Posts tagged ‘Canada’
Strange Things Done in the Midnight Sun
Most systems of property law, like exorcists, attach special importance to possession. Once someone is in possession of a given piece of property, it is usually a demanding process to have them removed by force of law (pro tip: try holy water). The same has historically been true in matters of international territorial sovereignty. More often than not, the country which simply takes possession of territory will win out over others which may have more legitimate claims. Yet how can a state “take possession” of land which is uninhabitable? It doesn’t take a Neil Armstrong to tell you that the answer is by planting flags.
For some reason Canada seems unwilling to practise flag-planting as much as other countries. Today we have the excuse that most of our flags are hanging over Olympic podiums. But this wasn’t always the case, and our nervousness about throwing flags around is putting our claims of Arctic sovereignty at risk. These claims are important, and could translate into tall cash, since shrinking ice coverage and advancing technology will make it more practical to extract resources such as oil and natural gas from the Arctic seabed in the future.
Don’t let the United Nations Convention on the Law of the Sea (UNCLOS) fool you into thinking that flag-planting isn’t a legal basis for an Arctic claim. According to Part VI of the UNCLOS, states…
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…
SCC Unconvincing in Khadr Decision
The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court for an order that he must be repatriated which was successful and subsequently upheld on appeal.
Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:
participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice[i]
The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new”…
International Consequence to Prorogation
In discussing the principle of democracy in international law in my previous blog entry, I used the 20th anniversary of the fall of the Berlin wall as a starting point. I wondered whether the blueprint for German reunification at the turn of the decade of the 80s could be used eventually for Korean reunification. As the 00s give way to the 10s, I find myself more compelled now than before to write about another “threat to democracy.” While such a phrase may conjure up a slew of George W. Bush speeches discussing his “crusades” to the Middle East, the threat of which I speak is not overseas, not even in a different continent, but here in North America. It is in Canada. While saying that Prime Minister Harper’s move to prorogue parliament on December 30th, 2009 is a threat to democracy and an affront to international law may seem like a slight exaggeration, the background of the prorogation makes it internationally relevant.
Authoritarian Leadership
This blog is certainly not the forum to engage in an ideological debate. Moreover, prorogation of Parliament is not unusual. Since Canadian Confederation, the Parliament has been put on hold 105 times. However, it is the timing and circumstances of this prorogation which has drawn nationwide criticism. While this is not a problem under Canadian domestic law, it is arguably contrary to “soft”…
BY Andrew Cleland
FILED UNDER
Corporate Social Responsibility
Human Rights
Humanitarian
Private International Law
Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?
In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.
The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later…
Last Week in International Law
1. Prosecutor v. Karadzic
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…
BY Andrew Cleland
FILED UNDER
Criminal Law
Human Rights
Humanitarian
Immigration and Refugee Law
Public International Law
Last Week in International Law
1. Prosecutor v. Karadzic
Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.
For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.
2. R. v. Munyaneza
On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.
Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present…
