Category Archives: International Law

A “Convicted Terrorist” By Any Other Name

By: Maureen Duffy

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Cases Generally Considered: Pelham, Warden of the Bowden Institution, et al. v. Khadr, No. 36081 (Alberta) (Criminal) (SCC, By Leave); Bowden Institution v Khadr, 2015 ABCA 159; Khadr v Bowden Institution, 2015 ABQB 261; Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173; Khadr v Edmonton Institution, 2014 ABCA 225; Khadr v Edmonton Institution, 2013 ABQB 611

“What’s In a Name?”

Shakespeare famously wrote:

’Tis but thy name that is my enemy;

Thou art thyself though, not a Montague.

What’s Montague? it is nor hand, nor foot,

Nor arm, nor face, nor any other part

Belonging to a man. O! be some other name:

What’s in a name? that which we call a rose

By any other name would smell as sweet …

The idea, of course, is that names may be superficial labels, which do not, by themselves, define the character of the person to whom they are attached. Rather, they can be misleading, giving an impression of a person that is entirely different from reality.

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ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

By: Nigel Bankes

PDF Version: ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

Decision Commented On: International Tribunal on the Law of the Sea (ITLOS), Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Order with respect to the prescription of provisional measures, April 25, 2015, ITLOS Case No. 23

By way of a Special Agreement concluded on 3 December 2014, Ghana and Côte d’Ivoire submitted a dispute concerning their maritime boundary to a Special Chamber (SC) of ITLOS. The SC was fully constituted on 12 January 2015 and on 27 February 2015 Côte d’Ivoire made a request for the prescription of provisional measures under Article 290(1) of the Convention on the Law of the Sea (LOSC) requiring Ghana to:

  1. take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area;
  2. refrain from granting any new permit for oil exploration and exploitation in the disputed area;
  3. take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire;
  4. and, generally, take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil; and
  5. desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.

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Grassy Narrows, Division of Powers and International Law

By: Nigel Bankes

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Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

This post discusses two issues arising from the Supreme Court’s decision in Grassy Narrows. The post first considers the implications of the Court’s conclusion that the doctrine of interjurisdictional immunity does not apply in a case where a province infringes the treaty right to hunt leaving the treaty party with no meaningful right to hunt. Second the post argues that the Court’s conclusion that a provincial government may be able to justify an infringement of hunting rights of this nature is inconsistent with Canada’s obligations under international law. Continue reading →

Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

By: Elizabeth Whitsitt and Nigel Bankes

PDF Version: Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

Decision commented on: World Trade Organization, Appellate Body Report – European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (22 May 2014)

Just a few short weeks ago the World Trade Organization (WTO) issued its final word on the legality of a regime that bans seal products from the European Union (EU) market. In a decision that has Canadian and EU officials claiming victory, the WTO Appellate Body (AB) determined that the EU’s ban on seal products is justified under the right to protect public morals, specifically on the grounds of protecting animal welfare. The AB also found, however, that the ban is discriminatory in the way it is applied, and should be modified in order to fully comply with international trade obligations.

Briefly summarized, the measure at issue in this case bans the sale of seal products in all EU member states, subject to certain implicit and explicit exceptions. Explicitly, the measure permits the sale of seal products in the EU market if those products are: (i) derived from hunts carried out by indigenous peoples (IC), (ii) derived from hunts that were conducted for the sustainable management of marine resources (MRM), (iii) or personally imported into the EU by travellers. Implicitly, the measure also permits the import of seal products into the EU for process and re-export, a convenient loophole that protects commercial interests within the EU.

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The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

By Elizabeth Whitsitt and Nigel Bankes

PDF Version: The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

Decisions commented on:  World Trade Organization (WTO) Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, 25 November 2013,  and Inuit Tapiriit Kanatami et al v European Commission, Case T-526/10, Judgement of the General Court (EU), (Seventh Chamber), 25 April 2013, available here (currently on appeal)

Regulations commented on: Regulation (EC) No 1007/2009 on trade in seal products, (Framework Regulation) and Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (Implementing Regulation) (collectively the Sealing Regulations) (both available here along with other background information and reports)

The WTO Panel handed down its decision in the complaints made by Canada and Norway in relation to the European Union’s ban on placing seal products on the market on November 25, 2013.  The reaction in the media was immediate with most outlets indicating that the Panel had upheld the ban.  The CBC, for example, reported that “[t]he WTO, while finding that the EU’s so-called Seal Regime had violated international trade agreements, also determined that the ban was valid because of a controversial public morals clause”. Gloria Galloway in the Globe and Mail reported that “[a] WTO ruling released on Monday says the ban the EU imposed in 2010 undermines the principles of fair trade, but is justified because it ‘fulfills the objective of addressing EU public moral concerns on seal welfare’”.

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