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Is Our House in Order?

Is Our House in Order?: Canada'a Implementation of International Law

Edited by Chios Carmody
Copyright Date: 2010
Pages: 333
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  • Book Info
    Is Our House in Order?
    Book Description:

    Canadians like to think that their country is law-abiding and honours its international commitments. Is Our House in Order? explores this public perception while considering whether or not it is correct in terms of domestic law.

    eISBN: 978-0-7735-8096-1
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-2)
  3. 1 Introduction: Is Our House in Order? Canada’s Implementation of International Law
    (pp. 3-22)

    The chapters in this volume are the result of a conference held to mark the thirty-fifth anniversary of the Canadian Council on International Law (CCIL),¹ an independent, non-profit organization founded in 1972. Today the CCIL is recognized as the pre-eminent organization devoted to the examination of international law in Canada. As a means of doing something special in its anniversary year, the CCIL executive promoted the hosting of a series of regional events across the country. The chapters in this volume originated in a one-day conference on Canada’s implementation of international law co-sponsored by the University of Western Ontario Faculty...


    • 2 Canada’s Implementation of International Law: Why It Matters
      (pp. 25-41)

      Canadians have historically excelled at international law-making. In 1948, John Humphrey, a McGill law professor, drafted the Universal Declaration of Human Rights,¹ along with French diplomat René Cassin and American first lady Eleanor Roosevelt. Although the Declaration is only a non-binding UN General Assembly resolution, it led to fundamental changes in international affairs. The rights of individuals became recognized within customary international law. Treaties were adopted, and numerous commissions, committees, councils, and special rapporteurs were formed. These developments led in turn to the inclusion of systematic human rights abuses within the UN Security Council’s conception of “threats to international peace...

    • 3 The Relationship of International and Domestic Law as Understood in Canada
      (pp. 42-70)

      Canadians generally consider themselves to be good international citizens. They support the United Nations and most multilateral organizations. Canada is the host to a major UN specialized agency, the International Civil Aviation Organization (ICAO), and to specialized international secretariats, not to mention a large number of NGOS. Canadians are proud of the role that their government has played in many international law-making initiatives, whether it be in the Third United Nations Conference on the Law of the Sea,¹ in the Kyoto Protocol² negotiations or in the negotiation of the Ottawa Landmines Convention.³ Canadians are also proud of its record on...

    • 4 Federalism and Multi-Level Governance in Foreign Affairs: A Comparison of Canada and Belgium
      (pp. 71-96)

      The issue of substate governments in the foreign policy of federal states leads to the fundamental question in contemporary political science: Who governs?¹ How are decisions concerning foreign affairs taken and implemented when the respective fields of endeavour of federated states are implicated? What is the role of the substate governments, like the Canadian provinces or the Belgian regions and communities, in the conclusion (negotiation, signature, and ratification) and the implementation (or application) of international treaties when those treaties affect their respective competences?

      Today virtually all government activity enters into the field of competence of at least one intergovernmental organization,...


    • 5 On the Nature and Meaning of International Legal Obligation: Canada’s Responses to Kyoto
      (pp. 99-114)

      We Canadians are used to thinking of ourselves as good international citizens, respectful of international law and willing to cooperate with partners abroad to achieve shared objectives. In a similar vein, we think of ourselves as green: as respectful of the environment and appreciative of the remarkable natural landscape with which we are endowed. In recent years, however, the response of successive federal governments to Canada’s obligations under the Kyoto Protocol to the United Nations Convention on Climate Change¹ has shaken that self-image. True, Canada has ratified the Kyoto Protocol, but successive federal governments have made little meaningful progress towards...

    • 6 Economic and Social Rights in an Era of Governance and Governance Arrangements in Canada: The Need to Re-visit the Issue of the Implementation of International Human Rights Law
      (pp. 115-139)

      This chapter is not about the “legal” nature of social and economic rights, despite its title. It will nevertheless take as a basis of discussion the United Nations International Covenant on Economic, Social and Cultural Rights (CESCR), which Canada ratified in 1976,¹ while keeping in mind that all human rights are interdependent, indivisible, and guaranteed by different international human rights instruments.² Generally acknowledging the indivisibility of all human rights, as well as of the legal nature of economic and social rights, is not the same as saying that the domestic implications of such recognition are well understood by the courts...

    • 7 Canada’s Implementation of the WTO Agreement
      (pp. 140-173)

      The Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement)¹ is Canada’s principal undertaking in the field of international economic law. Since its conclusion in 1994 the treaty has attracted considerable attention owing to its coverage of trade in goods, services, and intellectual property, as well as its highprofile system of dispute settlement. This broad scope has tended to confirm the treaty’s characterization as an international economic constitution and raised fears about its potential to undermine domestic sovereignty.² In light of these concerns, Canada’s implementation of the WTO Agreement presents a subject of real interest in relation to Canada’s implementation...

    • 8 Canada’s Indoor Arbitration Management: Making Good on Promises to the Outside World
      (pp. 174-198)

      In 1986, Canada acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.¹ This treaty has two broad goals: to facilitate the enforcement of foreign arbitrationagreementsand to facilitate the enforcement of foreign arbitrationawards. The success of this treaty may be measured in part by the fact that 144 states are currently party to it. Leading commentators have said it is the most effective instance of international legislation in the entire history of commercial law.² The reason is that state-parties adhere closely to the uniform rules it sets down regarding the enforcement of arbitration agreements...

    • 9 Libman at Twenty-five; or, Canada and Qualified Territoriality: Do We Understand Jurisdiction Yet?
      (pp. 199-224)

      When considering the phrase “implementation of international law,” one immediately tends to think of passing legislation to bring Canada into compliance with treaties (“We finally ratified UNCLOS!” or “When are we going to implement the Torture Convention Protocol?”), or to a lesser extent, of what Canada’s customary international law obligations are. International law principles regarding the exercise of jurisdiction by states, while a cornerstone of international law texts, do not leap to mind as matters relating to implementation. However, the exercise of jurisdiction by any state over any subject matter, person, or thing is certainly a matter that can have...

    • 10 Domestic Reception and Application of International Humanitarian Law: Coming Challenges for Canadian Courts in the “Campaign against Terror”
      (pp. 225-261)

      As Canadian courts are called on to address issues relating to the multilateral campaign against terrorism, they can increasingly expect to hear principles of international humanitarian law (IHL) cited in support of arguments.¹ Also known as the laws of war or the law of armed conflict, IHL is a specialized body of international law that regulates the conduct of military operations and operates to protect civilians and other persons not actively participating in hostilities and to mitigate harm to combatants themselves. Unfortunately, however, this area of law has not yet received sustained or detailed judicial attention in Canada.

      Recognizing that...

    • 11 Letting the Elephants Watch the Mice: The Surrender of Canadian Anti-Bribery Legislation to American Jurisdiction
      (pp. 262-274)

      Within the broader scope of this volume, in this chapter I examine one small treaty, but one that has interesting dimensions and important applications. Canada’s failure to implement its international law commitments in the context of obligations to prohibit foreign bribery by Canadian actors does not stand as a simple failure to implement international law. It manifests a more complex phenomenon, which is the filling of a sort of void in the exercise of jurisdiction with another state’s exercise of jurisdiction. I seek to establish these claims and to consider some of their implications concerning unexpected ways in Canada, albeit...

    • 12 Confidential Information and Privacy-Related Law in Canada and in International Instruments
      (pp. 275-312)

      With rapid changes in technology and communications spurring globalization and the increasing value of information, any demonstrated international consensus around issues central to these changes cannot be independent of power struggles and coercion between nations and multinationals. The history of international intellectual property instruments illustrates shifting international views on technology and communication as globalization has evolved and the value of information in the new world economy has become evident.¹ This shift has occurred simultaneously with the realization of a borderless communication world and virtual communities. More and more individuals in every society find themselves involved with intellectual property interests that...

  6. Contributors
    (pp. 313-316)
  7. Index
    (pp. 317-326)