Dodd-Frank and Unintended Consequences

While the  Dodd-Frank Wall Street reform act, passed in 2010, was mostly concerned about financial reform, it included a provision, Section 1502, chiefly through the efforts of Congressman Jim McDermott, aimed at increasing transparency about mining activities in the DRC by forcing US companies to disclose whether the sources of their mining activities were in certain areas of the DRC or unspecified neighbouring companies.

The result has been devastating to say the least. David Aronson’s op-ed in the NY Times last summer details some of the unforeseen damage on the mining industry in the eastern part of the country:

The law has brought about a de facto embargo on the minerals mined in the region, including tin, tungsten and the tantalum that is essential for making cellphones. The smelting companies that used to buy from eastern Congo have stopped. No one wants to be tarred with financing African warlords — especially the glamorous high-tech firms like Apple and Intel that are often the ultimate buyers of these minerals. It’s easier to sidestep Congo than to sort out the complexities of Congolese politics — especially when minerals are readily available from other, safer countries.

While a recent UN report acknowledges some successes of the legislation, it notes that the falling production due to the law has led to “”rising unemployment and worsened poverty among the tens of thousands…

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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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“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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Israel’s other refugee question

This past August, visiting Israel for the first time and staying with a friend in south Tel Aviv, I was immediately struck by the number of African faces I saw in her neighbourhood. These Africans, I was informed, were migrants mostly from Eritrea, Darfur, and Southern Sudan (now the Republic of South Sudan) who were seeking protection in Israel under the 1951 Refugee Convention. You see, until that point, my knowledge of Israel’s refugee issues extended only to the question of the right of return of the Palestinians expelled in 1948 and their descendants. As a “final status” issue in Palestinian-Israeli negotiations and one that cuts to the core of the national identities of both factions, it is easy to understand how this new class of African refugees can escape the attention of human rights lawyers and advocates abroad.

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows,…

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Change of Guard / Changement de garde

Dear Friends,

Thank you for following Legal Frontiers this past year. We are proud to have successfully completed almost two years in publication. This year, we were proud to have initiated some new changes to the blog. In addition to our student contributors, we were able to solicit high calibre Guest and Special articles from external experts on international law.  Further, we increased our French language article contribution – an important step toward our vision of a truly international law blog. Recently, we also introduced an interview section to the blog that is aimed at illuminating the experiences of international legal practitioners. It has been an enjoyable year filled with many great reads and great comments.

On behalf of the 2010-2011 executive, I would like to welcome the new 2011-2012 Legal Frontiers Executive. This year we will have two Contributors-in-Chief, Keiran Gibbs and Raphael Girard.  Our Executive Contributor will be Kim Lee.  We look forward to exciting changes to come under their mandate.

Chers amis,

Nous avons été heureux d’apporter quelques nouveautés au blogue cette année. En plus des contributions étudiantes, nous avons eu la chance de publier des articles de haut calibre rédigés par des experts en droit international. De plus, nous avons augmenté le nombre de publications en français – un pas important vers la réalisation de ce qui constitue un blogue véritablement international à nos yeux. Nous avons aussi…

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Healthy (or insignificant) minimum price-fixing differences in EU and North America

Unfortunately, this post merely adds to the voluminous commentary on different approaches to resale price maintenance (“RPM”)–minimum price-fixing in particular–between the EU and North America.  Since EU and US changes in RPM rules in 2010 and 2007 respectively, commentators have been clawing into the topic, before judges get the chance to hammer into these different approaches.  Some argue for similarity, but I argue that the difference is (1) healthy and (2) in practice unimportant.

Before addressing those arguments, a little background.

What is RPM? RPM is when a manufacturer controls the prices at which distributors sell goods.  Minimum price-fixing is where the manufacturer sets the lowest price at which distributors can resell goods.

Is minimum price-fixing anti-competitive? The lawyer’s response: “it depends.”  Minimum price-fixing has anti-competitive effects when manufacturers or distributors (a) collude to police cartels or (b) exclude competitors by eliminating their ability to compete by lowering prices.  Minimum price-fixing can however have pro-competitive effects when used to help introduce products, encourage distributor promotions, ensure uniform distribution, enhance experience-related products, and reduce free-riding.

How does EU law approach minimum price-fixing? EU law is not a friendly venue for minimum price-fixing.  Article 101(1)(a) of the Treaty on the Functioning of the European Union (“TFEU”) broadly forbids price-fixing.  The EU Block Exemption Regulation 330/2010 includes minimum price-fixing as…

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Spousal Abuse’s Grave Risk to Children Under the Hague Abduction Convention

My previous post discussed the potential impact on women of the Hague Convention on the Civil Aspects of International Child Abduction, with a focus on ne exeat orders as rights of custody.  I briefly mentioned the problems surrounding women who flee from domestic violence, when their abuser uses the Convention to affect a child’s return to the previous habitual residence.

In short, the Convention requires a court to return a child to the child’s previous habitual residence when someone–almost always a parent–abducts the child across borders.

While the Hague Abduction Convention most often provides a valuable and useful remedy, spousal abuse victims face particular difficulties when they leave a country with their child to avoid further abuse.

The Convention provides an exception to return under Article 13(b) when returning the child to the previous habitual residence will cause a grave risk of harm or an otherwise intolerable situation for the child.

While at first glance this would appear to provide safety for mothers who cross borders with their children to flee spousal abuse, this has not proved true in international case law.  Instead, courts have construed this exception so narrowly that in many cases courts have sent these children–and in effect their mothers as well– back to the previous habitual residence where the abuser lives to determine custody arrangements.

This practice can be observed in case law from…

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On Kenya and State-funded Defences of ICC Accused

Recently, it was reported that the Kenyan government was considering financing the defences of the six Kenyans whom the International Criminal Court’s (ICC) Chief Prosecutor, Luis Moreno-Ocampo, has recently applied to have summoned to the Court on the basis of evidence that they participated in crimes against humanity during the post-election violence of 2007-2008.  More recently, Kenya, with the support of the African Union (AU), has announced its desire to have the investigation deferred by the Security Council, pursuant to Article 16 of the Rome Statute.  Indeed, on February 2^nd 2011 AU Commissioner, Jean Ping, sent the UN Security Council a letter requesting the deferral.[1]

Despite committing to the creation of a special tribunal for the post-election violence in December 2008, to date, the Kenyan government has failed to establish national trials and the special tribunal has yet to materialize.  Under pressure created by the Prosecutor’s application, Kenya is once again suggesting that it will create such a tribunal.  Even if the ICC’s Pre-Trial Chamber finds that there are reasonable grounds to believe that any or all of the suspects have committed the crimes alleged in the Prosecutor’s application and so grants the application,[2] the positions of the Kenyan administration and the AU seem sure to interfere with any further progress.

A point of particular interest in the ICC’s fraught relationship with the Kenyan government is the fierce…

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The UN for the Declaration of the Rights of Indigenous Peoples Finally Signed by Canada

The United Nations Declaration on the Rights of Indigenous Peoples adopted on September 13th 2007, which ‘establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples’ [1] was finally signed by Canada on November 12th, 2010. [2] Canada has unashamedly hailed itself as being a protector of human rights. The truth is that Canada has an embarrassing human rights record and this signing can be seen as a pivotal moment in Canadian history. Canada has continually missed the mark by failing to address Aboriginal concerns and grievances. Often times, we as Canadians pride ourselves in upholding tenets of human rights and conservation of freedom. When we speak of human rights violations, images of the developing countries and the “others” over “there” come to our minds; seldom do we think of the grave injustices committed against people right here. Considering the reluctance and at times, inaction of the Canadian government to address human rights concerns, it is important to reflect upon the history of the struggle of Aboriginals in Canada [3]and upon the effect of signing the Declaration.

The Canadian Constitution states that there are three founding nations of Canada. They are the French, British and First Nations; however, the latter is not equally recognized in Canadian…

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The Canadian Government & Omar Khadr’s Plight

On 25 October 2010, more than 8 years after being brought into US custody, Omar Khadr, pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying. On 31 October a Military Commission at the U.S. Naval Station in Guantanamo Bay, Cuba, sentenced him to 40 years in confinement. 

Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole.  On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.

The terms of the plea agreement are severe.  Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit.  In addition, while…

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