilateral and domestic avenue for affecting the global operations of mining companies. This non-spending private members bill also allows the opposition parties great say in an international CSR matter without having control over the various ministries involved in its implementation. However, the potential negative impacts are many and must be weighed accordingly. Allowing mining businesses to totally self-regulate does not seem like a feasible way to monitor the concerns of those negatively affected by mining activities in developing nations, or the minders of Canadian public pension dollars. Yet, the law could potentially be stymied by a less-than-enthusiastic Conservative Party administration, and might become the mere window-dressing it claims to be able to replace. In any case, reflexive and de-centred law serve as examples of innovative Canadian legal structures that if properly implemented can add to our rich sense of legal pluralism in Canada.

[Disclosure: As a research assistant for Professor Richard Janda (Faculty of Law, McGill University), the author is a collaborator with the Ecology of Collapse Working Group, an interdisciplinary team of researchers seeking policy solutions to current economic, social, and environmental issues. Professor Janda submitted a brief and testified in support of Bill C-300 to the Parliamentary Standing Committee on Foreign Affairs and International Development on 8 October 2009.]

[2] Interview of Robert Wisner [Partner, McMillan Toronto] by Philip Duguay (5 November 2009) at CKUT 90.3FM studios, Montreal.

[3] David J. Doorey, “Who Made That?: Influencing Foreign Labour Practices through Reflexive Domestic Disclosure Regulation” 43 OSGHLG 353 at 357-8.

[4] Ibid at 366.

[5] Ibid at 400.

[6] Brief submitted by Richard Janda to the House of Commons Standing Committee on Foreign Affairs and International Development (8 October 2009) on behalf of the Canadian Network on Corporate Accountability. For a copy of this brief contact Richard Janda.

On November 5, the UN International Criminal Tribunal for the former Yugoslavia postponed the trial against former Bosnian Serb leader Radovan Karadzic until March 2010. Karadzic ended his boycott of the proceedings earlier this week, saying it would be “criminal” if he had “to enter a trial for which I am not prepared.”

As discussed last week, Karadzic’s boycott of the trial led judges to begin hearing the prosecution’s case and warning Karadzic to appear in court or risk being tried in absentia.  Besides postponing the trial, the tribunal has also appointed a lawyer to represent Karadzic.

Karadzic has vowed to resist the imposition of counsel.  He has seven days to apply for permission to appeal the ruling, and another seven days thereafter to file an appeal.

2. Lisbon Treaty

The Lisbon Treaty was officially ratified by the last European Union member state, the Czech Republic, on 3 November 2009. It is expected to officially become law in December.

The treaty is an attempt to make the EU more cohesive and influential on the worldwide stage, though some critics have seen it as a threat to national sovereignty. The treaty grants new powers to the European Commission, the European Parliament and the European Court of Justice.  Legislation will now be decided by “co-decision” by the parliament and the European Council.  A major change regards the president of the Council.  Currently, countries take turns at being president for six months, but under the treaty a chosen politician will serve as president for 2 ½ years.

A reference to the Charter of Fundamental Rights in the treaty makes it legally binding for member states, but the full text is not printed. Conversely, some countries chose to “opt-out” of certain provisions of the Charter. Poland has an opt-out from parts of the Charter concerning abortion, and the Czech Republic has an opt-out concerning property claims by expelled Germans after WWII. The Irish Republic and the United Kingdom have the right to opt in or out of any policies in the entire field of justice and home affairs, and currently have opted-out of the policies of asylum, visas and immigration.

3. Canada Challenges EU Ban on Canadian Seal Products

Canada’s seal-products dispute with the European Union is being brought to the World Trade Organization for settlement. Trade Minister Stockwell Day claims Canada will be arguing that the seal hunt is “a legitimate economic pursuit” and Europe’s ban on Canadian seal products, adopted in May of this year, is a violation of the EU’s trade obligations.

Canada has previously instituted new rules to ensure each seal is killed quickly and painlessly after an earlier draft of the seal product regulation legislation left the door open for exemptions to countries that could certify their hunting methods are humane.

4. Climate Change Treaty not Legally Binding

United Kingdom climate Secretary Ed Miliband stated on November 5^th that it is highly unlikely that a new legally binding climate treaty will be agreed on this year and only a political deal is likely.

This may be the first time UK ministers have acknowledged the unlikelihood of the treaty achieving anything legally binding.  Miliband has stated that he hopes a political agreement will lead to a legally binding treaty.  He told the BBC: “I think an agreement without numbers is not a great agreement. In fact it’s a wholly inadequate agreement.”

5. RCMP arrest alleged Rwandan War Criminal

This week the Royal Canadian Mounted Police have arrested Jacques Mungwarere, a 37-year-old Rwandan man living in Windsor, Ontario.  Mungwarere is charged with committing genocide in Kibuye, Rwanda under the Crimes Against Humanity and War Crimes Act.

After a brief court appearance in Ottawa on November 7^th, Mungwarere has been remanded in custody and his case held over until November 12.  Mungwarere is only the second person to be charged under Canada’s Crimes Against Humanity and War Crimes Act, and his arrest follows the October 29 decision by Justice André Denis of the Quebec Superior Court who handed down a life sentence to Désiré Munyaneza, with no chance of parole for 25 years.

RCMP Sgt. Marc Menard has reportedly confirmed that there is a connection between Mungwarere’s case and the recently concluded Munyaneza prosecution, although these concerned a different area of Rwanda.

6. Prosecuting Election Violence in Kenya

International Criminal Court prosecutor Luis Moreno-Ocampo has stated on November 7^th that he believes there is a strong case against some of the people allegedly responsible for the crimes committed during Kenya’s post-election violence.  The prosecution will need to move quickly in this case, if they seek to heed crisis mediator Kofi Annan’s warning that failing to prosecute the architects of the killings could pose the risk of further violence erupting again during Kenya’s next election in 2012.

According to Moreno-Ocampo, it is possible the trial will take place in Kenya, or at the court in Arusha in Tanzania where suspects from Rwanda’s 1994 genocide have been prosecuted.  Kenyan leaders have decided not to refer the case to The Hague, but have promised to co-operate with Moreno-Ocampo.  There has been some speculation that those responsible include cabinet ministers, parliamentarians and businessmen.

As we are all well aware, the international credit crisis, which came to the fore in 2008, resulted in the collapse or near-collapse of financial institutions and sources of credit for businesses around the world – causing trade levels, investment and global output to plummet, and thousands of jobs to disappear. In the fall of 2008, there were fears that a depression similar in intensity to the Great Depression of the 1930s was looming. In response, many states announced significant injections of capital into troubled financial institutions and industrial sectors to avoid their collapse, and to facilitate access to credit by industry. They also adopted measures to stimulate domestic demand.

Global leaders, particularly those representing the G20 group of countries, also moved to take a coordinated approach to the crisis. The G20 leaders first met in November 2008 for a Summit on Financial Markets and the World Economy, where they issued a Declaration in which they promised to “work together to restore global growth and achieve needed reforms in the world’s financial systems”.[3] As part of this declaration, the G20 leaders made four trade-related commitments:

1. To refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing WTO-inconsistent measures to stimulate exports.
2. To minimize any negative impact on trade and investment of our domestic policy actions, including fiscal policy and action in support of the financial sector.
3. To notify promptly the WTO of any such measures; and
4. To call upon the WTO, together with the Organization for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD) to monitor and report on their adherence to these undertakings.

In late September, the WTO, the OECD, and UNCTAD released their second report on the G20 countries’ adherence to these undertakings: Report on G20 Trade and Investment Measures.[4] The report identifies approximately 280 measures undertaken by G20 countries between April and September. The report expressly reserves opinion as to the legality of the measures under WTO rules, or their trade-distorting nature. While the authors did not find “widespread” resort to trade and investment restrictions as yet, they did find “policy slippage” and pointed to multiple examples of protectionist measures adopted by G20 members, including agricultural export subsidies, tariff increases, new non-tariff measures, and trade defence mechanisms.[5]

In June 2008, the UK-based Centre for Economic Policy Research launched Global Trade Alert (GTA), a service providing real time information on state measures taken during the current global economic downturn that are likely to discriminate against foreign commerce. The GTA also issued a report shortly before the G20 meeting in September with its own analysis of the extent to which the G20 has “kept its promises” to avoid protectionism. The report, Broken Promises: a G-20 Summit Report by Global Trade Alert, identifies over 400 trade-related, state initiatives undertaken in the wake of the crisis.[6] It distinguishes between three types of measures:  those that almost certainly discriminate against foreign commercial interests; those that may discriminate against foreign commercial interests; and those that are either non-discriminatory or involve liberalization.[7] The study finds that “the overwhelming picture is one of planned and implemented state initiatives that reduce foreign commercial opportunities and reverse the 25-year trend towards open borders.” It estimates that worldwide, the number of discriminatory measures being implemented outnumbers the liberalizing measures by five to one.[8] The GTA finds that the impact of these measures is cause for significant concern: fewer than 5 percent of product categories, 20 percent of economic sectors, and a small number of trading jurisdictions have not been affected by any significantly restrictive measures.[9]

The two reports offer slightly different views as to the current intensity of trade protectionism. However, they are in agreement that the main challenge associated with the current protectionist mindset is the fact that many more protectionist measures are ‘in the pipeline’- planned and approved, but not yet implemented. They both stress that the main risk to the trading system is that states will continue to cede to protectionist pressures. Both caution that the continued implementation of protectionist measures will further erode trade liberalization achievements, and, more importantly, will hamper the global economic recovery. Both urgently recommend that governments plan a coordinated exit strategy to eliminate these elements as soon as possible.

The G20 leaders have announced their intention to prepare exit strategies.[10] However, they have merely agreed to implementation “when the time is right”. In light of the many trade protectionist measures still in the pipeline, their failure to commit to a timeline could contribute to aggravating the contraction of world trade and investment, which would undermine confidence in an early and sustained recovery of global economic activity. Stronger action is required.

[2] G20 Summit Declaration, “The Global Plan for Recovery and Reform”, London, 2 April 2009.  Accessed online October 25, 2009 at http://www.g20.org/Documents/g20_summit_declaration.pdf.

[3] Ibid.

[4] Report on G20 Trade and Investment Measures, September 2009. Accessed online October 25: http://www.pittsburghsummit.gov/documents/organization/129863.pdf.

[5] Ibid, at page 6.

[6] Simon J. Evenett (ed), Centre for Economic Policy Research, 2009. Accessed online October 25:  http://www.globaltradealert.org/sites/default/files/Broken_promises_GTA_second_report.pdf.

[7] Ibid, at page 18.

[8] Idem, at page 13.

[9] Idem, at page 4.

[10] http://www.g20.org/Documents/pittsburgh_summit_leaders_statement_250909.pdf.