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Corporate Law’S Threat To Human Rights: Why Human Rights Due Diligence Might Not Be Enough, Barnali Choudhury

Articles & Book Chapters

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a …

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

The Failure Of The Canadian Human Rights Regime To Provide Remedies For Indigenous Peoples: Enough Time Has Passed, Jeffery Gordon Hewitt

LLM Theses

In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canada's funding with respect to First Nation …

Innocence At Stake: Possibility Of Dna Collection From Arrestees In Canada, Washim Ahmed

Osgoode Legal Studies Research Paper Series

Followed by a decision of the Supreme Court of the United States, which approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment, the Minister of Justice, Peter MacKay indicated in an interview with the Globe and Mail that he and his Ministry are considering a similar model for Canada. This paper examines the possibility of a similar legislative framework in Canada and argues that although collection of DNA upon arrests was found justified under the Fourth Amendment, it does not necessarily mean that it will be found justified under the Canadian Charter of Rights and Freedoms. …

Touching Torture With A Ten-Foot Pole: The Legality Of Canada’S Approach To National Security Information Sharing With Human Rights-Abusing States, Craig Forcese

Osgoode Hall Law Journal

In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “Information Sharing with Foreign Entities.” These directions permit information sharing in exigent circumstances, even where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas …

Migrant Construction And Domestic Workers In The Arab Gulf States: Modern - Day Slaves?, Omaya Chidiac

LLM Theses

This thesis examines the conditions of migrant construction and domestic workers in the Arab Gulf. I explore literatures on migrant labour, precariousness, and slavery. I also look at international and domestic legal instruments as well as data produced by several human rights organizations. This thesis shows how the mechanisms involved in the migration of migrant construction and domestic workers exacerbate vulnerability and precariousness. I examine the ways in which social locations including gender and race play a role in discrimination against migrant construction and domestic workers in the Arab Gulf, thus assisting conditions of slavery to arise. My aim is …

Coercing Justice? Exploring The "Aspirations And Practice" Of Law As A Tool In Struggles Against Social Inequalities, Karen Schucher

PhD Dissertations

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On …

Rights And Responsibilities: What Are The Prospects For The Responsibility To Protect In The International/Transnational Arena?, Carolyn Helen Filteau

PhD Dissertations

The dissertation involves a study of the emerging international norm of ‘The Responsibility to Protect’ which states that citizens must be protected in cases of human atrocities, war crimes, ethnic cleansing and genocide where states have failed or are unable to do so. According to the work of the International Commission on the Responsibility to Protect (ICISS), this response can and should span a continuum involving prevention, a response to the violence, when and if necessary, and ultimately rebuilding shattered societies. The most controversial aspect, however, is that of forceful intervention and much of the thesis focuses on this aspect. …

International Human Rights In Canada: At The Juncture Of Law And Politics, Faisal Bhabha

Osgoode Legal Studies Research Paper Series

This paper addresses the topic of international human rights law from the Canadian perspective. As the title suggests, this paper’s analysis of the topic sits at the intersection of law and politics, where all questions of international law necessarily do. It proceeds in three parts. First, it provides a sketch of the political context, drawing from recent events and trends, to describe a conflicted official government approach to international human rights. Next, it examines the formal legal status of international human rights law in Canada, drawing selectively from Supreme Court of Canada jurisprudence. Finally, it addresses the adoption of the …

Access To Justice And Corporate Accountability: A Legal Case Study Of Hudbay In Guatemala, Valerie Crystal, Shin Imai, Bernadette Maheandiran

Osgoode Legal Studies Research Paper Series

This case study looks at the avenues open for addressing serious allegations of murder, rape and assault brought by indigenous Guatemalans against a Canadian mining company. While first generation law and development reforms have facilitated foreign mining in Guatemala, “second generation” reforms have not yet provided a meaningful way of addressing conflicts arising from the development projects. The judicial mechanisms available in Guatemala are difficult to access and suffer from problems of corruption and intimidation. The corporate social responsibility mechanisms applicable to the mining company cannot provide enforceable orders. Canadian courts have been reluctant to permit law suits against Canadian …

Informal Transnational Police-To-Police Information Sharing: Its Structure And Reform, Michael Robert Walton

LLM Theses

This thesis examines the informal sharing of information and cooperation between police agencies across international borders, and how it is or should be informed by international human rights law. The author looks at how intelligence-led policing theory has affected transnational policing. A distinction is made between police actions made on domestic soil that have adverse consequences abroad and police actions made on foreign soil that have adverse consequences. The first category of cases is firmly within jurisdiction and covered by domestic and international legal obligations. The second category of cases introduces the concept of the extraterritorial application of international human …

Approximating Law And Development, Human Rights And Transitional Justice, Peer Zumbansen, Ruth Buchanan

Comparative Research in Law & Political Economy

This chapter is the introduction to the forthcoming edited collection "Law in Transition: Human Rights, Developments and Transitional Justice", edited by the authors and forthcoming with Hart Publishing (Oxford, 2013). The book will appear in the "Osgoode Reader" series and brings together many of the leading experts of the increasingly pertinent intersection of development, rights and transitional justice studies. The Introduction traces the theoretical and practical challenges of this discursive interaction and argues that it is only through such dialogue that a better understanding of the institutional and normative issues arising in contemporary law & development and TJ contexts will …

Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen

Comparative Research in Law & Political Economy

This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining’s identification of key problems of law in a global context (2009, 2012), the following essay adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on 'actors, norms, and processes.' Secondly, the essay proposes 'case studies' as a central methodological device to explore the nature, scope, function of governance – both legal but also non-legal governance – in …

Accountability Across Borders: Mining In Guatemala And The Canadian Justice System, Shin Imai, Bernadette Maheandiran, Valerie Crystal

Comparative Research in Law & Political Economy

This paper has been updated and revised and is now available on ssrn as: "Access to Justice and Corporate Accountability: A Legal Case Study of HudBay in Guatemala" http://ssrn.com/abstract=2358981.

A Perspective From Honduras' Civil Society Truth Commission, Craig Scott

All Papers

The present document formed the basis for a presentation by the author to the Standing Committee on Foreign Affairs and International Development of the House of Commons of Canada during a March 9, 2011, hearing on the situation in Honduras. After referencing the June 28, 2009, coup d’ état in Honduras, the author describes how the post-coup political situation led to the creation of two commissions – a Truth and Reconciliation Commission (Comisión de la Verdad y de Reconciliación, or CVR) given its mandate to investigate the “crisis” of June 28, 2009, by the current holder of the Honduran Presidency, …

A Surfer’S Guide To Us Foreign Policy In Egypt, Or Has Obama Been Snookered?, Craig Scott

Comparative Research in Law & Political Economy

This short article (3800 words, including 14 footnotes) was written and published on February 8, 2011, by OpenDemocracy.net, and may be republished with attribution for non-commercial purposes following the Creative Commons guidelines. OpenDemocracy.net’s summary blurb reads: “Reading the Washington runes. What happened with Mr. Wisner, Egypt lobbyist and Obama's special envoy to Mubarak? Is this an ugly farce, an ethical travesty or a cronyistic scandal?” The purpose of the article is to explore two hypotheses surrounding the sending by President Obama of former US Ambassador to Egypt, Frank Wisner, as Obama’s envoy to President Hosni Mubarak of Egypt during the …

Taking Tea With Torturers, Craig Scott

Comparative Research in Law & Political Economy

This working paper (3000 words, including 19 footnotes) was written on January 29-31, 2011, as events unfolded in Egypt. It was published in the present version as an article on January 31, 2011, by OpenDemocracy, and may be republished with attribution for non-commercial purposes following the Creative Commons guidelines. The article’s sub-title is “From the Shah of Iran to Sri Lanka’s Foreign Minister to Egypt’s Mubarak, cozy relationships in US foreign policy need to be questioned.” Its point of departure is the Thatcher-Pinochet friendship, which is related to Hillary Clinton's interview in Egypt in 2009 when she downplayed the US …

Transnational Law, Evolving, Peer Zumbansen

Comparative Research in Law & Political Economy

This chapter is the substantively revised and expanded version of the original contribution to the first edition of the Elgar Encyclopedia of Comparative Law (J. Smits, ed., 2006). It reviews and discusses the theoretical scholarship on the concept of transnational law, going back to Philip Jessup’s introduction of the term in the nineteen-fifties and tracing it to the present day. The chapter highlights the relevance and potential of the idea of transnational in a range of fields, including commercial law (lex mercatoria), corporate law, international human rights law, comparative constitutional law, anthropology, and ‘global administrative law’. The chapter concludes with …

Corporate Social Reporting Initiative - Report To Minister Of Finance, Poonam Puri, Edward J. Waitzer, Kevin Ranney, Michael Torrance

Commissioned Reports, Studies and Public Policy Documents

In response to a Private Member’s Resolution calling upon the Ontario Securities Commission to conduct a consultation on corporate social responsibility and environmental, social and governance reporting standards and to adopt an enhanced standardized reporting framework, the Hennick Centre for Business and Law and Jantzi-Sustainalytics undertook a multi-stakeholder consultation process in respect of requirements regarding corporate social disclosure standards. This report to the Minister of Finance reflects a synthesis of the views that emerged from that process. The recommendations herein complement those contained in the Commission’s report to the Minister of Finance, dated December 18, 2009 (regarding environmental and governance …

Negotiating The Claim To Inclusion: Statelessness And The Contestation Of The Limits Of Citizenship, Kiran Banerjee

Comparative Research in Law & Political Economy

This paper addresses how our conceptions of community and citizenship should be transfigured on account of the theoretical and ethical concerns revealed by statelessness. Taking my point of departure from the work of Hannah Arendt, I show how the phenomenon of statelessness reveals tensions in our conceptions of political membership and human rights, while highlighting the dilemmas that any approach to democratic inclusion must address. As Arendt’s work emphasizes, one of the greatest challenges to the cosmopolitan ideal of realizing universal human rights is the way in which realizing rights claims is tied to political membership within a particular community. …

From Constitutions To Constitutionalism: An Opportunity For Arab States, Not A Paradox, Asem Khalil

Comparative Research in Law & Political Economy

The paradox of modern constitutionalism resides in having two imperatives, apparently irreconcilable, i.e. a governmental power generated from the ‘consent of the people’ and, in order to be sustained and effective, that power must be divided, constrained and exercised through distinctive institutional forms. This paradox reflects the dilemma arising from the dialectical interaction between constituent power and constitutional form. I will argue that constitutionalism, as a limited government, does not contradict with Arab and Islamic legal culture. While modern constitutionalism, as a normative order, requires the adherence to the rule of law and the protection of human rights, it is …

The African Commission On Human And Peoples’ Rights As A Collective Human Security Resource: Promise, Performance And Prospects, Obiora Chinedu Okafor

Articles & Book Chapters

This chapter argues that contrary to the way in which it has been generally imagined in the dominant collective human security literature, the African Commission is by design, and in terms of its institutional practice, an important collective human security resource in Africa. Section 2 of this chapter provides a short background on the African Commission. Section 3 discusses the normative and textual promise that the African Commission shall, through the effective discharge of its broad human rights mandate, serve as an important collective human security resource. Section 4 then systematically considers the institutional practice of the African Commission in …

Corporate Social Performance: Reporting Roundtable, Poonam Puri, Edward J. Waitzer, Kevin Ranney, Michael Torrance

Commissioned Reports, Studies and Public Policy Documents

The purpose of this consultation (to take place in Toronto, Canada on December 7, 2009) is to elicit the views of informed stakeholders in a review of reporting and disclosure requirements under Ontario securities legislation for corporate “social” performance. In particular, the Consultation paper considers whether existing reporting and disclosure requirements on corporate social performance are adequate. If change is advisable, the question becomes what regulatory or other measures merit consideration.

The Consultation is in response to a private member’s resolution introduced by the Honorable Laurel Broten (Etobicoke-Lakeshore), and passed unanimously by the Ontario Legislature (the “Resolution”). In part, the …

"Risk Society" And The Precautionary Approach In Recent Australian, Canadian And Uk Judicial Decision Making, Filip Gelev

Comparative Research in Law & Political Economy

After the terrorist attacks of 11 September 2001 terrorism was added to the list of potentially catastrophic global events, such as global warming or nuclear explosions, which characterise Ulrich Beck's risk society. Operating in an atmosphere of fear, executive governments and parliaments around the world take precautionary measures to prevent future terrorist acts - governments accumulate information, detain terrorism suspects, freeze funds and so on. International Relations scholars see the judiciary as a guardian of human rights that can stop or at least curb the excesses of the other two branches of government. The article argues that this view is …

Shadows And Light: Addressing Information Asymmetries Through Enhanced Social Disclosure In Canadian Securities Law, Aaron A. Dhir

Articles & Book Chapters

In this paper, I explore the mechanics of social disclosure in Canada. In section II, I review the extent to which Canadian companies have been reporting social information. In section III, I canvass the degree to which such disclosure is actually required under securities law vis-a`-vis the continuous disclosure obligation that requires public companies to provide periodic and timely disclosure to investors. I focus on three of the key components of periodic disclosure - quarterly/annual financial statements, the management discussion and analysis and, most importantly, the annual information form. Although many firms are underreporting, it is clear that a sufficient …

Diverse Persuasion(S): From Rhetoric To Representation (And Back Again To Rhetoric) In International Human Rights Interpretation, Craig Scott

Comparative Research in Law & Political Economy

This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how …

Assessing Baxi’S Thesis On The Emergence Of A Trade-Related Market-Friendly Human Rights Paradigm: Recent Evidence From Nigerian Labour-Led Struggles, Obiora Chinedu Okafor

Articles & Book Chapters

The objective of the article is to assess some of the sub-claims that emerge from Baxi’s thesis on an emergent trade-related market-friendly human rights paradigm in the light of the available evidence regarding the intense contestations and confrontations that have occurred between Nigeria’s politically and economically transitional Obasanjo regime and a local labour-led coalition. The piece sets out to ascertain the contextual and localised validity of these ‘Baxian’ sub-claims, within the wider context of the government vs. labour confrontations in Nigeria during the neo-liberal socio-economic reforms undertaken in that country between 1999 and 2005.

Human Rights And Transnational Culture: Regulating Gender Violence Through Global Law, Sally Engle Merry

Osgoode Hall Law Journal

In the current era of human rights activism, the global production of human rights approaches to violence against women generates a wide variety of localization processes. Activists translate between global discourses and local contexts and meanings. Culture is conceptualized in quite different and sometimes contradictory ways in this process. Essentialized ideas of culture inhibit recognition of the potential contributions of local cultural practices and provide justifications for groups to resist these changes. This article shows, with reference to a case study of Fiji, that a more anthropological conception of culture provides a better picture of the localization process and foregrounds …

Beyond Territoriality: The Case Of Transnational Human Rights Litigation, Peer Zumbansen

All Papers

Cases for civil damages that have been brought before Western courts by victims of torture and persecution against states officials or corporations, challenge the principles of state sovereignty and jurisdictional competence. While national courts can in cases of serious crimes hear cases that grow out of acts committed in another country, the same is not true for cases for civil compensation. A persisting and rising number of private law cases that attempts to empower disenfranchised victims of crime and abuse, points to the necessity of reconsidering the prevailing procedural and substantial obstacles that govern the so-far unsuccessful civil law suits. …

Failing To Achieve Equality: Disability Rights In Australia, Canada, And The United States, Brendon D. Pooran, Cara Wilkie

Journal of Law and Social Policy

No abstract provided.