The Security Council passed the Resolution under Chapter VII of the UN Charter, which allows the Security Council to issue binding decisions to maintain or restore international peace and security. Thus, member states are obliged to take domestic measures to implement the Resolution’s sanctions against the Libyan regime. This post provides a brief overview and comparison of the specific domestic initiatives that Canada, the UK, and the US have taken to implement UNSCR 1970 at a domestic level.

Canada
On February 27, one day after the passage of UNSCR 1970, Canada adopted Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures. The Governor General made these regulations under the authority granted by the Special Economic Measures Act (SEMA). The Special Economic Measures Act grants the Governor General the authority to make regulations to impose sanctions against a foreign state when Canada is obliged to through its membership in an international organization or when there is a threat to international peace and security.

United States
On February 25, one day prior to the passage of UNSCR 1970, Barack Obama issued Executive Order 13556 Blocking Property and Prohibiting Certain Transactions Related to Libya. Although the sanctions took the form of an Executive Order, which are made and issued under the sole authority of the President, the authority to make such an order stems from the International Emergency Economic Powers Act (IEEPA). The Act gives the executive branch broad authority to impose commercial restrictions in response to foreign threats, provided that the President has declared a national emergency with regards to the threat (as Obama did with respect to Libya, also on February 25 2011).

United Kingdom
The Libya (Financial Sanctions) Order 2011 came into force on February 27, 2011.

As was the case in Canada and the United States, the UK’s financial sanctions were implemented in the form of an executive order. The source of executive authority to do so is the 1947 United Nations Act, which confers authority in the Queen to apply Security Council measures (except those involving the use of armed force) in the UK.

A Comparison of Domestic Implementations
In Canada, the United States, and the UK, financial sanctions against the Libyan regime were effected through exercises of executive power.

The Canadian and American sources of authority for the exercise of executive power were rooted in specific pieces of legislation authorizing financial sanctions against foreign powers where there is a threat to peace and security (SEMA and IEEPA, respectively). These tools allow for the implementation of financial sanctions without an order from the Security Council. As such, they allowed for financial restrictions that extended above and beyond those required by the Security Council (e.g. the extension of sanctions to additional persons and entities), and in the case of the US, allowed the domestic implementation of financial sanctions to pre-empt the Security Council’s formal resolution.

In the UK, however, the Queen derived her authority for implementing financial sanctions from the United Nations Act, which requires first the passage of a UNSCR. Unlike the Canadian and American regulations, the UK financial sanctions statutory instrument thus makes direct reference to UNSCR 1970 and adheres strictly to the designated persons and financial instruments referred to therein.

The US and Canadian approach, in which there is a pre-existing framework authorizing the executive to implement financial sanctions against a foreign power (irrespective of the existence of a UNSCR), is advantageous because it allows the executive to take voluntary measures to pass regulations more stringent than that require by the Security Council without having to wait for UN action. The UK approach, which is dependent on Security Council Resolutions, creates a more tempered and delayed response. At the same time, in requiring UN action, the UK approach to foreign financial sanctions might provide foreign investors with greater reassurance that they will not be deprived of their assets as a result of arbitrary, unilateral executive action, as might be the risk in the US and Canada.

While the unanimous adoption of UNSCR 1970 was well justified, the need for a review of sanctions and protection against arbitrary, unilateral action is still important. The behaviour of the Libyan regime is certainly deplorable, but the fact is that UNSCR 1970 and its domestic implementations are open-ended in their duration and provide little (if any) channel for review.

Aside from Libyan investors and the Libyan regime itself, the effects of such sanctions are far-reaching and may have unintended consequences. For example, one need not look further than the more than 500 Libyan students in Canada and 1900 students in the US whose scholarships from the Libyan government are in jeopardy (“Libyan students fear asset freeze”).

No matter how just the cause, unilateral and arbitrary exercises of executive power, particularly in the context of financial sanctions, must be practised judiciously, contain adequate measures for review, and have regard to the full range of consequences.

The current escalations relate to the investigation being carried out by the Special Tribunal for Lebanon (STL) into the 2005 assassination of former prime minister Rafiq Hariri, who actively opposed the Syrian occupation of his country and had been contemplating a return to politics at the time of his death. His bloody assassination galvanized the nationalist, anti-Syrian movement in Lebanon, sparking massive public demonstrations and international outcry which led in a matter of weeks to the end of Syria’s 29-year occupation of the country. STL was established at the behest of the Lebanese government and pursuant to UN Security Council Resolution (UNSCR) 1757, which referred to the assassination as a “terrorist crime.”

This is the first time an international tribunal of this kind has been set up to investigate and prosecute an act of terrorism. Ordinarily, such bodies are mandated to try people for wide-scale war crimes or crimes against humanity, usually heads of state or high-ranking military or government officials. Indeed, preliminary UN investigations pointed the finger at high-ranking Syrian and Lebanese officials, resulting in the arrest of four Lebanese generals; however, all four were released last year due to a lack of evidence. A Der Spiegel report in May of this year revealed that the evidence was now pointing in a different direction. Saad Hariri, Rafiq’s son and the current prime minister of Lebanon, recently called his earlier allegations of Syrian complicity “a mistake” and repudiated his sworn statement to STL, while a detailed exposé published by CBC two weeks ago documents vast amounts of evidence implicating Hezbollah in the assassination. This has fuelled speculation across the political spectrum in Lebanon and abroad that indictments against Hezbollah leaders are imminent. Hezbollah chief Hassan Nasrallah has pledged not to allow the arrest of its members and has attempted to block STL’s investigation through legislative means, by publicly calling for non-cooperation with STL, and by hinting at violence if the investigation proceeds. In August, he tried unsuccessfully to implicate Israel in the assassination, and while these efforts were seen internationally as a sign of desperation they were popular among large segments of the Lebanese population – approximately half of which believes Israel is likely guilty. Many outspoken opponents of Hezbollah, including Lebanese Druze leader Walid Jumblatt, have been calling for national unity out of fear that STL indictments could irrevocably destabilize Lebanon; there are even rumours that Saad Hariri may reach an agreement with Nasrallah to prevent further escalation.

Given the extreme volatility of the situation and the calls for caution coming from Lebanese politicians of all stripes as well as from the governments of Syria, Turkey, Saudi Arabia, and Qatar, it is possible that this may simply be allowed to quietly blow over for expedient’s sake. However, at this point it seems more likely that STL will issue indictments against senior Hezbollah leaders. Aside from the practical consequences such a move could have for Hezbollah, Lebanon, and the Middle East, it could also have far-reaching implications for the international community’s ability to combat terrorism.

This puts to the test the spate of anti-terrorism provisions adopted by the Security Council over the last decade and a half or so, particularly after September 11, 2001. UNSCR 1373 legally binds all UN member states to ensure that any person who participates in the financing, planning, preparation, or perpetration of a terrorist act be brought to justice. UNSCR 1566 reaffirms this imperative and specifies that:

Criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act […]are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.

Both resolutions were adopted unanimously and explicitly invoke Chapter VII of the UN Charter, and were cited by the Security Council as a basis for taking action against the perpetrators of the Hariri bombing. The scope of these resolutions, along with the practical relevance of the terrorism label in an international law context, is now being put to its most serious test – leaving aside the clichés about one man’s terrorist being another man’s freedom fighter, is there any point in having anti-terrorism provisions on the books if they can’t be acted on even in the rare situations where broad consensus actually exists?

How far is the international community prepared to go in pursuit of justice when the justice sought may entail profoundly adverse political and security consequences for UN member states? If Hezbollah responds with force to prevent its members from standing trial on terrorism charges, how should the UN respond? The Security Council has repeatedly called for the disarmament of Hezbollah in resolutions 1559 and 1701, pursuant to international law as well as the latter’s obligations under the 1989 Taif Accords. Following the 2006 conflict with Israel, the UN Interim Force in Lebanon (UNIFIL) was bolstered to nearly 15,000 troops, but thus far has refused to take any part in disarming Hezbollah, which operates a private militia that by all accounts is far more powerful than the Lebanese army.

Currently, Hezbollah is regarded categorically as a terrorist movement by only three governments – those of the United States, Canada, and Israel – though a number of others use the adjective to describe its military wing or certain of its actions. Despite the efforts of the US and the international community to prevent Hezbollah’s rearmament, reports indicate that Syrian and Iranian arms shipments to Hezbollah are continuing apace and include increasingly advanced munitions. But if Hezbollah resorts to violence against a UN-sanctioned body to thwart the activities of STL, in violation of over a dozen Security Council resolutions, the UN will come under increasing pressure to declare Hezbollah to be complicit in terrorism and to respond accordingly.

The forcefulness of this response (or lack thereof) will say a great deal about the international community’s determination and ability to jointly confront terrorism. On one hand, it will be hard if not impossible to justify intervention by international forces against the will of the Lebanese government and populace. On the other hand, the international community has already vested itself heavily in ensuring Lebanon’s stability (STL alone has cost an estimated $200 million in its first three years), and it may soon reach the limit of its tolerance for Hezbollah’s seemingly endless disregard for international law and consensus. The difficulty is compounded by Lebanon’s sensitive history and delicate internal power balance, which may lead the entire country to rally around Hezbollah in the face of an external threat. Either alternative – intervention (military or otherwise) by the international community to block Hezbollah’s power play or inaction in the face of Hezbollah’s expanding influence – risks further destabilizing Lebanon and potentially leading to renewed military intervention by Israel or Syria and a marked shift in the balance of power between the western-backed countries in the region and the Iran-Syria-Hezbollah bloc.

If the international community backs down from its pledge to promote the rule of law in Lebanon in the face of threats from Hezbollah, this will be a major blow to the credibility of the Security Council and international institutions more generally. Sadly, STL seems to have backed itself into a corner by inadvertently taking on Hezbollah, and this outcome is that which I consider to be the most likely.

While this document is laudable in its recognition of the special needs of women during hostilities and the role they must play in levels of the peace process, the resolution is conspicuous in its lack of concrete plans or benchmarks against which progress can be measured, either by governments, NGOs, or the UN itself.

10 years after the adoption of what might be characterized as a largely aspirational resolution, how far has the world community come? To what extent has the UN itself taken to heart the very language and ideas it advances?

On many fronts, there is cause for optimism. Since November 2000, 100% of Security Council resolutions on Darfur, over 60% of resolutions on Chad and the Central African Republic, and half of resolutions on Sudan contain language consistent with the spirit and language of SCR 1325.[1] In Rwanda, 56% of MPs are women, far surpassing the 30% quota mandated in its post-genocide constitution.[2] This is heartening, especially given that sexual violence and conflict on the African continent was fresh on the minds of decision makers when the resolution was passed.

But there remains reason for concern. Despite the well-documented use of sexual violence as weapon of war in Somalia, only 23% of resolutions on Somalia from the past decade make specific reference to gender or women.[3] Equally distressing is the Security Council’s inattention to SCR 1325 in its resolutions on Iraq and Afghanistan, two of the most notorious conflicts of our time. Only 13% of resolutions on Iraq contain references to women or gender. Furthermore, resolutions on Iraq regarding peace processes and conflict prevention fail to reference gender altogether; resolutions on Afghanistan fare little better, with only two references to SCR 1325.

War is a gendered activity, both in its operation and in its effects. On the whole, SCR 1325 has undoubtedly pushed the international community toward greater recognition of this reality: the percentage of Security Council resolutions with direct reference to 1325 has risen from 17% in 2002 to 65% in 2010, albeit in uneven fits and starts.[4] But this figure is down from the all-time high of 75% in 2008 and is distributed unevenly across regions. In resolutions on Iraq and Afghanistan, for example, SCR has failed to achieve one of its central tenets, that of bringing a gender perspective to conflict prevention and resolution.

Despite the glaring shortcomings in SCR 1325 both in content and implementation 10 years on, perhaps there is still cause for guarded optimism. The indicators for monitoring women in conflict proposed by the Secretary-General during an open meeting to commemorate SCR 1325’s 10^th anniversary bring a much-needed metric by which the implementation of SCR 1325 can be measured. Also welcome is the creation of the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), set to begin operating January 2011.[5]

Achieving the vision set out in SCR 1325, however, will ultimately require renewed commitment from UN member states. The United States and Russia, both Security Council heavyweights, must join Canada and the EU in developing National Action Plans to implement SCR 1325 and push for the adoption of Secretary General Ban Ki-moon proposed metrics.  And in the face of mixed support for SCR 1325 amongst its member states, the UN must hold steadfast to its commitment to “lead by example”.[6]

[1] Women, Peace and Security Handbook (http://www.peacewomen.org/assets/file/peacewomen_schandbook_2010.pdf), 11

[2] http://www.unifem.org/news_events/story_detail.php?StoryID=736

[3] Women, Peace and Security Handbook (http://www.peacewomen.org/assets/file/peacewomen_schandbook_2010.pdf), 11

[4] Ibid., 10

[5] http://www.un.org/News/Press/docs//2010/sc10071.doc.htm

[6] Ibid.

The blatant exclusion of people of disabilities from immigration to Canada on the basis of disability stems back to the 1910 Immigration Act which altogether banned the immigration of people with mental disabilities. The 1927 Immigration Act expanded the basis for refusal to entry to Canada to physical disabilities as well. The subsequent amendment of the Act in 1976, introduced a less blatant discriminatory provision. Under this Act, people with disabilities could be excluded from immigration because they might place “excessive demands” on health or social services. This practice acquired a new dimension with the passing of the 1985 Immigration Act, which had s. 19(1)(a)(ii), and laid the foundations of the current 2001 Immigration and Refugee Protection Act.[2]A slight re-formulation of the Act did not eliminate the prohibitions, but simply rephrased them. Although offering hope to some individuals, this latest amendment of the Act left untouched prohibitions denying immigration to persons with disabilities that “might reasonably be expected to cause excessive demands on health or social services”.[3] This latest amendment of the Act materialized in the Hilewitz and De Jong cases.

The 2005 Hilewitz v. Minister of Citizenship and Immigration and De Jong v. Minister of Citizenship and Immigration cases have been hailed as a step forward for persons with disabilities in Canada. Judge Rosalie Abella added a supplementary factor in the way disabled applicants are assessed. She found it incomprehensible to deny immigration to “all persons who are intellectually disabled, regardless of family support or assistance”. Hence, the wealth of families must be taken into consideration when their children are deemed inadmissible to identify whether they place “excessive demands on health or social services.”[4] Alongside these cases, the ratification of the UN Convention on the Rights of Persons with Disabilities can be said to be the latest milestone for the Canadian disability rights community.

This UN Convention provides additional hope that the provisions of the Immigration & Refugee Act can be rendered inoperative by virtue of Article 18, or the Liberty of Movement and Nationality provisions. Under art. 18 of the Convention, “States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities…(b)Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement.”[5]

The latest case of Chris Mason’s deportation on the basis of his disability demonstrates that without the Convention, the Immigration Act will continue to provide a legal basis for discrimination against persons with disabilities. Chris Mason is a British citizen who lived in Canada, and while working as a long-haul truck driver, became paraplegic on the job. After his visa expired, Immigration officials refused granting Mason a permanent resident status because he would create an undue economic burden under s. 38(I)(c) of the 2001 Immigration Act.[6] This latest 2009 case of a refusal to grant status to a person because of his disability would be deemed unacceptable under the Convention. Hence, Canada’s recent ratification of the UN Convention of the Rights of Persons with Disabilities offers hope that individuals will have an additional legal recourse to obtain a remedy for the alleged discrimination perpetuated under the current Immigration Act.

[This entry was made possible by the Rathlyn Foundation Student Activities Endowment.]

Non-Governmental Organizations (“NGOs”)[1] play an increasingly important role in the moulding of new international policies and their influence has grown dramatically in the last couple of decades[2]. The activity of NGOs has also become ever more international in nature,[3] as globalization has both created and revealed international issues which require the attention of the international community. Increasing international awareness of fields like human rights and environment, the establishment of powerful international organizations such as the World Trade Organization (WTO) together with improvements in sectors such as telecommunication and transportation, have all joined together and have turned the activities of international NGOs into living reality. Although not yet fully recognized as subjects of international law[4], NGOs are considered today as new emerging players in the contemporary international legal system[5].

The rising influence of NGOs brings about many questions and debates, mostly concerning democracy and representation. I would however, like to focus on another problem, one which is less of legal nature and more related to narrative, power and appearance. I would like to refer in this post to the fact that NGOs reputation as objective, impartial “watchdogs” may be improperly used by political actors and other agenda driven bodies. Political agendas, in my view, are not “wrong” and should not be excluded from the activity of NGOs. Politics and agendas are a legitimate part of the public sphere, and it would be quite naïve to expect their complete absence when topics such as human rights and environment are on the table. It could however, be very deceiving when one attempts to promote a certain agenda while simultaneously wearing the “NGO costume”, one of allegedly impartial do-gooder, ‘politics aside’ source of information.

Unlike lobby groups, NGOs enjoy certain status and reputation of impartiality. When a certain NGO publishes reports, its ‘non-governmental / neutral’ appearance gives the impression that its interests and motives are non-political and that the benefit of the public as a whole – and that alone – is its sole motivation[6]. A big part of NGOs’ persuasive powers relies on this narrative and consequently reports made by NGOs are often cited as indisputable sources of truth, both by politicians and academics.

But politics can often be found in the activity of NGOs, whether where the organization’s raison d’être is touched by politics, or where the people behind the NGO have driven it into the political sphere[7]. In either case, the NGOs’ appearance of impartiality may be misleading and serve as a cover for politically driven agendas. The United Nations has recognized the danger in such political motivated NGOs and stated in its UN rules that any “politically motivated acts against Member States of the United Nations” may serve as ground for revoking NGOs’ consultative status within the United Nations.[8] The activity of these NGOs are not banned, but their consultative value is recognized as low.

One name that is usually being mentioned in such discussion is that of George Soros, a billionaire, “businessman, philanthropist, and political activist”[9]. Mr Soros has publicly declared that defeating former president George W. Bush was the “central focus of my life,” “a matter of life and death.”[10] Mr Soros supports NGOs heavily, and on some occasions this support has been viewed as politically motivated.[11] When recalling a meeting with representatives of a certain NGO, Mr. Soros was quoted as saying “they were ready to kiss me”.[12] In my view, his potential influence on fund thirsty NGOs can be quite evident. Mr Soros is supporting many different NGOs (including research NGOs) through the Soros Foundations, though for the sake of fairness, it should be added that a highly respected employee of such supported research NGOs claims that Mr Soros has never attempted to influence NGOs research in any manner. It should also be added (inter alia for the sake of my own legal defence) that I do not accuse Mr Soros of any such influence, but rather that I am just trying to explain that politics, agendas and NGOs may be interlinked and that when relying on NGOs findings and reports, one should be aware of such connection. I only argue that we should be entitled to know.

I suggest here a two-folded process. First, I argue that a “fair discloser” process, not unlike the one used for judges and arbitrators, should take place. I contend that NGOs should reveal any appearance of political connections, the professional affiliation of their key members or main donors, lists of donors (including names and sums of money donated), attach a “fair discloser” page on their website, or in short, reveal any information that prima facia may be relevant for the public’s judgement of their findings. NGOs do supply us with their own interpretation of factual events and we, their audience and clients, should be able to apply our best judgement concerning the picture presented to us.

The Second stage I propose here relates to “enforcement”. I argue that there should be some supervisory mechanism that will reveal this prima facia information when such is not voluntarily disclosed. Why should the World Trade Organization (WTO) be subjected to close scrutiny by so many NGOs and Greenpeace to none? This is especially true as NGOs are becoming so powerful. With regard to the identity of the “enforcer”, who will be a better “watchdog” for NGOs activity than the watchdogs themselves? It is my hope than, that objective NGOs will rise up to the challenge and enforce higher standards of transparency.

Nothing in this post is written in order to throw mud in the face of NGOs; rather, the opposite is true. NGOs are important (even crucial) for any sort of development, and their work makes the world a better place to live in. However, I think that the NGO is a new powerful player in the international arena and that we should accordingly give it the attention it deserves.

[2] Vaughn Lowe, International Law (New York: OUP, 2007) [Lowe] at 17; Peter J. Spiro, “Non-Governmental Organizations and Civil Society”, in D. Bodansky, J. Brunnee & E. Hey, The Oxford Handbook of International Environmental Law (New York: OUP, 2007) 771 [Spiro].

[3] Steve Charnovitz, “Non-governmental organizations and international law” (2005) 100 American Journal of International Law 348 [Charnovitz] at 350.

[4] Anthony Aust, Handbook of International Law (Cambridge: CUP, 2005) [Aust] at 14-15. It should be noted that the term “subjects of international law” is changing and States are no longer considered as the only subjects of international law (see in Martin Dixon, International Law (New York: OUP, 2007) 113), and NGOs may join this list of subjects in the future. Some organizations such as the World Health Organization apparently already consider NGOs as subjects of international law, see online: WHO http://www.who.int/trade/distance_learning/gpgh/gpgh7/en/index3.html

[5] Lowe, supra note 2 at 17.

[6] See more on this issue at Robert C. Blitt, “Who will watch the watchdog?: International Human Rights Nongovernmental Organizations and the case for Regulation” (2004) 10 Buffalo Human Rights Law Review 261 [Blitt].

[7] See for example <http://www.nytimes.com/2009/10/20/opinion/20bernstein.html>. See also article and especially readers’ comments on this very tragic episode concerning “Rights and Democracy”: http://www.theglobeandmail.com/news/politics/rights-groups-staff-demand-resignation-of-chair/article1429192/; See also John Bolton, “Should we take global governance seriously?” (2000) 1 Chicago Journal of International Law 205at 211.

[8] Article para 57 (a) of Resolution 1996/31, “Consultative relationship between the United Nations and non-governemtnal organizations”, the UN Economic and Social Council, July 25 1996, online: UN <http://www.un.org/documents/ecosoc/res/1996/eres1996-31.htm>; Charnovitz, supra note 3 at 359.

[9] http://en.wikipedia.org/wiki/George_Soros

[10] http://pqasb.pqarchiver.com/washingtonpost/access/443611991.html?FMT=ABS&FMTS=ABS:FT&date=Nov+11,+2003&author=Laura+Blumenfeld&pub=The+Washington+Post&edition=&startpage=A.03&desc=Soros’s+Deep+Pockets+vs.+Bush;+Financier+Contributes+$5+Million+More+in+Effort+to+Oust+President also available at http://www.aljazeerah.info/News%20archives/2003%20News%20archives/November/13%20n/Soros’s%20Deep%20Pockets%20vs%20Bush%20Financier%20Contributes%20$5%20Million%20More%20in%20Effort%20to%20Oust%20President.htm

[11] See for example http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201849.html

[12] See Supra note 10.

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.

Striking a blow against Somali piracy, the momentous Dutch decision responded to a simple question: with no credible Somali government, who else was going to do it? And why shouldn’t a country enforce laws for someone else – look at Belgium’s fancy “universal jurisdiction” law. These questions go to a problem at the heart of public international law today: the “law is power” conundrum. In private international law, states in recent history have been moving further and further from a power-based model towards one founded on international comity. Globalisation rhetoric would have us believe that public international law is doing the same, but the Somali piracy issue belies this notion.

Somalia today, along with a handful of other places such as Pakistan’s tribal regions and Longueuil, provides the only instance outside of 18^th century political theory of a “state of nature”, a law-free area devoid of central authority. Unfortunately for Rousseau, these places have turned out to be distinctly Hobbesian. How is law to impose itself in the void? Simply put, it doesn’t. The only law in Somalia is power, and as money, weapons, and territory shift from one faction to another, so does the power and the law. After the movie “Black Hawk Down”, the international community gave up on creating a Somali government, and was content with chaos until it fostered the pirates now plaguing the international shipping world. So it once again became necessary to impose law – this time on Somalia’s seas.

How could the world of laws force pirates to abide by the rules? First there was the comedy comity approach: a year ago the UN Security Council imposed sanctions on the pirates, to be enforced by the titular Somali central government. Unfortunately, as one news source understated it, “enforcing the sanctions poses steep challenges […] as those responsible for much of the anarchy plaguing the country are well outside any traditional finance system.” So it became necessary to lay down the real law: power. This came in the form of Combined Task Force 150, a US-led international naval force (soon to include Canada’s HMCS Fredericton) patrolling the region around Somalia’s coast. Of course for good measure, the naval operation was given legal legitimacy by UN Security Council Resolution 1838. Resolution 1851 even allows states to conduct land-based operations in Somalia to combat piracy.

From a legal perspective, it’s more comforting to see a Dutch court take action against a teenage would-be she-pirate than it is to see unilateral military force deployed in a legal vacuum. Nevertheless, at the very least we can be reassured that the lawless Somali “state of nature” is restricted to affecting just the unfortunate residents of that non-state. The only problem is that in a world where law is power, a territory with no central authority is equally lawless for locals and foreigners.

Prior to the outbreak of large-scale Somali swashbuckling, some Europeans found it very convenient to have a legal no-man’s-land in Somalia. The UN Environmental Program found that Italian and Swiss companies dumped toxic waste in Somali waters in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (BCCTMHWTD?). Other Western companies capitalized on the non-existence of a Somali government to help themselves to the fish, shrimp and lobster of Somalia’s territorial seas – and used prohibited fishing methods. The pirates with their brute force have been more effective than the “government” at combating these practices. The Belgians would understand: if the pirates didn’t enforce these laws, who else would?

The power dynamics that impel all public international law tend to be hidden (sometimes successfully, sometimes not) behind international dialogue. But in Somalia, where there is no one to have a dialogue with, the driving force at the core of public international law – power – is open for all to see. In this legal void foreigners can treat the territory as a restraint-free playground; pirates can then hijack foreign ships with (relative) impunity; and finally, foreign militaries can crack down on the pirates.

And with the Dutch ruling, so can foreign courts! Though if they had started sooner there might not be so many wannabe-pirates enjoying swashbuckler hospitality as we speak…

Circumnavigating the globe, eh?...