Omar Khadr – When Two Wrongs Don’t Make a Right…?

On Friday, January 29, 2010, the Supreme Court of Canada released its much-anticipated decision concerning the repatriation of Omar Khadr. In Canada (Prime Minister) v. Khadr, 2010, (“Khadr 2010”), the Court upheld the finding of the Federal Court of Appeal that the government of Canada violated Khadr’s Section 7 rights to life, liberty and security protected under the Canadian Charter of Rights and Freedoms (“Charter”). However, on the issue of remedy, the Supreme Court ruled that the government could not be obliged to ask the United States to repatriate Khadr. And so Khadr’s long quest for justice remains an uphill battle after Friday’s decision, leaving it to the government to decide how react (if at all) to its breach of Khadr’s Charter rights and whether it will take any steps to seek his repatriation.

The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize in concrete corrective measures.

I. Extra-territoriality of the Charter

As…

Continue reading this entry ➔

Corruption of Waldo: Where in the world is President Umaru Yar’Adua

The Nigerian president, Umaru Yar’Adua, has been away from his country since November 2009.  No one has seen him. The official line is that he is in Saudi Arabia receiving treatment for an undisclosed illness. On January 12th 2010, he finally acknowledged his countrymen’s concern by calling BBC radio to make a brief public statement to prove that he was not yet beyond death’s door. On January 13th, a federal court declared that Vice President Goodluck Jonathan can perform all presidential duties while the president is away. However, the judgement is ambiguous: Jonathan’s new role lends him no substantive constitutional authority to be acting president, except that transmitted to him by the president.

What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has  failed to soothe tempers. As recently as January 27^th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away, Nigeria has suffered religious unrest in the Niger Delta…

Continue reading this entry ➔

International Consequence to Prorogation

In discussing the principle of democracy in international law in my previous blog entry, I used the 20^th 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 30^th, 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” international law. In my previous entry I…

Continue reading this entry ➔

The Fall of the Wall and the Principle of Democracy

Freedom lovers celebrating the 20 year anniversary of the fall of the Berlin Wall were shocked when faced with a New Berlin Wall a few days ago. U2’s concert in Berlin on November 5^th came with massive barriers to block the view of those without one of the free tickets. Restricting mobility, excluding certain people from a free concert and building a wall in Berlin challenges the very democratic principles which prevailed in this city some time ago. The New Berlin Wall and the always present question of the division along the 38^th parallel of the Korean peninsula brings up the issue of how international law has changed since November 9^th, 1989 – in particular, whether there is a right of democratic governance.

The fall of the Berlin Wall stands as a symbol of democratization, a culmination of a sweeping force that brought many European communist governments to an end. As the boundary between communism and democracy, restriction and supposed freedom came down, the question of the right to democratic governance in international law arose.

As a starting off point, the ICJ in its 1986 Nicaragua decision held that international law did not have any customary norms regarding internal forms of government. Such a view is consistent with the fundamental (read: out-dated) principle of sovereignty – the one which finds its roots in the Peace of Westphalia. However, sovereignty, like many other principles, is subject to change.…

Continue reading this entry ➔