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Indigenous Biocentric Law Against a Legacy of Violence: Chilean Water Regulation, Free Trade with the EU, and Violations of Mapuche and Aymara Rights to Water
No full textAssertions of Mapuche and Aymara law in defence of waters are hampered by a legacy of state violence, and continued appropriation of Indigenous worldviews under commodified conceptions of nature. I interrogate and analyze the connection between Chile’s water market regime, natural resource extraction, water scarcity, and free trade and foreign investment. Chile’s Water Code facilitates water-intensive agribusiness, mineral extraction, and salmon aquaculture as part of export-oriented economy. At the same time, free trade agreements signed with EU countries knowingly encourage overextraction of water and natural resources. I argue in favour of grassroots movements toward land restitution and jurisdiction as solution. I aim to show international human rights litigation and the concept of virtual water as legal means to hold Chile and major EU importing states responsible for environmental harm, and violation of Mapuche and Aymara peoples’ right to water including ancestral and cultural uses
Claim Types in Canada’s Refugee Determination System: An Empirical Snapshot (2013–2021)
No full textThis article overviews outcomes in different types of refugee claims in Canada. It critiques standard legal research methodologies in the refugee law field due to skews in publication practices. To address these skews, the article employs empirical quantitative research methods using administrative tribunal data and computational methods. It provides a snapshot of refugee claim numbers, countries of origin, claim categories, and outcomes. The article then underscores the benefits of supplementing doctrinal legal research with empirical quantitative research methods, outlines barriers to the adoption of such methods, and offers guidance and tools to assist other researchers in overcoming those barriers
Explaining the Comparatively Less Robust Human Rights Impact of the ECOWAS Court on Legislative and Judicial Decision-making, Process, and Action in Nigeria
No full textThis article outlines and tackles two inter-related puzzles regarding the comparatively much less robust human rights impact that the ECOWAS Court (in effect, West Africa’s international human rights court) has had on the generally more democratic legislative/judicial branch of decision-making and action in Nigeria vis-à-vis the generally more authoritarian executive branch within Nigeria, the country that is the source of most of the cases filed before the court. The article then discusses and analyzes the examples and extent of the court’s human rights impact on legislative/judicial branch decision-making and action in that key country. This is followed by the development of a set of analytical, multi-factorial, explanations for the two inter-connected puzzles that animate the enquiry in this article. In the end, the article argues that several factors have combined to produce the comparatively much less robust human rights impact that the ECOWAS Court has had on domestic legislative and judicial decision-making, process, and action in Nigeria, through restricting the extent to which the latter could mobilize more robustly the court’s human rights-relevant processes and rulings
Introduction to the Statement of Claim and Ontario Judgment in the Civil Claim Brought Against the Government of Canada for the Death by Torture of Shidane Arone in Somalia, with Appendices
Get PDFThis piece is a brief note introducing two documents, the statement of claim for and the sole judgment in Abukar Arone Rage and Dahabo Omar Samow by their Litigation Guardian Abdullahi Godah Barre v. The Attorney General of Canada (unreported, 6 July 1999, Ontario Superior Court of Justice, Cunningham J). The case concerns the efforts by family of Shidane Arone to sue the Government of Canada for civil damages for the torture and then death from torture of Arone at the hands of Canadian soldiers operating in Somalia as part of a UN mission. The case remains unreported by any service, including in any of the Dominion Law Reports, the Ontario Reports and CanLII.org. Therefore, the note includes, as appendices, the following:
Appendix 1 – Statement of Claim (April 13, 1999); and Appendix 2 – Judgment of Cunningham J (July 6, 1999)
Disability Benefits and Administrative Vulnerability: Lessons for Canada from the US’s Social Security System
Get PDFThe United States federal government’s disability insurance system is a leading example of the problems that arise when a social program combines subjective eligibility criteria with an administrative apparatus that cannot handle the inevitable expenses and delays that such criteria create and that are expensive to reverse. In particular, Black, female, and non-English speaking individuals are most likely to be improperly denied benefits under that program. By contrast, Canada is moving in the right direction with its recent enactment of the Canada Disability Benefit Act. That Act, while obviously not perfect, importantly improves access to social support for people with disabilities throughout Canada. This paper advocates that Canadian policymakers should do what they can to make sure that their country does not replicate the experience in the United States
Stitching the Canada Disability Benefit into the Social Security System: Expectations, Patchworks, and Goals
Get PDFNew public policies stir old expectations and stimulate new expectations among people. For the planned Canada Disability Benefit (CDB), what is possible? What type of policy is at stake for women with disabilities? The CDB symbolizes an official acceptance by the federal government of a national public responsibility to address known risks of low income and poverty among hundreds of thousands of persons with disabilities. In policy content terms, the CDB is redistributive and regulatory. As redistribution, it promises to be a large-scale allocation of public revenues to a broad category of individuals disproportionately living in poverty in Canada. As regulative policy, it will involve the making of rules about applications, eligibility, administration, appeals, compliance, and enforcement, among other matters
R. v. Sharma: Reckoning with Destabilizing Truths in Constitutional Equality Adjudication
Get PDFThe Supreme Court of Canada’s 2022 decision in R. v. Sharma provides a window on contemporary but divergent judicial approaches to systemic racism in the criminal legal system and how these inform equality challenges based on race. The Sharma majority follows a trend identified by Efrat Arbel in recognizing the “crisis” of Indigenous mass incarceration using language which diffuses the causes of the crisis and does not generate urgent redress. However, in some cases, including in the Sharma dissent, recognition by judges can be an acceptance of accountability as part of the system which has produced these effects. We then argue that claims like Sharma’s can be profoundly destabilizing in a variety of ways — these claims implicate judges as key players in the criminal legal system, they challenge doctrinal and philosophical commitments to individual culpability and blame, and they also create anxiety about the appropriate institutional roles of courts and judges. The Sharma dissent might also, in a contradictory way, restabilize by bringing some radical claims about the criminal legal systems into the embrace of doctrine. We ask how the courts have reckoned with the reality of systemic racism in the criminal legal system and Indigenous mass incarceration as equality matters, noting that section 15 has been avoided in some cases and evaded through evidentiary issues in others. However, we suggest that in the contemporary context, to completely avoid the issue might cause legitimacy problems for courts. While litigation and courts are not likely to be the vehicle for eliminating either Indigenous mass incarceration or systemic racism in our criminal legal system, they can be part of wider shifts in discourse and policy which show greater promise for lasting change
A Soft Competition Among Arbitral Institutions: The Institutional Oligopoly of Mixed Arbitration
No full textArbitral institutions play a vital role beyond merely facilitating international arbitration between private parties and states; they actively shape international legal norms and influence global governance. Despite their strategic and policy-shaping role, scholarship on arbitral institutions remains limited mostly to doctrinal analyses of their procedural functions. Addressing this gap, this thesis presents a comparative case study, exploring the influence of four dominant arbitral institutions and their leading experts on the development and evolution of mixed arbitration. The study combines insider research and work in the archives of inter- and non-governmental organizations, states, and influential individuals. It also draws on numerous leaked diplomatic cables. The thesis finds that the institutional market for treaty-based mixed arbitration constitutes an oligopoly of four institutions. Rather than from free market competition, this oligopoly emerged from a combination of factors, including brokering by international bureaucrats and arbitration experts during critical junctures, followed by subsequent path-dependent developments. This dynamic is historically embedded in the emergence of administered forms of contract-based mixed arbitration, which set the scene for the arrival of ICSID and the proliferation of treaty-based cases. While ICSID’s arrival marks a significant milestone, other institutions thrived in lesser but still vital ways, leveraging factors such as the timing of state accessions to the ICSID Convention, geopolitical dynamics during the Cold War, the introduction of the UNCITRAL Arbitration Rules, new treaty provisions offering a forum choice, and lobbying by influential experts who possessed ‘the right visibility at the right time’. The study contributes to several strands of scholarship, including on the political economy of the investment treaty regime, the growing judicialization of international law, and the role of non-state actors in international relations. It also represents the first comparative case study of non-doctrinal aspects of arbitral institutions with a focus on mixed arbitration