Law Commons^™

Locating And Situating Justice Pal: Twail, International Criminal Tribunals, And Judicial Powers, Sujith Xavier

Law Publications

This paper brings forward Justice Pal's dissenting opinion at the Tokyo Tribunal to add to Third World Approaches to International Law (TWAIL) literature on international criminal law and the rules of evidence and procedure. It is part of a TWAIL effort to scrutinize the everyday practices of international prosecutions through procedural and evidentiary rules. By locating and situating Justice Pal's reasoning within the broader academic literature on dissents in international criminal law, it is possible to illustrate how and why Justice Pal's views were obscured as a relevant dissent. From this vantage point, this paper pursues Justice Pal's legacy as …

Where Is Canada In The South Caucasus?, Christopher Waters

Law Publications

Canada had minimal presence or interest in Georgia—or the other countries of the South Caucasus, Armenia and Azerbaijan—in the waning days of the 20th century. Although having recognized all three countries after the dissolution of the Soviet Union, no Canadian embassies were established in the region, high-level diplomatic visits were rare, and economic or cultural outreach was minimal.

International Law Influences, Patricia Galvao-Ferreira

Law Publications

This chapter examines the various ways in which IEL has shaped the design and application of Canadian domestic environmental law. It first provides an overview of the importance and the evolution of the international law responses to current and emerging environmental challenges before reviewing concrete cases in which Canadian environmental norms and principles can be directly linked to IEL. Finally, it reviews how Canadian courts are engaging with international law principles.

The Full Picture: Preliminary Examinations At The International Criminal Court, Sara Wharton, Rosemary Grey

Law Publications

The International Criminal Court’s (ICC) Office of the Prosecutor (OTP) has described the preliminary examination as one of its “three core activities,” alongside investigating and prosecuting crimes under the Rome Statute of the International Criminal Court (Rome Statute). Honing in on this once-mysterious “core activity,” this article contributes to the recently expanding literature on preliminary examinations at the ICC by providing a much needed comprehensive picture of all preliminary examinations conducted to date. The twentieth anniversary of the court’s founding treaty, the Rome Statute, provides a timely opportunity for this review as part of the broader effort to take stock …

Climate Finance And Transparency In The Paris Agreement - Key Current And Emerging Legal Issues, Patricia Galvao-Ferreira

Law Publications

The success of the Paris Agreement depends in large measure on the legal and operational details of the “enhanced transparency framework” under article 13, including the transparency framework for climate financial support. The transparency framework for financial support will guide how parties are to report the progress toward meeting their commitments to provide financial support for climate action in developing countries and, where support is received, on its use. Developed countries’ pledge to provide financial support to developing countries was a cornerstone of the compromise that enabled the virtually consensual global adoption of the Paris Agreement in 2015. This financial …

Differentiation In International Environmental Law: Has Pragmatism Displaced Considerations Of Justice?, Patricia Galvao-Ferreira

Law Publications

The Third World Approaches to International Law (TWAIL) scholarly movement seeks to assess and to advance the ‘promise of international law to transform itself into a system based, not on power, but justice’, by considering how global norms impair or advance the interests of states in the Global South. This chapter seeks to contribute to the TWAIL scholarly project by examining whether international environmental law (IEL)’s norms and mechanisms have been a source of international legal innovation by challenging entrenched global socio-economic and power imbalances, making this field of law more supportive of the interests of the South. This chapter …

Lifting The Curtain: Opening A Preliminary Examination At The International Criminal Court, Rosemary Grey, Sara Wharton

Law Publications

In the emerging literature on preliminary examinations, most scholars have focussed on issues that arise after a preliminary examination has been opened. Yet, there has been little analysis of the International Criminal Court (ICC) Prosecutor’s decision to open a preliminary examination in the first place. Taking this gap in the literature as our starting point, and flagging an emerging debate in the ICC as to whether the ICC Statute envisages a ‘pre-preliminary examination’ stage at all, this article examines the law and policy which governs the opening of an ICC preliminary examination and makes the case for further critical discussion …

Equitable Allocation Of Climate Adaptation Finance - Considering Income Levels Alongside Vulnerability, Patricia Galvao-Ferreira

Law Publications

The 2015 Paris Agreement elevates the goal of climate adaptation to the same level of importance as the goal of climate mitigation, and emphasizes the need to mobilize finance for climate adaptation in developing countries. As of February 2017, however, the financial gap for climate adaptation remained monumental. With the administration of US President Donald Trump threatening to interrupt American financial flows to the climate regime, developing countries are expressing growing concern about the ability of developed country parties to mobilize enough finance to meet the sizeable costs of their climate adaptation needs. In this context, the question of how …

Top Heavy: Beyond The Global North & The Justification For Global Administrative Law, Sujith Xavier

Law Publications

Global administrative law scholars have argued that global administrative law’s principles and normativity can bring about legitimacy to global governance institutions, and subsequently benefit the people of the Global South. I challenge these recent arguments that suggest global administrative law has managed to incorporate the concerns of the Third World. I caution international lawyers’ attempts to theorize global governance as administration to fill the democracy gap within the global space. My arguments are premised on the history of domestic administrative law and its uses to facilitate the settler colonial project in places like North America. I first examine the two …

Placing Twail Scholarship And Praxis, Sujith Xavier, Amar Bhatia, Usha Natarajan, John Reynolds

Law Publications

This Special Issue of the Windsor Yearbook of Access to Justice collects some of the written reflections of participants from the Third World Approaches to International Law [TWAIL] Conference held in Cairo, Egypt, from 21 to 24 February 2015. TWAIL is a loosely affiliated network of scholars and practitioners of international law and policy. TWAIL scholars and practitioners are animated by the relationship between the Global North and the Global South, and the ensuing disparities in wealth and health spurred on by processes of diverging and converging colonial and postcolonial histories.

Did The Paris Agreement Fail To Incorporate Human Rights In Operative Provisions? Not If You Consider The 2016 Dgs, Patricia Galvao-Ferreira

Law Publications

The implementation of the Paris Agreement on climate change should follow a rights-centred approach, not only because negative climate change impacts can directly affect several human rights, but also because actions to address climate change may also provoke unintended human rights consequences. During the negotiations that led up to the signing of the Paris Agreement in December 2015, states included an explicit reference to human rights only in the preamble of the legal norm, negotiating other direct references to human rights out of operative provisions. The outcome of negotiations raised the question of whether states have missed an opportunity to …

“The Dark Corners Of The World”: International Criminal Law & The Global South, Sujith Xavier, John Reynolds

Law Publications

Despite international criminal law’s historically contingent doctrines and embedded biases, ThirdWorld self-determination movements continue to be enticed by international criminal justice as a potentially emancipatory project. This article seeks to peer inside the structural anatomy of the international criminal law enterprise from a vantage point oriented to the global South. It reflects broadly on discourses of international criminal law and its exponents as they relate to the global South, and explores one particularly contentious issue in the politics of international criminal law ç that of operational selectivity. Redressing such selectivities as they arise from geopolitical biases is an important first …

Learning From Below: Theorising Global Governance Through Ethnographies And Critical Reflections From The Global South, Sujith Xavier

Law Publications

This paper explores the various means by which we can overcome the universalism imbedded in international law and international institutions. It asks: How can international lawyers and international law scholars learn from the Global South? This ‘how’ question prompts another, but related question: should we learn from the Global South?

There is a rich interdisciplinary body of literature that signals to the Global South, or Europe’s other, as a site of knowledge production. The eurocentrism of the social sciences can be identified by examining the various founding fathers of their respective theories (especially sociology). This paper builds on southern theory …

Emerging Issues In International And Transnational Law Related To Climate Change - International Environmental Law Consultation Workshop, Patricia Galvao-Ferreira, Oonagh Fitzgerald, Kent Howe

Law Publications

The International Law Research Program (ILRP) of the Centre for International Governance Innovation (CIGI) held its first multi-stakeholder international environmental law consultation workshop on February 18, 2015. Under Chatham House Rule, in a round table format, there were 29 participants, with 19 making introductory comments. Participants represented the following stakeholder groups: think tanks, private legal practice, public sector (municipal, provincial and federal), non-governmental organizations (NGOs), Canadian and foreign university faculties of law and other relevant faculties, private sector and scholarship students.

Theorising Global Governance Inside-Out: A Reply To Professor Ladeur, Sujith Xavier

Law Publications

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, accountability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmodern legality and support the creation of norms that will adapt to the complexities of globalization. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law as an example, it is suggested that the creation of …

Sri Lankan Presidential Commission Of Inquiry (2007): Did It Amount To A Fair Hearing?, Sujith Xavier

Law Publications

In this paper, the aim is to assess the procedure of the recent Sri Lankan Presidential Commission of Inquiry and to provide a substantive legal critique of the conflict of interest that troubled the Commission.