Legal Values: The U.N. Governance & State Building

In the aftermath of World War II, various States saw the compelling necessity of collective action “to save succeeding generations from the scourge of war,” which in the words of the preamble to the United Nations Charter “twice in our lifetime has brought untold sorrow to mankind”. The establishment of the UN is principally, to quote Article 1 of the UN Charter designed to “maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

Notwithstanding this grand objective, violent conflicts including civil wars, wars for democracy, and liberation struggles, amongst many others, have ravaged global peace. The Security Council of the UN is often paralyzed by political gridlock. In addition, the collective action envisioned by the founders of the UN has often yielded to geopolitical and sectionalist forces. The result is that the UN seems to struggle with maintaining international peace and security. This course interrogates the structure and processes by which the UN grapples with the task of maintaining international peace and security, especially, in the age of state failure and state-building. In 2021-2022, the course will use the case of Libyan civil war as a template for studying the mechanics, politics, legality, and normativity of UN roles in peace maintenance, good governance, and state-building

ICT Colloquium

This seminar is the capstone course for the International, Comparative and Transnational Law (ICT) Program. The goal of the seminar is to create a challenging intellectual environment that will provide a stimulating culmination for students’ studies in the ICT Program, with the specific goal of providing a foundation for students to pursue their individual research interests by way of a research paper or of two analytical papers that engage a specified cluster of course materials. Each year, a series of topics and/or a theme is chosen that fits the objective of synergizing the strands of ICT. The emphasis is on: (a) studying examples of legal practices, orders or processes that are assumed by participants or observers to be “transnational” in some respect; and (b) on relating the disciplinary fields of public international law, private international law (conflict of laws) and comparative law to transnational legal theory and transnational lawyering. The seminar is heavily oriented to interaction amongst, and participation of, the seminar students.

For the 2021-2022 Colloquium, these themes will be pursued through a combination of (a) scene-setting readings on transnational law and legal process and (b) readings project on the theme of ‘transnational legal accountability versus foreign intervention in failing states’ with respect to three case studies that the instructor has been researching at the intersection of transnational human rights, namely: the ongoing Covid-19 pandemic, and the humanitarian law situation approaches to members of racialized groups, vulnerable states in an interconnected global society.

International Dispute Resolution: International Commercial Arbitration

This seminar will introduce participants to the resolution of international disputes through arbitration, and in particular, the key stages of an international arbitration, including the drafting of arbitration clauses, constitution of the tribunal, managing the arbitral procedure, evidentiary hearings, and finally, the set aside and enforcement of awards. In addition, the seminar will provide particular instruction on key features of international commercial arbitration, including arbitral institutions, investor-state arbitration, and various procedural rules.

Special emphasis is placed on the practical management of complex international arbitral proceedings by counsel. In this regard, the seminar will include particular instruction on client management, maximizing costs and efficiency, arbitrator selection, key advocacy skills, and ethical challenges that can arise in the context of international commercial arbitration.

By the end of the seminar, students should be comfortable with the key legal concepts underpinning the arbitral process and considerations structuring and managing an effective arbitral process.

Law of War

Was NATO’s military intervention in Libya legal? What about Afghanistan? Or the imprisonment of America’s detainees in Guantánamo Bay, Cuba? What is the legal status of killing by drones? What happens to people who commit war crimes? What are the remedies for an illegal war? This seminar examines the international law governing war, including both questions of when war is legal (so-called ‘jus ad bellum’) and how even legal wars must be conducted (so-called ‘jus in bello’ or the laws and customs of war) and the relationship between the two types of law. It also examines the various judicial institutions that have jurisdiction over these issues, from the World Court, to the ad hoc tribunals (Yugoslavia, Rwanda, Sierra Leone), to national courts exercising ‘universal jurisdiction’ (Belgium, Canada), to the new International Criminal Court.

Case studies on the armed conflicts over Kosovo, in Afghanistan, Iraq and Libya, and between Israel and the Palestinians, provide the settings for concrete legal analysis and also for critical evaluation of the role of law in war.

Comparative Law: Transnational Mining, Development and the Local Rule of Law

Since colonial times, mining, and in particular gold mining, has been one of the favorite economic activities of the former European empires, some of which today are recognized as Global North states. For these and for other transnational actors such as mining corporations and international economic organizations, large-scale mining is still one of the preferred economic activities due to the large profits derived from it, which are not only caused by the demand for extraction of metals, but also by the speculation stock market. Because of the favorable legal and political conditions in the former colonies, today represented in the Global South states, Latin American countries such as Colombia are still considered today by foreign investors as some of the main epicenters for extractive activities.
Although these countries are currently recognized as independent states and are ruled by democratic governments, typically colonial patterns and hierarchies continue to be revived, through the dynamics of transnational mining but under the rule of law and the international law itself. This paradox leads us to question: How is the law that regulates transnational mining made? What actors on a local scale and on a global scale participate in the law-making process? What is the role of the global-north and global-south states, the international organizations and the mining corporations in transnational mining operation? How does the transnational mining law operate in the domestic sphere? What are the different development views in conflict? What colonial patterns and hierarchies are updated through the legal framework that regulates transnational mining?
Based on the analysis of cases studies in Colombia and other Latin American countries, these are some of the questions that will be addressed in this course. Furthermore, another of the key aspects to be analysed is the different and ambivalent uses of the law in the case studies. For instance, local communities have used the law as an emancipatory instrument to resist the social and environmental impacts derived from transnational mining; and at the same time, transnational actors have used the law as an instrument to carry out large-scale extractive projects and to obtain special legal conditions in favour of their private interests. In this sense, this course aims to reflect on the role of the different parties involved in the socio-environmental conflicts derived from transnational mining and on the different uses of law; to identify the different development views in conflict; and to identify the colonial revivals embedded in a (post)colonial context where transnational mining remains at the center of economic, social, legal and political relations.

International Investment Law

International law is weak except when it comes to protecting foreign investors, who have been afforded – in thousands of treaties – an exceptionally robust power to bring international claims against countries. This seminar examines the design of and current developments in international investment law and arbitration, also known as investor-state dispute settlement (ISDS). It would be of interest to students interested in public international law, international arbitration, international business and regulation, the political economy of law and North-South relations, and law and development. The main focus is on areas of public international law, and to a lesser extent domestic law and policy, governing the regulatory relationship between the state and foreign owners of assets in a country. Particular attention is paid to bilateral investment treaties (e.g. Canada-China FIPA, other BITs) and regional trade agreements (e.g. NAFTA, CETA). The seminar also examines the burgeoning body of arbitration awards under investment treaties.

Classically, this area is one of the three branches of international economic law, alongside international monetary law and international trade law. Potential topics include: policy issues in regulation of foreign investment; background to investment treaties and relevant arbitration treaties; major arbitration institutions and rules; foreign investor protections in the treaties, such as ‘fair and equitable treatment’, ‘full protection and security’, compensation for ‘expropriation’, ‘national treatment’, and ‘most-favoured-nation treatment’; issues of jurisdiction and admissibility of claims in investment arbitration; remedies and state liability; and enforcement of awards. The aim is to give students a solid grounding in the legal issues, while also providing opportunities for critical discussion and reflection on the law and possible reforms and for the development of skills in analysis; listening, presentation, and discussion, and research and writing. The course design will be adapted with care to the present ‘remote era’ of teaching and learning. Besides a research paper, students will be asked to take part in such activities as a presentation, facilitation of a guest visit, a role play, or a debate – all meant to help make our learning fun and interesting.

Legal Values: Transnational Corporations & Human Rights

Apple’s use of child labor; Goldcorp’s operations in Guatemala; the complicity of Dow Chemical/Union Carbide in the Bhopal chemical disaster; Shell’s involvement in the executions of activists protesting the company’s environmental and development policies in Nigeria.  These are just a few examples of alleged corporate malfeasance that have emerged on the international stage.

The purpose of this seminar is to introduce students to the debate concerning the accountability of transnational corporations that are complicit in rights-violating activities.  At the international level, there has been a transition from focusing solely on rights-violations committed by governments to a detailed examination of transnational corporate conduct.  Indeed, it has now become trite to say that particular corporations have directly or indirectly participated in violations of human rights.

The seminar will begin with an introduction to corporate theory.  Students will then explore some of the key issues in the debate.  For example, whether transnational corporations can properly be included under the international law of state responsibility; mechanisms for self-regulation (e.g. voluntary corporate codes of conduct); the utility of the U.S. Alien Tort Statute and recent Canadian litigation; the advantages and disadvantages of U.N. initiatives (e.g. the work of the former U.N. Special Representative on Business and Human Rights); and the relevance of domestic corporate and securities law mechanisms (e.g. shareholder proposals and social disclosure).

The course materials are drawn from a number of sources, including documentary film; academic journals; articles in the popular and business press; reports by human rights monitoring groups; petitions filed before courts and administrative agencies; U.N. materials; and the governing documents for voluntary corporate initiatives.

Please note:
1.        Depending on circumstances, this course may be offered remotely. If so, the course will use Zoom online video conferencing and synchronous (real-time) instruction.  Class attendance at the designated time will be mandatory.  Students will require a reliable internet connection, a microphone, and a web camera.  Students will be expected to participate with video enabled for the duration of each session unless doing so would result in a significant hardship.
2.        Any non-Osgoode students enrolled in the class must adhere to Osgoode’s academic rules and policies, including the course drop deadline.
3.        The information above is provided for course registration purposes only and is subject to change at any time.

Refugee Law

Refugee protection is in a perpetual state of crisis, both domestically and abroad. Many refugee law practitioners and scholars argue that states are retrenching from their duty to provide refugees with the protection to which they are entitled under international law. At the same time, some government actors, media figures and civil society groups contend that existing refugee determination processes are excessively generous and are subject to widespread “abuse” by economically motivated migrants. Still others suggest that refugee protection regimes either distract from or help reinforce a deeper problematic: control over migration that serves to entrench global disparities in income, wealth and security.

This course offers students an opportunity to engage critically with these and other debates over refugee law at the level of theory, policy and practice. This critical engagement will occur through a collaborative examination of refugee law instruments, institutions and jurisprudence in international and domestic forums, with a heavy emphasis on Canada.  

The course will be offered through live lectures and class discussions. The course will also include several weeks of student-led teaching in the second half of the term. There will be two written assignments. This course requires consistent and active student participation throughout the term, including participation in evaluated group work. There is no final exam or final paper. The course, including all evaluated work, will be complete by April 8.

NOTE: If Covid-related restrictions permit live in-person classes on campus, students will have the option of attending in-person or remotely (in which case we will be using technology from the Refugee Law Laboratory to facilitate hybrid in-person / remote learning). If Covid-related restrictions do not permit in-person classes on campus, all classes will be held remotely via Zoom.

Foreign, Comparative & International Legal Research

This course introduces students to basic concepts of foreign, comparative, and international law in the context of legal research. It teaches them to evaluate and analyze sources and tools for researching foreign, comparative and international law. This is a hands-on skills oriented course with practical exercises and projects to help students understand the available tools and the appropriate research methodologies for given types of research projects. Students will learn to use a variety of resources including electronic databases to research foreign law of other jurisdictions. They will also learn to use available tools to identify applicable sources for public and private international law.

Globalization & the Law

The seminar will be taught in three-hour classes in a nine-week period for a total of twenty-seven hours beginning the week of January 17, 2022.

This seminar asks students to consider the changing role of law in the context of globalization. It will include a critical consideration of the framework concept of globalization, as well as an examination of its implications both for the law of the state and law beyond the state.

The study of the relationship of globalization and the law needs to be contextualized within a broader understanding of political, social, cultural and economic transformations associated with globalization. To that end, the course will include a range of interdisciplinary materials from fields such as international economics, international relations, and sociology.  To develop our understanding of the interaction of globalization and law, and to provide models for student research papers, readings will include examples of published case studies of the role of law in globalization such as the production of goods and services in global supply chains; the regulation of multinational corporate conduct; the migration and movement of peoples; and the control of technology including the power of the current technology giants.

The legal content of the course will be framed by the concept of global legal pluralism and will elaborate on the notion of transnational law, in which law is understood to include domestic and international law, public and private law, but also state and non-state norms. In elaborating on the plural legal orders of transnational law, the course will introduce and discuss examples of the regimes of public international law, private international law (also known as the conflict of laws), domestic public and private laws with transnational effects, and the wide range of non-state norms generated by corporations and business networks, law firms, and non-governmental organizations (NGOs).