Law, Policy, and International Justice

Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen

WILLIAM KAPLAN
DONALD McRAE
Copyright Date: 1993
Pages: 520
https://www.jstor.org/stable/j.ctt80cvf
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  • Book Info
    Law, Policy, and International Justice
    Book Description:

    Written by distinguished scholars from Canada and abroad, the essays cover topics in four different fields that reflect some of Cohen's principal academic interests and concerns: international law, public law, legal history, and legal education. From discussion of the development of United Nations law in the recent Gulf Conflict, the International Court of Justice, and the Cohen Committee on Hate Propaganda, to habeas corpus and legal education, the essays break new ground and demonstrably add, as Maxwell Cohen has done, to knowledge in their respective fields.

    eISBN: 978-0-7735-6427-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Contributors
    (pp. ix-x)
  4. Foreword
    (pp. xi-xii)
    BRIAN DICKSON

    This volume of essays honours a great Canadian jurist, and it is a special privilege for me to contribute the foreword. The range of topics covered by the distinguished contributors to this volume corresponds to Maxwell Cohen’s remarkably varied career.

    Cohen commenced his academic career at a time when few in Canada devoted themselves full-time to research, writing, and teaching. He is rightly seen as an academic pioneer. A perusal of the bibliography of his public work indicates the diverse range of intellectual interests, from legal history to international and constitutional law, human rights, and legal education. A reading of...

  5. Preface
    (pp. xiii-xvi)
    WILLIAM KAPLAN and DONALD McRAE
  6. INTERNATIONAL LAW
    • Legal Aspects of the Gulf War of 1991 and Its Aftermath
      (pp. 5-40)
      OSCAR SCHACHTER

      It is a special pleasure for me to contribute to a volume honouring Maxwell Cohen. His wit, learning, and exuberance have enhanced countless professional meetings in the four decades I have known him. His wide interests and intellectual energy have made him a man for all seasons, a reminder that cross-fertilization of ideas may be more valuable than narrow specialization. United Nations law was one of his many interests that combined the scholarly and the practical. As the Canadian representative on the Legal Committee of the UN General Assembly, he took an active part in furthering UN peacekeeping in the...

    • The Agent in Litigation in the International Court of Justice
      (pp. 41-68)
      SHABTAI ROSENNE

      Maxwell Cohen has been a friend and colleague for many years. He has also been a source of wise counsel. In 1964, during the course of a long walk on the grounds of McGill University in Montreal, Cohen came to the rescue when he suggested the title of my book,The Law and Practice of the International Court.The problem was to find a title which would express the continuity between the Permanent Court of International Justice and the present International Court of Justice. Cohen's suggestion was a perfect bridge between the two. The publication of this book enables me...

    • The Case for an Arctic Region Council and a Treaty Proposal
      (pp. 69-106)
      DONAT PHARAND

      In 1971 Maxwell Cohen proposed that a formal system of cooperation should be developed throughout the arctic basin. The idea has now matured to the point where it is time to make concrete treaty proposals. What is needed is an Arctic Region Council, which should be established by way of a treaty. The first part of this article will examine the main areas of cooperation in which an Arctic Region Council would be engaged and the second will present a draft treaty proposal for the creation of an Arctic Council.

      Cooperation to save our planet Earth is particularly vital at...

    • International Human Rights Law in Canadian Courts
      (pp. 107-143)
      ANNE F. BAYEFSKY

      In 1982 in my second year of teaching at the University of Ottawa, I was honoured by the request of my senior, distinguished colleague, Maxwell Cohen, to co-author an article on the links between public international law and the Canadian Charter of Rights and Freedoms. That collaborative effort was the beginning of a relationship which, for me, has been constantly stimulating and immeasurably satisfying. On one level, Cohen’s fascination for the interplay between international and constitutional law has continued to inspire me; that article served in later years as the subject of a much larger work, to which Cohen contributed...

    • Free Trade in Criminals: Canadian-American Extradition before 1890
      (pp. 144-185)
      DALE GIBSON

      The following account of early extradition arrangements between Canada and the United States is offered as a token of the author’s profound respect for Maxwell Cohen’s splendid contributions to amity along the forty-ninth parallel. Professor Cohen’s career has straddled many boundaries, geographic as well as intellectual. His work with the International Joint Commission reflected only one aspect - albeit an extremely important one - of his interest in transboundary problems. His first scholarly article, published in 1936, concerned an individual's unsuccessful attempt to resist expulsion from Canada in a deportation proceeding - a situation not unlike that of the extraditees...

    • International Dispute Settlement under the Canada-United States Free Trade Agreement
      (pp. 186-204)
      DONALD McRAE

      Throughout his long and distinguished career, Maxwell Cohen has maintained an active interest in the settlement of international disputes an intellectual interest as a scholar and as an acute observer of the international system, and a practical interest arising out of his own involvement in international dispute resolution processes. As chair of the International Joint Commission, he played a key role in ensuring the proper management of Canada-United States relations in respect of their shared boundary water resources. In that capacity he was particularly effective in gaining consensus among the commissioners of the two countries. As judge ad hoc in...

  7. PUBLIC LAW
    • Maxwell Cohen’s Perspective on Human Rights in Canada: The Entrenchment of the Charter and the Enactment of the Emergencies Act
      (pp. 207-242)
      ANNEMIEKE HOLTHUIS

      Maxwell Cohen is known primarily as an international legal scholar, jurist, and practitioner.¹ However, his contribution to Canadian public law, in particular constitutional and human rights law, has also been significant.² From his early work on the origins of the writ of habeas corpus to his chairmanship of the Special Committee on Hate Propaganda in Canada and his later works examining the relationship between international law and theCanadian Charter of Rights and Freedoms,³ Cohen’s contribution to human rights scholarship in Canada has largely been informed by his international perspective. Indeed, this article will focus on two features of Cohen’s...

    • Maxwell Cohen and the Report of the Special Committee on Hate Propaganda
      (pp. 243-274)
      WILLIAM KAPLAN

      In 1966 the Special Committee on Hate Propaganda, chaired by Dean Maxwell Cohen, presented its report, unanimously recommending amendments to the Criminal Code which would make unlawful the advocacy of genocide, the public incitement of hatred, and the wilful promotion of hatred against identifiable groups.¹ Shortly thereafter the House of Commons was informed that a bill based on the Cohen Committee Report would be referred to a special joint committee of the House of Commons and Senate. As the result, the Parliament and public of Canada became engaged in a debate which ran, off and on, for the next five...

    • The Right to Protection against Group-Vilifying Speech: Towards a Model Factum in Support of Anti-Hate Legislation
      (pp. 275-297)
      IRWIN COTLER

      Like many others, I was - and remain - the beneficiary of Maxwell Cohen's scholarship, deanship, counsel. Most important, perhaps, he was - in the very best sense of the word - teacher, mentor, inspiration, and friend. Cohen used to say of Professor My res MacDougal - that great and legendary teacher of law at Yale - that he had not only students, but disciples. Like MacDougal, Cohen has his disciples — and not only disciples but devotees - and I would be honoured to count myself among them.

      Just as MacDougal, together with Harold Lasswell, founded the policy-oriented school of...

    • The Charter of Rights and Freedoms and Positive Obligations
      (pp. 298-319)
      WILLIAM W. BLACK

      Maxwell Cohen said the adoption of the Canadian Charter of Rights and Freedoms was “perhaps the most far-reaching change to take place in the Canadian legal-political system since Confederation itself.”¹ He described it as a bridge between domestic law and international law. In particular, he noted the influence of the complex of international instruments developed by the United Nations since the Second World War to protect a wide variety of human rights.

      Though Cohen has identified the potential of this melding of international and domestic law, he has also concluded that these developments will require us to resolve tensions created...

    • Language and Canadian Public Law
      (pp. 320-362)
      JULIUS GREY

      Maxwell Cohen was a giant figure for me during my years at McGill. He admitted me to the Faculty of Law, and he taught me Government Control of Business, a course which, several years later, I had the honour to teach with him.

      Those were heady times. The Quiet Revolution in Quebec, the student revolution across the continent, the massive expansion of social services, and the adoption of Canadian official bilingualism created an atmosphere of excitement and ferment. But there were also signs of danger. After the unexpected Union Nationale victory in 1966, the Quiet Revolution was highjacked by narrow...

  8. LEGAL HISTORY
    • The Writ of Habeas Corpus in Early Modern England: A View from Within
      (pp. 365-384)
      LOUIS A. KNAFLA

      Maxwell Cohen's series of articles in theCanadian Bar Reviewon the history of the writ of habeas corpus in English law from its medieval origins to the Habeas Corpus Act of 1679, drawn from his Master of Laws thesis at Northwestern University in 1936, pointed to several new directions in the historiography of habeas corpus. While previous literature had tried to see the origins and development of the writ of habeas corpus as a means to avoid imprisonment and a procedural tool in the evolution of the concept of liberty, Cohen saw it as a device which served a...

    • Habeas Corpus and the Case of the Man Who Escaped from Devil’s Island
      (pp. 385-406)
      ROBERT J. SHARPE

      Among Maxwell Cohen’s first scholarly work is a series of three articles on the history of habeas corpus.¹ Together, they made up his Master of Laws thesis at Northwestern University. Remarkably well researched and clearly written, these articles remain a leading source on the history of the great writ. I feel a close affinity to this early product of Cohen’s insightful scholarship, as my own graduate work was also devoted to a study of habeas corpus. I relied heavily on Cohen’s articles in my introductory historical chapter, and, more generally, I drew inspiration from the careful and dedicated scholarship his...

  9. LEGAL EDUCATION
    • Dreaming the Impossible Dream: Maxwell Cohen and McGill’s National Law Programme
      (pp. 409-430)
      RODERICK A. MACDONALD

      Among Max Cohen’s many abilities as a legal educator, two are emblazoned on my mind: his almost unlimited capacity for “dreaming” and his silver-tongued eloquence and enthusiasm. The former led to several rounds of undergraduate curricular reform at McGill from the 1940s through the late 1950s, to the reinvigoration of the Institute of Air and Space Law in the early 1960s, to the establishment of the Institute of Foreign and Comparative Law in 1965, to the reorientation of the Bachelor of Civil Law (BCL) tuition in the mid 1960s, and finally to the launching of the faculty’s National Programme in...

    • Anglophone Quebec and the Quiet Revolution: Maxwell Cohen at McGill University
      (pp. 431-439)
      EDWARD McWHINNEY

      I met Maxwell Cohen for the first time in Toronto in the fall of 1955. He had come to the University of Toronto to give the biennial exchange lectures on comparative law that were alternated between the two law schools, Toronto and McGill, and were sponsored with Carnegie Corporation support. Cohen’s visit had been arranged by the Germanémigréjurist Wolfgang Friedmann, who had just left Toronto for Columbia University in New York. As Friedmann’s successor in teaching comparative law and jurisprudence, I found myself charged with Cohen’s lectures. Somewhat unexpectedly, Cohen’s chosen theme was public international law, and he...

    • Maxwell Cohen and the Theory and Practice of Canadian Legal Education
      (pp. 440-454)
      J. P. S. McLAREN

      My first experience of Maxwell Cohen was at a meeting of the Association of Canadian Teachers of Law (as it then was) in Ottawa in 1967. The organization was engaged in one of its periodic bouts of introspection on legal education. On a humid early summer afternoon the soporific climate of the session was broken by the lively intervention from the audience of a distinguished-looking gentleman who announced himself as Max Cohen. In the space of the next ten minutes he left us in no doubt that, in his opinion, the progressive strains in Canadian legal education came from the...

    • The Role of the Canadian Institute for the Administration of Justice in the Development of Judicial Education in Canada
      (pp. 455-480)
      DAVID C. McDONALD

      I agreed for two reasons to contribute an article to this book describing the role of the Canadian Institute for the Administration of Justice (CIAJ) in the development of judicial education. First, I have known Max Cohen for eighteen years and he and his wife have been good friends, so I am not only honoured but pleased to be able to join in celebrating his life. Second, although Cohen has not been associated with judicial education in Canada, he has been vitally interested in all aspects of legal education and it is thus appropriate to include an article on this...

    • The Founding of the Canadian Judicial Centre
      (pp. 481-490)
      WILLIAM STEVENSON

      Maxwell Cohen prefaced his review ofLaw and Learningwith that observation, remarking on the excessive tendency of Canadian law teachers to gaze at their navels. No such comment could be directed towards the study of judicial training in Canada. Unfortunately, “Judge” Maxwell Cohen did not have the opportunity to direct the impressive talents of “Dean” Maxwell Cohen to the subject of judicial education.

      That subject has only recently been recognized as justifying any appraisal, let alone reappraisal. The first institution designed exclusively for the development of judicial education, the Canadian Judicial Centre, was established in December 1987 and housed...

  10. Bibliography
    • Maxwell Cohen: An Overview of His Publications
      (pp. 491-503)
      ANNEMIEKE HOLTHUIS