Category Archives: International Law

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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The United States Wants a New Columbia River Treaty, What Should Canada Do?

PDF Version: The United States Wants a New Columbia River Treaty, What Should Canada Do?

Documents commented on: (1) The Columbia River Treaty and Protocol, 1964 and (2) Columbia River Treaty Review, Draft Regional Recommendation, September 20, 2013 available here

Interesting times lie ahead for the Columbia River Treaty (CRT) of 1964 between Canada and the United States. The CRT provides for the cooperative development of the upper Columbia River and the Kootenay River for two purposes, flood control and power. Under the terms of the treaty Canada agreed to build and operate three dams: Duncan, Mica and Arrow/Keenleyside. The treaty also authorized the United States to construct Libby dam on the Kootenay River in the United States. Libby dam created Lake Koocanusa (Kootenay/Canada/USA) which backs up into British Columbia (hence the need for treaty authorization). In return for all of this, Canada received a $64 million dollar lump sum payment for the first sixty years of flood control offered by the Canadian dams, and 50% of the incremental power and capacity made available at US mainstem dams as a result of the new storage. The mainstem dams are existing dams on the Columbia, some owned by the US federal government (e.g. Grand Coulee and Chief Joseph), and some owned by public utility districts (e.g. Wells, Rocky Reach, Rock Island, Wanapum and Priest Rapids). The Canadian storage improved the efficiency of these dams by firming up capacity (i.e. providing stored water when installed generation would otherwise be running at less than full capacity) and storing water when the same dams might otherwise be spilling water. These power benefits currently have an average annual value of about $202 million. Canada/British Columbia also receives other benefits from the treaty facilities including local flood control (for communities like Trail and Castlegar) and on site generation at Mica, Revelstoke (not a treaty dam, but a facility which benefits from the regulation provided by Mica) and Keenleyside. For maps of the basin and dam locations and more information about the treaty see the website of the Columbia Basin Trust here.

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The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

PDF Version: The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

Case commented on: Hupacasath First Nation v Minister of Foreign Affairs Canada and the Attorney General of Canada, 2013 FC 2009

In this case Chief Justice Crampton of the Federal Court Trial Division rejected the application of the claimant Hupacasath First Nation (HFN) for a declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying or taking other specific steps that will bind Canada to the terms of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) (text available here). It was common ground (at paras 11 and 12) that while the Department of Foreign Affairs and International Trade had consulted with stakeholders, that consultation did not extend to HFN or other First Nations.

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The Petition of the Arctic Athabaskan Peoples to the Inter American Commission on Human Rights

By: Verónica de la Rosa Jaimes

PDF Version: The Petition of the Arctic Athabaskan Peoples to the Inter American Commission on Human Rights

Matter Commented On: Petition to the Inter American Commission on Human Rights seeking relief from violations of the rights of Arctic Athabaskan Peoples resulting from rapid arctic warming and melting caused by emissions of black carbon by Canada

The indigenous peoples of the Arctic, including the Arctic Athabaskan peoples, have contributed the least to the accelerated warming and melting of the Arctic through emissions of greenhouse gases yet they are among the first to face direct environmental, social and human impacts of climate change. On April 23rd, 2013 the Arctic Athabaskan Council (AAC), represented by Earthjustice and Ecojustice Canada, on behalf of all the Arctic Athabaskan Peoples of the Arctic regions of Canada and United States, filed a petition with the Inter American Commission on Human Rights (IACHR) seeking relief from violations of their rights resulting from rapid Arctic warming and melting caused by emissions of black carbon for which Canada has international responsibility. The petition is a detailed and comprehensive memorial that includes a thorough analysis of international human rights law and case law, as well as the evidence of some Athabaskan people claiming violations of their human rights.

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160 Girls Litigation Successful in Kenya

PDF version: 160 Girls Litigation Successful in Kenya

Case commented on: C.K. et al v The Commissioner of Police et al, Petition No. 8 of 2012, High Court of Kenya (May 27, 2013)

On May 27, 2013, J.A. Makau of the High Court of Kenya granted judgment for the petitioners in a constitutional claim challenging the failure of the Kenyan police to conduct prompt, effective, proper and professional investigations into complaints of sexual abuse against girls (known as “defilement” under Kenyan law). I have had the privilege of working as part of the volunteer legal team for this case over the last couple of years, under the auspices of a small but mighty NGO called the Equality Effect. The Equality Effect (E2) consists of lawyers, academics, and activists primarily from Canada, Ghana, Kenya and Malawi who use domestic and international human rights laws to challenge women’s and girls’ inequality, including gender-based violence. This post will describe the claim and the process leading to it, and the decision and its implications in Kenya and beyond.

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