Two Phenomena Have Converged in recent years to account for the current interest among international lawyers in the concept of the “consensus” of states. The first is the recognition in jurisprudence that all law, and particularly the international legal system with its lack of centrally organized sanctions, is founded on inductively verifiable psychology and not in deductive principles purportedly derived from God, nature, or reason. If international law is nothing more or less than what states (national decisionmakers and their counsel) think it is, then do not particular rules of international law owe their existence and transmutations to the flow of international consensus?

In the late summer of 1969 the American tanker S.S. Manhattan traversed the fabled Northwest Passage through the waters of the Canadian Arctic archipelago. Its purpose was to determine the commercial feasibility of transporting crude oil via ice-breaking supertankers from the oil fields of Prudhoe Bay in Alaska to the eastern seaboard of the United States. In Canada the voyage of the Manhattan triggered a reaction of nationalism accompanied not only by flag waving but by a vehement demand for a definitive statement of Canadian sovereignty over the waters of the Arctic and particularly the Northwest Passage. The Liberal government under Prime Minister Trudeau found itself between the Scylla of public demands and the Charybdis of international law. In 1969 Canada claimed a three-mile territorial sea, which meant that the waters beyond that limit were high seas and beyond Canadian jurisdiction. Any claim to authority over Arctic waters might be quickly challenged in the World Court, and if proved to have no basis in international law the Canadian claim would be lost for good. The purpose of this paper is to determine the nature of Canada’s claim to the Arctic waters as disclosed by the Canadian government in its pronouncements and actions.

When States Disagree about the way in which the waters of an international drainage basin should be utilized, they should try first to resolve their differences by consultation and negotiation. This is what they usually do and, for the most part, do successfully. Sometimes, however, their negotiations do not lead to agreement. They then face the question whether or not they should involve the aid of third-parties in resolving their problem. In the words of Article 33 of the Charter of the United Nations, must they “seek a solution by … mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”?

It is proposed to examine here the obligation of states to resort to mediation, conciliation and adjudication when they cannot otherwise settle a dispute about the development of an international drainage basin that they share.

International Drainage Basin disputes, like other disputes, may be settled in three ways: by agreement of the parties, reached after consultation and negotiation and perhaps aided by the mediation and conciliation of third parties; by submission to third party determination; and by the use of force, whether it takes the form of self-help by one of the parties to the dispute or of collective action under Chapter VII of the United Nations Charter. Those who study international water resources problems usually conclude that these disputes are best resolved in the first of the three ways outlined, namely by agreements between the interested co-basin states. They do so not simply because voluntarily accepted solutions are likely to be more satisfactory and enduring, but because each drainage basin has its own distinctive characteristics and its problems, being peculiar to it, can be solved only by the adoption of a special regime. They therefore recommend that co-basin states should try to reconcile their conflicts of interest in the development of a drainage basin by consultation and negotiation and by any other means, such as through the good offices of third parties, leading to agreement. Indeed, some go further and assert that international law imposes an obligation on co-basin states to do so.

The recent penetration of a Russian fishing fleet into the Bay of Fundy has raised anew the status of that bay in international law. The manner in which the incident arose puts the issues involved in the clearest possible terms. Shortly after the Russian fleet was sighted in the bay, a newspaper reporter was informed by an unidentified federal government official that “No particular interest is being shown the fleet by the Canadian departments of fisheries and transport” and that “as long as they stayed outside the three mile limit, they would be subject to no restrictions from Canada.” This statement did not sit well with Premier Robichaud of New Brunswick, who promptly wired Prime Minister Diefenbaker that “The Bay of Fundy is an integral part of the provinces of New Brunswick and Nova Scotia” and requested that Canada protest to Russia this violation of Canadian territory.

This article examines conditionalities in the Generalized System of Preferences (GSP) in light of the European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (EC – Tariff Preferences) case at the World Trade Organization (WTO). The article largely undertakes this examination from the point of view of developing countries. It mainly examines the issue of discrimination in conditionalities since this was the principal question raised in the EC – Tariff Preferences case and makes suggestions regarding the regulation of conditionalities. In doing so, the article follows two trajectories: first, it makes suggestions for the WTO panels and Appellate Body, and, second, it makes suggestions for GSP donors, by analyzing the new European GSP + Scheme and by drawing inspiration from conditionalities in the loans granted by the World Bank.

Between 2005 and 2011, there was much debate, both within Canada and at the United Nations (UN), over what role home states should play in the regulation and adjudication of human rights harms associated with transnational corporate conduct. In Canada, this debate focused upon concerns related to global mining that led to a series of government, opposition and multi-stakeholder reports and proposals. These culminated in 2010 with the appointment of an Extractive Sector Corporate Social Responsibility Counsellor and the defeat of Bill C-300, An Act Respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries. Meanwhile, at the UN Human Rights Commission/Council, John G. Ruggie was appointed Special Representative to the UN Secretary-General on Business and Human Rights (SRSG). Ruggie’s work led to the 2008 Protect, Respect and Remedy: A Framework for Business and Human Rights and the 2011 Guiding Principles for Business and Human Rights (the latter designed to “operationalize” the former). While both documents highlight state duties to protect against human rights violations by businesses and the need for access to remedies by victims, the role of home states in this regard was contested. This article compares the developments in Canada between 2005 and 2011 with the work of the SRSG in relation to the home state duty to protect human rights in the transnational corporate context. It also offers reflections on the implications of the inevitability of industry and industry lawyer participation for the development of home state legal obligations.

The Arctic Waters in general and those of the Northwest passage in particular have been conspicuously absent from discussions in the Third Law of the Sea Conference. This does not mean, however, that a Convention of general application resulting from the Conference might not affect their legal status. Indeed, it might be possible to say already that the straits question is virtually settled and that the provisions of the Informal Composite Negociating Text, hereinafter referred to simply as the I.C.N.T., relating to passage through “straits used for international navigation” (Part III) and “archipelagic States” (Part IV), will be adopted without significant substantive changes. There have been no such changes since the Revised Single Negotiating Text of May 6, 1976, and the general consensus is that this issue of straits, once considered so difficult to resolve as possibly to cause failure of the Conference, is now settled.

As civil conflicts between ethnic or religious groups have increased in number, the United Nations has developed greater effectiveness in intervening in such conflicts and has made preventive measures a focus of planning and undertakings of the UN system. One obstacle to implementing preventive measures is the problem of national sovereignty. This article looks at the still relatively unused potential of the UN to deploy military troops as a measure to deal with crises of serious magnitude before they erupt into genocide, highlighting both the obstacles posed by state sovereignty and the potential for success. The article offers a comprehensive study of the human rights provisions of the UN Charter to show how they can operate to authorize the UN to take action to prevent impending genocide. Further, Security Council action in southern Rhodesia, northern Iraq, Bosnia, Somalia, Haiti, and Rwanda is examined, both illustrating the potential of early military action and raising questions about the timing of preventive measures. The article concludes that the most important challenge facing the UN is how to improve its capacity to prevent impending genocide. The success of military action in preventing genocide will determine the acceptance of future preventive measures of this nature, as states weigh whether the cost to their sovereignty is reasonable in view of the benefits obtained.

This article examines the role of regional arrangements under the Charter of the United Nations (UN Charter) in the maintenance of international peace and security. The African Union Peace and Security Council (AU PSC), the organ within the AU charged with addressing threats to international peace and security on the African continent, is used as a case study. The author contends that the major challenges facing regional arrangements in exercising mandates under Article 53 of the UN Charter of the United Nations have more to do with inadequate financial and logistical resources than the nature of those mandates. Taking the AU’s role in Somalia, Sudan, and other African countries as examples, the article demonstrates that the AU PSC has failed to achieve its objective of maintaining peace and security precisely because the United Nations (UN) Security Council — a more powerful and better resourced organ — has failed to live up to its responsibility of extending the assistance necessary to enable the AU PSC to perform its functions. Consequently, the author concludes that the UN Security Council, when delegating powers to regional arrangements to maintain international peace and security, should provide adequate resources to such regional arrangements, especially those that will otherwise have minimal or no capacity to fulfil their mandate effectively.

This article proposes that there is a general principle of international law concerning the humane treatment of animals. Preoccupation with “animal rights” has been associated with Western cultural imperialism masquerading as a universal ethic. Animal welfare is thus an instructive case study of what Jutta Brunnée and Stephen Toope have identified as the key challenge for international law, that of “construct[ing] normative institutions while admitting and upholding the diversity of peoples in international society.” This article applies the framework of interactional international law set out in Brunnée and Toope’s recent book Legitimacy and Legality in International Law, while raising questions about the weight that their analysis accords to practice and their willingness to conclude that widely recognized principles to which states fail to adhere in practice lack legal force. The article also examines how laws prohibiting cruelty to animals have emerged precisely from an interactive cultural exchange between East and West, in particular, between England and India. It concludes that Brunnée and Toope’s framework, although it does not deal at any length with general principles of law (a source of international law in which practice plays a relatively minor role), is nevertheless a useful tool for understanding how a culturally contested principle fits into international law and ultimately supports the view that there is a general principle of international law concerning animal welfare.

Le Système interaméricain dispose de toute une série de normes, d’institutions et de mécanismes visant un meilleur respect des droits de la personne dans les Amériques, entre autres en matière de droits économiques, sociaux et culturels. Cet article propose d’analyser les diverses approches employées par les instances interaméricaines pour évaluer le respect de ces droits par les États, notamment quant aux personnes et aux groupes vivant dans des conditions particulières de vulnérabilité.

Peer review mechanisms, such as the Universal Periodic Review, rely upon traditional sovereign state diplomacy for contemporary human rights implementation. This article argues that this is a positive development for several reasons. First, at a theoretical level, it reveals an evolving maturity of the human rights regime through its capacity to detach from exclusively legalistic approaches to human rights implementation. Second, at a policy level, there is enough evidence of measured positive outcomes of peer review mechanisms to suggest a preference for more co-operative approaches to ensuring human rights compliance as a first and complementary step to other more controversial legal/adversarial means of implementation (such as the third pillar of the R2P concept). Finally, peer review mechanisms offer a theoretical and pragmatic framework conciliating between universalist and relativist conceptual approaches to human rights, accommodating and integrating views that call for compliance with international human rights law as well as those emphasizing respect for sovereignty.

By Resolution 2062 (XX) of December 16, 1965, the United Nations General Assembly requested the Economic and Social Council to transmit to the Commission on Human Rights a proposal by Costa Rica to create the post of United Nations High Commissioner for Human Rights, so that the Commission might study the matter and report on it to the General Assembly at its twenty-first session in 1966. The Commission on Human Rights considered the item in March 1966, and by resolution 4 (XXII) established a Working Group comprising nine members of the Commission to study the proposed institution and to report to the Commission at its twenty-third session in 1967. The item was not taken up by the Third Committee during the Assembly’s twenty-first session in 1966, partly because background studies on the subject had not been completed, and partly because the Committee had allocated most of its time to the task of completing measures of implementation for the two International Covenants on Human Rights.