Law Commons^™

Home State Responsibility And Local Communities: The Case Of Global Mining, Sara L. Seck

Articles, Book Chapters, & Popular Press

Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms. This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states. This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction. In the human rights and environment …

Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara Seck

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Home state reluctance to engage in the regulation of international corporate activities in the human rights context is sometimes expressed as a concern that it would constitute an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a role for home states in regulating so as to prevent and remedy human rights harms is increasingly being suggested. The purpose of this paper is to explore theoretical …

Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction In The Age Of Globalization, Steve Coughlan, Robert Currie, Hugh Kindred, Teresa Scassa

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The reach of national law is often greater than its grasp. Canada, like other countries, has effective legal power over its territory and all within it. However, one consequence of the current process of globalization, for good or ill, is that Canadian interests are no longer contained exclusively within Canadian borders. Canada thus finds it increasingly necessary to consider asserting its legal jurisdiction beyond its frontiers. Such extraterritorial assertion of Canadian authority may well run into strong opposition from other countries, who might view Canada as attempting to intervene in their own national territory and domestic affairs. Likewise, other states, …

Invasive Seaweed: Global And Regional Law And Policy Responses, Meinhard Doelle, Moira Mcconnell, David Vanderzwaag

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We consider law and policy responses to invasive seaweeds at global and regional levels. Key global regimes considered include the 1982 United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the Ramsar Convention and the Bonn Convention on Migratory Species. Contributions from the Food and Agriculture Organization and the International Maritime Organization are also considered in the global context. At a regional level, examples of efforts in North America and Europe are offered to illustrate challenges and opportunities for regional responses to invasive seaweeds. We conclude with law and policy recommendations, most notably the need …

Abducted Fugitives Before The International Criminal Court: Problems And Prospects, Robert Currie

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In the law and literature relating to the exertion of criminal jurisdiction over the person, there exists a nagging problem that has plagued practitioners, courts and academics alike. The phrase of art is usually something along the lines of "irregular rendition," but the issues are as notorious as they are controversial: what should a court do with an accused criminal brought before it as a result of abduction (or otherwise illegal detention) from a foreign state? And, in particular, should the fact of the illegal or irregular rendition of the fugitive affect either the court's ability or its willingness to …

A Global Treaty To Address Land-Based Sources Of Marine Pollution, David Vanderzwaag

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Land-based sources of pollution are estimated to be the source of approximately eighty percent of all marine pollution. In Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation, Daud Hassan outlines the major sources of Land-Based Sources of Marine Pollution (LBSMP), examines the current legal framework for control of LBSMP, and highlights the obstacles to creating more effective control measures. Additionally, Hassan presents a case study focusing on LBSMP control in the Bay of Bengal region and then concludes with a recommendation for the creation of a global treaty to more effectively address the impacts of …

Respecting Adolescents' Confidentiality And Reproductive And Sexual Choices, Rebecca J. Cook, Joanna Erdman, Bernard M. Dickens

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Adolescents, defined as between 10 and 19 years old, present a growing challenge to reproductive health. Adolescent sexual intercourse contributes to worldwide burdens of unplanned pregnancy, abortion, spread of sexually transmitted infections (STIs), including HIV, and maternal mortality and morbidity. A barrier to contraceptive care and termination of adolescent pregnancy is the belief that in law minors intellectually mature enough to give consent also require consent of, or at least prior information to, their parental guardians. Adolescents may avoid parental disclosure by forgoing desirable reproductive health care. Recent judicial decisions, however, give effect to internationally established human rights to confidentiality, …

Book Review: Gary Botting, Extradition Between Canada And The United States (Ardsley: Transnational Publishers, 2005), Robert Currie

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Both domestic and international laws regarding the extradition of fugitive criminal offenders are in a state of flux throughout the world. The current legal landscape reflects tension between the interest of state authorities in promoting “security,” on the one hand, and increasing recognition that human rights obligations are at play, on the other. Gary Botting’s book, Extradition Between Canada and the United States, successfully addresses this tension by way of a detailed examination of what is probably the most integrated extradition partnership outside the European Union.

Climate Change And The Use Of The Dispute Settlement Regime Of The Law Of The Sea Convention, Meinhard Doelle

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This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

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In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

Student Freedom Of Expression: Violent Content And The Safe School Balance, A. Wayne Mackay, Janet Burt-Gerrans

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The authors begin with a discussion of of the duality in how children are viewed in both international and domestic law. Children are viewed as both under the protection and authority of adults, at the same time as being rights bearing individuals. Following recognition of the difficult tension created by this duality, these authors focus on its application in the balancing of the safe school environment with student freedom of expression. In particular these authors examine cases and scenarios that highlight the complex relationships that result when student expression contains violent content. This timely examination gives consideration to the contemporary …

Climate Change And The Wto: Opportunities To Motivate State Action On Climate Change Through The World Trade Organization, Meinhard Doelle

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This article explores the role of trade in motivating action on climate change, using the specific example of developments within the World Trade Organization (WTO).

The Kyoto Protocol, the first international agreement with legally binding commitments to begin to address climate change by reducing greenhouse gas (GHG) emissions, is expected to come into force in 2004. With it, most of the developed world will be committed to modest reduction targets over the next decade. The two largest per capita emitters, the USA and Australia, have so far opted not to join this modest effort to address climate change, and developing …

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

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If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

Articles, Book Chapters, & Popular Press

If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Environmental Harm In Developing Countries Caused By Subsidiaries Of Canadian Mining Corporations: The Interface Of Public And Private International Law, Sara Seck

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This 1999 publication examines home state responsibility for transnational environmental harm from the perspective of both private and public international law, using Canadian mining internationally as a case study.

Forum Selection And Choice Of Law Clauses In International Contracts: A United States Viewpoint With Particular Reference To Maritime Contracts And Bills Of Lading, Phillip A. Buhler

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This Article approaches the topic of forum selection from a U.S. perspective. It is reasonable to expect, however, particularly with regard to bills of lading and maritime trade, that the approach of other nations toward international contracts is, or soon will be, very similar. For the sake of simplicity, "choice of law" and "choice of forum" will be addressed together, and referred to as either "choice of forum" or "forum selection." Many contracts only specify a particular forum, while others specify only the application of a particular law. U.S. courts and international conventions have generally taken the same approach to …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

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Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.