The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

By: Julia Gaunce

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Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.

This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC. Continue reading

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The International Human Right to Science and its Application to Geoengineering Research and Development

By: Kristin Barham and Anna-Maria Hubert

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International Agreements Commented On: Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights

Scientific and technical advances bring unquestioned benefits, but they also generate new uncertainties and failures, with the result that doubt continually undermines knowledge, and unforeseen consequences confound faith in progress.”

  • Sheila Jasanoff, “Technologies of Humility: Citizen Participation in Governing Science” (2003) 41 Minerva 223, 224

There is a growing body of social science literature emphasising a need for science and technological innovation to be more accountable to society and to take into account the full spectrum of uncertainties surrounding these processes. These calls are often manifested as calls for greater reflexivity, transparency and public participation in R&D. Environmental law – with its focus on the prevention of environmental harm and precaution – provides an important site for regulation and governance for many advances in science and technology. There is an obvious logic to this choice, given the countless examples of technologies that have contributed to environmental damage at various phases of their lifecycles. However, there are conceptual limits to the application of environmental law for governing upstream R&D, as environmental obligations primarily aim at preventing or minimizing actual physical harm to the environment. Precautionary risk assessment and management are examples of governance tools for asserting greater control over research and innovation processes. However, although environmental law is increasingly informed by a broader framework of sustainable development that draws upon a range of legal subject areas, an environmental framing does not directly target the social and ethical concerns that dominate the early stages of science and the development of emerging technologies. Continue reading

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Making Sense of Aboriginal and Racialized Sentencing

By: Joshua Sealy-Harrington and David Rennie

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Cases Commented On: R v Laboucane, 2016 ABCA 176 (CanLII); R v Kreko, 2016 ONCA 367 (CanLII)

In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).

The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders. Continue reading

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Charter Equality Challenges to the Income Tax Act: The Unsuccessful Streak is Strong, 30 Years On

By: Kyle Gardiner

PDF Version: Charter Equality Challenges to the Income Tax Act: The Unsuccessful Streak is Strong, 30 Years On

Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016

On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.

When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here. Continue reading

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Human Rights Cannot Be Renounced or Waived

By: Hasna Shireen

PDF Version: Human Rights Cannot Be Renounced or Waived

Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)

The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106). Continue reading

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