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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Sunday
Feb012009

Russian Recognition of Independence of South Ossetia and Abkhazia, Invasion of Georgia, Draws Condemnation

Cross-referencing: Chapter 3(2)(a), “Recognition of States”, pp. 178-184; Chapter 3(A)(4)(c), “The Duty of Non-Interference”, pp. 216-220; Chapter 4(B)(6), “Self-Determination”, pp. 315-337; Chapter 14(B), “The General Prohibition on the Threat or Use of Force”, pp. 833-839 

 

On August 26, 2008, Russia recognized the independent statehood of the breakaway Georgian provinces of South Ossetia and Abkhazia. In statements made by the Russian president and by Russia’s representative in the UN Security Council, these acts of recognition were justified on the basis of Georgia’s history of violent attempts to assert control over the provinces (including Georgia’s August 2008 offensive in South Ossetia), alleged genocide of the South Ossetian and Abkhazian peoples by Georgia, the “freely expressed will of the Ossetian and Abkhaz peoples” to be independent of Georgia, and their “right to decide their destiny by themselves”. To date, only Nicaragua has joined Russia in recognizing the independence of South Ossetia and Abkhazia. In contrast, the Russian acts of recognition have been widely condemned by many states and regional organizations (including the European Union, the OSCE, NATO, and the G7) on the basis that they are inconsistent with Georgia’s sovereignty and territorial integrity, Russia’s duty not to intervene in Georgia’s domestic affairs, and UN Security Council resolutions affirming the sovereignty, independence and territorial integrity of Georgia within its internationally recognized borders.

 

Most of these states and organizations had already condemned, on the same grounds, the large-scale military operations undertaken by Russia on Georgian territory, beginning on August 8, 2008, in purported support of South Ossetia’s and Abkhazia’s alleged right of self-determination. Those operations prompted Georgia to institute, on August 12, 2008, proceedings against Russia in the International Court of Justice (“ICJ”) under the International Convention on the Elimination of All Forms of Racial Discrimination. While active hostilities between Russian and Georgian troops ceased in early October, 2008, Russia maintains a considerable troop presence in South Ossetia and Abkhazia, and the ICJ proceedings remain ongoing at the time of writing.

 

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Sunday
Feb012009

Kosovo Declaration of Independence Triggers Mixed Reactions, Request for ICJ Advisory Opinion

Cross-referencing: Chapter 3(A)(2)(a), “Recognition of States”, pp. 178-184; Chapter 4(B)(6), “Self-Determination”, pp. 315-337

 

On February 17, 2008, the Serbian province of Kosovo unilaterally declared its independence from Serbia. This step was the culmination of a long and fractious relationship between the province and the central Serb (formerly Yugoslav) government. In the wake of the break-up of the former Yugoslavia in the early 1990s and the resulting Balkan conflicts, evidence emerged of widespread human rights abuses by the central Serb authorities against the predominantly ethnic Albanian population of Kosovo. Although NATO and ultimately the United Nations intervened directly in the Serbian province to halt the abuses, the international community until very recently refrained from supporting Kosovo’s secessionist claims. For several years, the focus of the UN-led mission in Kosovo (UNMIK), established pursuant to UN Security Council Resolution 1244 (1999), was to establish conditions in which the relationship between Kosovo and Serbia could be normalized, perhaps through a degree of local self-government for Kosovo, while preserving the territorial integrity of Serbia. However, in the face of complete failure of negotiations to this end, the UN Secretary-General and his Special Envoy on Kosovo’s future status recommended to the UN Security Council, in 2007, that Kosovo be granted independence. The Security Council had not acted on this recommendation by the time Kosovo unilaterally declared its independence. Since then, UNMIK has lost much of its ability to carry out its mission given that local Kosovo authorities have assumed de facto control of most of the administrative and governmental apparatus in the province.

 

To date, Kosovo’s statehood has been recognized by slightly more than 50 states, including Canada. Of note, Canada’s recognition came significantly later than that of most of its allies, reportedly due to concerns over the precedent that such recognition might establish for the international law of self-determination. However, Canada’s recognition of Kosovo’s statehood, echoing that of most other recognizing states and indeed the Kosovo declaration of independence itself, cautions that Kosovo’s “unique circumstances … mean it does not constitute any kind of precedent”. It should also be noted that a significant number of other states, including Serbia and Russia, have expressly rejected Kosovo’s declaration of independence.


While state practice and opinio juris therefore appear contradictory or ambivalent on Kosovo’s entitlement to external self-determination, the UN General Assembly, at the urging of Serbia, has requested an Advisory Opinion from the International Court of Justice on the international legality of Kosovo’s declaration of independence. It is therefore to be anticipated that the Kosovo situation will, by virtue of judicial proceedings if not the recognition practice of states, shed further light on the international law of self-determination.

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Sunday
Feb012009

UN Declaration on the Rights of Indigenous Peoples Adopted by General Assembly

Cross-referencing: Chapter 4(B)(6), “Self-Determination”, pp. 327-329

 

On 13 September, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”). The Declaration differs only slightly from the draft previously adopted and recommended to the General Assembly by the UN Human Rights Council. In particular the Declaration continues to recognize that “[i]ndigenous peoples have the right to self-determination”, as well as to define the scope of that right by reference to “autonomy or self-government in matters relating to their internal and local affairs”. Similarly, Articles 5, 8-14, 16, 18-20, 23, 26-28, 30 and 32-34 of the Declaration continue to recognize the right of indigenous peoples to varying degrees of autonomy with respect to indigenous institutions, traditions, customs and traditional lands, but apparently all within the greater context of the state in which they live. In other words, the essential thrust of the Declaration appears to be elaboration of the right to internal, rather than external, self-determination of indigenous peoples.

 

Perhaps the most significant addition by the General Assembly to the draft Declaration forwarded to it by the Human Rights Council is Article 46, which cautions that “[n]othing in this Declaration may be … construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”. It would appear that this amendment was intended to address concerns expressed by the Assembly of the African Union over the Declaration’s provisions on self-determination and their implications for territorial integrity. The addition of Article 46 suggests a rather cautious approach by states to the potential generalization of a right of self-determination in any way that might compromise the territorial integrity of existing states.


 

Canada was one of only four states (along with Australia, New Zealand and the United States) to vote against the Declaration in the General Assembly. In explaining its vote, Canada cited concerns with ambiguous or overly restrictive language on such issues as self-government, lands and resources, and asserted that its provisions do not represent customary international law. The Government of Canada has since published a position paper further explaining its opposition to the Declaration.

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Sunday
Feb012009

Supreme Court of Canada Clouds Rules Governing Role of Customary International Law in Domestic Law and of International Law in Interpreting Canadian Charter

Cross-referencing: Chapter 2(B)(9), “Interaction of Treaty Law with Domestic Canadian Law”, pp. 117-120; Chapter 2(C)(3), “Interaction of Customary International Law with Domestic Canadian Law”, p. 144

 

In its June 7, 2007, decision in R. v. Hape, a majority in the Supreme Court of Canada considered at length the relationship between customary international law and domestic Canadian law, as well as the role of international law in interpreting the Canadian Charter of Rights and Freedoms (“Charter”).


 

On the first of these, the majority, after reviewing the presumptive adoptionist stance taken by the Canadian courts to customary international law to date, wrote (at para. 39):

[F]ollowing the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.

[Emphasis added]

 

While at first blush the sentence emphasized in this passage seems unequivocally to confirm the status of customary international law as Canadian common law, the remainder of the passage seems to suggest quite different rules. Indeed, this passage could be read as asserting as many as five different rules on the issue, some monist and some dualist in nature, as follows:

 

 

1.     Customary international law is automatically part of the common law of Canada in the absence of conflicting legislation.

2.     Customary international law should be incorporated into the common law of Canada in the absence of conflicting legislation.

3.     Customary international law may be incorporated into the common law of Canada in the absence of conflicting legislation.

 

4.     Customary international law may aid in the development of the common law of Canada.

5.     Customary international law may aid in the interpretation of the common law of Canada.

 

The uncertainty thus introduced as to the status of customary international law in domestic Canadian law is not elsewhere clarified in Hape. Indeed this uncertainty is exacerbated by the fact that the majority’s discussion of the relationship between customary international law and domestic common law was likely obiter dicta, in a judgment turning solely on interpretation of the Charter.


With respect to the role of international law in interpreting the Charter, Hape also generates uncertainty by introducing an unprecedented rule. The majority writes (at para. 56): “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion.”


On its face, this rule would seem to require that Canadian courts ensure that their interpretation of the Charter aligns with all of Canada’s international legal obligations, whether related to international human rights or not. As such, it departs radically from the Court’s prior jurisprudence on the role of international law in Charter interpretation. Neither Slaight Communications Inc. v. Davidson nor any of its successors asserted a presumption of Charter conformity with Canada’s international legal obligations. At their strongest, the Court’s prior judgments only ever suggested that international law established a floor of human rights protection below which Charter interpretation should not, “generally” and absent “exceptional circumstances”, drop — a floor, moreover, that was only to be established by reference to Canada’s international human rights obligations (see Slaight Communications at para. 23). By contrast, under the new rule articulated in Hape, Charter protections would not simply benefit from a minimum content presumption, but would also be subject to any ‘ceiling’ or ‘walls’ implied by any of Canada’s international legal obligations. Similarly, any interpretive ‘floor’ previously indicated by Canada’s international human rights obligations could conceivably be lowered by reference to Canada’s international obligations of a non-human rights character.

 

Moreover, some of the Court’s prior judgments eschewed any binding role for international law in interpreting the Charter, relegating international law to the status of mere context that “may inform” such interpretation, but “not as controlling in itself” (see for example Suresh v. Canada at paras. 46 and 60). In contrast, the Hape rule appears drastically to narrow any judicial discretion to adopt a Charter interpretation that does not conform to any of Canada’s international legal obligations: Only where the express wording of the relevant Charter provision is incapable of supporting an interpretation that complies with international is another interpretation permissible.


Unfortunately, the majority in Hape does not advert to these fundamental departures from its prior jurisprudence on the relationship between international law and Charter interpretation, leaving the basis for and scope of application of the new rule in some doubt. Moreover, its status as the rule now governing the use of international law in Charter interpretation has been cast into further doubt by the Court’s judgment in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, released the day after Hape. In deciding whether the Charter’s guarantee of freedom of association includes a right to collective bargaining, the majority in Health Services simultaneously reasserted Slaight Communications’ minimum content presumption (albeit without its qualifications), as well as the far more equivocal Suresh approach, all the while failing to advert to Hape’s novel presumption of conformity at all.

 

It therefore seems that Hape has not in fact resolved the Court’s ongoing struggle to define, with clarity, the appropriate role for Canada’s international legal obligations in interpreting the Charter’s provisions. Rather, it seems merely to have added yet another to the range of approaches from which the Court picks and chooses from case to case.

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Sunday
Feb012009

New Policy on Tabling Treaties in Parliament Adopted by Canadian Government

Cross-referencing: Chapter 2(B)(3)(c), “The Treaty-Making Process under the Vienna Convention”, pp. 49-51; Chapter 2(B)(9), “Interaction of Treaty Law with Domestic Canadian Law”, pp. 106-111 

On 25 January, 2008, the Government of Canada announced a new policy concerning the tabling of treaties in the House of Commons before Canada becomes a party to them. Pursuant to the policy, the government will table the text of treaties “following their adoption by signature or otherwise” and will observe a waiting period of 21 sitting days before expressing Canada’s consent to be bound by such treaties. The purpose of the waiting period is to allow Members of Parliament to initiate debate and request votes on motions regarding the treaty.

However, the policy provides for exceptions to the tabling and waiting-period requirements in cases deemed “appropriate” by the Prime Minister – for example, where ratification of a treaty is urgently required. Further, the government only undertakes to “consider” any concerns raised by opposition parties during the 21-day tabling period, and retains the sole authority to decide whether or not to bind Canada to the treaty. Along with the fact that the policy is not an Act of Parliament, these provisos make it clear that the policy does not change the legal or constitutional locus of the treaty-making power in Canada. That power remains vested in the federal executive branch as an aspect of the royal prerogative power over the conduct of foreign affairs.

The policy contains at least two additional features of interest. First, the tabling and waiting-period requirements appear only to apply to treaties that involve a two-step approval process (e.g. signature followed by ratification); as well as to multilateral treaties “that do not provide for signature and for which there is no two-step approval process”. It is not clear whether the exclusion, from the policy’s scope, of bilateral treaties that do not involve a two-step approval process is deliberate or inadvertent – and if deliberate, what the justification for such an exclusion might be. Second, the policy appears incidentally to confirm the long-standing federal government practice of delaying ratification of or accession to treaties until any federal legislation required to implement the treaty has been enacted by Parliament.

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