1

2011 Osgoode Forum

Annual Osgoode Hall Graduate Law Students’ Association Conference

May 9th and 10th, 2011

No Boundaries: Transnational Law and a New Order of Global Governance

ABSTRACTS

May 9-10, 2011 Osgoode Hall Law School

York University

2

TableofContentsReyihanguli Aisaiti ......................................................................................................................... 4 

Ruba Ali ........................................................................................................................................ 5 

Filip Balcerzak ............................................................................................................................... 7 

Nicholas A. Bastine ....................................................................................................................... 8 

Danielle Bishop ........................................................................................................................... 10 

Todne Bryan ............................................................................................................................... 11 

Marsha Cadogan ........................................................................................................................ 12 

Tatiana de Almeida F. R. Cardoso .............................................................................................. 13 

Eric C. Chaffee ............................................................................................................................ 14 

Shane Chalmers ......................................................................................................................... 15 

Christian Chamorro-Courtland .................................................................................................... 16 

Pascale Chapdelaine .................................................................................................................. 17 

Farah Chowdhury ....................................................................................................................... 18 

Kristin Ciupa ................................................................................................................................ 19 

Lisa Clarke .................................................................................................................................. 20 

Sara Corradi ................................................................................................................................ 22 

Carolina Cruz Vinaccia, Ximena Insunza Corvalan and Katharina Rogalla von Bieberstein ...... 24 

Heather Curran ........................................................................................................................... 25 

Ruby Dhand ................................................................................................................................ 26 

Tracey Leigh Dowdeswell ........................................................................................................... 27 

Alfredo Ferrante .......................................................................................................................... 28 

Henry Garon ............................................................................................................................... 29 

Geoffrey Garver .......................................................................................................................... 30 

Nachshon Goltz .......................................................................................................................... 31 

Igor Gontcharov .......................................................................................................................... 32 

Zaglul Haider ............................................................................................................................... 33 

Sarah Hamill ............................................................................................................................... 34 

Patricia Hania .............................................................................................................................. 35 

Christina J. Hollingshead ........................................................................................................... 36 

Graham Hudson .......................................................................................................................... 37 

Sirus Kashefi ............................................................................................................................... 38 

Sean Michael Kennedy ............................................................................................................... 39 

3

Dimitry Kochenov ........................................................................................................................ 40 

Tumininu Modupe Laiyemo ......................................................................................................... 42 

Vicheka Lay ................................................................................................................................ 44 

Fanny Leveau ............................................................................................................................. 45 

Anne Liu ...................................................................................................................................... 46 

Michael John Long ...................................................................................................................... 47 

Benoît Mayer ............................................................................................................................... 48 

Peter Mazzacano ........................................................................................................................ 49 

Liam McHugh-Russell ................................................................................................................. 50 

Lori McMillan ............................................................................................................................... 51 

Henrique Mercer ......................................................................................................................... 52 

Surinder Multani .......................................................................................................................... 53 

Olakunle Lekan Oyeyipo ............................................................................................................. 54 

Timothy Petrou ............................................................................................................................ 55 

Rafael Plaza ................................................................................................................................ 56 

Michael Posluns .......................................................................................................................... 58 

Jing Qian ..................................................................................................................................... 59 

Ottavio Quirico ............................................................................................................................ 60 

Steffan Riddell ............................................................................................................................. 61 

Shanthi Elizabeth Senthe ............................................................................................................ 62 

Daniel Sheppard ......................................................................................................................... 63 

Fahad Siddiqui ............................................................................................................................ 64 

Dorinda So .................................................................................................................................. 65 

Lydia Stewart Ferreira ................................................................................................................. 66 

Vanisha H. Sukdeo ..................................................................................................................... 67 

Koji Teraya .................................................................................................................................. 68 

Dilan Thampapillai ...................................................................................................................... 69 

Michail (Michael) Vagias ............................................................................................................. 70 

Pieter Van Cleynenbreugel [1] .................................................................................................... 71 

Paul Walker ................................................................................................................................. 72 

Qianwen Zhang ........................................................................................................................... 73 

4

Exclusive Jurisdiction In Chinese Private International Law

Reyihanguli Aisaiti

Jurisdiction is the most important instrument in the sphere of private international law; it

is one of three pillars that fashioned conflict of law’s exclusive feature with comparison to other areas of law. Jurisdiction in conflict of laws deal with a subject matter that involve different legal units in which the ultimate goal is to determine which nation’s court have jurisdiction in dissolving dispute that involve foreign element.

Historically, there are four branches of jurisdiction in conflict of laws, each of them being general jurisdiction, assumed jurisdiction, exclusive jurisdiction, Subject matter jurisdiction, This article specifically focuses on Chinese exclusive jurisdiction from comparative perspective. Theory of exclusive jurisdiction:

It is firmly established that jurisdiction in private international law both in common law and civil law system is about determining competent jurisdiction which is appropriate to dissolve foreign element related dispute, This is special feature of private international law, it is a jurisdiction selection, the question then arise is why state claims exclusive jurisdiction in certain subject matters, why this type of disputes fail to left to conflict of laws approach to resolve, is it to say that this is a way of private international law borrowing public international law’s concept , to put it in another way sovereign state is extending its power to certain property title ? Are there public policy of nation state is considered? Should there be uniformed approach in all‐legal system with respect to exclusive jurisdiction claim?

In order to answer above questions, It needs to address why certain areas state claims exclusive jurisdiction, what is basis for that? In theory, sovereign state exercise exclusive jurisdiction in a matter where state has great interest in subject matter, there are circumstances in which conveniences is paramount. Each of these circumstances will be discussed in detail.

In general, both civil and common law jurisdiction shared common grounds for exclusive jurisdiction in a matter of immovable property, validity of companies and other legal person, registration of intellectual property rights and enforcement of judgments, what are the grounds for Chinese court to claim exclusive jurisdiction?

This article reviewing concepts in both Brussels regulation and common law approach to define the scope of exclusive jurisdiction in Chinese law, It is nonetheless possible to find legal standards derived from neither legal tradition, however, there are certain need to be keep same standard with international regime. This paper will provide number of examples illustrating nature of exclusive jurisdiction claims by sovereign states in private international law. Reyihanguli Aisaiti LLM Osgoode Hall law school

5

Iraqi Sovereignty Between The Constitution And U.S.-Iraqi Strategic Agreements

Ruba Ali

Much has been said and written about the fifth anniversary of the Iraq war on television,

in the print media, and on the Internet. Most, though certainly not all, of this excess of verbiage tends to be rather polemical, extolling the magnificent successes of the American venture, or decrying it as the worst foreign policy venture in American history. Sometimes more nuanced analyses are given, but nearly all view the entire affair through the prism of the interests of the United States. To the extent that the Iraqi are discussed, they tend to be externalized and reduced to a passive polity awaiting liberation from an evil dictator, a vengeful lot more concerned about settling old grievances than running the country, or an unfortunate people poorly represented by a venal and corrupt set of politicians who cannot make necessary compromises, ungratefully debating endlessly while American blood and treasure is wasted on them.

Aside from contrasting the rhetoric outlined above, the purpose of this dissertation is to define and outline the nature of Iraqi sovereignty, as traceable in three binding legal documents: the Iraqi Constitution, the Status-of-Forces-Agreement (S.O.F.A.) and the Strategic Framework Agreement (S.F.A.) between Iraq and the United States. Two events from recent Iraqi history will provide the context for analyzing these three legal documents.

1) In September 2007, employees of Blackwater (now known as Xe), a then private security company hired for diplomatic protection by the United States, were responsible for the deaths of 17 Iraqi civilians. In my dissertation, I will argue that “Baghdad’s Bloody Sunday” acted as a precursor and driving factor to the drafting of the U.S.-Iraqi S.F.A., ratified on 17 November 2008, and the S.O.F.A., ratified on 1 January 2009. It motivated Iraqi officials to push not only for full monopoly over Iraqi armed forces, but also for Iraq’s jurisdiction over foreign troops on Iraqi soil, as well as a restricted role for hired contractors by the U.S.

2) The Iraqi federal elections of May 2010 resulted in a marginal win by Al- Iraqiya

political bloc, followed by an eight-month political, legal, and constitutional vacuum. Iraqi pluralism may have been the driving factor complicating the negotiation process between the political blocs, as each ethnic and religious sector of Iraqi society sought to ensure its self-determination through political representation. A Federal Court decision that the political bloc winning the most seats should form the new government was largely dismissed by others who were concerned with their own political representation, or lack thereof. A Government of National Partnership involving the major political blocs was eventually formed in late 2010, as an outcome of a summit held in Iraqi Kurdistan.

The above examples will enable a socio-legal analysis of how Iraqi sovereignty, as it emerged after 2003, is shaped by the Constitution, U.S.-Iraqi strategic agreements and the interaction between them. The various dynamics to be explored include the interplays between state sovereignty and the sovereignty “of the people”, between de facto and de jure sovereignty, between internal dimensions and between external dimensions. Very little literature

6

currently exists in this area of research and my dissertation will contribute towards filling this void. Key Words: sovereignty, constitution, nation-building, status-of-forces & strategic treaties, client state, pluralism. Ruba Ali B.Sc., M.A., LL.M. Ph.D. Candidate, Osgoode Hall Law School rabaali@osgoode.yorku.ca 1 Haider Ala Hamoudi, “Iraq Five Years On: An Iraqi Legislative Perspective” (20 March 2008) Jurist.com. 2 And in the Iraqi context, of “peoples”, considering Iraq’s Kurdistan. 3 Such as the authority of government institutions in relation to government of/over/by the people. The classic liberalism of Tocqueville understands popular sovereignty as a principle of equality which needs to be limited. According to him, if the constitutional regime, with its separation of powers, does not set boundaries on the democracy of the people, then the pre-political liberties of the individual are in danger. With this, the practical reason incorporated in the constitution comes into conflict with the sovereign will, rights, and freedoms of the political masses. Rousseau, J.-J. Of the Social Contract or Principles of Political Right. Trans. by C.M. Sherover. New York, 1984. 4 Such as the relationship of national sovereignty of the people and the state to external actors like the United States and United Nations.

7

Jurisdiction of Arbitral Tribunals in Investment Disputes

Filip Balcerzak

International Investment Law is a relatively new field of law. It has been gaining

importance and having influence on current state of perception of international law since 1990s.

Majority of Investment Treaties, which current number exceeds 2500, provides for a specific dispute resolution system, based on private commercial arbitration. Specific nature of Investment Law provides significant modifications to rules adopted from private arbitration.

One of most visible differences is the matter of jurisdiction of Arbitral Tribunals. In private arbitration their authority to hear cases comes from consent to arbitration, normally expressed in proper clauses included in contracts. In investment dispute host state express its consent in advance, already in a treaty, whilst investor expresses its consent by submitting its claim and starting arbitral proceedings.

Although consensual nature of arbitration is conserved, there are many differences regarding Arbitral Tribunals’ jurisdiction in investment disputes between a state and a foreign investor, which I would like to address in my speech. I would like to put the main focus on requirements which must be met by investors, keeping in mind that States’ consent to arbitrate expressed in a treaty is not unconditional.

Briefly described other requirements, I would like to put the main focus on an an obligation that investors have to waive their rights to pursue its claim in national courts. I would address and try to answer the following questions: Is this requirement present in majority of investment treaties, or is it relevant only under North American Free Trade Agreement? What is its aim? What are the consequences if an investor does not issue a valid waiver? Does it affect Arbitral Tribunal’s jurisdiction and which in consequence cannot hear the dispute, or is it a procedural or admissibility matter, which can be validated at any moment? Key Words: International Investment Law, Arbitration, Jurisdiction, Admissibility, Waiver. Filip Balcerzak LL.M. student, University of Ottawa, concentration: International Trade and Foreign Investment Law Ph.D. student, Adam Mickiewicz University of Poznań, Poland balcerzak.filip@gmail.com

8

The Trokosi Sysytem - A Challenge For Trans/National Laws In Protecting The Rights Of Girls And Women In Ghana

Nicholas A. Bastine

This paper is concerned with the impact of laws - national and transnational law - on the trokosi system in Ghana. It is deals with the (in) effectiveness of international human rights and national laws in protecting the rights of women and children in Ghana. The paper argues that in spite of a number of international human rights conventions that Ghana ratified, adopted and made part of its laws that prohibit the practice, trokosi persists in the country. The paper asks whether adherents to trokosi have the right to practice their religion at the expense of the fundamental human rights of women and children in Ghana.

Trokosi is a traditional religious system that oppresses women and children in Ghana. The practice, among the Ewes of Ghana, requires parents to offer their virgin daughters to a fetish shrine to atone for sins of their ancestors. Ghanaian laws prohibit discrimination against women and the girl-child. Example are the “equalization provision” within the 1992 Constitution and a number of international human rights laws that Ghana had ratified to protect the rights of women and children. Ghana also amended its criminal code – the Criminal Code (Amendment) Act, 1998 (the trokosi law) to protect victims of trokosi, yet the practice persists.

The questions mediating this inquiry are: why (a) Ghanaian women and children continue to be oppressed in spite of Ghana’s robust domestic and international laws that protect them? (b) the government does not enforce the trokosi law ?, and (c) the 1992 Constitution has not been effective in eliminating violence against women and children Ghana?

Embedded in cultural relativism and universalism, the paper discusses the (1) presence of a strong patriarchal framework and the family structure which favours men over women in Ghana, the (ii) the secrecy of traditional religious practices, particularly, the trokosi rituals; (iii) the inherent weakness of the United Nation as the source and enforcer of international laws; (iv) the possible irrelevance of international conventions to Ghana’s cultural and political situation ; and (v) the internal dynamics of Ghanaian politics.

The paper concludes that trokosism persists in Ghana because of the conflict between culture and religious norms on the one hand and positive law (transnational/international laws) on the other, and that the trokosi law has not affected the practice of trokosi in the country. Key Words: Gender discrimination, religion, international human rights, culture, and positive law.

9

Nicholas A. Bastine PhD candidate Osgoode Hall Law School of York University Toronto

10

Corporatism, Humanitarian Governance and the United Nations: Tracing the Adverse Affects of Globalization on Reproductive Health Rights in Contexts of Displacement

Danielle Bishop

Rarely is reproductive health in refugee camp contexts examined within a feminist

political framework, one focusing on the possible ways in which particular sets of global relations of power—writ large in the complex interface of differing spheres authority and governance—are themselves the greatest barriers to achieving health as a human right. This paper aims to reposition refugee reproductive health rights under the purview of international relations. In particular, I work to conceptualize and illustrate an overlooked relationship between the worsening reproductive health outcomes in specific sites of legal and political exception and the threefold geopolitical shift in global governance that has led to what Peter Nyers calls humanitarian violence. Through this framework, I first examine the various mechanisms through which globalization affects humanitarian governance and UN operations. I argue that these affects ultimately lead to a dialectical pattern of aid; though some disparities in material conditions are alleviated, the end result is a necessary sustaining of the structural violence and gender-inequalities at the root of reproductive health needs and inequities in camp settings. Second, I consider the degree to which the these facets of globalization reconfigure not only refugee reproductive health but refugee bodies into both an object and subject of a 'global governmentality', a gendered process in which biopower, the politics of representation, and neo-liberal geopolitics are very much a part. Overall, my intent is consider how political, economic and material-discursive relations inform humanitarian governance and, in turn, structure refugee reproductive health policy (sometimes problematically). Second, it is to underscore the oft overlooked yet devastating affects of such global relations of power on both human rights and on the worsening material conditions in refugee camp settings and, in turn, on reproductive health, inclusive of maternal and child health, family planning, gender-based violence and safe motherhood. Key Words: Humanitarian Governance, Globalization, Reproductive Health, Human Rights, Refugee Camps, Neo-liberalism Danielle Bishop York University Ph.D. Student, Health Policy and Equity Studies/Refugee and Migration Studies

11

Reprogenetics under the Caribbean Sun: The Power of the Law in the Era of Globalization

Todne Bryan

With the rapid developments in genetic technologies, legislators across the globe are

finding it increasingly difficult to successfully regulate the use of modern reproductive techniques. This paper examines the use of reprogenetics within the Caribbean and by extension addresses the problem of “reproductive tourism”. For physicians who specialize in new reproductive technologies, restrictive domestic laws as well as stringent institutional policies has made relocation to other jurisdictions a necessary course of action. For couples who are eager to take advantage of the new advancements in genetic and reproductive technologies that might be prohibited at the domestic level, resorting to “jurisdiction shopping” has become a popular alternative.

This paper seeks to determine what role, if any, transnational law has had in the Caribbean in terms of shaping domestic modes of governance in the area of reprogenetics. In short, this paper argues that without the appropriate laws and regulations that specifically address the legal, ethical and economic concerns surrounding the use of reprogenetics at the domestic level, Caricom nations run the risk of being abused and exploited by members of the international community seeking refuge from the rigid laws and policies which govern their own nations. This paper suggests that the adoption and ratification of several United Nations’ policies might be a feasible starting point in the quest to protect Caricom member states from essentially serving as sites or secret havens for unethical reproductive healthcare practices. Key Words: Reprogenetics, Healthcare, Reproductive Tourism, Jurisdiction Shopping, Caribbean. Todne Bryan PhD. Candidate Osgoode Hall Law School

12

Structuring Geographical Indications to spur Rural Development: The Case of Jamaica

Marsha Cadogan

The conventional forms of intellectual property rights, are irrelevant and questionable as

development apparatuses in Jamaica. The contention of a positive correlation between intellectual property rights and development in developing countries, has been successfully disputed by many academics. However, heightened interest has been generated amongst many developing countries, in the use of geographical indications to spur rural development. Its ability to generate socio-economic benefits across a wide cross sectional group of individuals and, the flexibility in extending the scope of its protection to traditional agricultural products, fundamentally differentiates geographical indications from other forms of intellectual property rights. The paper explores how Jamaica’s geographical indication legislation can be used as a valorization strategy in rural development, by linking traditional agricultural products to its specific internal localities.

Geographical indication (GI) legislation has recently been implemented in Jamaica. Agricultural products with peculiar qualities specific to Jamaica, are included in the scope of protection. Jamaica’s agricultural resource base, include a myriad of products, which, based on their unique characteristics and linkage to its locality, are feasible candidates for registration as GI. However, no product has yet to be protected under the legislation. Development initiatives in Jamaica, have so far made insignificant inroads in mitigating socio-economic inequalities in rural communities. It is not contended, that a GI system is capable of ameliorating Jamaica’s development dilemma. However, a GI regime can be a useful valorization apparatus, in assisting in the development of rural farming communities in Jamaica. In addition to fostering improvements in income and employment for rural farmers, a GI regime can also be utilized as a catalyst for rural integration.

The effectiveness of a geographical indication regime, is dictated by both exogenous and endogenous factors. Product demand by extra-local consumers and, the recognition of the GI protection by other countries, are salient exogenous factors. Amongst the foremost endogenous factors, are the structure and management of the GI and, the relevance of the GI protected agricultural product to the local community and to local culture. GI’s cannot be conceptualized as just a product differentiation strategy in leveraging a specified product in the consumer market. Neither should the failure of other forms of intellectual property rights to effect significant developmental changes in Jamaica, be a deterrent to its use. An effective GI regime, provides a myriad of opportunities for socio-economic development in rural farming communities, in Jamaica. Marsha Cadogan Ph.D candidate, Graduate Program in Law.

13

Trans-normativity theory and its effects to the environment protection

Tatiana de Almeida F. R. Cardoso

Transnational Law as Philip C. Jessup used to advocate for still in the 1950’s seemed a

little too impossible at the time. However, he was right – rules and regulation formulated in the international sphere can be adopted without a proper method of internalization, as many countries, like Brazil, set in their constitutions. And the most important factor of this novel scenario brought by globalization is not a (possible) illegality of the document, but the materialization of a new model of governance that goes beyond borders and the reduction of the countries’ sovereignty power. Why? As countries tend to be more inter-dependent, mainly in the environmental filed, more and more norms are to be articulated in the international order (United Nations, Organization of the American States, European Union, etc.), having contributions of the entire international community, not resting in one model or another, since the challenges currently faced affect all nations. Especially in the environmental area, it is even clearer that trans-regulation theory plays an important role, due to the fact that without the previous transnational dialogue, the whole human existence could come to an end. Thus, according to this theory, states will diminish their internal production of laws, engaging into a more broad (but punctual) transnational discourse that will turn out to be more effective in the 21st century, not just because of the moral standards but also due to the new international (regulatory) authority. Key Words: Trans-normativity Theory – Philip C. Jessup – Environmental Law – Globalization – Global Governance. Author: Tatiana de Almeida F. R. Cardoso Institutional affiliation: Visiting researcher at the University of Toronto / LL.M. Candidate in Public Law (emphasis in International Law) at Unisinos University (São Leopoldo, RS - Brazil). E-mail: tatiafrcardoso@gmail.com / tatiana.cardoso@utoronto.ca

14

Promises Yet to Be Fulfilled: The Missing International Component of Financial Regulatory Reform

Eric C. Chaffee

In June 2009, the United States Department of the Treasury issued its white paper report, Financial Regulatory Reform—A New Foundation: Rebuilding Financial Supervision and Regulation. The Report detailed the Obama Administration’s proposed regulatory reforms in response to the current financial crisis and announced the following five policy objectives underlying these reforms:

- Promote Robust Supervision and Regulation of Financial Firms - Establish Comprehensive Regulation of Financial Markets - Protect Consumers and Investors from Financial Abuse - Provide the Government with the Tools it Needs to Manage Financial Crises - Raise International Regulatory Standards and Improve International Cooperation

In July of 2010, Congress enacted the Frank-Dodd Wall Street Reform and Consumer Protection Act, which as stated in the preamble was designed “to promote the financial stability of the United States.” As passed, the Act contained considerable efforts to meet the first four of the Obama Administration’s policy objectives regarding reform, but it did not contain significant efforts to raise international regulatory standards and improve international cooperation. Raising international standards and improving international cooperation is particularly important because of the globalization of capital markets that has occurred within the past few decades. This is because global financial markets need a cohesive system of global financial regulation to prevent or lessen future financial crises. My presentation will explore the reasons why increased coordination and cooperation is needed among the world’s financial regulators and how increased coordination and cooperation might best be achieved. Eric C. Chaffee Associate Professor Chair, Project for Law & Business Ethics University of Dayton School of Law 300 College Park, Dayton, Ohio 45469 216-225-3925 Eric.Chaffee@notes.udayton.edu

15

Juridification and Normative Continuity Contradictory Possibilities at the Intersection of Law

Shane Chalmers

The paper is an attempt to understand and explain the process of ‘legalism from below’ in

terms of the ‘legal dimensions of everyday life’. It takes the notion of ‘legalism from below’ as discussed by Julia Eckert, and examines it in terms of the interaction of micro- and macro-legal orders, using the theoretical framework developed by Daniel Jutras. The paper uses the case study of a Malawian worker’s experience with a legal-aid office in Lilongwe, as documented by Harri Englund in his book Prisoners of Freedom, to draw out this analysis. The question is whether such an analysis of the legal dimensions of everyday life might offer insight into the process and success or failure of legalism from below, and thus into the potential implications of the interaction of formal law and the informal normative ordering of everyday life. As we see, that question requires consideration of the workings of juridification, micro-systemic power imbalances, and subconscious lawfulness. The aim is thus to understand and explain the potentially contradictory outcomes of the process of legalism from below—to answer why the appeal to formal law can operate to both challenge and reinforce dominant normative orders. The paper concludes by arguing that, by recasting the process of legalism from below in terms of the intersection of legal regimes at sites of internormativity, we can begin to think about solutions to the real problem of structural inequalities and systemic oppression in the contexts in which those individual cases arise. Whether the solution is more targeted social programs to reform the ‘informal legal systems’, or some other approach, will depend on what is required in the local context—but without the analytical tools, there can be no solution. Key Words: Comparative law—normative continuity—juridification—‘extralegalism from above’—‘legalism from below’. Shane Chalmers LLM candidate in the Institute of Comparative Law, McGill University shane.chalmers@mail.mcgill.ca

16

The Legal Aspects of Non-Financial Market Central Counterparties (CCP)

Christian Chamorro-Courtland

International Air Transportation Association (IATA) v. Ansett (2008) was decided

correctly by the High Court of Australia. However, the reasoning of the judges was unsound due to their apparent unfamiliarity with the operation of Central Counterparty (CCP) systems. The judges failed to recognise that ‘open offer’ was the mechanism of counterparty substitution used in the IATA clearing rules to create mutuality and guarantee multilateral insolvency set-off. Only financial market CCPs receive special statutory protections from burdensome corporate insolvency laws. Therefore, it is argued that the new transnational lex mercatoria confers analogous protections on the arrangements of non-financial market CCPs such as IATA. The High Court would have reached the same outcome they did by applying this legal framework to the facts in Ansett. Key Words: Central Counterparty (CCP), Open Offer, Mutuality Doctrine, New Transnational Lex Mercatoria, Insolvency Law Christian Chamorro-Courtland LLB, LLM (King’s College London). Ph.D. Candidate at Osgoode Hall Law School. Osgoode GLSA Co-Chair. Legal Process and Writing Instructor at Osgoode. Email: christianchamorro-courtland@osgoode.yorku.ca

17

Promises and Disappointments: the Regulation of Consumer Transactions pertaining to Digital Copies of Copyrighted Works

Pascale Chapdelaine

Since the last decades, we are witnessing legislative reform throughout the world to

address consumer electronic transactions. The attention is predominantly devoted to issues of contract formation and enforcement (e.g. consent, information disclosure requirements, opposability of terms and conditions, conflict of laws) and the promotion of fair business, advertising and marketing practices, to secure the growth and flourishing of e-commerce transactions. Remarkably less attention has been devoted to the revolution and the conundrum that the information age poses to the access, use and enjoyment of copyrighted works, and the concerns that this may raise in consumer transactions. The result is that the regulation of copies of copyrighted works is largely dictated by copyright laws which, by their essence and purpose, are copyright holder centric. They are not immediately concerned with the effect that exclusive copyright holders’ rights have on consumers accessing copyrighted works. By design, copyright laws also give copyright holders a lot of freedom in how they make their works available by contract, including through standardized non- negotiated agreements.

While this void with respect to the treatment of consumers may have been bearable in the past, the digital distribution of copyrighted works forces us to rethink the traditional allocation and scope of property rights involved and their modulation by non-negotiated contracts. While new technologies enable copyright holders to better control the access and use of digital copies of their copyrighted works (through technological protection measures and digital rights management) they also increase, in unprecedented ways, consumers’ means and expectations regarding the access, copy, re-creation, sharing and communication to the public of copyrighted works. While this technological revolution has led to concerted international and national efforts and legal reforms to strengthen copyright, how do we adequately respond to the changing conceptions of ownership/possession in consumer copies of copyrighted works taking place at the same time?

In this paper, I try to bridge the theoretical gap between the exclusive rights created by copyright laws and the application of consumer laws to consumers lawfully accessing copies of copyrighted works. Building on the inherent conflict that exists between two property rights that pertain to the same object (i.e. the copyright holder’s copyright in the copyrighted work and the consumer’s ownership or possessory rights in the copy of the copyrighted work) I look at how legal warranties of fitness for purpose, warranties of quiet possession, information disclosure requirements can help (or fail to) clarify the scope of consumers’ rights in copies of copyrighted work. The interaction between property and contract, and how one modulates the other and vice versa, poses the challenges and offers the potential solutions lying at the heart of this investigation. Pascale Chapdelaine, Ph.D. (candidate) Osgoode Hall Law School

18

Islam and Implementing CEDAW in Bangladesh

Farah Chowdhury

In Bangladesh 89.6% of the population are Muslims and Islam plays very important role

in society and politics. There are difficulties with the implementation of secular human rights standards in Muslim majority countries where most people believe that international human rights instruments reflect

‘Western’ values and norms, so they consider these as both ‘culturally and religiously alien.’ The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is perceived as the ‘magic remedy’ for women’s liberation. Bangladesh ratified the CEDAW with reservations on Articles 2, 13.[a], 16.1[c] and [f] as they conflict with “Sharia law based on the Holy Quran and Sunna.” Later Bangladesh withdrew its reservation from articles 13 (a) and 16.1 (f). Still it has reservation on articles 2 and 16.1 (c).

In Bangladesh, Islam is so powerful that a secular approach like the CEDAW cannot be effective for women’s liberation. The effectiveness of the family law reform in Bangladesh depends on its acceptance by the people of Bangladesh. Some provisions of the CEDAW are clearly inconsistent with Islamic law. Equality is presented in the women’s convention as women being treated in the same way as men or women having the same opportunities to be treated like men and it does not consider whether male standards are appropriate for women. Islamic law clearly contradicts article 16 (c) and article (d) of the CEDAW that impose obligations to ensure equal responsibility between men and women during marriage and its dissolution and equal responsibilities as parents.

I argue that in the name of equal responsibility working women are taking more than equal responsibility. The CEDAW assumes that paid work is the key to women’s liberation, but paid work cannot ensure equality between a husband and a wife at home. If the CEDAW is implemented then it will deprive Muslim women from their maintenance and dower rights and the maintenance of their children by their fathers. The CEDAW ignores the vulnerable position of women, especially in developing countries and in the name of formal equality puts same responsibilities on women in the family. It encourages women to join the paid labour force at any cost which perpetuates inequality.

19

Producing Neo-Colonial Difference: Indigenous Culture as Intellectual Property

Kristin Ciupa

In response to the failure of intellectual property (IP) law to protect indigenous interests

to culture and knowledge, new transnational IP legislation is being developed that recognizes indigenous ownership interests over traditional knowledge, cultural expressions and genetic resources. While indigenous IP law has been applauded for recognizing unique forms of property ownership and for protecting indigenous traditions and forms of livelihood, it has also been criticized for integrating indigenous communities into a system of global governance that is inherently unequal.

Relying on proceedings from the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore as a case study, this paper will argue that transnational indigenous IP law has a two-pronged effect. First, by introducing liberal conceptions of private property ownership and hierarchical adjudication, it assimilates indigenous communities into a global system of property ownership. Second, by creating a separate set of legislation aimed at indigenous communities, it produces a different legal status for indigenous peoples, which limits their capacity as legal actors. The effect of this process is thus to construct indigenous communities as ‘the same, but different’ from other international actors, thereby integrating, yet subordinating indigenous experience in the global system.

This paper will situate indigenous transnational IP law within the context of neoliberal global capitalism and neo-colonialism. It will argue that transnational indigenous IP law is implicit in a global effort to increasingly commodify areas of life and will argue that transnational IP law maintains indirect forms of domination over indigenous communities through prescribed forms of governance. Key Words: Intellectual Property; Indigenous Issues; Culture; Globalization; Neo-colonialism. Contact Information: Kristin Ciupa (MA Candidate) Graduate Program in Sociology York University

20

The Governance of Global Health through Public-Private Partnerships and Rising Concerns of Responsibility under International Law

Lisa Clarke

States and international organizations (representing the public sector) and companies,

non-governmental organizations, research institutes and/or philanthropic foundations (representing the private sector), recognizing the insufficiency of the public or private sector alone in addressing global health issues, such as AIDS, tuberculosis and malaria, are joining forces in partnerships. As a result, there is a shift taking place which moves (at least partly) public power over the governance of global health from the hands of states and international organizations into the hands of public-private partnerships.

Stemming from this shift is not only the capability to favorably impact but also the capability to adversely impact the rights of individuals, in particular the rights to health and life. There are, however, no specialized rules under international law directly addressing the responsibility of public-private partnerships. Partnerships, by intermingling partners from the public and private sector, seem to reside outside any framework of responsibility under international law. A gap therefore appears to be created between exercises of public power over global health by public-private partnerships and responsibility under international law. If a public-private partnership provides (or assists in providing) medication to a population that is damaging to the health and life of the population because it is unsafe, not properly tested and/or expired, who is responsible?

This paper briefly describes global health public-private partnerships and discusses how public power over global health is increasingly being exercised by these partnerships thereby necessitating a further discussion on responsibility under international law. It highlights a gap in responsibility and suggests closing this gap by holding states and/or international organizations, as partners and/or hosts, responsible under international law for the acts of these partnerships. It thereby explores collapsing the boundaries between global health public-private partnerships and the rules under international law governing the responsibility of states and international organizations. Key Words: global health; public-private partnerships; public power; international law; and responsibility. Lisa Clarke Visiting Fellow (Lauterpacht Centre for International Law, University of Cambridge, lcc43@cam.ac.uk);

21

PhD Candidate (Amsterdam Center for International Law, University of Amsterdam); LLM (University of Helsinki) and LLB (Osgoode Hall Law School).

22

Whistleblowing And Securities Regulation

Sara Corradi

The credit crisis of 2008-2009 induced by widespread financial fraud, demands a

rethinking of the role of corporate governance in each country. My research focuses on whistleblowing as a regulatory strategy to prevent financial

fraud, from both an economic and a comparative perspective. More precisely, it aims at better understanding the structure and the function of whistleblowing regulations in the U.S. system, with the further goal of considering whether such regulations would work in the Italian corporate legal system.

Whistleblowers - those who report questionable corporate governance or accounting incidents both to outside authorities and in house -, are not afforded much protection under either the common law or partnership statutes. Prior to the Sarbanes Oxley Act, there was no federal protection for private corporate whistleblowers. Any protection depended upon state law and was very different from state to state1. Most states protected employees who voluntarily reported safety issues or who were required to report safety violations. Those employees, however, who were merely reporting failures to follow company procedure, were minimally protected. Several states, moreover, denied protection for whistleblowers who made unfounded claims or who failed to sufficiently investigate their claims2. The Sarbanes-Oxley Act and the Dodd Frank Act improved whistleblowers’ protection by prohibiting public companies from discriminating against any employee who lawfully provides information or otherwise assists in an investigation of conduct that the employee “reasonably believes” constitutes a violation of the federal securities laws. They also require the audit committee of the board of directors to set up procedures for handling complaints by whistleblowers within the company, and also to engage independent legal counsel, and other advisors where necessary, to carry out its duties3.

Because Italy is a civil law system with very few public companies and a different system of corporate governance, I would like to study the relationship between the whistleblowers conflicting 1 In general, for the problems raised in blowing the whistle see Bonatch v. Butler & Binion, 977 S.W. 2d 543, Supreme Court of Texas, 1998. Mrs. Bohatch reported to the law firm’s managing partner that one of the partners was over billing a client, she was fired because she reported behavior that did not actually violate an existing law. 2 Leonard M. Baynes, Just pucker and blow?: an analysis of corporate whistleblowers, the duty of care, the duty of loyalty, and the Sarbanes-Oxlet Act, 76 St. John’s L. Rev., 875, 2002, 889. 3 Public Law 107-204, July 30, 2002 and Public Law 111-203, July 21, 2010.

23

duties: the duty of care and the duty of loyalty, and to compare how these duties work in U.S. and in a civil law system. I would also like to analyze the importance of whistleblowing with regard to third-party liability, the differences between whistleblowing and gatekeeping4 and the differences in liability within a civil law system for different kinds of whistleblowers 5, e.g., employees, journalists, lawyers or accounting firms. 4 Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 1986, 2 Journal Law. Economics & Organization 53. 5 In a civil law system, the different "players" may be subject to both contractual and extracontractualliability. See, for a general idea, Alexander Dyck, Adair Morse and Luigi Zingales, Who blows the whistle on corporate fraud, 2008, University of Chicago Booth Working PaperNo. 08-22.

24

The Boundaries of Domestic Energy Policies in Global Trade

Carolina Cruz Vinaccia, Ximena Insunza Corvalan and Katharina Rogalla von Bieberstein

The relationship between trade and environment has always been a complicated one, due

to the conflicting nature of environmental regulations that affect trade and the principles that govern free trade. Climate change and scarcity of resources add a new dimension to said relationship. Consequently, more countries are adopting renewable energy targets and programs. Since the transition to a lower-carbon economy will likely be very costly, governments around the world are simultaneously striving to foster the change and make the transitional period less difficult for their domestic economies.

Currently, two requests for consultations at the World Trade Organization (WTO) are related to policies designed to eventually reduce greenhouse gas emissions:

The Chinese Government has established a “Special Fund for Wind Power Manufacturing” that awards grants to wind power makers, and

The Province of Ontario (Canada) established a so-called feed-in-tariff (FIT) for energy generated by solar or wind power with a guaranteed rate of return.

Both programs incentivize the transition to a lower-carbon economy by reducing the costs for renewable energy projects. However, what triggered the requests is that both measures were apparently introduced not only to lower greenhouse gas emissions, but also to support the domestic renewable energy industry sector.

In this paper, we will illustrate the wider policy context of the two pending requests and show that they could characterize a new generation of environmental disputes. Our ambition is not to predict the possible outcomes, but rather to shed some light on the context of the two cases and their role in the conflict between trade and environment. Trade disputes regarding domestic content requirement or other measures favoring domestic applicants in connection to environmental policies will likely continue to appear. For the shift to a lower- carbon economy to take place, the controversial aspects of said measures must be addressed, as a step on the path towards reconciling mitigation policies and international trade. Key Words: Domestic energy policy, WTO, environment, trade, renewable. LL.M. Candidates McGill School of Environment and Faculty of Law March 2011.

25

Mapping the Scope of the Home State Duty to Protect Against Human Rights Violations by Transnational Corporations

Heather Curran

The process of globalization has significantly increased the power of transnational

corporations (TNCs) in recent decades and has decreased the power of many states to protect against the negative effects of TNC activities. Unfortunately, international human rights law does not reflect this shift in power and continues to place human rights obligations primarily on states to protect against human rights violations by corporate actors.[1] The result is that many states, particularly developing states, are either unwilling or unable to regulate transnational corporations operating within their borders. Furthermore, many legal scholars argue that international investment law exacerbates the power inequality between states and TNCs by allowing foreign investors to bring host states to international arbitration for violating investment obligations.[2] International investment agreements are criticized as being biased towards protecting the rights of investors and unduly restricting the host state’s ability to regulate in the public interest.[3] My paper will examine investment cases where human rights issues are raised and will assess the conclusions of the investment arbitral panels. The paper will also highlight some arguments raised by scholars that the international investment arbitration system is inherently biased towards the investor due to its roots in commercial arbitration.[4]

Against this background, international lawyers and scholars are increasingly paying attention to the role of the home state where the parent company of a transnational corporation is based to prevent, investigate, punish and remedy situations where transnational corporations are involved in human rights violations. As will be illustrated, it is possible that home states may be obligated to act with due diligence to protect against human rights violations by its TNCs to the extent that home states are involved in negotiating and ratifying investment agreements, encouraging investments in other states and financing investments abroad. My paper will explore the legal arguments in favour of and against a home state obligation to hold transnational corporations responsible for violations of human rights that occur in the territory of other states. Key Words: Globalization, Human Rights, Transnational Corporations, International Investment Agreements and Investment Arbitration. Heather Curran 2nd Year PhD in Law Candidate University of Ottawa hcurr028@uottawa.ca

26

Striving for Change: Addressing Equity, Race and Culture in Mental Health Law

Ruby Dhand

Ethno-racial persons with mental health disabilities continue to face barriers to justice as

a result of the culture-specific stigmatization of mental health disabilities, institutional racism and culturally inappropriate care. Consequently, the legal system must grapple with the predominance of culture-based and race-based inequalities in the mental health system, while striving to provide safeguards against these deprivations of liberty. In this paper, I explore how the colliding intersections of race, culture, ethnicity and mental health law create unique barriers for ethno-racial persons with mental health disabilities. In light of these disparities, I examine the extent to which racial and cultural factors can be considered in the implementation of Ontario’s civil mental health laws. I suggest that an intersectional analysis should be used in the legal system for adjudicators to consider the historical, cultural, social and political context in which these inequalities occur. Additionally, I will discuss the legislative evaluative tools that have been created in various jurisdictions to address issues of equity, race and culture within mental health laws.

27

The Globalization of Security Governance and the Middle East Uprisings

Tracey Leigh Dowdeswell

This paper will discuss 'global security assemblages' and their role in security operations against civil unrest in the Middle East. 'Global security assemblages' incorporate a number of actors, including private companies, foreign workers, and foreign and domestic military and security personnel. Traditional distinctions between private contractors versus state forces, police versus military forces, domestic versus foreign actors, are the very distinctions being dissolved in global security assemblages.

Hitherto, the use of public force was justified as being an expression of the public will of a given state, faithfully executed by state agents. This was ensured by enforcing compliance with public orders as they were executed down a tightly-bounded chain of command; this rendered the use of force a consequence of public office rather than private conscience, and it is this that is being disrupted by the forces of globalization that are producing security assemblages, including the individualization, privatization, and trans-bordering of the use of force. This is exacerbating a legitimation crisis, not only in individual states but globally: the traditional justification for the use of public force is being dissolved, and the nation state as an institution is losing its monopoly on the legitimate use of force, leading to an increase in failed states, insurgencies, and uprisings. What is being contested in these conflicts is the meaning of governance itself, forcing a re-examination of what makes a political community and its institutions just. I will analyze the present uprisings in the Middle East and the role that global security assemblages are playing in the dissolution and eventual reassembly of these states, and to explore some avenues for capturing this moment in history to promote just and democratic institutions. Keywords: Globalization; democratic governance; military administration; private security contractors; civil unrest Tracey Leigh Dowdeswell PhD Candidate, Osgoode Hall Law School of York University traceydowdeswell@osgoode.yorku.ca

28

Children Tort Law: common and civil law perspectives

Alfredo Ferrante

The present social structure foments minors as tortfeasors. Their increasing autonomy and independence of movement is not supported by financial or patrimonial independence; hence the need to identify another person liable to respond to the injured party. The topic of this paper is parental liability for torts of their children; the liability of other guardians or institutions will not be analyzed here. The exigency of reform of the predominant system based on the presumption iuris tantum of parental liability -as occurs in Spanish, Italian and French Law- is highlighted by the presence of antithetical proposals recently formulated in two future reference texts for the European system. The Principles of European Tort Law (art. 6:101) favour maintaining a presumption iuris tantum of parental liability; whereas the Avant Projet CATALA (art. 1356), regarding the reform of the French Civil Code, aims to modify the traditional asset and introduce an objective responsibility system. A third hybrid mechanism (art. 169, book sixth, NBW, §§ 828 and 832 BGB and Draft Common Frame of Reference), which relates liability to different child age ranges, must also be considered. The aim of this paper is to evaluate which is the most appropriate legislative solution vis-à-vis the future unification of European civil and family law. It is essential to assess the influence of patria potestas and care and custody on parental liability for torts of minors; above all, given that modern reality is characterized by new social and family structures such as the proliferation of separations and divorces and the increasing number of stepfamilies. Keywords: Minors, parental liability, comparative law, civil law, parental responsibility. Alfredo Ferrante Profesor Ayudante de Derecho Civil Departamento de Derecho Privado y de la Empresa Facultad de Derecho Universidad de Oviedo Campus del Cristo s/n 33006 Oviedo Asturias e-mail: ferrante@uniovi.es

29

The Impact of Gödel’s Theorem on the Common Law

Henry Garon

In his study of legal aesthetics, “Songs Without Music”, Desmond Manderson relates

Gödel’s Incompleteness Theorem to the study of Law, claiming that Gödel’s theorem demonstrates that legal meaning exceeds rule following. Manderson claims that Gödel’s theorem is an analogous case of Lon Fuller’s viewpoint: legal meaning requires another element which, by definition, cannot be defined in terms of those rules and systems and remains an indigestible supplement or remainder to them.

My thesis is an examination of the applicability of Gödel’s Incompleteness Theorem to the study of law.

Gödel actually has two Incompleteness Theorems, but for brevity’s sake I will summarize them as: No sufficiently strong Formal System can be both consistent and complete. I plan to talk about a brief history of Gödel’s theorem, and how it ended Hilbert’s plan to translate all logical and arithmetical principals into a formal system.

The question of applicability should become apparent at this point, because Gödel’s theorem is primarily dealing with mathematics. I will discuss the confusion resulting from the common definitions of adjectives within the theory e.g. “incompleteness”, with their more particular meanings as they are used in the semantic interpretations of the theorems.

These are some of the questions that I will try to deal with in the context of the Incompleteness Theorem: Is the law a formal system? Can the law be formalized? Is the law complete? Is the law consistent? How does the law deal with self-reference and strange loops? Does Gödel’s theorem point at an underlying weakness in the law? How can this be remedied?

30

Introducing the Rule of Ecological Law

Geoffrey Garver

The failure of current legal mechanisms and institutions to counter the growing global

ecological crisis reflects an absence of “the rule of ecological law” from the global to the local level. Just as ecological economics has yet to crowd out environmental components of neo-classical economics, a parallel notion of ecological law has not yet displaced contemporary environmental law. The rule of ecological law is founded on the notion that economic and socio-political spheres must be subservient to global ecological limits. Planetary boundaries of safe operating space for humanity, along with complementary measures and principles, provide the scientific and ethical basis of the rule of ecological law. The rule of ecological law should include at least ten mutually reinforcing features. First, it should recognize that humans are part of the Earth’s life systems. Second, ecological considerations necessary to avoid ecological catastrophes and to promote the flourishing of life must constrain legal, social and economic regimes. Third, the rule of ecological law must permeate the legal regime in a systemic, integrated way. Fourth, it should be focused on radically reducing material and energy throughput. Fifth, it must be global but distributed using principles of proportionality and subsidiarity. Sixth, it must ensure fair sharing of resources among present and future generations of humans and other life. Seventh, it must be binding and supranational, with supremacy over sub-global legal regimes as necessary. Eighth, a greatly expanded program of research and monitoring is needed to support the rule of ecological law. Ninth, the rule of ecological law requires precaution about crossing global ecological boundaries. Tenth, it must be adaptive. Although the transition from a growth-insistent economy headed toward ecological collapse to an economy based on the rule of ecological law is elusive, the European Union is identified as a useful structural model. Geoffrey Garver LLM and PhD (Geography) Candidate McGill University geoffrey.garver@mail.mcgill.ca

31

ESRB Warning: Use of Virtual Worlds by Children May Result in Addiction and Blurring of Borders – The Advisable Regulations in Light of Foreseeable Damages

Nachshon Goltz

University of Pittsburgh Journal of Technology Law & Policy, Vol. 11, No. 2, Fall 2010

This article analyzes the possible models for regulating the use of Internet-based virtual worlds by minors. While virtual worlds introduce a unique experience to their users, there is a strong indication that such use, if left unregulated, may cause harm, especially to minors. This article explains that the dangers associated with virtual worlds are different from those created by other types of media. The various phenomena which may be caused due to the use of virtual worlds and the damages likely to be caused by such phenomena, rest on two assumptions: that minors are especially prone to suffer from such dangers, since the exposure of minors to the experiences offered by virtual worlds is not mitigated by factors such as a more developed sense of reality and responsibility, and, that in the use of virtual worlds there is a greater potential to induce such harms when compared to the use of video games or other Internet applications.

The methodology underlying this article is based on a comparative critical review of the existing literature in the fields relevant to this interdisciplinary realm: technology, psychology, philosophy and law. This article concludes that non-legal regulation is insufficient and puts forth several suggestions for legal regulation. The proposed regulation is based on four principles: Awareness – forcing virtual worlds companies to issue a warning of the possible damages similar to the warnings printed on cigarettes packs; Prevention – operating technological measures to identify minor users and tracking their use length; Help – establishing help centers and posting distress buttons in the virtual world; and Liability – imposing tort liability on virtual worlds companies that fail to implement the proposed changes. Key Words: virtual worlds, children, addiction, regulation. Nachshon Goltz Osgoode Hall Law School - York University

32

Conceptual Barriers to Regulatory Innovation in the Governance of Research Involving Humans

Igor Gontcharov

This paper examines the problems that surround the choice of the biomedical model as a

basis for standardization and unification in approaches to ethical oversight in research involving humans in Canada and internationally. In particular, it seeks to identify conceptual barriers that constrain the reflexivity of the Tri-Council Policy Statement’s (TCPS) hybrid regulatory approach. Contrary to the expectations, Research Ethics Boards (REBs) have not become a governance node that is contextual and responsive to a broader spectrum of research disciplines and their methodological differences.

Not all research methodologies are consistent with the biomedical understanding of research, risk, benefit, informed consent, vulnerability, and requirements of anonymity and generalizability, among others. The choice of the standard for unification, as well as the absence of any documented need of its efficiency in either biomedical field or beyond it, has led to a critical assessment of the unification in terms of “REB mission creep” or “ethics creep”. No obvious benefits of the “harmonization” have followed. Instead, it has become obvious that the biomedical standard may not only increase the risks of harm to researchers and human subjects, but may also increase the costs of research, diminish its value, restricting academic freedom, and placing unnecessary barriers for critical, educational, observational research, and others.

I argue that the Interagency Panel on Research Ethics, which is in charge of interpreting and developing the TCPS, should take steps to restrict the phenomenon that I call “REB positivism” to characterize the most problematic points in the conceptual framework of the TCPS and REBs. REB positivism includes universalism and methodological reductionism, lack of coordination with other governance nodes in research involving humans (REB solipsism), and the tendency to approach the unknown in terms of danger, rather than risk. It is important to articulate these points in order to clarify why the localized interpretation of the general principles of the TCPS is not going to lead to a reflexive mode of regulation, unless steps are taken to methodological pluralism, which may involve limiting REB positivism and promoting alternative approaches to ethical governance in research involving humans. Key Words: unification, standardization, research ethics, research governance, research involving humans Igor Gontcharov PhD Candidate, Osgoode Hall Law School igonchar@gmail.com

33

Reflection on the Water and Environmental Disputes in South Asia: What is the Best Strategy for a Peaceful Settlement?

Zaglul Haider

In South Asia Indian unilateral construction and regulation of Farakkah barrage has

severely affected 37% of the total area and 33% of the population of Bangladesh who are dependent on the Ganges basin. India has also proposed to implement a new river linking Project, to interlink 37rivers todivert waters from one basin of a river to another and thus solving the water crisis in the draught affected regions. This will seriously threaten the very existence of Bangladesh, because 80% of its annual fresh water supply comes as a trans-boundary inflow through 54 common rivers. India further initiated construction of the Tipaimukh dam located 500 m. downstream from the confluence of the Barak for the generation of Hydro-electric powers. Barak is an international river and its tributaries are Surma and kushiara rivers of Bangladesh, The Surma River feeds the mighty Meghna River which flows through Bangladesh. This will seriously damage the ecology, economy and livelihood of millions in Bangladesh.

The author argues that by any standard Indian actions already caused environmental terrorism and its attempts further threatening to Bangladesh. In order to combat these with international law, Peaceful settlement is the only option. And given the power balance of India the third party mediation is the best strategy for sustainable development of the region. Zaglul Haider PhD Candidate, Osgoode Hall Law School York University

34

Alberta’s Emerging Administrative State: The Regulation of Medicinal Liquor During Prohibition, 1916-1924

Sarah Hamill

This paper examines the emergence, development and legitimisation of the Albertan

government’s regulation of medicinal liquor during Prohibition. The Albertan government’s innovations in the control of medicinal liquor created an administrative framework which would be replicated and extended when Government Sale of Liquor replaced prohibition in 1924. Government control of medicinal liquor required the government to intervene in a medical controversy and forced the government to regulate professional judgement and discretion. This paper will explore the Albertan government’s struggle to persuade the various medical professions, such as doctors and pharmacists, to comply with the requirements of the Liquor Act. This paper will outline the methods used to legitimate increased government intervention and control of a previously under or un-regulated area. This paper will argue that the knowledge required by administrative regulation of medicinal liquor was used to create boundaries between legal and illegal uses of medicinal liquor.

The boundaries created by and used in the administration of medicinal liquor were used by the Albertan government to demonstrate to the public that medicinal liquor was under control, yet these same boundaries seemingly left no room for variation and forced all medical professionals to comply with an ideal or face being stripped of their liquor privileges. The controls placed on medicinal liquor were beyond judicial review, thus Albertan medical professionals and citizens frequently had no choice but to comply with the government’s policies and decisions about medicinal liquor. The paper concludes by arguing that the regulatory system that emerged shows that such systems have to be responsive and adaptable to be effective and that administrative effectiveness requires that the administration is seen as legitimate, which is achieved when the administration leaves room for discretion and variance in its application of otherwise formally equal standards. Key Words: Administrative law; legal history; regulatory state; medical controversies; social control. Sarah Hamill, LLB, Hons (University of Glasgow), LLM (University of Toronto), Ph.D. student (University of Alberta, Faculty of Law). Contact info: Email: sehamill@ualberta.ca Address: Faculty of Law, University of Alberta, Edmonton, AB, T6G 2H5

35

Climate Change and the Protection of Drinking Water in Ontario: An Opportunity to Adopt Adaptive Management?

Patricia Hania

Climate change is a threat to the protection and conservation of drinking water sources.

However, the Ontario Ministry of the Environment’s (MOE) recent regulatory response to climate change falls short by failing to develop a policy that is premised upon adaptive management (AM). Given the high level of uncertainty associated with climate change, an adaptive management strategy is promoted by Ontario’s Expert Panel on Climate Change Adaptation, is supported by the jurisprudence, is put forth in the ecological literature and is reinforced by the practices of water resources managers in other jurisdictions. Yet, adaptive management is a missing element of the MOE’s regulatory response. This oversight raises questions whether existing and future drinking water sources will be protected from the consequences of climate change.

This article offers lessons for both the practice and theory of environmental stewardship, specifically the issue of water governance. First, this paper offers the MOE a practical recommendation: a province-wide climate change policy that is premised upon AM should be adopted. This climate change policy can be enacted under s.7(5)(b) of the Clean Water Act, 2006 and should be integrated into s. 26.5 of the regulatory amendment. Secondly, the critical examination of the legal perspective of adaptive management identifies the need to reorient the jurisprudence to support an ecological resiliency perspective of adaptive management. At present, the jurisprudence is an institutional barrier to protecting and conserving aquatic ecosystems. Thirdly, this article expands the environmental governance literature by bridging the pluralist environmental regulatory approach promoted by legal scholars Gunningham and Sinclair with eco-resiliency theory, as articulated in the natural science literature. Finally, this article attempts to address the present challenge facing both regulatory bodies and scholars, that is: how to align the nature of a governance structure and the nature of how aquatic systems function under stress. The environmental stress considered in this paper is climate change and its consequences upon the quality and quantity of drinking water within the Great Lakes basin. Patricia Hania Ph.D. Candidate, Osgoode Hall Law School

36

When Mothers Kill: (Re)Interrogating the Legitimacy and the Psychology Behind the Infanticide Defence in Canada

Christina J. Hollingshead

There has long been debate as to whether the infanticide ‘defence’ has any legitimacy

within Canadian criminal law, and that debate has started up once again as the Ontario Court of Appeal grapples with the Crown’s unprecedented contention in R. v. L.B., that the defence should be outright abolished. Moreover, the state argues that making an infanticide defence available in cases of intentional killings is “bad policy” because it “cheapens” the life of a child and is based on medically unsupported evidence that giving birth can lead to mental disturbance. It is also the Crown’s position that when the infanticide legislation was enacted in 1948, there was greater social stigma surrounding unwed motherhood that no longer exists. In fact in 1984, Canada’s Law Reform Commission recommended abolishing the infanticide provisions, but after the United Kingdom strongly recommended to Canada that it retain an infanticide law, calling it a “practicable legal solution” to a social problem, the defence was retained.

In R. v. L.B. the accused, a teen-aged mother, smothered to death two of her babies and pretended they had died naturally. Years afterwards, she admitted to the killings and was charged with two counts of first degree murder. There was no issue as to whether she had killed her children, instead from the outset of the trial the Crown’s position had been that if murder was proven, then murder convictions should be entered and that the infanticide defence should not be allowed. Instead, the trial judge found that the defence should be available to the accused and found that two counts of first degree murder had been proven but acquitted the accused of murder and found her guilty of infanticide. That led to the case finding its way into the hands of the Ontario Court of Appeal where its fundamental legitimacy is currently being debated. This paper will focus on the historical journey of the infanticide defence, an interrogation of the psychological bases for post-partum depression, as well as encompass an international comparative analysis, and explore the legal and social ramifications of abolishing the infanticide defence in Canadian jurisprudence. Key Words: Infanticide, Criminal law, Psychology, Public Policy, Legal Reform. Christina J. Hollingshead Ph.D Candidate Graduate Programme in Law Osgoode Hall Law School York University, Toronto

37

At Arm’s Length: International Criminal Law and the Public/Private Divide in Canadian Courts

Graham Hudson

In this presentation, the author adopts a critical perspective on judicial decision-making

about the place of international criminal law (ICL) in Canadian courts. Generally speaking, Canadian judges have maintained sharp, hierarchical distinctions between international law and domestic law, robustly applying the former only when legislatures have first implemented it into domestic law through statutory decree. Similarly, Canadian courts have been reluctant to supplement criminal law’s traditional focus on retributive justice with restorative justice models characteristic of modern private law. This conservatism runs counter to international legal trends, in which financial remedies are used to redress the harms caused to victims of, and communities affected by, international criminal conduct. It also fails to appreciate Canadian courts’ international legal obligation to hold Canadian-based transnational corporations accountable for complicity in international criminal conduct. This presentation will accordingly survey both how and why ICL should be given greater domestic legal effect in private law settings. It will consist in a comparative review of judicial attitudes towards ICL in public and private contexts and argue that the judicial deconstruction of binaries between international/domestic and public/private is both constitutionally permissible and mandated by international law. Key Words: International criminal law; transnational law; retributive justice; restorative justice; law of reception. Affiliations: Ryerson University (Assistant Professor) and Osgoode Hall Law School (PhD Cand.) Email: graham.hudson@crim.ryerson.ca

38

Punishment: A Cruel and Discriminative Tool Showing the Darkness and the Misery of Human Mind and Heart

Sirus Kashefi

This paper aims at telling that despite all philosophical and legal struggles to justify or to

legitimize punishment from ancient Greece to our modern time, punishment remains a highly cruel and discriminative tool showing the darkness of our mind and the misery of our heart. Many great philosophers and lawyers have struggled to justify what is not at all justifiable when comes to those who commit crime due to their social and economic misery. Indeed, punishment reveals the absurdity of our existence in two sides. On the one side, punishment imposes suffering without bothering itself about the fate of offender and victim. It is, as Lady Justice shows, blind vis-à-vis human suffering and lost. It tells us how and why we are desperately looking for finding the scapegoats (ordinary criminals and victims) by denying our responsibility to create a society where all individuals profit from all goods and services without discrimination. On the other side, punishment is extremely discriminative according to the social, economical, and political situation of individuals. Our blind Lady cannot see or does not have any interest to punish the big criminals who are very well respected and paid everywhere around the world: the rich, businessmen, politicians, and Statesmen. When man started to exploit politically and economically his fellows, criminal law became a necessary tool to control and to punish those who are not in a good economic or political position. From that time, the big criminals have the best lawyers and philosophers at their service in order to justify or to legitimize their criminality at the same time the latter have the former to pay and to support them. Thus, power profits from knowledge, and vice versa while they destroy humanity throughout destroying victim and offender’ life and systematically stigmatizing all criticisms as anarchism, communism, or idealism. Key Words: Philosophy, Law, Punishment, State, and economic. Sirus Kashefi PhD from Panthéon-Sorbonne (Paris), and PhD student at Osgoode Hall Law School Email: S.kashefi@hotmail.com

39

The Supreme Court of Canada’s Reliance on International Labour Law Norms in the Era of Globalization

Sean Michael Kennedy

The Supreme Court of Canada has long resorted to international law norms to inform its

interpretation of the Canadian constitution. This is particularly true in the field of labour law, whose subject matters have contributed greatly to the Court’s consideration, inter alia, of the division of powers and the extent of or limits on labour rights. Historically unions have not fared well in their attempts to expand such rights at this highest level of judicial consideration but, rather, have attained more success in the political realm. This has changed, however, with the advent of the modern era of globalization in which employers and governments, seeking to meet the challenges of neoliberalism and the competitive advantages of international trade liberalization have sought to resist expansive demands, roll back gains won at the bargaining table, and even to avoid unionization itself.

The enactment of the Charter of Rights and Freedoms in 1982, and particularly the

inclusion of the freedom of association under section 2 (d), held the promise of providing unions with an alternative to politics in order to protect the gains made in the twentieth century by, in part, reference to a vast body of international norms that ensconced labour rights as integral to the economic and social well-being and stability of nation states. The initial experience of organized labour under the Charter, however, proved to be largely disappointing owing to the Court’s extreme deference to legislatures which previously had accorded all of the rights unions had obtained. This may well have changed with the Court’s 2007 decision in BC Health Services, a decision that expressly overrode its previous rejection of international labour norms as instructive of domestic rights, implicitly acknowledged the potential negative impact of globalization on the Canadian labour market, and thereby admitted the need to protect the diminishing status of employee association, quite possibly ushering in the expansion of labour rights by new forms of associational activity. Sean Michael Kennedy PhD I Osgoode Hall Law School York University March 2011

40

The More There Is of Mine – the Less There Is of Yours? A Subtle Fight for Citizens between the EU and Its Member States

Dimitry Kochenov

My paper explores the complex relationship between EU Member States’ sovereignty

and the concept of national citizenship, as influenced by the citizenship of the Union. Although as the Treaties have it EU citizenship, being derivative, is additional to the nationality of the Member States, the picture is much more complex when regarded in terms of rights and entitlements of citizens emerging from the competition between the legal orders. One personal legal status is not substituting another, yet, EU citizenship is entering a period of certain maturity: from Grzelczyk to Baumbast, Chen and Rottmann it effectively grew to acquire a life of its own which has clear implications for the practical functioning, if not the very essence of Member States nationalities. In short, even though the two legal statuses are absolutely inseparable at the moment – not to a small degree also due to the fact that they are inescapably conferred on the same people – the dynamics of this relationship does not necessarily consist in harmonious co-evolution. The contrary seems to be true. EU citizenship not only broadens the horizon of opportunities of its bearers – it also potentially empowers them against their Member States of residence and/or nationality. While helping not to be subjected to the duties of nationality and other national legislation in the ever growing array of situations EU citizenship inescapably pursues the aims which are contrarian to those of the nationalities it is derived form.

Recourse to EU law helps to bring about constant questioning of any national legal and

administrative practices, however accepted by the population of the Member States. It also allows to evade duties of national citizenship. Moreover, more and more frequently it prohibits states to favour ‘their own’. Through such ‘humiliation of the state’ (to follow Davies) EU citizenship functions as a potential shield against national law which more and more citizens can use. It marks the definitive phase in the switch from the culture of authority to the culture of justification (Cohen-Eliya and Porat) in Europe, profoundly questioning the nature and the strength of the legal bonds between the state and the citizen, which especially Rottmann exemplifies. Providing an alternative way of regulating the same issues of importance in day-to-day lives of all, EU citizenship pushes states to rethink their relationship with own nationals which is inevitably to result in the evolution of the vision of sovereignty, of which ‘own population’ is a necessary component.

As long as EU citizenship is around, the number of legal ways to ignore and question the

authority of the state offered to nationals will only be increasing. In fact, it is impossible to say any more that either Member States or the Union have their ‘own population’ – a diffused way of looking at citizenship integrating both levels is emerging. It will not be possible to ignore the new reality for long – what the BVerfG is doing in its Lisbon decision, refusing to see EU citizens in Germans by deploying some doctrinal considerations which fail to justly the starting assumptions held by the justices. Both legal statuses are important for citizens and the Member States are bound to adapt: numerous signs of such adaptation are clearly decipherable in the recent reforms of national citizenship law of the Member States.

41

My paper, developing the thoughts tried out elsewhere (ELRev., ELJ, CMLRev., MJ, Columbia J. Eur. L., Fordham J. Int’l L., EUI RSCAS Papers etc.) will outline the main implications of the current dynamics in the legal interaction of EU citizenship – Member State nationalities for the concept of sovereignty in Europe to suggest the likely future developments of the Union and the place citizens are to play in it. Methodologically, following Schütze, preference will be given to the meticulous legal analysis of the current national-level legal developments and ECJ case-law, rather than doctrinal considerations à l’Almande. Senior Lecturer in EU Law Faculty of Law, University of Groningen Oude Kijk in‘t Jatstraat 26 9712 EK Groningen The Netherlands

42

The Scope Of Obligations Under The Foreign Direct Investment Standards Of The WTO: A Canadian Perspective Regarding Health Care Policy

Tumininu Modupe Laiyemo

The rapid growth in foreign direct investment over the past few years is attributable to

increased liberalization of the trade, service and investment obligations spearheaded by the World Trade Organization (WTO). Unlike other sectors, there is no comprehensive framework for the regulation of foreign direct investment despite several attempts to create such a framework. One of the contentious issues is the determination of the scope of standards for foreign investment under the proposed Multilateral Framework for Investment (MFI). The question in this regard is whether such a multilateral agreement should expand the scope of WTO obligations on trade and services to include “investment”, and if so, to what extent?

There have been several viewpoints on the inclusion of the national treatment principle in the proposed MFI thereby expanding the scope of current WTO obligations. The General Agreement on Trade in Services (GATS) style permits members to restrict the effect of the national treatment principle by excluding certain sectors of their economies from its commitment schedule under GATS. Members are thus able to reserve sectors of their economies for local participation only, and may restrict or prohibit foreign direct investment in those sectors. Health care is an example of a sector that most members prohibit FDI and the focus is the Canadian health care policy.

This paper discusses the role of the WTO in regulating foreign direct investment and examines current debates on the need for a multilateral framework to regulate foreign direct investment. It analyses the scope and nature of obligations of member states on the regulation of foreign direct investment in light of the WTO’s principle of non-discrimination. The focal point is on the role the national treatment principle plays in the regulation of foreign direct investment

Furthermore, the paper assesses the need for expansion or reduction of foreign direct investment obligations in the WTO by means of the domestic policies of member states. It discusses the scope of exemption from the national treatment obligation allowed under GATS’s exception clause, in the light of Canada’s health policy. The Canada Health Act, to a large extent, stipulates Canada’s health policy and its regulation of health in all its provinces by setting required standards of health service delivery which should be complied with. Given Canada’s obligation to national treatment under the WTO, and the desire to retain policy space domestically, this paper uses the Health Act as litmus to appraise the scope of international standards for FDI under the WTO framework. Key Words: Foreign Direct Investment, Multilateral Framework for Investment, National Treatment Principle, Canadian Healthcare Policy, Preserving Domestic Policy.

43

Institutional Affiliation & Contact Information: Laiyemo, Tumininu Modupe LL.M Candidate Faculty of Law, Dalhousie University Halifax, Nova Scotia, Canada E-mail: tumininulaiyemo@gmail.com

44

The Affects of Arbitration on Case Adjudication in Civil Law Country : The Case of Cambodia

Vicheka Lay

The term “Arbitration” is now dominating business transactions all over the world, both

in the Civil law and Common law jurisdiction. Defined as a form of alternative dispute resolution outside the court system, whereby the parties to the dispute agree to bind themselves to the arbitral awards, arbitration is now the most favorite mechanism to settle business and investment disputes. In the last few ten years, this form of dispute resolution has become more and more popular and receptive to both the Civil law and Common law system.

The foundational characteristics of Civil law are now reaching the transitional or mixity point, as arbitration has foundation from the Common law countries. The way of issuing the arbitral award is also Common law in character. The foundational characteristics of Common law here are referred to precedent, in which the arbitrator refers to the already-decided precedents as the bases to rule on their arbitral awards on. One of the most concrete examples to this is the labor arbitration in Cambodia is now following the precedent system, by referring to the already-decided cases, in order to ground their decisions on. And in 2006, Cambodia adopted the first law on commercial arbitration, which largely modeling the UNCITRAL Model on International Commercial Arbitration.

Vietnam, also a Civil law country, established the International Commercial Arbitration Center at its Chamber of Commerce on April 1993. People’s Republic of Laos is at the beginning stage of establishing its commercial arbitration system. The commercial arbitration is now becoming a domino effect that will influence the Civil law characteristics of Indochina (Cambodia, Laos and Vietnam).

This article will look into how the arbitration, which was originated in the Common law countries and bear Common law characteristics, will affect the Civil law characteristics of Indochinese countries, which have, for centuries, modeling Napoleon’s civil code. Key Words: Arbitration, precedent, Cambodia, Vietnam, Laos. McGill University, Faculty of Law Email: vicheka.lay@mail.mcgill.ca

45

How does International Law Influence National Behaviours with Respect to the Recruitment and Use of Child Soldiers?

Fanny Leveau

International criminal law provides that recruiting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities is a war crime. This crime is also known as the crime of recruitment and use of child soldiers. However, there is a debate under international law as to whether the age of 15 years is appropriate. The Committee overseeing the Convention on the Rights of the Child adopts a straight-18 approach and recommends states parties not recruit soldiers who are under 18 years. Moreover, the Optional Protocol to the Convention on the Rights of the Child has elevated the minimum age of compulsory recruitment to participate directly in hostilities to 18 years old. Even though the Optional Protocol has been ratified and implemented by a significant number of countries, some of them - including Canada or the United States - have declared that voluntary recruitment under the age of 18 years remains the rule within in their countries. Such declarations demonstrate unwillingness to support the straight-18 approach advocated by international human rights law. This is an issue because it sets a double standard in the protection of children from armed conflicts: on the one hand, states are allowed to enlist children under 18 years into their armed forces but are prohibited from recruiting them forcibly. On the other hand, non-state actors are prohibited to recruit children under 18 years either voluntarily or forcibly. These inconsistencies are strengthened by the fact that the Rome Statute only criminalizes recruitment of child soldiers under 15 years. This paper will conclude that current states’ practices seem to mostly conform to international law regulating the recruitment and use of child soldiers. However, due to the fact that international law itself is not clear on the issue, national behaviours are being influenced only to a certain extent.  

Keywords: International Law- Child Soldiers- National Behaviours- Age- Crime Fanny Leveau, LL.M. candidate, University of Western Ontario Faculty of Law Email Address: fleveau@uwo.ca

46

Aristotelian Approach to Corporate Social Responsibility

Anne Liu

The corporate process in developing new products faces a new stage of ethical critics. As

better improvement of technology and higher quality of R&D have brought corporations prosperous development of economy, the transformation from traditional industry to high technology industry also has the impact on the structure of society. People start to rethink the value of individuals to others, the society, and t he environment. Corporations have more complicated activities, as corporate activities involve with many individual persons, and thus corporations have the potential effect to generate influence to the population and to cause impacts on society. Therefore, the importance of corporate ethics should be greatly emphasized.

Corporations are responsible not only to consumer groups but also to the society. The general conception of corporations is that corporations are profit organizations. Corporations are always in competition within the market and their goals are to maximize profits. But, the idea of profits seems to be contrary to the meaning of ethics. Some may see making profits as unethical. Would there be a balance between making profits and being ethical?

Instead of regulating corporations by rules and laws, it is better that corporations understand the ethical meaning of the regulations and further develop rightful corporate activity and duty. This paper will analyze regulating the responsibility of corporations from Aristotelian ethics perspective, and also discuss the fact how the International Organization for Standardization incorporates social responsibility into a standard guideline, and how virtue and ethics take place in corporate social responsibility. Key Words: Corporate Social Responsibility, ISO, Aristotle, ethics, fundamental rights. Anne Liu LLM Graduate Student Faculty of Law, University of Ottawa E-mail: kentingtw@yahoo.com.tw

47

Rooted in the Sky: Reflections on Law, Morality and the Environment

Michael John Long

Rooted in the Sky: Reflections on Law, Morality and the Environment, is tentatively

titled as an ode to a seminal piece of environmental law literature written by Christopher D Stone. In his work, Stone asked whether the environment as a whole should be granted certain legal rights. At that time, given the legal landscape, the question he asked was as poignant as was needed to help spark the debate at the dawn of the modern environmental movement. As this work contends, however, given changes in both the legal and moral landscape, a question which may be better suited to attend to the issues outlined in his work may be, should the environment have justice? As this work will explore, through moral theory, the concept of rights is one loaded with deep and historical meaning, which can often be counter to the guarantees it is used to ensure. The concept is associated with property and is best suited to attend to issues of entitlement. This research wishes to discover whether a consideration of the concept of justice can help to re-situate the environmental legal rights debate towards protection of the environment, and subsequently, the protection of all life that rely on a healthy environment. Key Words: Environmental Law, (Intellectual) Property Law, Theoretical/Practical Ethics, Human Rights. Michael John Long PhD Cand, Osgoode Hall Law School Nathanson Centre Graduate Fellow Environmental Law Society Exec michaellong@osgoode.yorku.ca

48

Rights at the Frontiers or the Frontiers of Rights? Universal Human Rights and Limited State Obligations

Benoît Mayer

Despite the inherently universal character of the human rights project, states obviously never accepted to bind themselves to actively protect everyone’s human rights, everywhere, everytime. A fair international protection of human rights must only ensure that the rights of each individual are protected, at any time, by one and only one state. It must avoid any negative conflict of competence whereby the rights of an individual are potentially nullified because no state is responsible of any corollary obligation. It must also avoid any positive conflict of competence whereby an individual may invoke protection from two different states and, therefore, benefit from a more favorable treatment than nationals of any one state.

International human rights law rarely took a clear position on how to ensure that the rights of one individuals are always protected by one and only one state. Several treaties called each state to respect and ensure the rights of “all individuals within its territory and subject to its jurisdiction,” potentially creating negative conflicts of competence. Yet, a comment by the Human Rights Committee interpreted this language as constituting two alternative conditions: accordingly, states obligations extend to “all individuals within the territory or under the jurisdiction of the state,” which may create positive conflicts of competence.

Furthermore, many national courts have followed a more restrictive interpretation of the scope of their states human rights obligations. A limitation of states human rights obligations to the cumulative conditions of nationality and territoriality has sometimes led to the development of considerable legal vacuum and to some of the human rights violations committed by Western states within the “war against terrorism.” Through an original reflection on these elements, I will show how ensuring that everyone’s rights are always protected by one and only one state is capital to prevent such violations. Key Words: human rights, states obligations, jurisdiction, territory, nationality. Benoît Mayer, LL.M. McGill, M.A. Sciences Po, B.A. Sorbonne. Paper proposal Graduate Law Student Association’s Annual Conference, 9-10 May 2011 Osgood Hall Law School 15 March 2011

49

Force Majeure, Impossibility, and Frustration: The Rise of an Autonomous Legal Principle in International Commercial Law

Peter Mazzacano

This paper will consider the extent to which a problematic legal doctrine—commonly

known as force majeure, an Act of God, impossibility, or frustration, but embodied in Article 79 of the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG” or “Convention”)[5] under the neutral wording of “excuse for nonperformance”—is an autonomous international norm, and capable of relative uniformity within the context of the CISG’s goal for a sales law that is transnational in design. A premise that will be explored is that while excuses for non-performance in CISG Article 79 may have developed out of an amalgamation of similar national conceptions, such as forece majeure, impossibility, or frustration, it ultimately stands alone as an autonomous international doctrine under the CISG. It is part of the lexicon of the new lex mercatoria.

This development plays a crucial role for uniformity in international sales law. It supports the idea that in certain cases, particularly in international commercial transactions, individual domestic legal doctrines may ultimately coalesce into autonomous international principles, regardless of their distinctive development in independent legal jurisdictions. Such a development also questions the role of the state in the creation of legal orders. Is this development of an autonomous legal principle—an “excuse for non-performance”—part of the international commercial lingua franca of an emergent new lex mercatoria? If so, is this private law-making evidence of a growing autonomous global legal that is truly independent of any national sovereign? If so, how does this development affect traditional (i.e. state-based) legal boundaries, and what are the implications for transnational law and global governance? Key Words: force majeure, impossibility, frustration, excuse for non-performance, lex mercatoria, CISG, autonomous legal order.

50

Regulating Human Rights: Articulating Tensions

Liam McHugh-Russell

Legal research has recently begun to take a second look at the genealogy, legitimacy and

administration of "law" as a type of regulatory mechanism. This “regulatory approach” to legal study has turned the methodologies of regulatory research toward bodies of legal rules which have generally been placed in the background of the field. At least one novelty of such an approach offers to legal studies is that it allows legal systems themselves to be understood as subjects of meta-regulation. Perhaps the more substantial innovation of the approach, however, lies in its focus on the question of effectiveness, i.e. how well the given body of law achieves the ends it is thought to serve.

In accordance with these two perspectives, however, regulatory approaches to law have

now increasingly paid attention to the larger social, political and legal contexts which influence the outcomes of 'legal systems' narrowly defined. My paper will explore some of the implications of applying such a regulatory model to "human rights." Specifically, I hope to address some potential inconsistencies between the theoretical framework of a regulatory approach and the cultural dimensions of human rights as a legal and political practice. To that end, I rely on research investigating the way in which a promotion of "human rights" entails not only a statement about normative life, but also relies on a particular ontological universe - its own "integrated system of difference." I attempt to provide some clarity about possible directions for inquiry implied by such a project, and try to answer some potential objections to studying human rights in this way. Key Words: Human rights, governance, culture, regulatory theory, legal theory. Liam McHugh-Russell, J.D. LLM Candidate, Institute for Comparative Law Team Member, Better Teachers for Active Learners Faculty of Law, McGill University

51

Honest Services: Corporate Director Liability in the US after Skilling and Black

Lori McMillan

American corporate officers and directors have a variety of obligations on their

shoulders, and they are expected to meet a standard of behavior appropriate for a fiduciary. There are a variety of ways they are held to account, the most obvious being civil personal financial responsibility for decisions which are not protected by the business judgment rule and which do not meet the relevant standard of care. However, less intuitive is that breaches of fiduciary duties have also attracted criminal prosecution, under mail fraud provisions (honest services law), which have been used as a wide-ranging prosecutorial tool since 1988. However, honest services law was sharply curtailed in June of 2010, when the Supreme Court ruled in the high-profile Conrad Black and Jeffrey Skilling cases that the law had been too widely interpreted, and recasting it to only apply in situations where bribes and kickbacks exist. As a result, the penalties which face corporate officers and directors have changed, which has an impact on the effectiveness of corporate governance oversight. This paper will examine the major civil liabilities which face officers and directors, as well as explore the impact of the change in law pertaining to honest services. Lori McMillan Washburn University School of Law

52

The protection of traditional knowledge by intellectual property rights

Henrique Mercer

The international legislation does not follow the rhythm of economic globalization. Proof

of this is the issue of the protection of traditional knowledge. Due to the inefficiency of international environmental law, the communities which hold traditional knowledge as well as the countries where they are located look to find in international economic law a regulation against the illegitimate exploration of their knowledge, the so called biopiracy.

Traditional communities usually have a knowledge developed through the years and transmit orally from generation to generation about the use of biogenetic resources in their environment. Pharmaceutical companies tend to use this knowledge to reduces cost and time of bioprospection of biogenetic resources that might be useful in the development of new drugs, for which the companies will be well paid, but on the other hand this companies tend to ignore the value of the traditional knowledge they used, not compensating the traditional communities, nor at least giving them moral credit for its knowledge.

This paper is concerned on how to protect traditional knowledge useful to the pharmaceutical industry from biopiracy. Departing from the premise that intellectual property is the way to go on traditional knowledge protection; the article will evaluate the mechanisms of IP protection, especially those adopted by Latin-American countries, to identify which one would be the best to figure on an international treaty protecting traditional knowledge. Key Words: Traditional knowledge, biopiracy, access, benefits sharing, intellectual property rights, Latin-America. Henrique Mercer LL.D. candidate Université de Montréal hmercer@gmail.com

53

How to Protect Traditional Ecological Knowledge: a legal pluralist perspective

Surinder Multani

The mobility of goods, people and technology in the post-Westphalian world has not only

marginalized the role of nation-states by challenging its legal and political authority, but has reimagined it within transnational law (Buchanan, 2008). Of particular concern is the role of nation-states in protecting traditional knowledge, held by indigenous populations, in the post-TRIPS era. The human rights issue that will be addressed is that of biopiracy (Mgeobe, 2006) of Indigenous peoples traditional ecological knowledge systems (TEK) as committed by a growing number of multi-national corporations, most often from the “North;” as well as the deceptive manner in which both national and international intellectual property rights regimes (TRIPS) handle these crimes doing little to prevent them and, in most cases, sanctioning them.

Nevertheless, challenges and structural changes to the TRIPS regime are being instigated by multiple legal/non-legal bodies, such as the Convention on Biological Diversity. These bodies are attempting to assert Indigenous concerns into “national legislation, regional positioning, local protocols and “customary laws”—both indigenous and international” (Coombe, p 14; 2003). Therefore, it is crucial to employ a legal pluralist framework to reconstruct law/non-law bodies that are coordinating, contesting, assimilating and negotiating with one another in order to maintain influence in the post-Westphalian world order. For this task, Peer Zumbansen`s transnational legal pluralist methodology will be used to deconstruct the activities of various pluralist bodies that are facilitating a dialogue in order to address biopiracy (for explanation, see pg. 148-49, 2010).

I will argue that since there is no “world legal order” to which all nations must harmonize its law, and due to the somewhat flexible nature of financial regimes, such as the WTO and WIPO, there is a space in transnational law for “cognitive openness” (Teubner, 1988) to Indigenous, environmentalist and nation-states concerns in safeguarding TEK, and in turn, upholding human rights. Key Words: transnational law, traditional ecological knowledge, TRIPS, legal pluralism, human rights. Surinder Multani Socio-legal studies, masters program, first year rajinder@yorku.ca

54

Enlisting Aircraft Emissions In The Global Carbon Trade Market: A Divide Between Transnational Law And The International Legal Regime On Climate Change

Olakunle Lekan Oyeyipo

The damaging effect of climate change and global warming is no doubt a threat to the

world’s environmental sustainability. In a collective response to this development, the international community has considered many policy instruments under the existing international climate change legal regime. The cap and trade scheme has been provided for under the Kyoto Protocol of 1997, as a market based mechanism, to reduce the cost of curbing the deleterious effect of climate change and global warming. And presently, the European Union (EU) has unilaterally included all aircraft emissions in its Emissions Trading Market Scheme, contrary to diverse oppositions raised by some affected states questioning the international legal relevance of this action vis-à-vis its legality under public international law and legal regime on climate change. Therefore, my paper seeks to look at the relevance of Transnational Law on climate change and global warming; its impact and contribution towards shaping the existing international legal regime on climate change and global warming. Olakunle Lekan Oyeyipo (LL.M Grad Student) Institution: Faculty of Law, Robson Hall, University of Manitoba. E-Mail: umoyeyip@cc.umanitoba.ca

55

The Transnational Dimension of Environmental Assessment

Timothy Petrou

The aim of this project is to illustrate the transnational dimension of environmental

assessments as this practice has spread historically and geographically. Environmental Assessments (EA) are the creatures of a North American administrative endeavor that coincides with a historical peak in environmental concerns in that part of the world. Since the inception of EA, the practice itself has evolved as it has proliferated beyond the North American national context, into a transnational dimension where its very nature has changed. From what started as a precautionary tool for environmental protection, EA was transformed into a tool for sustainable development. However, while EA was undergoing this transformation, it was concurrently undergoing a fundamental metamorphosis that resulted in its eventual economic co-optation. By imagining EA sociologically and geographically, the underlying narrative can be teased out. Subsequently, examining EA with a transnational lens shall illuminate the current tensions that are shaping the future of this practice. While EA is "learning" in some jurisdictions, it is being systematically dismantled in others, while simultaneously having become unbound from any jurisdiction. What does this mean for the future of EA? Is this a practice that will still serve to protect against undue environmental exploitation?

Despite the challenges and obstacles EA must overcome, it is becoming ever more attractive a tool for environmental protection. As our capacity to assess environments and predict the consequences of our actions increases, EA becomes better positioned to facilitate mitigation measures and better environmental decision making. The natural conclusion that can be derived from this analysis is a pragmatic one. In the interest of combatting the current environmental crisis, EA is poised to fulfil its role as a tool for enhanced environmental performance locally, nationally, and globally. Key Words: Environmental Law, Transnational Law, Environmental Assessment, Informational Regulation, Eco-Pragmatism Timothy Petrou, LLM candidate Osgoode Hall Law School

56

The South America’s Dilemma: Sustainable Development and Renewable Energies. Can Transnational Power Grids Assist in Solving it?

Rafael Plaza

Despite a common social and cultural heritage amongst South American countries, the

target of economic development has long been elusive for the region. A history of mutual political suspicions, lack of capital investment, and disparate approaches on crucial regulatory decisions has led the region not only to be economically laggard, but also environmentally at risk.

Critical to ensuring effective development, one of the key regulatory decisions for individual countries concerns the energy base upon which economic growth is to be grounded, particularly, in consideration of the rising international prices for carbon- based fuels and significant climate change consequences of its burning. The pressing dilemma for South America then, is how to achieve sustainable development without necessarily going down the path of industrialized carbon-based economies.

Operating in isolation, the majority of South American countries, if not all, have focused heavily on achieving the best configuration possible for their own respective energy matrices and development projects. Much less attention - if any - has been put into seeking a solution for this dilemma from the point of view of the economic and environmental usefulness of interconnecting power transmission networks throughout South America.

Having such perspective in mind, the paper addresses the relationship between energy matrix configuration and energy-supply policies, and the effect on development opportunities in the context of the South American region. It explores whether, even though having dissimilar and even divergent regulatory frameworks (either influenced by neo-liberal or socialist approaches), the idea of transnational transmission networks would assist in resolving the dilemma mentioned above through achieving a regional convergent policy’s goal of sustainable development.

The paper demonstrates that the interconnection of transmission networks throughout South America would represent opportunities for achieving that goal. Indeed, firstly, it would create the conditions for a common electricity market, consequently allowing meeting the power needs of high-demand countries by making possible cross-border power transmission from generating units to consumer distribution centers. Secondly, transnational power integration works as a means of optimizing the use of natural resources and, thus is suitable as a climate change abatement mechanism even under the Kyoto Protocol. Thirdly, cross-border power transmission integration resembles shared-management of resources. Fourthly, international interconnections normally serve as a guarantee for a country’s own network’s stability through the integration and interplay between the various components of the corresponding electric systems. On the one hand, either conventionally produced or coming from renewables countries enjoying power-surplus should fear nothing. On the other, deficit or non- energy

57

producing countries, should welcome reliable and steady supply, and be prompted to develop and integrate renewable energy-producing units into the common network.

The paper concludes therefore that, as long as regional countries both promote the integration and give priority to a greater share of renewable sources into their energy mixes, they are capable of coordinating their energy policy instruments by removing relevant technical and legal barriers. Further and most importantly, that transnational interconnection of transmission networks serves effectively as a cooperative mechanism for energy integration and climate change abatement, and, through these two, assists in solving the dilemma of sustainable development. Rafael Plaza University of Melbourne

58

Boundaries, Transnational Law and the Search for a New Order of First Nations Governance in Canada

Michael Posluns

Boundaries have been an issue in First Nations relations throughout the history of Canada

and well before Confederation. If we think that globalization, at least in some of its manifestations, is a reiteration of colonization then the historical use of boundaries by imperial powers against the interests of various First Nations will be of great interest as an historical and continuing background to a seemingly futuristic question.

I will mention a few examples without citation or detail simply to demonstrate the significance of the history to which I am referring. At the end of the American Revolution (known in Mohawk as “the war among the English”) a treaty was signed between Britain and the United States that, guaranteed that First Nations people could cross the border with all their personal goods and possessions and free from any duty or other tariff. Jay’s treaty rights continue to be a focal point of conflict between Canada and First Nations along the border.

From coast to coast, and even in the Arctic, the border was, time and again, run through the midst of the land of one First Nation after another. Two factors make the reconsideration of these boundaries particularly pressing at this time: first, “transnational law and a new order of global governance” have a long history already, and this history of using boundaries to foster conflict between First Nations in North America is one important part; secondly, successive chief justices of the Supreme Court of Canada – Dickson, C.J.C., Lamer C.J.C. and McLachlin, C.J.C. – have each spoken of the need for a reconciliation between “Aboriginal law and legal systems and the common law.”

My deepest and most enduring scholarly interest is to consider what such reconciliation might look like. Whatever else, it is different from a reconciliation with the Government or the Parliament. While I am not yet prepared to describe exactly what such a reconciliation might look like, I expect that, in order for it to succeed and to endure Canadian law would, itself, need to become a species of transnational law. Key Words: (1) First Nations relations; (2) Historical Background and Global Governance; (3) Reconciliation; mutual respect; Canada’s Indigenous Constitution. Michael (Mickey) Posluns, Ph.D., LL.M. student, Osgoode Hall Law School mposluns@accglobal.net

59

Globalization and China’s Long March towards Rule of Law

Jing Qian

Theories of globalization embody the assumption/predication that “the rise of global

markets will result in the convergence of legal systems toward rule of law and political systems toward pluralist democracies”, and thus a new order of global governance. So how is this assumption/predication applicable to the post-1978 China as a globally active, economically crucial, politically important, and most populous test field? What are implications of the case study of Chinese legal system to the ambitious globalization of law and governance?

This small piece is part of the general background of my PH.D. dissertation, which aims

to 1) depict a special legal phenomenon in China—a dual-track of legal system—a division between private/commercial/economic laws and public/administrative/constitutional laws, with two different logic of legal acts and judicial decision-making, which is one of effects partially brought by globalization to the development of Chinese laws; and 2) illustrate the gaps between good promises and fine designs of “law in books” and barely satisfactory if not quite the opposite “law in action”, via brief evaluations of the Administrative Legal System (ALS) in China. Moreover, two well-known stories are slightly introduced as complementary demonstrations. In the end, this piece hopes to shed some light on what influence globalization exert on China’s Long March towards Rule of Law domestically, and what concerns might arise from the analyses of the functioning of Chinese Law about a global new order of governance internationally. Key Words: Rule of Law, Chinese Administrative Law & Administrative Litigation, Gaps between “Law in Books” and “Law in Action”, Transition of Governance Models, Globalization. Ph.D. candidate Faculty of Law University of Victoria jingqian@uvic.ca

60

Transnational Regulatory Regimes for Climate Change

Ottavio Quirico

Transnational regulation has become an increasingly important concept both globally and

within the EU, so that it is part of the debate about globalisation, competitiveness and sustainability. In the vein of the revised Lisbon Strategy, the EU Commission adopted a communication in 2006 that sets up far- reaching rules in the matter, with particular attention to environmental and climate change issues. It envisages a more rational use of natural resources and reduced levels of pollution, eco-innovation as well as the voluntary adoption of environmental management systems and labelling, by taking into account developing countries. At the international level, the UN Global Compact is drafting a comprehensive regulation on climate change under the title: “Caring for Climate: the Business Leadership Platform”, which pays attention to companies operating in developing countries and available technical capacities. It has been prepared in collaboration with companies of strategic importance for fighting climate change, such as Bayer AG (Germany), DuPont (USA), Broad Air Conditioning (China) and Tata Steel (India). Some of these companies also adopted private guidelines for climate change, such as the Bayer Climate Program, which seriously fosters energy-efficiency and significant greenhouse gases’ reduction. The present research aims to analyse transnational regulatory regimes targeting environmental protection, with specific regards to climate change. The aim is twofold. On the one hand, the research seeks to understand whether private regulatory regimes are consistent with public multilevel environmental regulation in the matter of climate change (from the 1992 UN Framework Convention onwards). On the other hand, the aim is to understand to what extent private instruments can foster the development of a tighter public regulation. In fact, given that public regulation faces relevant problems of implementation, private regulation could represent a decisive instrument for fighting climate change. Private system operators have an immediate perception of their means and capacities for preventing climate change and thus can tailor self-imposed rules that could valuably complement public norms. A bottom-up approach is important, maybe decisive, for completing public top-down strategies. The study explores transnational regulatory regimes from the substantive viewpoint as well as with regard to monitoring and implementing schemes. Ottavio Quirico Marie Curie Fellow Univeristé Paris 2 and European University Institute Ottavio.Quirico@u-paris2.fr; Ottavio.Quirico@eui.eu

61

Dead Souls in Russia’s Countryside and in Ontario’s Courtrooms

Steffan Riddell

It is usually cheaper to wrongfully kill a person in Ontario than it is to significantly injure

her or him. A major reason for this situation is that our courts refuse to award non- pecuniary damages in wrongful death actions. Bereaved family members accordingly cannot claim monetary compensation for grief or psychological injuries that result from unexpectedly losing their loved ones. Plaintiffs may only claim compensation for income and valuable services that wrongfully killed family members would have likely provided them, had they not died. Valuable services are maximally assessed by our courts at the same hourly rate as is unskilled labour. This means that wrongfully killed decedents who did not earn full-time employment incomes usually have significantly less economic worth than those who did. Thus, deceased primary caregivers (who are usually mothers), elderly people and children are typically worth far less monetary compensation to their families than are fully employed decedents. Ontario’s wrongful death laws are sorely outdated because they have little changed since they were first enacted in 1847 – when torts were still governed by the pecuniary loss rule. Our Provincial Legislature has since amended Ontario’s wrongful death statute only once. Moreover, our courts continue to abide by nineteenth century legal principles (such as the pecuniary loss rule) when they assess decedents’ compensatory value. Fatal personal injury torts have not experienced the same evolution and expansion of liability as have non-fatal torts over the past 150 years.

The presenter will highlight the antiquated nature of Ontario’s wrongful death laws by comparing our judges’ current monetary valuations of decedents to Russian landlords’ valuations of their dead peasants in Nikolai Gogol’s satirical novel Dead Souls. The hero of this novel travels the Russian countryside with his main foil, a drunken coachman. He visits amusing caricatures of landlords in their farm estates, and he tries to purchase the names of their recently deceased peasants. This novel was written only five years before Canada passed its first wrongful death statute. The presenter does not claim that Ontario’s wrongful death laws are linked to nineteenth century Russian serfdom. He simply argues that Ontario’s judges currently follow the same principles and prejudices as did Gogol’s landlords when they assess deceased persons’ monetary values. The fact that someone can compare our judges’ current valuations of decedents to those of characters in a satirical mid-nineteenth century Russian novel may be reason enough to consider updating our wrongful death laws. Key Words: wrongful death, torts, damages, litigation, literary. Steffan Riddell Osgoode Hall Law School (LLM program), steffanriddell@osgoode.yorku.ca

62

Definitional And Jurisdictional Challenges Within The M-Banking Regulatory Context

Shanthi Elizabeth Senthe

Emergence of technological innovation in wireless communication has resulted in the

proliferation of mobile banking (also known as “m-banking”), particularly in emerging markets and developing countries. The adoption of m-banking is exceedingly vital; as it has been estimated that between 70%-80% of the world’s population has no access to basic financial services. The globalization of m-banking has created an economic impact in many jurisdictions; however, at issue is whether the various fragmented regulatory regimes can be reconciled effectively to create a consistent legislative framework.

Economically challenged communities typically have limited access to conventional banks due to the rural location, the lack of physical infrastructure and financial constraints. As such, branchless banking through mobile phones may be considered to be a global panacea, which has impacted payment and banking methods for a populace which was previously excluded from the formal financial system. M-banking has become a vehicle of development creating financial inclusion through technological connectivity, thereby providing financial services to those deemed to be “unbanked”.

While the business of banking has rapidly transcended beyond its geographic limitation, legislative and regulatory measures have yet to catch up. Due to the borderless nature of m-banking, a set of harmonized directives must be developed to address the definitional and jurisdictional disparities that have emerged as a result of the global nature of m-banking.

This presentation seeks to explore the regulatory gaps derived from the symbiotic relationship between the multiple parties within the m-banking transaction process. In particular, the role of intermediary agents will be examined to determine their legal liabilities in an often unregulated terrain. Shanthi Elizabeth Senthe PhD Candidate Osgoode Hall Law School

63

International Criminal Law’s Domestic Influence: The Structure of International Criminal Prosecution & The General Part of the Criminal Law

Daniel Sheppard

The modern paradigm of enforcing international criminal law (ICL) is based around

complementarity: the International Criminal Court (ICC) may not prosecute an accused unless national jurisdictions are unwilling or unable to do so themselves. This system places an initial onus on national courts to prosecute domestic crimes. While there is still strong debate over whether states have a general legal obligation prosecute suspected violators of ICL, most state parties to the ICC Statute understand that there is, at a minimum, a practical need for domestic prosecution.

To this end, states implement the special part of international criminal law – the definition of specific offences – into their domestic legal systems. To date, much of the academic attention over the domestic impact of ICL has focused on this process. In this paper, I seek to shift focus to ICL’s general part: those basic principles of law that define what it means to commit an offence, or when criminal conduct will be justified or excused.

International criminal law has developed a general part that is often in tension with municipal legal systems. Liability is broader and less nuanced; defences are narrower or unavailable. If domestic systems ought to mirror the rules of ICL, changes to many states’ general parts would be required. However, a society’s construction of its general principles of criminal law are often based on deeply held views on the very nature of culpability, and alterations would be difficult to make. In some circumstances, states would be unable, as a matter of domestic constitutional law, to adopt rules from ICL’s general part.

This paper seeks to explore the inherent tensions between the importance of domestic

integration into the system of ICL enforcement on the one hand, and the important normative position that general principles of criminal law play in domestic legal orders on the other. Key Words: International Criminal Law; The General Part of Criminal Law; Complementarity; Duty to Prosecute; Domestic Implementation of International Law.

Daniel Sheppard Barrister & Solicitor B.A., J.D., LL.M. (Candidate) Graduate Fellow, Nathanson Centre on Transnational Organized Crime, Human Rights & Security Osgoode Hall Law School daniel.sheppard@gmail.com

64

Iraq Revisited: International Human Rights Law and the Boundaries of State Responsibility

Fahad Siddiqui

This paper explores the relative silence of international law scholarship on the question of

US state responsibility for the more than 2 million Iraqi refugees who have fled since the invasion of 2003. It analyses the refugee studies literature on the responsibility of states for their refugee-producing acts and notes that causes of refugee flows external to the country of physical origin – what I call third state causes – are not discussed. While the responsibility literature has been critically evaluated from a number of perspectives, the role international human rights law [IHRL] plays in obscuring the third state has not been examined. This paper argues that the territorial scope of human rights treaties and bilateral nature of international rights architecture make it difficult to locate and ascribe responsibility to third state acts. Specifically, the establishment by human rights bodies of an “effective control” threshold to determine the extraterritorial obligations of states has created a responsibility gap in relation to refugees produced by international uses of force. As a result, IHRL now serves to impose liability on the domestic refugee-producing acts of states while immunizing similar refugee-producing acts perpetrated outside state boundaries.

The paper proceeds in three parts. Chapter I traces the emergence of IHRL in refugee

studies. Chapter II analyses explanations of the absence of external causes of refugee flows. Chapter III develops an argument for attributing state responsibility to the US for refugee

flows resulting from the invasion and occupation of Iraq by applying IHRL and the law of state responsibility to US actions in the same way the refugee studies literature ascribes responsibility for domestic refugee production. After reviewing the jurisprudence of human rights bodies, the paper argues that a gap in responsibility for the production of refugees exists as a result of the adoption of an “effective control” threshold for determining the extraterritorial obligations of human rights treaties. Key Words: International human rights law – state responsibility – refugees – Iraq. Fahad Siddiqui BA (Toronto), LLM (London), JD Candidate (Osgoode) fahadsiddiqui@osgoode.yorku.ca

65

Prosecuting Human Rights Violations under the Alien Tort Claims Act: Regulating Corporate Social Responsibility across National Boundaries

Dorinda So

The proposed paper focuses on corporate social responsibility (CSR) from a socio-legal

perspective, exploring the interplay between the corporation, the market, law, and society. The law includes both the legal system (courts) and legislatures and society consists of non-legal actors such as non-government organizations and individuals. Specifically, the paper examines the Alien Tort Claims Act (ATCA), which was enacted in 1789 in the United States to prosecute piracy activities by foreigners. However, ATCA is now used as a form of transnational law to regulate human rights violations conducted abroad either directly or indirectly by corporations. ATCA is an attempt by non-governmental organizations, victims of human rights violations, and lawyers to bring corporations that are headquartered in the United States to justice and in this way coerce corporations to be socially responsible. This paper takes a balanced approach and examines both the strengths and limitations of ATCA. Despite the human rights violations conducted internationally, corporations that are indicted under ATCA develop corporate social responsibility practices and policies. On the other hand, the use of ATCA to prosecute corporate activity begs the question of whether American courts can and should extend its jurisdiction across national boundaries at the risk of overstepping the sovereignty of other countries. Key Words: corporate social responsibility, Alien Tort Claims Act, human rights, United States jurisdiction, transnational law. Contact Information: Dorinda So, MA Candidate 2011 in Socio-Legal Studies (Graduate student) Faculty of Graduate Studies, York University, Toronto, Ontario Member of the Canadian Law & Society Association Email: dorindas@yorku.ca

66

Public Health Care: Outside Canada yet paid for by the Ontario and Canadian Governments

Lydia Stewart Ferreira

Currently, over 40% of our provincial budget is spent on health care. In Canada, and

specifically in Ontario, medically necessary and medical required health care is legislatively required to be funded by the government. But our provincial health care does not just take place in Ontario. There are three places to get this government funded – or public - health care: in Ontario, outside Ontario but still in Canada and outside of Canada. The latter, publicly funded health care outside of Canada, is the focus of this presentation.

In certain cases, the government – through its public health care insurance plan entitled OHIP – will fund health care outside of Canada. Why do Ontarians want to go outside of Canada for their health care? Where are Ontarians going outside of Canada for health care and what health care procedures are they seeking? How does Ontario decide which patients get out of country health care funding and which patients do not?

This dissertation analyzes four elements in order to better understand publicly funded out of country health care: First, what is the administrative tribunal that examines appeals of OHIP’s decision not to fund out of country health care? Second, what are the procedural aspects of this administrative tribunal that may or may not affect funding possibilities? Third, what is the legislation and the legal arguments put forth by patients and by OHIP regarding appeals for out of country publicly funded health care? Fourth, what is the profile of the patients coming before the administrative tribunal and where do these patients wish to go for what procedures?

67

Employer Free Speech in the Workplace: A Form of Legislated Intimidation

Vanisha H. Sukdeo

This paper critically explores whether the ‘captive audience speech’ given by

management in workplaces in an attempt to dissuade workers from unionizing is actually legislated intimidation. Some members of management will force workers to listen to a speech about the ills of unionization and the detriment to job security if the union is implemented. This speech is a form of intimidation. While employers may argue that they have a right to free speech ‘captive audience speeches’ are a form of advertising in that the underlying message is about economic rights. The employer is not exercising free speech but rather is selling a union-free workplace by scaring workers by using threats of job loss, etc. By granting any form of employer free speech the government is effectively legislating the right to intimidate.[6] While labour and employment law can be thought of as union versus management in the unionized context or employer versus employee in the non-unionized context the true dynamic is one of struggle on the part of the worker. While labour law is not usually constructed as an ‘us against them’ scheme it is worth noting then when workers fight for greater rights management is not quick to acquiesce thus situating the two parties on opposite sides. While the employment relationship is often an ongoing one and one in which both parties are frequently working towards similar, if not the same, goals it is a site of intimidation as well. Vanisha H. Sukdeo, B.A., LL.B., LL.M. Ph.D. Candidate, Osgoode Hall Law School vanishasukdeo@osgoode.yorku.ca

68

Filling up Legal Space with International Human Rights Law: Application in the Private Sphere in Japan

Koji Teraya

International human rights law is one of the key accelerators for globalization. Going

beyond the national boundaries, it obliges states to apply international standards in their domestic legal order. Among the domestic application, applying to legal relations between private parties, sometimes known as an issue with a German term Drittwirkung (Third Party Effect), is the most noticeable. While human rights have been traditionally regarded to individuals’ claim vis à vis their government, the present violation of human rights is not only by States but also by many non-state actors. Applying international standard in the private sphere means the completion of filling up legal space with international law. This presentation discusses the theoretical importance of application of international human rights law in the private sphere.

1) Application in the private sphere usually entails a specific interpretive technique which applies domestic law with a consideration of international law. It is an indirect “application” of international law through domestic law. Compared with direct application of international law (a self-executing treaty) which is applied in domestic sphere without further modification of domestic law, the technique here is less dramatic but more realistic in term of the fact that each state has their sovereignty to have own law. In addition, it makes possible to foster an interpretive community in the world beyond boundaries.

2) Not only national boundaries, a discussion of application in the private sphere also aims to deconstruct and reconstruct a number of boundaries which is commonly mentioned in human rights law: categories of rights (civil and political rights / social and cultural rights), obligations of states (negative / positive), addressees of obligation (states/ non-states actors) and legal order (public / private).

This presentation will take up Japanese cases concerning to discrimination against foreigners by a jewelry shop and a bathhouse. Key Words: international human rights law, private sphere, interpretation, Drittwirkung (Third Party Effect), Japan.

69

A Rights-Based Approach to Food Security: How would it look within the WTO-TRIPS framework?

Dilan Thampapillai

There is a general consensus at a theoretical and political level regarding the right of

individuals to food security. However, at a practical level it has been difficult to achieve food security within many developing countries. Ironically, where food insecurity is concerned some of the worst-affected areas within developing countries have been rural areas. The United Nations and the UN Food and Agriculture Organization (FAO) have monitored and sought to address the issue of food insecurity. However, the work of the FAO and UN Special Rapportuer on the Right to Food is constrained by international treaty rules on trade and intellectual property rights. Regrettably, one of the major causes of food insecurity has been the operation of the World Trade Organisation agreements and the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS). Where TRIPS has been concerned the patenting of seeds and the removal of resources from the public domain has contributed to food insecurity within developing countries. The TRIPS Agreement does contain exceptions that might be employed to combat food insecurity. However, these articles have been under-utilized.

This paper aims to address what a rights-based approach to food security might actually look like within the WTO-TRIPS framework. In particular this paper canvasses two key issues; (i) the first is whether textual amendments are required to the TRIPS Agreement and (ii) the second is whether institutional and inter-state cooperation can successfully achieve food security. With regard to the issue of a textual amendment to the TRIPS Agreement the paper examines whether an exception, akin to article XX of the GATT Agreement, could be brought within the text of TRIPS or whether something more definite is required. In relation to institutional and inter-state cooperation this paper examines the framework that is already in place and questions the assumptions underpinning that framework. In particular, what would it mean for the FAO to have a degree of oversight over the TRIPS Agreement? How could such oversight work in relation to the World Intellectual Property Organisation (WIPO) and the WTO? This would likely entail a shift in institutional thinking, away from trade liberalization and compliance with intellectual property norms, towards a human rights or human welfare perspective. Ultimately, such a shift might be necessary in order to preserve global political support for both TRIPS and the WTO. Key Words: WTO, Intellectual Property, TRIPS, Food Security, FAO. Dilan Thampapillai PhD Candidate, University of Melbourne Lecturer School of Law Deakin University dilan.thampapillai@deakin.edu.au

70

Re-reading jurisdiction and non-intervention in an age of globalization; what is a ‘sufficiently close connection’ between an activity and a regulatory authority?

Michail (Michael) Vagias

The purpose of this presentation is to offer a fundamentally descriptive analysis of the

test of a ‘sufficiently close connection’ between an activity and its regulation by an international actor, as the key criterion for the determination of whether the exercise of jurisdiction by a state authority on the international plane respects international law limitations and particularly the principle of non-intervention. This paper will argue that in a transnational context, the principle of non-intervention - particularly in the exercise of anti-trust and criminal jurisdiction - should be construed to mean that any state with a sufficiently close connection to the activity in question may exercise authority over it, irrespective of whether such activity falls squarely within the existing classes for the exercise of jurisdiction (territoriality, nationality etc). In the event of conflict, the actor with the closest connection should prevail.

The presentation will be structured as follows; first, a description of the main perceptions on jurisdiction and non-intervention will be offered, outlining the basic Westphalian paradigm and the changes suggested by modern international law (Mann’s) doctrine. It will then be argued that Mann’s test for the exercise of jurisdiction on the basis of a ‘sufficiently close connection’ between a conduct and a state has become today the basic yardstick for the exercise of state jurisdiction and the best suited interpretation of the principle of non-intervention. Drawing from the field of criminal and anti-trust law, this presentation will describe how national and regional courts have interpreted the ‘sufficiently close connection’ criterion in the exercise of territorial and extra-territorial jurisdiction. In closing, the argument will be made in favour of the adoption of the Mann test on jurisdiction and non-intervention by actors other than states on the international plane, such as the International Criminal Court. Key Words: jurisdiction, territorial, extra-territorial, anti-trust, criminal. Michael Vagias Lecturer in International Law, The Hague University of Applied Sciences, International LL.B. Program, Ph.D. Cand. in International and International Criminal Law, Leiden University, Research Fellow in International Law, Bynkershoek Institut, The Hague. This paper draws heavily from the research conducted for the author’s Ph.D. Thesis on the Territorial Jurisdiction of the International Criminal Court, submitted on 25 November 2010 in Leiden University and expected to be defended on April 2011.

71

This time, Europe is different. European Union financial crisis management at the crossroads of transnational law

Pieter Van Cleynenbreugel [1]

Financial regulatory reform processes in the European Union (EU) reflect a common

financial crisis management strategy, grounded in a particular conception of EU transnational law. This paper introduces and frames that particular conception of EU transnational law and evaluates its potential as a tool to (re)construct a new order of global governance. Two interrelated parts will be distinguished.

A first part discusses the EU financial crisis reform strategy and identifies the essential components of EU transnational law, distinguishing them from EU ‘new governance’ methods. It focuses on the transnational law conception applied in state aid enforcement, in new financial supervisory arrangements and in more enhanced budgetary oversight. EU transnational law envelops a subtle combination of supranational and national legal standards, a networked structure of national and supranational enforcement and a set of generally shared principles of cooperative administration.

The second part analyses and reconsiders the boundaries of EU transnational law. It argues that EU transnational law advances a specific state-building purpose, presupposing a European constitutional framework and nation-state-like structures to guide and limit its actions. A world order based on global governance does not traditionally support such state- building enterprises. On the contrary, global governance mechanisms generally aim to overcome the very limits state-building processes impose on regulatory cooperation.

These state-building tenets do not however present insurmountable obstacles to replicate

EU transnational law on the global scene. Analysing recent EU reform proposals, I demonstrate that EU crisis management measures incorporate a transnational law approach that could potentially be detached from a specific nation-state (building) context, while also remaining reflective of the common ground that state-building and ‘governance’ mechanisms tend to share. I therefore propose an alternative conception of detached EU transnational law and assess its possibilities and limits as a device for global governance.

Key Words: economic governance; European Union; financial crisis; regulatory cooperation; transnational law. Fellow Research Foundation Flanders. Ph.D. Candidate, Centre for a Common Law of Europe, Leuven University, Belgium. LL.M. (Harvard Law School); LL.M. (Research Master, Leuven – Tilburg University). LL.B. (Leuven University). pieter.vancleynenbreugel@law.kuleuven.be 1 The title of this paper is based upon C. Reinhardt and K. Rogoff, This time is different. Eight centuries of financial folly, Princeton University Press 2009.

72

A New Model of Governance of Canada’s Pension Statutes and Associated Regulatory Regimes to Facilitate Full Transparency in Private Group Pension Plan Investments in Capital Markets.

Paul Walker

The 2007 Asset Backed Commercial Paper (ABCP) fiasco sent chills up and down the

spines of investors around the world. It also contributed significantly to the current recession in Canada, as pensioners suffered significant income losses through capital assets known as ABCPs, forcing them to reduce their spending while, at the same time, diminishing their confidence in Canada's financial system. The governance of the current pension system was designed on the premise that the sponsor, typically a single employer, should bear most, if not all of the risks associated with the defined benefit pension promise. Consequently, the sponsor has historically controlled virtually all of the plan governance, leaving employees “in the dark” with regard to the recent state of their generally underfunded pension investments. This thesis will propose new methods of governance such that employees in single employer, multiple employer, and jointly sponsored plans are fully apprised of the status of their plans (defined benefit, defined contribution, and hybrid) with respect to actuarial methods. Transparency issues associated with employing the current actuarial methods to establish the “funding status” of pension plans will be examined.

73

Recent Development of National Treatment in International Investment Arbitration and A Case Study of China’s Experience

Qianwen Zhang

With the trend towards economic globalization, legal and cultural pluralism reflect more

clearly in recent bilateral investment treaties (hereinafter “BITs”). The national treatment clause has witnessed the development of BITs and sheds light on global governance. On one hand, host states extend the applicability of BITs. Simultaneously, arbitral tribunals tend to favor a more liberal approach in interpreting the elements to assess the violation of national treatment. The interpretations of like circumstance and less favorable treatment could be appropriate examples to illustrate the liberal tendency. However, on the other hand, states circumscribe a number of sectors as exceptions to national treatment. Additionally, certain circumstances are also specified under which the states would withhold its obligation to accord national treatment to foreign investors and investments. In this regard, then tension between state sovereignty and liberal investment could always be reflected both in theory and in practice. Moreover, the investment law became a more independent area. This could be exemplified by the tribunals’ increasing rejection of incorporating trade law approaches to settle investment disputes. Bearing the developments of national treatment in investment context in mind, a final discussion will concentrate on China’s experience in national treatment practice. As a leading Oriental state, China changed its traditionally conservative investment policy and therefrom substantially promoted both its foreign direct investment and its outward direct investment. China’s participation in investment regimes also suggests some particular demands from the developing countries. By viewing the progress and challenges of national treatment clause, and also by drawing some experiences from China’s practice, some possible changes are proposed to current international investment regime to give effective response to the challenges brought by a new economic order and a proposed new-liberalism. Key Words: National Treatment; International Investment Regime; Liberalism; China.