Law Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Sustainable Seabed Mining And The Phase 1 Environmental Standards And Guidelines, Keith Macmaster

Articles, Book Chapters, & Popular Press

The oceans are home to a rich diversity of plant and animal life and a source of food and marine resources that drive economies. Climate change and pollution are changing ocean dynamics and the ability to support life. Seabed mining in areas beyond national jurisdiction will add to the ocean's stressors and could cause severe environmental damage. The International Seabed Authority (“ISA”) is mandated to manage access to and benefits from the seabed, its subsoil and mineral resources in areas beyond national jurisdiction (the “Area”). Although the United Nations Convention on the Law of the Sea sets out the legal …

Maritime Transportation: Let's Slow Down A Bit, Maxime Sèbe, Pierre Scemama, Anne Choquet, Jean-Luc Jung, Aldo Chircop, Phénia Marras-Aït Razouk, Sylvain Michel, Valérie Stiger-Pouvreau, Laura Recuero-Virto

Articles, Book Chapters, & Popular Press

Maritime transportation is a major contributor to the world economy, but has significant social and environmental impacts. Each impact calls for different technical or operational solutions. Amongst these solutions, we found that speed reduction measures appear to mitigate several issues: (1) collision with wildlife; (2) collision with non-living objects; (3) underwater noise; (4) invasive species; and (5) gas emission. We do not pretend that speed reduction is the best solution for each individual issue mentioned in this paper, but we argue that it could be a key solution to significantly reduce these threats all together. Further interdisciplinary research is required …

Canadian And Russian Fisheries Management In The Arctic: Complexities, Commonalities And Contrasts, David Vanderzwaag, Vitalii Vorobev, Olga Koubrak

Articles, Book Chapters, & Popular Press

This article reviews and compares Canadian and Russian approaches to Arctic fisheries management through a three-part format. First, the complex array of laws and policies applicable to Arctic fisheries is described for each country. How Canada and Russia have addressed international fishery issues is also highlighted, including their participation in the 2018 Central Arctic Ocean Fisheries Agreement. Second, commonalities in fisheries governance approaches are summarized, including national commitments to implement precautionary and ecosystem approaches. Finally, contrasts in Arctic fisheries management are discussed. Major differences include the greater devolution of management responsibilities by Canada to Indigenous communities through land-claim agreements and …

Navigating The Structural Coherence Of Sea Life, Aldo Chircop, Philip Steinberg, Greta Ferloni, Claudio Aporta, Gavin Bridge, Kate Coddington, Stuart Elden, Stephanie C. Kane, Timo Koivurova, Jessica Shadian, Anna Stammler-Gossmann

Articles, Book Chapters, & Popular Press

Ice breaking by ships can cause irreparable harm to the ecologies and cultures of northern regions. This chapter revolves around a central question: what are the barriers preventing the development of a legal mechanism to limit this act of environmental violence? The chapter suggests that the central barrier is not so much legal as it is ontological: foundational conceptions of space that underpin Western legal institutions are unable to value the form of water, reducing it instead to an ed space that is used for movement or resource extraction. This chapter demonstrates how a consideration of the environmental violence of …

How Icebreaking Governance Interacts With Inuit Rights And Livelihoods In Nunavut: A Policy Review, Breanna Bishop, Jade Owen, Lisette Wilson, Tagalik Eccles, Aldo Chircop, Lucia Fanning

Articles, Book Chapters, & Popular Press

Sea ice is a contested space when it comes to navigation in ice-covered regions. For Inuit in Nunavut, Canada, sea ice is an integral platform of coastal connectivity, allowing access to areas of subsistence and cultural value. For vessels transiting Arctic waters, sea ice poses potential risks to vessel, crew, and passenger safety consequently, icebreaking is considered an essential service. Yet, many communities in Nunavut have described icebreaking as having, or potentially having significant negative impacts on community and ecological wellbeing. Several policies regulate and provide guidance to icebreakers operating in ice-covered waters. With anticipated increases to icebreaking demand in …

Introduction: Responding To A Changing Arctic Ocean: Canadian And Russian Experiences And Challenges, Viatcheslav Gavrilov, David Vanderzwaag, Susan J. Rolston

Articles, Book Chapters, & Popular Press

This article is the guest editors' introduction to the special series entitled Responding to a Changing Arctic Ocean: Canadian and Russian Experiences and Challenges.

The Shipping Sector And Ports As Central Actors In The Decarbonization Effort: A Case Study Of China, Aspasia Pastra, Meinhard Doelle, Tafsor Johansson

Articles, Book Chapters, & Popular Press

This article carves out China’s maritime state-of-play with regards to GHG mitigating measures with a special focus on CO2 emission. The article commences with an overview of IMO’s GHG strategy taking into account the critical targets, proposed plans, schemes and measures aimed at the shipping sector. Discussions then segue into a twofold discussion pertaining to China’s current policy and port governance actions highlighting some of the existing gaps and challenges. Reference is made to remarkable developments from countries considering three vital key elements for an effective green port policy framework before drawing concluding remarks.

International Working Group On Polar Shipping: Report To The Executive Council And Assembly Of The Comité Maritime International, Aldo Chircop

Reports & Public Policy Documents

This report covers the reporting period from 1 November 2020 to 31 May 2021. The IWG Chair acknowledges updates provided by the subgroup chairs. The IWG continues to operate through three subgroups, namely on Antarctic Shipping (chaired by David Baker), COLREGS in Polar Environments (chaired by Stefanie Johnston) and Cruise Passengers’ Rights (chaired by Lars Rosenberg Overby). While progress has been made, unfortunately the prolonged COVID-19 pandemic has continued to affect aspects of the IWG’s work.

Canada And Transboundary Fisheries Management In Changing Oceans: Taking Stock, Future Scenarios, U.R. Sumaila, David Vanderzwaag

Articles, Book Chapters, & Popular Press

This article is the Introduction to the Special Feature entitled: Canada and Transboundary Fisheries Management in Changing Oceans: Taking Stock, Future Scenarios. We summarize the research context of the four papers in the Special Feature.

Beyond The Cooperation-Conflict Conundrum: Proceedings Of An Arctic Security Webinar Series, Aldo Chircop

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The origins of the conference, for which this volume is the published record, go back to the fall of 2019 and the Canadian Pugwash Group’s (CPG’s) annual general meeting. Having just held a major policy conference at the University of Ottawa on “Speeding Towards the Abyss: Contemporary Arms Racing and Global Security,” the CPG was considering what should be the subject of its next policy conference. Arctic security, in all its dimensions, quickly was identified as the theme to pursue. Planning got underway with a view to holding the event in the fall of 2020 and finding suitable partners.

The …

Regulating Wave, Tidal And Ocean Thermal Energy, Meinhard Doelle, Theodore Nsoe Adimazoya

Articles, Book Chapters, & Popular Press

Ocean renewable energy sources hold the potential to contribute to the options of low-carbon energy sources and enhance the efforts by the global community to slow down climate change. In this Chapter, we provide a brief background on the current state of technology and development of wave, tidal and ocean thermal energy and consider their potential as forms of renewable energy as well as the potential negative environmental footprints of ocean renewable energy installation and development. Secondly, we examine the relevant international legal and policy framework governing ocean energy, highlighting in particular, the absence of a global legal instrument that …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

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The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Are Transboundary Fisheries Management Arrangements In The Northwest Atlantic And North Pacific Seaworthy In A Changing Ocean?, Olga Koubrak, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Climate change is affecting physical and biological components and processes of marine ecosystems in many ways. Resulting changes in abundance and distribution of commercially valuable species are anticipated to create or exacerbate challenges for fisheries management across national boundaries by raising questions around catch allocation, membership in the management organizations, and forms of cooperation between the organizations. In this paper we assess eight transboundary fisheries arrangements in the Northwest Atlantic and North Pacific on their preparedness to respond to climate-change driven changes. For each arrangement a three-part analysis is provided. A general introduction to fisheries management responsibilities, including species and …

Introduction, Aldo Chircop, Floris Goerlandt, Claudio Aporta, Ronald Pelot

Articles, Book Chapters, & Popular Press

This chapter introduces a multidisciplinary collection of chapters addressing various aspects of governance of Arctic shipping written by leading international scholars. It investigates how ocean changes and anthropogenic impacts affect our understanding of risk, policy, management and regulation for safe navigation, environment protection, conflict management between ocean uses, and protection of Indigenous peoples’ interests in Canadian Arctic waters. The book is divided in three parts, together providing a multi-faceted and interdisciplinary view on governance of Arctic shipping. The first part addresses conceptual and empirical aspects of risk governance, management, and assessment in the Canadian Arctic. The second part focuses on …

The Regulation Of Ship Emissions In Canadian Northwest Atlantic And Arctic Waters: Is There A Need For Consistency And Equity?, Aldo Chircop

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Since the adoption of Annex VI of the International Convention on the Prevention of Pollution from Ships, 1973/78, the International Maritime Organization has gradually expanded the scope of ship emission regulation to include VOCs, SOx, NOx, particulate matter and, more recently, greenhouse gas emissions. This regulatory effort has not been integrated and displays some inconsistency and even fragmentation, resulting in different levels of environment protection for different regions and even potential conflicts between standards. The regulation of use and carriage of heavy sulphur fuel oil may lead to increase of clean fuel use and thereby produce more CO2 emissions. Designation …

Overview: Will Great Power Politics Threaten Arctic Sustainability?, Yoon Hyung Kim, Oran R. Young, Robert W. Corell, Lawson W. Brigham, Jong Deog Kim, Arild Moe, Charles E. Morrison, David Vanderzwaag

Reports & Public Policy Documents

The eight Arctic states (Canada, Denmark/Greenland, Finland, Iceland, Norway, Sweden, the Russian Federation, and the United States) wish to maintain a position of preeminence when it comes to dealing with matters of Arctic Ocean governance. However, major non-Arctic states, while recognizing the sovereign rights of the coastal states in their economic zones and on their continental shelves, have growing interests in the maritime Arctic relating to activities such as commercial shipping, oil and gas development, fishing and ship-based tourism. They are increasingly claiming to have a legitimate interest in being consulted when it comes to addressing matters relating to the …

The Arctic In World Affairs: A North Pacific Dialogue On Will Great Power Politics Threaten Arctic Sustainability, Lawson W. Brigham, Robert W. Corell, Jong Deog Kim, Yoon Hyung Kim, Arild Moe, Charles E. Morrison, David Vanderzwaag, Oran R. Young

Reports & Public Policy Documents

The eight Arctic states (Canada, Denmark/Greenland, Finland, Iceland, Norway, Sweden, the Russian Federation, and the United States) wish to maintain a position of preeminence when it comes to dealing with matters of Arctic Ocean governance. However, major non-Arctic states, while recognizing the sovereign rights of the coastal states in their economic zones and on their continental shelves, have growing interests in the maritime Arctic relating to activities such as commercial shipping, oil and gas development, fishing and ship-based tourism. They are increasingly claiming to have a legitimate interest in being consulted when it comes to addressing matters relating to the …

The Regulation Of Heavy Fuel Oil In Arctic Shipping: Interests, Measures, And Impacts, Jiayu Bai, Aldo Chircop

Articles, Book Chapters, & Popular Press

Since the International Maritime Organization’s (IMO) ban on the use and carriage for use of heavy fuel oil (HFO) for ships operating in Antarctic waters came into effect in 2011, the international community has been engaged in a discourse on whether to adopt a similar standard for ships operating in Arctic waters. The issues are complex as, in addition to reducing the environmental risks posed by HFOs, there are economic and social consequences, including dependence on such fuels by Indigenous peoples. The discourse has involved the IMO, the Arctic Council, industry associations, environmental nongovernmental organizations, and Indigenous peoples. The issue …

Transboundary Fisheries, Climate Change, And The Ecosystem Approach: Taking Stock Of The International Law And Policy Seascape, Cecilia Engler

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The ecosystem approach to fisheries management is a conceptual and practical framework consistent with, and supportive of, climate change adaptation at the national and regional level. Implementing an ecosystem approach can contribute to climate change adaptation by improving ecosystem resilience and reducing vulnerability to climate change, by providing planning strategies and tools to monitor and assess the impacts of climate change on fisheries, and by relying on precautionary, flexible, and adaptive approaches that account for the uncertainties, surprises, unpredictability, and dynamism of ecosystems in a changing climate.

In this article, I provide an overview of some key considerations framing the …

Implementation Of Article 82 Of The United Nations Convention On The Law Of The Sea: The Challenge For Canada, Aldo Chircop

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Article 82 of the United Nations Convention on the Law of the Sea is a novel provision introducing the first-ever international royalty on production from non-living resources within national jurisdiction, specifically from the extended continental shelf as defined in Article 76. Article 82 has several textual ambiguities that could pose a challenge for its interpretation and implementation by both affected coastal States and the International Seabed Authority. The Authority is responsible for receiving payments or contributions in kind and for effecting their distribution to States Parties to the Convention, especially developing countries, in accordance with equitable criteria. The Authority has …

Advancing Research For The Management Of Long-Lived Species: A Case Study On The Greenland Shark, Jena E. Edwards, Elizabeth Hiltz, Franziska Broell, Peter G. Bushnell, Steven E. Campana, Jørgen S. Christiansen, Brynn M. Devine, Jeffrey J. Gallant, Kevin J. Hedges, M. Aaron Macneil, Bailey C. Mcmeans, Julius Nielsen, Kim Præbel, Gregory B. Skomal, John F. Steffensen, Ryan P. Walter, Yuuki Y. Watanabe, David Vanderzwaag, Nigel E. Hussey

Articles, Book Chapters, & Popular Press

Long-lived species share life history traits such as slow growth, late maturity, and low fecundity, which lead to slow recovery rates and increase a population’s vulnerability to disturbance. The Greenland shark (Somniosus microcephalus) has recently been recognized as the world’s longest-lived vertebrate, but many questions regarding its biology, physiology, and ecology remain unanswered. Here we review how current and future research will fill knowledge gaps about the Greenland shark and provide an overall framework to guide research and management priorities for this species. Key advances include the potential for specialized aging techniques and demographic studies to shed light …

선박 검사원 처벌주의 입법의 정당성에 관한 탐색적 고찰 [Translation: Exploratory Research On The Legitimacy Of The Legislation Tilting Toward Punishing An Individual Ship Surveyor], Sang-Il Lee, Ji-Hyun Kim, Jinho Yoo

Articles, Book Chapters, & Popular Press

Ship inspection does not guarantee the safety and seaworthiness of ships as the results of the inspection, and the act features a collective evaluation. However, since the Sewol accident, the possibility of criminal punishment for individual ship surveyors has drastically increased, and the problem has deepened. This is a very unusual phenomenon that contradicts the concept, characteristics and nature of ship inspection. To the contrary, in foreign countries, protectionist legislation is found that exempts ship surveyors, who performed the inspection in good faith, from any liability. The current Ship Safety Act stipulates government accountability, but the responsibility of the inspection …

Competencies Of The International Seabed Authority And The International Maritime Organization In The Context Of Activities In The Area, International Seabed Authority, International Maritime Organization, Aldo Chircop

Reports & Public Policy Documents

This report studies the interface of competencies of the International Seabed Authority (ISA) and the International Maritime Organization (IMO) with respect to activities in the international seabed area (the Area). The study is undertaken within the context of Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), 1982 the Part XI Implementation Agreement, 1994 and the Seabed Disputes Chamber’s Advisory Opinion on Responsibilities and Obligations of States with respect to Activities in the Area, 2011. The report has been prepared against the backdrop of the agreement on cooperation concluded between ISA and IMO in 2016.

Impacts Of The Changing Ocean-Sea Ice System On The Key Forage Fish Arctic Cod (Boreogadus Saida) And Subsistence Fisheries In The Western Canadian Arctic—Evaluating Linked Climate, Ecosystem And Economic (Cee) Models, Nadja S. Steiner, William W. L. Cheung, Andres M. Cisneros-Montemayor, Helen Drost, Hakase Hayashida, Carie Hoover, Jen Lam, Tessa Sou, U. Rashid Sumaila, Paul Suprenand, Travis C. Tai, David Vanderzwaag

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This study synthesizes results from observations, laboratory experiments and models to showcase how the integration of scientific methods and indigenous knowledge can improve our understanding of (a) past and projected changes in environmental conditions and marine species; (b) their effects on social and ecological systems in the respective communities; and (c) support management and planning tools for climate change adaptation and mitigation. The study links climate-ecosystem-economic (CEE) models and discusses uncertainties within those tools. The example focuses on the key forage species in the Inuvialuit Settlement Region (Western Canadian Arctic), i.e., Arctic cod (Boreogadus saida). Arctic cod can be …

Environmental Liability For Deep Seabed Mining In The Area: An Urgent Case For A Robust Strict Liability Regime, Keith Macmaster

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This article will focus on liabilities for the Area and examine the question of liability for the various actors involved, including contractors/operators who carry out the exploitation of resources, sponsoring States, flag States, and the International Seabed Authority. It is necessary to analyze the current state of liability provisions, should environmental damage occur in the Area. The rapid pace of technological advancement and the unknown extent of environmental damage make a fulsome liability regime necessary. Unfortunately, as will be shown in this article, there are still extensive unknowns in the legal landscape. This article will investigate two areas of liability: …

자율운항선박의 통제원리로서의 선원의 상무와 해사법규 개정방안 [Translation: A Study On The Ordinary Practice Of Seamen As A Controlling Principle Of Mass And Its Revision Of Maritime Law], Jinho Yoo, Chan-Soo Jung, Sang-Il Lee

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Autonomous technology is advancing, but attention must be paid to how it will be realized when the technology meets specific domains. This paper argued that ships with autonomous technology can not be fundamentally free from the nature of a ship that is human system. Furthermore, the ordinary practice of seamen, which has been the foundation of ship safety for thousands of years, would serve as a basis for judging the adaptability of the autonomous technology. In this regard, the maritime autonomous surface vessels (MASS) of the International Maritime Organization (IMO) should be re-conceptualized into remotely operated vessels (ROV) and fully-autonomous …

Recent Developments In Marine Insurance Law And Consequences For Iran, Mohammad Ali Majd

LLM Theses

The United Kingdom Insurance Act 2015 entered into force on 12 August 2016. It introduced major changes to some provisions of the Marine Insurance Act 1906 which has been the principal model for establishing marine insurance law and practice not only in common law jurisdictions, but also in some civil law countries. The main areas of change are the duty of fair presentation, warranties, insurer’s remedies for fraudulent claims and damages for the late payment of claims. This thesis investigates how uniformity in international marine insurance law can be promoted by virtue of the new changes in English law and …

Towards Ocean Peace: Resolving Disputes Cooperatively And Empathetically Through Negotiation, Nayha Acharya

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Oceans have immeasurable value. They are replete with natural resources and food sources; they enable transportation and recreation; they regulate earth’s climate. In sum, they make invaluable contributions to our physical, economic, and political well-being. And wherever there is something valuable, there are disputes over how that value should be maintained, grown, owned, and distributed. Internationally, disputes over maritime boundaries, access routes, drilling rights, and resource exploration are prolific. A sizeable bulk of international litigation is generated by ocean disputes. In the domestic context, disagreement among stakeholders as to environmental quality and pollution, natural resource management and conservation, geo-engineering, and …

Annex 6: Changing Ocean Impacts On The Key Forage Fish Species Arctic Cod In The Western Canadian Arctic – Linking Climate Model Projections To Subsistence Fisheries, Nadja Steiner, William W. L. Cheung, Helen Drost, Carie Hoover, Jen Lam, Lisa Miller, Andres M. Cisneros-Montemayor, Tessa Sou, U. Rashid Sumaila, Paul Suprenand, Travis C. Tai

Reports & Public Policy Documents

This annex highlights the results of a study focusing on the potential impacts of ocean acidification and other climate- related stressors on marine species relevant for subsistence fisheries in the Western Arctic Bioregion. The study uses a knowledge co-production approach developed in the form of a multi-step process based on a combination of modelling and analysis tools including the Scientific Method and Indigenous Traditional Knowledge (Figure A6.1). Once all steps have been completed, uncertainties can be estimated and improvements can be made either with respect to the individual steps or to the linkages between them. The process can then be …