Author Profiles

John H. Currie, Faculty of Law, University of Ottawa

Craig Forcese, Faculty of Law, University of Ottawa

Valerie Oosterveld, Faculty of Law, University of Western Ontario

Joanna Harrington, Faculty of Law, University of Alberta

The Book

This blog updates the book with developments in international law.

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Monday
Feb282011

State Immunity: Still no Human Rights Exception in Canadian Law

By Craig Forcese

Cross-Referencing: ch. 8, pp. 493 et seq.

In January, 2011, the Quebec Superior Court released its reasons in Kazemi (Estate of) c. Islamic Republic of Iran, 2011 QCCS 196.  This matter stems from the torture and killing of Zahra Kazemi by Iranian government officials in 2003.  Ms. Kazemi was a Canadian (born in Iran and considered Iranian by Iran). The case was brought by Ms. Kazemi's Canadian (and Canadian domiciled) son, seeking damages for Ms. Kazemi's death and also the injury suffered by the son as a result of that death. 

The court dismissed the plaintiffs claims against Iran and the Iranian government officials responsible for Ms. Kazemi's maltreatment insofar as they related to Ms. Kazemi's own treatment.  However, it refused to dismiss the lawsuit insofar as it related to the son's own alleged injuries.

In dismissing the claims relating to Ms. Kazemi, the court concluded that the State Immunity Act precluded such lawsuits against states and state employees, where the injuries were suffered abroad.  In so doing, it declined to construe narrowly the circumstances in which state employees may invoke state immunity.  One possible theory is that state employees may only be clothed with official authority (and thus attract state immunity) where they act in a manner consistent with the functions and actions permissible to such employees as a matter of international law (and thus state immunity would not extend to whatever internationally unwlawful depredations domestic law might permit them to undertake).  Such a theory would constitute one possible extrapolation of the famous House of Lords Pinochet decision regarded torture by state actors.  However, the House of Lords itself, in the Jones decision, was hostile to such an approach. 

Perhaps not surprisingly, the Quebec Superior Court followed a similar course as the Jones case, and extended state immunity to state employees acting officially notwithstanding the internationally illicit nature of their activity.

The Kazemi case is kept alive, however, by the court's finding that insofar as Ms. Kazemi's son's injury is concerned, that harm arose in Canada (albeit as a consequence of actions occurring in Iran), and thus is captured by a standing exception to state immunity; namely, personal injury occurring in Canada.

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Thursday
Dec022010

Canadian Parliamentary Deliberation on Canada's Universal Periodic Review Practices

By Craig Forcese

Cross-referencing: Chapter 9, pp.645 et seq.

Canada completed its first "universal periodic review" under the UN Human Rights Council process in October 2009.  The process culminated in a number of recommendations made to Canada by states represented on the "working group" reviewing Canada's human rights record.  These recommendations in turn sparked a report by the House of Commons Sub-Committee on International Human Rights recommending a number of changes in the way that Canada approaches compliance issues in relation to its international human rights obligations. 

Among the recommendations:

 

  • "That the Government of Canada work on a priority basis to improve the system currently in place for monitoring, reporting, implementing and enforcing Canada’s international human rights obligations and that these reforms take place transparently and in consultation with civil society, aboriginal groups, and institutions whether federal, provincial or territorial."

  • "That the Government of Canada table each UPR report concerning Canada’s human rights record and any UN treaty body reports on the same subject in Parliament and that each of these reports be referred to an appropriate parliamentary committee for study."

  • "That the Government of Canada publicly respond to recommendations  received from all UN treaty bodies and human rights review bodies within one year of receiving their reports."

Reduced to their essence, these (and other) recommendations ask for more transparency, more government responsiveness and a greater parliamentary role in responding to compliance issues tied to Canada's international human rights obligations.

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Wednesday
Oct272010

Creation of UN Women: Changing the UN’s Institutional Architecture

By Valerie Oosterveld

Cross-referencing: Chapter 3(B)(2)(d)(i) and (iii)

On July 2, 2010, the UN General Assembly adopted a resolution creating a new structure to consolidate and expand the UN’s work on gender equality and the empowerment of women. The structure’s formal title is “United Nations Entity for Gender Equality and the Empowerment of Women”, known as “UN Women”. The creation of UN Women is the result of years of negotiations between UN member states and advocacy by civil society. UN Women will become operational by January 1, 2011.

Former Chilean President, Michelle Bachelet, has been appointed to head UN Women, at the level of Under-Secretary-General.

UN Women merges four previously separate parts of the UN system:

  • Division for the Advancement of Women (DAW, established in 1946);
  • International Research and Training Institute for the Advancement of Women (INSTRAW, established in 1976);
  • Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI, established in 1997); and
  • United Nations Development Fund for Women (UNIFEM, established in 1976).

UN Women will be funded in two ways: through the regular UN budget for its normative work (funds to be approved by the General Assembly), and by voluntary contributions for its operations. Its estimated budget is at least $500 million U.S. - double the combined current budgets of DAW, INSTRAW, OSAGI and UNIFEM.

The establishment of UN Women is meant to “lead to more effective coordination, coherence and gender mainstreaming across the United Nations system” [operative para. 52 of General Assembly Resolution 64/289 (2010)]. The mandate of UN Women is the consolidated mandates of DAW, INSTRAW, OSAGI and UNIFEM, “with the additional role of leading, coordinating and promoting the accountability of the United Nations system in its work on gender equality and the empowerment of women” [Id., operative para. 53]. UN Women will be governed through a multi-tiered intergovernmental governance structure constituted by the General Assembly, the Economic and Social Council and the Commission on the Status of Women.

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Monday
Aug232010

The ICJ's Kosovo Decision: Much Ado about Little?

By Craig Forcese

Cross-referencing: Chapter 4(B)(6)

In July 2010, the International Court of Justice delivered its advisory opinion concerning the legality of the unilateral declaration of independence made by Kosovo in 2008. The question was referred to the ICJ by the United Nations General Assembly, via resolution 63/3 (8 October 2008). That document asked the ICJ to render an advisory opinion on the following: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”.

The ICJ did just that, following its usual segue into a discussion of its jurisdiction to do so.  But for those who thought that the Court might opine on the murky area of self-determination in international law, the decision is a disappointment.  The ICJ confined itself to a strict discussion of unilateral declarations under international law, and consciously declined to discuss  the circumstances in which such declarations are effective or where the international community might be required to accept them, and recognize a newly emergent state (the core issue in any question of self-determination).

On the question of whether unilateral declarations of independence are legal in international law, a majority of the Court concluded that "general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law" (at para. 84).  Nor did the declaration run counter Security Council resolution 1244 (1999), establishing an interim constitutional structure for Kosovo.

As a result of this very narrowly circumscribed decision, self-determination remains as thorny and perplexing an area of international law are ever.

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Tuesday
Aug032010

ICJ’s Pulp Mills on the River Uruguay Judgment: Development of Law on Shared Watercourses

By Valerie Oosterveld

Cross-referencing: Chapters 5(a), 11(B)(1) at p. 720; 11(B)(2) at p. 723; and 11(C)(2) at 730. 

On April 20, 2010, the International Court of Justice (ICJ) released its judgment in the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). The dispute centered around a cross-border environmental dispute regarding Uruguay’s authorization of the construction of two pulp mills on the River Uruguay, the river demarcating the boundary between Argentina and Uruguay. The first pulp mill is referred to as the Orion (Botnia) pulp mill. It has been in operation since November 2007. Argentina strongly objected to the construction of this mill, fearing harm to its environment. The other pulp mill has been planned but not built, and is referred to the CMB (ENCE) pulp mill. Argentina submitted the dispute to the ICJ in 2006. Uruguay successfully argued that the dispute was narrowly limited to the interpretation or application of the 1975 Statute of the River Uruguay, and therefore Argentina’s concerns regarding air, noise and visual pollution were largely excluded from consideration (para. 52). 

The ICJ held that Uruguay was obligated by the 1975 Statute to notify Argentina before deciding on the environmental viability of the planned pulp mills, and that Uruguay breached this obligation (para. 122). The ICJ also held that the remedy for Uruguay’s failure was the Court’s declaration of the breach (para. 269). The Court also held that there is no conclusive evidence in the record to demonstrate that Uruguay failed to act with the requisite degree of due diligence or that discharge from the pulp mill has had a harmful effect on the water quality or ecology (para. 265).

The Court made several significant statements on shared watercourses. The Court indicated that a balance must be struck between the rights and needs of each riparian state to use the river for economic and commercial purposes and their obligation to protect it from environmental damage: this is the objective of sustainable development (paras. 175, 177). “[U]tilization [of the river] could not be considered equitable and reasonable if the interests of the other riparian state in the shared resource and environmental protection of the latter were not taken into account” (para. 177). Similarly, the ICJ observed that parties to the 1975 Statute are required to adopt domestic pollution prevention and aquatic preservation regulations and measures that meet international standards, and the Court reminded both states of their obligation to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control (paras. 193, 195, 197).

The ICJ noted that environmental impact assessment “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (para. 204). However, the Court also noted that general international law does not prescribe the scope or content of such assessments (para. 205).
 
While Argentina argued that the precautionary approach of the 1975 Statute shifts the burden of proof to Uruguay to show that the Orion (Botnia) plant would not cause significant damage to the environment, the ICJ ruled that Argentina, as the applicant, has the burden of proof (paras. 160, 162, 164).    

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