This article deals with the sea level rise phenomenon caused by the climate change process and its impact on the statehood of so-called disappearing island states as well as on the consequent factual and legal status of their populations. In classical international law doctrine, the loss of a state’s territory will lead to the extinction of statehood and, consequently, the loss of that state’s international legal personality, and possibly also to the statelessness of its nationals. This article proposes an alternative solution based on the transformation of disappearing island states into new non-territorial subjects of international law — “climate deterritorialized nations” — as successors to disappeared inundated states.

La question de l’établissement d’un organisme intergouvernemental chargé d’assurer l’exploitation rationnelle des stocks de l’Atlantique Sud-Est a été examinée par la Conférence de la FAO dès ses premières sessions. En 1946, la Conférence passa en revue les divers secteurs maritimes non desservis par un organisme approprié et porta l'Atlantique Sud-Est sur la liste des secteurs auxquels la FAO devait accorder la priorité.

It was Reported in july 1979 that Dr. Luisa Mistrali-Guidotti, a missionary doctor serving in Zimbabwe-Rhodesia, had been shot and killed by government troops while making her rounds in her “familiar” ambulance car near Mtoko. She had previously been threatened with arrest for attending to wounded guerrillas. Except for the fact that she had been killed, rather than taken prisoner and mistreated or tortured, her case had much in common with that of Dr. Sheila Cassidy, who in 1976 had been imprisoned and tortured for her services to Allende supporters during the Chilean revolution. Incidents such as these serve to emphasize that the medical profession is as much prone to the risks of armed conflict as is everybody else.

The delimitation of maritime boundaries is a complex and multifaceted process with legal and technical aspects. The process involves the determination of a maritime boundary in a situation where two or more states are confronted with overlapping titles. In the absence of any precise rules in treaty law and established customary rules based on state practice, it has been left to the jurisprudence of international courts and tribunals to develop the applicable law of maritime boundary delimitation. This article provides a detailed examination of the complex and multifaceted processes involved in maritime delimitation law. In doing so, it highlights recent developments in the field, with an emphasis on the emerging principles of “non-cut-off” and “non-distortion.” The article also analyzes the crystalizing rules on delimitation beyond 200 nautical miles and questions the applicability of these rules to the ongoing maritime boundary dispute between Canada and the United States in the Beaufort Sea.

The aim of the European Court of Human Rights is to bring about a situation in which individuals are able to get effective guarantees of their rights within their national legal systems. With this in mind, the author reviews some of the recent developments in cases before the court relating to evolutionary interpretation of the provisions of the convention, the role of the separation of powers in ensuring the protection of freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms, and the notion of human dignity within the convention framework. The author also considers the growing case load before the court and the need for reform and concludes by pointing out that the European system is the most effective international system yet for securing human rights protection.

This article argues that since the Tadić case before the International Criminal Tribunal for the Former Yugoslavia, a new category of armed conflict has migrated from international criminal law to international humanitarian law: that of armed groups fighting each other within the borders of a state without the intervention of the armed forces of the latter. However, the extent to which the rules of this category of conflict cover issues that may arise in such a conflict has not been comprehensively examined. One may infer, from the war crimes that the Rome Statute of the International Criminal Court criminalizes in this type of conflict, a dozen rules of international humanitarian law. After giving an historical account of the codification of this category of armed conflict, the author argues that there is a need to further develop these rules in order to provide a more comprehensive humanitarian law regime applicable to conflict exclusively between non-state armed groups. The absence of such a comprehensive regime should not, however, be taken as evidence of a legal vacuum. The author suggests that a law enforcement regime resting on international human rights law should be applied to relations between the armed groups and the territorial state, while the warring relationship between the armed groups should fall under the law of armed conflict, including those core customary rules that are now recognized as being equally applicable to international and non-international armed conflict.

This article argues that there is an increasing trend of civil society resorting to civil disobedience in relation to international legal values. International law, however, has not caught up with this trend. In fact, both international law and civil disobedience can gain much from a better understanding of their interaction. The article briefly traces the record of arguments drawn from international law in civil disobedience cases, highlights the theoretical constraints of the debate, and seeks to establish some basic foundations for an international legal theory of legitimate civil disobedience.

Pour la première fois, l’Organe d’appel, dans l’affaire CE — Amiante, offre une analyse plus globale de la relation entre l’obligation de traitement national (article III du GATT) et la possibilité d’invoquer des exceptions (article XX du GATT). Mettant de côté la littérature et l’approche traditionnelle qui semblaient mettre en opposition les soucis des environnementalistes (et défenseurs de la protection de la santé) et les réalités des marchés, l’Organe d’appel statue que les risques à la santé peuvent affecter la détermination de “similarité” entre marchandises (celles à risque et celles sans risque à la santé). De ce fait, l’Organe d’appel conclut que les risques à la santé peuvent affecter les propriété physiques des marchandises, de même que les goûts et perceptions de consommateurs concernant ces marchandises, deux des quatre critères qui doivent nécessairement faire l’objet d’analyse dans la détermination de similarité entre marchandises importées et marchandises domestiques — une détermination reposant essentiellement sur la relation de concurrence entre ces marchandises nationales ou importées.Continuant sa croisade sur le sens et la portée de l’Article XX du GATT, l’Organe d’appel réitère les nouveaux paramètres du test de “nécessité” de l’article XX — dont l’importance relative de l’intérêt commun ou des valeurs communes que la loi ou le règlement que l’on veut faire respecter est censé protéger, l’efficacité de la mesure et son impact sur le commerce — et mettra ainsi de coté le test traditionnel basé essentiellement sinon exclusivement sur l’existence d’alternatives moins restrictives sur le commerce.

Since its beginning in September 2004, the negotiation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions has raised a great deal of interest and even tension among UNESCO member states. A record number of members and non-governmental observers have been involved, and, on many occasions, the debates have taken place in overflowing rooms. During the study of the draft convention by Commission IV, on 77 October 2005, the debate even had to be temporarily suspended in order to find a larger room. Obviously, the negotiations, which addressed head on the problem of the interface between trade and culture, dealt with a very sensitive matter. On 20 October 2005, the convention was finally adopted by the UNESCO General Conference (148 votes for, two against, and four abstentions). Considered to be a historical moment by several delegations in their closing declaration, the results of this decision was vigorously denounced by the United States. It went so far as to assert, in a declaration made public by the US embassy in Paris, that the proposed convention was deeply flawed since it dealt with trade rather than culture and that it therefore fell outside UNESCO jurisdiction. How was such a result achieved? This article attempts to clarify these issues, following the negotiation step by step as well as the dynamic that led to the ultimate result.

The first volume of The Canadian Yearbook of International Law/ Annuaire canadien de droit international (CYIL/ACDI) was published in 1963. Anniversaries being a time for reflection, this article examines the Canadian aspect of the CYIL/ACDI’s heritage, aspirations, and contributions on the occasion of its fiftieth year of publication. In addition to indicating its locality, the Canadian identity of the CYIL/ACDI also serves to highlight the journal’s important role as an outlet for scholarship by academics and practitioners based in Canada, resulting in a collection of works that provides insight into the views of Canadians on matters of international law. Mention is also made of the professional value of the CYIL/ACDI in its provision of an authoritative record of Canadian practice in the field.

The use of the concept of an exclusive Economie zone has increased since the adoption of the United Nations Convention on the Law of the Sea. However, the characterization of this zone varies greatly between States. This article presents an exhaustive survey of the concept of an exclusive Economie zone. The author discusses the types of jurisdiction exercised by States in their uses of an exclusive Economie zone. Disparity exists between the provisions of the Convention and State practice in some specific areas: for example, the provisions on the environment and on scientific research. Despite these exceptions, the author maintains that the basic tenets of the Convention are respected in State practice. State declarations as well as arbitral and judicial decisions show that the Convention and State practice are together evolving to reinforce the basic principles of the concept of an exclusive Economie zone.

This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

Increasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of the Canadian Charter of Rights and Freedoms and other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule in Labour Conventions, and the landmark decision in Baker v. Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

The exercise of civil jurisdiction by a national court over a foreign sovereign has been a perennial source of controversy in international relations. It resulted in the development of the doctrine of state immunity, founded on the notion of the comity of nations. The doctrine at some point was considered an absolute rule. With time, exceptions to the rule were accepted, notably in the area of commercial activities. In recent times, there has been a movement to recognize a further exception involving violation of jus cogens norms in order to limit the tendency of certain state agents to engage in gross violations of human rights and humanitarian norms. Yet this movement has encountered strong resistance. The resistance is apparent in three decisions rendered respectively by the European Court of Human Rights, the Ontario Court of Appeal, and the British House of Lords. In this article, it is contended first that the resistance noted in these cases is largely founded on fundamental misconceptions. It is further contended that the comity of nations is no longer sustainable as a rational basis for the doctrine of state immunity, especially in the face of jus cogens as a peremptory norm of international law.

The legal status of the Northwest Passage (NWP) has been the subject of much debate in academic, government, and media circles. To date, much of this discussion has centred on the legal regime governing maritime navigation. However, the question of whether the NWP is subject to guaranteed freedoms or Canada’s unqualified sovereign control also involves the right of overflight. This article investigates the circumstances that led to the inclusion of the freedom of overflight in Part III of the United Nations Convention on the Law of the Sea. It then highlights some of the legal standards that would govern air navigation if the NWP were to be considered an international strait.