But what do international law and the Arab protests have to do with books and movies about an orphan raised by his uncle setting off on a quest to destroy an evil lord, guided by a wise old wizard (yes, the plots are all the same)? Well, the point is that many observers feel like “something should be done” to help save the heroes from violence at the last minute – and there is often a hazy feeling that international law can fill this role.

This very sentiment was expressed recently in a speech by Justice Rosalie Abella of the Supreme Court of Canada. Justice Abella asks whether the phrase “rule of law” has become a mere euphemism in an age where it is used by dictators to defend the repression of their own citizens. She goes on to track the evolution of the “rule of justice” – consisting of civil liberties and human rights – in the West, which was helped along by revolutions against autocrats and the horrors of the Holocaust in World War II. Justice Abella wonders where the momentum for an enforceable system of human rights and civil liberties in the international sphere has gone today – and why we hide inaction behind the excuses of “cultural relativism” or “domestic sovereignty”.

To Justice Abella’s point about the rule of law, it is true that this phrase becomes a euphemism when it is used by dictators. The principle of the rule of law is that there must be a law to which everyone – including a country’s rulers – is subject. For most countries, a constitution fills the role of the supreme law, which places firm limits on the actions (and term) of the government. Internationally, the “rule of law” can be illusory because there is no enforceable supreme law placing limits on the actions of states. Countries today can only be bound through voluntary treaties; like contractual law but without any public policy protections. Efforts to intervene in crises through principles of international law such as the “Responsibility to Protect” (R2P) have not been highly effective because they can only be acted upon when there is consensus among UN (or at least Security Council) members.

In the speech, Justice Abella compares the UN with the World Trade Organisation, and wonders whether countries ruled by tyrants should even be admitted to the UN. However, the UN, unlike the WTO, does not have a single overriding goal other than to keep countries talking. In the words of Winston Churchill, “it is better to jaw-jaw than to war-war.”[1] The WTO has the goal of eliminating barriers to trade, and so can set admission criteria accordingly. In contrast, the UN is open to any country willing to engage in the international conversation.

What of the criticism of phrases such as “cultural relativism” and “domestic sovereignty”, which are so often responsible for nurturing inaction by the international community? In truth, these concepts have their roots in history – and in the West’s colonial wrongdoing. During the colonial period, the West really did attempt to impose its values (and culture and religion) on the rest of the world by force. The legacy of these actions remains present today. Many in the developing world are extremely hostile to any attempt by the West to force its own governance systems on them. In addition, many in the West are extremely hesitant to repeat the mistakes of colonialism.

The Cold War prolonged many pernicious elements of colonialism, even during the era of formal decolonisation. The United States and the Soviet Union both supported dictators around the world – some of whom, such as Egypt’s former President Hosni Mubarak, remained in power in the modern age. Compounding this phenomenon is the tendency of corrupt governments and dictators in the developing world (and particularly Africa) to stand together in solidarity against outside (Western) interference. The location of strategic resources – especially oil – further hinders efforts to impartially enforce an international rule of law.

When all of these factors are taken together, we are left with such a labyrinthine web of overlapping influences, that it’s actually amazing that any achievements in an international rule of law (such as peacekeeping forces, sanctions against violators of the Nuclear Non-Proliferation Treaty, and the International Criminal Court) have occurred. The legacy of colonialism has created hostility among the developing world and guilt among the West, prolonging a strong attachment to the notion of national sovereignty. The recent debacle of the Iraq War has further embittered opinion about how the West should and shouldn’t intervene against dictators.

In short, inaction in the realm of modern international law is often the result of so many bad actions taken in the past. International law at present does more to support sovereignty than intervention because it was designed to do so. I say this not in order to defend the existing system of international law, but to explain it.

In her speech, Justice Abella raises important questions about the international rule of law, and why more isn’t being done to help those struggling for democracy in the Middle East. For better or worse, there are answers to these questions. Though we may find such answers unsatisfying, only by understanding the origins of the present system of international law can we hope to improve it.

Because honestly, why didn’t the eagles just drop the ring in mount doom in the first place?

INTERNATIONAL LAW: JUST IN TIME?

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second purpose, legal pluralism, by casting a shadow of skepticism on the deeply held centralist ideology, can then step in to offer an alternate paradigm that suggests the existence of several overlapping normative legal systems with exist in tandem with the state legal system. As Griffith famously wrote, “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.[6]

Legal pluralism generally describes a situation where two or more legal systems or legal orders coexist in the same social setting.[7] Legal systems include those beyond the state system, such as religious or customary legal systems.[8] Legal pluralism also recognizes that legal mechanisms can also be found in other social settings, such as villages, families or churches, where rules and conventions exist, inducing compliance.[9] This leads to a definition of legal pluralism as “the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‘semi-autonomous social fields”.[10] This definition is not without its numerous criticisms and variations, as will be explored in more detail shortly. Nonetheless, by identifying the existence of ‘overlapping semi-autonomous social fields’, the definition breaks away from the legal centralism ideology, and opens up the possibility for other normative legal orders to stake a claim to authority.

II. Separating State Legal Pluralism and Deep Legal Pluralism

In attempting to more carefully craft out a meaningful definition of legal pluralism, some legal pluralism scholarship has found it useful to separate the notions of “state” legal pluralism and “deep” legal pluralism.[11] State legal pluralism is a direct product of colonialism, in which setting colonialist states attempted to accommodate customary law with the state system.[12] Under such a conception, the sovereign still commands authority through a unitary state legal system. Non-state laws exist insofar as they are ‘recognized’ by the state authority. Such a state system exhibits a level of internal plurality, as some of the laws contained within the overall system trace their origins to non-state legal normative orders, notwithstanding the fact that they are specifically state approved. State legal pluralism is not inconsistent with the notion of legal centralism. Rather, it represents “a particular arrangement in a system whose basic ideology is centralist”.[13] Such an arrangement is able to persist, due in part to the treatment of non-state law as imperfect, and thus in need of a centralizing authority’s supervision.[14]

The shortcomings of state legal pluralism are threefold. First, it is destructive to the aspirations of groups genuinely seeking to assert their own laws. Hinz frames this as the right to one’s own right – the right of individuals to be governed by that legal order they most closely associate with and thereby view as authoritative.[15] Second, and tied closely to the first point, is that state legal pluralism prejudices an individual’s standing before the law. An individual adhering to non-state laws will be perceived as adhering to imperfect, albeit acceptable, laws.[16] Third, as a pragmatic objection, state legal pluralism usually entails a high level of complexity.[17] While on one level, non-state laws are circumscribed to the extent that they will be recognized by the state, on another level, the very presence of multiple laws will necessitate that a choice of law rule be instituted. Such a rule may be necessary in instances where state and non-state laws apply to a given situation and the court must decide between the two.

Deep legal pluralism breaks free from the paradigm of state legal system, and posits that for any social group, two or more legal orders may coexist and not belong to a single unified system.[18] Deep legal pluralism is an attempt by legal scholars and anthropologists to chart the empirical reality of people’s state of affairs. It is sharply critical of the legal centralist dogma that social affairs, or even principles, are solely a function of state law. Rather, multiple and overlapping normative legal orders exert authority on social life. These multiple systems or orders are not unified under any single legal system. Rather multiple sets of laws may emanate from multiple sources.

Concluding Remarks

The present surge of interest in “legal pluralism” in the global legal domain calls for a deep exploration on what the term hope to bring into any particular discussion. Readers must be acutely aware that the term brings with it an eclectic of meanings and criticisms, and thus they would do themselves much justice by attempt to situation any particular discussion accordingly.

[2] John Griffiths, “What is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1 at 3.

[3] T. W. Bennett, “Comparative Law and African Customary Law” in Mathias Reimann & Reinhard Zimmerman, eds., The Oxford Handbook of Comparative law (Oxford University Press: 2006) 641 at 666.

[4] Ibid.

[5] Griffiths, supra note 2 at 3.

[6] Ibid. at 4.

[7] S. E. Merry, “Legal Pluralism” (1988) L. & Society Rev. 869 at 870.

[8] Legal systems would also rise in such setting as to family, church, business, etc. See Griffiths, supra note 2.

[9] Bennett, supra note 3 at  667

[10] Griffiths, supra note 2.

[11] Merry, supra note 7. Also see Griffiths, supra note 1.

[12] Griffith refers to this as “weak” legal pluralism. It has since been referred to as “state” legal pluralism by Merry, Woodman and others. The term state legal pluralism seems more desirable given the potentially polemical connotations connected with “weak” legal pluralism.

[13] Griffiths, supra note 2 at 8.

[14] Ibid.

[15] Manfred O. Hinz, “Legal Pluralism in Jurisprudential Perspective” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 35.

[16] Woodman, however, he disagrees with the validity of this criticism. See Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[17] Ibid. at 161.

[18] Griffith, supra note 2 at 8. Griffiths refers to this as “strong” legal pluralism.

Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the extraterritorial application of the Charter necessarily entails an extraterritorial assertion of enforcement jurisdiction (Hape, para. 85).[1] I believe that this assertion is incorrect and has lead to the mistaken assumption that aside from fundamental human rights exceptions, the extraterritorial application of the Charter is only possible with the foreign state’s consent.

In his commentary on this case, Professor Forcese suggests that the Court in Hape causes confusion by positing that the extraterritorial application of the Charter overseas must necessarily engage extraterritorial enforcement jurisdiction. In Hape, LeBel J. correctly asserts that applying the Charter entails both prescriptive and enforcement jurisdiction. But from this premise, he incorrectly moves to conclude that to apply the Charter overseas, we must always enforce it extra-territorially. As I stated in my last post,

While enforcement is most definitely required, I see no reason why it cannot occur entirely within Canada. Doing so might not be as effective as extraterritorial enforcement, but it would still deter Canadian authorities and agents operating overseas from acting in a manner that is inconsistent with the Charter (especially those who plan to return to Canada).

Thus, I submit that there are instances where the extraterritorial application of the Charter is possible without having to send Canadian agents overseas to enforce it.

The factual circumstances in Amnesty International demonstrate that applying the Charter overseas does not necessarily entail an extraterritorial assertion of enforcement jurisdiction. Firstly, the actions to be limited by the Charter were the formal arrangements entered into by Canada and Afghanistan regarding the transfer of detainees, and the decisions of the Canadian Forces to transfer detainees. Applying the Charter in this situation would not involve sending Canadian agents overseas to enforce the Charter. It would primarily require the Chief of the Defence Staff to negotiate a detainee transfer agreement that contains the appropriate safeguards against torture; and require the Canadian Forces to refuse to transfer a detainee where there is evidence of a risk of torture. As Forcese argues, “Canada would not be applying its norms to foreign actors, just asking its own nationals to abstain from overseas behaviour inconsistent with the Charter.”

Secondly, it is always possible to enforce the Charter by arresting or summoning those who violate the Charter overseas once they return to Canada. The threat of sanctions or the loss of the ability to return to Canada would deter most state actors from violating the Charter. Moreover, in this case, Canada could easily have arrested or summoned the primary defendants because they were senior state actors (the Chief of the Defence Staff, the Minister of National Defence, and the Attorney General of Canada) who spent a lot of their time in Canada. Thus, contrary to what many may think after reading Hape, it is possible to apply the Charter to overseas action without asserting extraterritorial enforcement jurisdiction.

I disagree with Mactavish J.’s conclusion that applying the Charter to the actions of the Canadian Forces in Afghanistan would result in an “impermissible encroachment” on the sovereignty of Afghanistan (para. 212). Instead of determining whether applying the Charter overseas would have actually interfered with Afghanistan’s sovereignty and then looking for consent, she jumped straight to establishing whether Afghanistan had consented to the application of the Charter (para. 145). She did so after accepting Hape’s assertion that the extraterritorial application of the Charter necessarily entails asserting extraterritorial enforcement jurisdiction (para. 121). This assumption lead her to conclude that if Afghanistan did not consent to the application of the Charter, there would be interference with its sovereignty (para 127). Thus, her reliance on Hape meant that she never actually examined the nature of the assertion of jurisdiction required to apply the Charter overseas and determined whether it interfered with Afghanistan’s sovereignty. Having already obtained consent from Afghanistan to detain individuals on Afghan soil and signed an agreement with Afghanistan governing the transfer of detainees, Canada would not have interfered with Afghanistan’s sovereignty if it refrained from transferring detainees until the adequate safeguards were being followed.

It is most disappointing that the SCC did not hear this case and clarify under what circumstances the extraterritorial application of Charter actually demands extraterritorial enforcement. Without such clarification, it seems like judges will assume that enforcement jurisdiction is always necessary when applying the Charter overseas, and thereby, conclude that Canada must obtain the foreign state’s consent to avoid violating its sovereignty. As I argued in my last entry, the consent of the foreign state should not be the determinative factor for establishing whether the charter applies outside of Canada. The analysis should first determine whether the extraterritorial application of the Charter to the specific circumstances raised by the given case, would actually interfere with the sovereignty of the foreign state. Only if it does so, should the court move to establish whether the foreign state has consented to the Charter’s application.

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 have an exclusive right to extract minerals and other non-organic resources from the seabed of the continental shelf extending from their territory. States are required to make any claims to continental shelves within 10 years of their ratification of the UNCLOS, and claims must be supported with scientific data showing the outer limit of the continental shelf. Because Canada ratified the treaty in 2003, it has until 2013 to submit its claims.

While Canada has been nerdily collecting the required scientific data, other countries have been taking decisive action. In 2007, Russia sent someone 4.3km to the bottom of the ocean under the North Pole to plant a Russian flag. Last fall, Russia also announced plans to drop paratroops on the North Pole this spring (an exercise planned by Artur Chilingarov, the same man behind the undersea flag-planting expedition).

The natural response is that flag-planting and similar gestures are legally insignificant. As then-Minister of Foreign Affairs Peter MacKay put it, “this isn’t the 14^th or 15^th century”. The unimportance of such moves is underscored by the amount of energy all sides put into talking about how unimportant they are. After MacKay’s response to the flag-planting incident, the Russians agreed that it had no legal bearing. MacKay more recently (as Minister of Defence) responded defiantly to the announcement of the paratrooping mission, which the Russians again emphasised had “no legal meaning”. The Danish government also agreed that the undersea Russian flag doesn’t have “any impact on any legal claims”. They should know: Denmark planted flags on the disputed Arctic rock called Hans Island in 1984, 1988, 1995, 2002, and 2003.

Canada put one flag on Hans Island in 2005, Stephen Harper has visited the Arctic four years in a row, and the Canadian Forces have been carrying out Arctic training missions with increasing regularity. But to solidify its Arctic claims, Canada needs more of these unimportant, legally insignificant gestures. Boring old scientific data backing our claims may technically help us in international law, but it won’t do any actual good against the might of undersea foreign flags, since overlapping claims under the UNCLOS will have to be negotiated by the states involved.

In the meantime Canada should be making it rain flags on the Arctic seabed. There is a unique opportunity right now since the world’s flag-planting champions, the Americans, haven’t yet ratified the UNCLOS, and as such haven’t submitted any claims to the continental shelf. If in the meantime Canada acts to create “facts on the ground”, we could gain the same benefits that possessors have in domestic property law. Canada should also be wary of Russian invitations to hold a dialogue on the issue, continuing in April at a meeting of Arctic Council nations in Moscow. According to an article by Canadian time-travellers from the future, Russia will spurn an invitation to become a founding member of the Circumpolar Arctic Treaty Organisation in 2015.

It’s difficult to exorcise someone from property which they possess. Admittedly, the UNCLOS ascribes no importance to moves such as planting flags on the seabed or having politicians visit certain areas. All of the important players in the scramble for the Arctic continental shelf also agree that these actions are legally meaningless. But if you believe that, then I’ve got a patch of Arctic seabed to sell you – dollars or roubles accepted.

IGNORE THEM, UNCLOS

Photo by Sgt. Gerry Pilote

Lurking behind the Afghan detainee transfer scandal is the issue of whether the Canadian Charter of Rights and Freedoms (the Charter) applies to government action that occurs outside of Canada. The Charter itself provides no definitive answer because it does not contain an express territorial limitation. Section 32(1)(a) of the Charter only stipulates that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament …”. Writing for the majority of the Supreme Court of Canada (SCC) in R. v. Hape, LeBel J. held that the extraterritorial application of the Charter is impossible without the consent of the foreign state (para. 85).[1] While I support the ruling in Hape, I believe that given the chance, the SCC should explicitly narrow this conclusion to situations where Canadian authorities or agents would be enforcing the Charter in a foreign state. Beyond a situation that demands extraterritorial enforcement, an interest analysis should replace consent as the determinative factor in the assessment of whether the Charter applies outside of Canada.

The primary limitation on the reach of the Charter is Canada’s obligation to respect the sovereignty of other states (Hape, para. 59). Sovereignty is perhaps best thought of as the supreme power of each state to exercise jurisdiction on its territory and over its inhabitants without interference. Three organizing forms of asserting jurisdiction guide LeBel J.’s analysis of when sovereignty is undermined:

Prescriptive jurisdiction … is the power to make rules, issue commands or grant authorizations that are binding upon persons and entities. … Enforcement jurisdiction is the power to use coercive means to ensure that rules are followed, commands are executed or entitlements are upheld. … Adjudicative jurisdiction is the power of a state’s courts to resolve disputes or interpret the law through decisions that carry binding force (para. 58).

Whenever it exercises one of these forms of jurisdiction on the territory of a foreign state or over its citizens, Canada is potentially interfering with the sovereignty of a foreign state.

The difficulty lies in determining when such interference amounts to an “objectionable extraterritorial effect” that actually demands the limitation of the reach of the Charter. Of the three forms of asserting jurisdiction, the extraterritorial assertion of enforcement jurisdiction is the most intrusive and thereby, the most ‘objectionable’ to a foreign state (Hape, paras. 63-64). It is intrusive because unlike extraterritorial prescriptive and adjudicative jurisdiction, extraterritorial enforcement jurisdiction actually involves sending state agents to the foreign territory to ensure that the law is followed. If Canada were to use its agents to enforce its laws in a foreign state, it would be undermining that state’s monopoly on coercive power. International law stipulates that the extraterritorial assertion of enforcement jurisdiction is inappropriate unless the foreign state consents to it (Hape, para. 65). Thus, the extraterritorial application of the Charter depends upon whether it demands extraterritorial enforcement, and where it does, whether the foreign state has consented to it.

As the commentaries of Professors Craig Forcese and James Stribopoulos suggest, it is possible to apply the Charter outside of Canada without resorting to extraterritorial enforcement. This assertion runs contrary to LeBel J.’s assessment in Hape of what the application of the Charter entails. In Hape, he posits that both prescription and enforcement jurisdiction are necessary to apply the Charter. He goes on to reach the following conclusion:

since extraterritorial enforcement is not possible [without the foreign state’s consent], and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible (para. 85).

I take issue with this conclusion because applying the Charter outside of Canada does not necessarily mean exerting extraterritorial enforcement jurisdiction. While enforcement is most definitely required, I see no reason why it cannot occur entirely within Canada. Doing so might not be as effective as extraterritorial enforcement, but it would still deter Canadian authorities and agents operating overseas from acting in a manner that is inconsistent with the Charter (especially those who plan to return to Canada).

The majority of the instances in which the Charter might apply outside of Canada will not violate the sovereignty of the foreign state because they will not involve extraterritorial enforcement. As Professor James Stribopoulos argues,

[Hape] does not raise any issue about ‘enforcing’ the Charter in the Turks and Caicos Islands. The appellant’s trial was taking place in Canada. He was seeking the exclusion of evidence in Canadian proceedings. The basis for his claim was not anything done by foreign officials – it was the actions of the R.C.M.P. officers that was the subject of his complaint. How would requiring those officers to comply with the Charter undermine or even encroach on the sovereignty of Turks and Caicos?

In Hape, LeBel J. acknowledged that “comity is not necessarily offended where a state’s courts assume jurisdiction over a dispute that occurred abroad … , provided that the enforcement measures are carried out within the state’s own territory” (para. 64).[2] The extraterritorial effects of applying the Charter in such instances are minimal and hardly objectionable.

Hape should not be read as establishing a general rule that the Charter does not apply outside of Canada. It should be narrowed to establish that the Charter does not apply where doing so necessitates an extraterritorial assertion of enforcement jurisdiction. Furthermore, the consent of the foreign state should not be the determinative factor for establishing whether the charter applies outside of Canada. Courts should only limit the application of the Charter where the sovereignty of another state is unreasonably interfered with. The analysis should focus on both the nature of the assertion of jurisdiction required, and the reasonableness of that assertion, weighing the interests of both Canada and the foreign state in extending the reach of the Charter to the specific circumstances raised by the case.

Sovereignty is not absolute and comity is a two way street. Each country accepts a certain amount of interference where it is reasonable. Just as Canada should resist enforcing its law in a foreign country where it does not have a significant interest to do so, that foreign country should accept that Canada may have an interest in applying the Charter to check the behaviour of its authorities and agents overseas.

[2] Comity refers to informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation (Oppenheim’s International Law, at pp. 50-51).