In recent years there has been increasing discussion in both academic and official circles of the problems of non-tariff barriers to trade, particularly restrictive business practices, the conduct of the multinational firm, and the implications of foreign ownership of enterprises. These matters are of concern not only for world markets but for individual nations. In Canada, the reports of several important public inquiries (the Report of the Task Force on the Structure of Canadian Industry, the Interim Report of the Economic Council of Canada on Competition Policy, and the Report of the Royal Commission on Farm Machinery), have been published already. And the Canadian government is now engaged in a major study of foreign ownership of Canadian business; the Standing Committee of the House of Commons on External Affairs has just completed its report on this issue, which includes reference to the extraterritorial application of anti-trust laws. The International Conference on Monopolies, Mergers and Restrictive Practices held at Cambridge in September 1969, in which Canadians participated, discussed important aspects of the multinational firm and the extraterritorial application of anti-trust laws, a subject that has engaged the urgent attention of the International Law Association since 1962. Moreover, the O.E.C.D. has latterly become concerned with the importance of these matters, particularly with their impact on international trade.

The trail smelter dispute covered a period of thirteen years from 1928 to 1941. It arose out of the operation by the Consolidated Mining and Smelting Company of Canada, Limited, of a smelter at Trail, British Columbia, on the Columbia River about eleven miles from the international boundary. In roasting sulphurbearing ores, sulphur dioxide gas was wasted into the air. When the air drift was down the valley, the smoke cloud containing sulphur dioxide crossed the boundary in sufficient strength to cause damage in the State of Washington. In 1925 and 1926, the output of the smelter was increased and more sulphur dioxide was wasted into the air. By reason of the conformation of the valley and the atmospheric conditions prevalent, it was carried across the boundary into the State of Washington. It was common ground that some damage was caused in the years 1926 to 1930.

In recent years, Canada and the United States have modified their model bilateral investment treaties (BITs). If NAFTA Chapter 11 cases have provided the new lens through which investment issues are considered, the solutions to problems experienced in this context have come from different sources. This article explores three influences on the model BITs: the NAFTA Free Trade Commission's interpretation and statements, World Trade Organization law and cases, and US domestic law and principles. A range of interpretation issues is raised, from the effects of changes in wording in successive treaties, to the “transferability” of law across systems (international and domestic), to the use of arbitral awards as precedent. Issues of a systemic nature are also raised, including attempts at limiting the discretion of arbitral tribunals through state interpretations, the possibility of creating an appellate mechanism, and a push for expedited preliminary procedures. The article illustrates the fast-paced evolution of international investment law and highlights the influence of the United States on this evolution.

This article addresses the responsibility of Canada for ensuring that Canadian transnational mining corporations do not cause environmental harm in other countries. The author discusses the liability of parent companies under Canadian law for the actions of their subsidiaries abroad and considers the jurisdictional and choice of law problems in bringing a tort action in Canadian courts. The author also considers the implications under international law of any extraterritorial application of Canadian law.

On September 10, 1971, the United Nations Committee on the Peaceful Uses of Outer Space adopted and decided to submit to the General Assembly for consideration and final adoption a draft Convention on International Liability for Damage caused by Space Objects. Approval of the Convention was recommended by the First Committee of the General Assembly on November 11, 1971; and on November 29, 1971 it was endorsed by the General Assembly. The Convention on International Liability for Damage Caused by Space Objects marks the culmination of a decade of debate and negotiation of the problem of liability for damage arising from outer space activities.

La pratique répandue de la formulation de réserves aux conventions internationales des droits de la personne est une préoccupation des organes de contrôle. Les règles coutumières concernant des réserves, qui sont codifiées dans la Convention de Vienne sur le droit des traités, sont inappropriées pour un régime de protection des droits de la personne où la réciprocité des obligations est d'une importance mitigée. Lors de la ratification du Pacte international relatif aux droits civils et politiques, les États-Unis ont formulé une série de réserves. Ceci a provoqué que le Comité des droits de l'homme aborde le sujet dans une observation générale. Le Comité propose des critères d'application du test de l'objet et le but du traité. Il constate que des réserves aux dispositions non-dérogeables sont acceptables. Toutefois, aucune réserve ne peut être formulée à l'égard d'une norme coutumière. De plus, le Comité clarifie la situation quant à la compétence des organes de contrôle de se prononcer sur la légalité des réserves. Mais la conséquence d'une réserve illégale demeure incertaine. L'intention réelle de l'état en question doit être établie afin de déterminer si l'état sera lié par le traité, et ce malgré l'incompatibilité de sa réserve. Une pratique en évolution suggère que les états peuvent reformuler ou amender des réserves après la ratification, même si la Convention de Vienne n'autorise pas une telle démarche.

The devastating 2014–16 West African Ebola outbreak challenged the authority of the World Health Organization (WHO) to enforce the legally binding International Health Regulations (IHR) that govern pandemic responses. Under Article 43 of the IHR, states parties can only implement additional health measures beyond the WHO’s recommendations if public health rationales or scientific evidence justify such measures. Yet at least fifty-eight states parties enacted additional health measures, mainly travel restrictions to or from Ebola-affected countries. This article explains why Canada’s visa restrictions targeting Ebola-affected countries failed to meet the IHR’s requirements and therefore violated international law. Specifically, Canada’s response went against public health authorities’ consensus views, the best available scientific evidence on disease transmission, and the WHO’s recommendations. In light of its traditional role as a global health champion, Canada must lead by example and abide by international law, including the IHR, instead of picking and choosing which rules to follow and thereby encouraging other countries to do the same.

By specifying fundamental competences and liabilities, customary international legal principles concerning transnational pollution provide the framework for an approach to and an analysis of international environmental disputes in general. In the legal evaluation of disputes arising from the pollution of international watercourses, this basic function is particularly evident in cases where no binding environmental protection standards of a specific nature may be available as parameters for a decision on the legality of the claims of states concerning the use of a given international watercourse. Conversely, these customary principles also constitute the starting point for the further development of the law relating to the utilization of international watercourses in general and the enactment of concrete water quality standards in particular.

The adoption of the Rome Statute of the InternationalCriminal Court on July 17, 1998, was an historicachievement culminating decades of efforts toestablish a permanent body to bring to justice thoseresponsible for the most serious internationalcrimes. The Bureau of the Committee of the Whole ofthe Conference played a leading role in forging thefinal package that was overwhelmingly endorsed bythe Conference. In developing this package, theBureau went to considerable lengths to consultdelegations and members of civil society and toaccommodate the concerns of the vast majority ofparticipants at the Rome Conference. The RomeStatute is a carefully crafted instrument balancingcomplex legal and policy concerns and fullyconsistent with the norms and standards ofinternational law. The successful outcome of theRome Conference was due to the recognition that thisbalanced approach was timely and appropriate. Thecredit for the achievement of this seminal moment inhistory is shared by the commitment of a core groupof states, the so-called Like-Minded Group, thededication of a number of ministers and delegates tothe goal, and the strong, vocal, and committedsupport of members of civil society.

The International Law Commission wrestled for over a decade with the relationship between the principle of equitable utilization and the no harm principle in its work on the law of the non-navigational uses of international watercourses. In its final Report to the UN General Assembly on this topic in 1994, the Commission presented a set of Draft Articles couched in obscure language that reflected the sharp differences of opinion on the matter and the compromises that had been made. This division of opinion about the relationship between these two principles persisted in the Working Group of the Sixth Committee of the General Assembly to which the Draft Articles were referred. Again, compromises were reached and the language of the substantive articles (in particular Articles 5, 7, 20, and 21) of the Watercourses Convention, adopted by the General Assembly on May 21, 1997, continues to be obscure and its meaning debatable.

It is argued here that in this Convention the principle of equitable utilization, which prescribes the reasonable and equitable sharing of the beneficial uses of the waters of an international watercourse, is made the primary substantive rule of international water law; harm caused by a utilization of these waters is, of course, an important factor to be taken into account in determining whether, in a particular case, the utilization is reasonable and equitable and, therefore, lawful. This interpretation of the Watercourses Convention brings it into harmony with customary international water law. It is an interpretation that finds support in the recent decision of the International Court of fustice in the Gabákovo case.

Canada has five unresolved maritime boundaries. This might seem like a high number, given that Canada has only three neighbours: the United States, Denmark (Greenland), and France (St. Pierre and Miquelon). This article explores why Canada has so many unresolved maritime boundaries. It does so through a comparison with Norway, which has settled all of its maritime boundaries, most notably in the Barents Sea with Russia. This comparison illuminates some of the factors that motivate or impede maritime boundary negotiations. It turns out that the status of each maritime boundary can only be explained on the basis of its own unique geographic, historic, political, and legal context. Canada’s unresolved maritime boundaries are the result of circumstances specific to each of them and not of a particular policy approach in Ottawa.

The law of occupation has become the subject of great contemporary interest because of two prominent, although sui generis, situations: the long-term Israeli occupation of the Gaza Strip, the West Bank, and the Golan Heights and the “transformative” occupation of Iraq. In both situations, the occupying powers resisted the label of belligerent occupier and selectively applied the 1907 Hague Regulations and the 1949 Geneva Conventions to the territories in question. The unique circumstances of these occupations have sparked vigorous debate over the future of the law of occupation. To wit, is the widely accepted, but largely unenforced, law of occupation capable of regulating transitions between armed conflict and peace in the twenty-first century? This article examines recent developments in the notoriously open-textured law of occupation that have arisen as this law has been variously ignored, invoked, challenged, examined, and ultimately reformed through practice. In particular, it discusses the triggers for beginning and ending an occupation, including recent jurisprudence on the “effective control” test. The article examines who can be an occupier, the question of “multiple occupiers” under unified command, and the obligations of occupiers in the areas of legislation and institutional reform. The author also considers the challenges of UN involvement in transitional situations, including the applicability of the law of occupation to UN forces and the role of the Security Council in adapting the law of occupation. The author concludes with a discussion of the principle of “conservationism” and the relationship between the law of occupation and jus post bellum, in order to provide an assessment of possible “futures” of the law of occupation.

The rapid globalization that marks our era has resulted in increasing demands for the legal resolution of disputes arising out of interstate activities. National courts throughout the world have been significantly affected by this development. This article describes the recent expansion of the work of the Supreme Court of Canada in relation to transnational legal issues, including issues of public and private international law, human rights, admiralty law, and issues of private law having international ramifications. It traces the Court's evolving approach to international law issues and its willingness to reformulate its principles to meet modern conditions and to foster compliance with its norms. The more cosmopolitan attitude thereby generated has worked in concert with the Court's increasing willingness to rely on comparative law techniques in assuting in the resolution of issues of a localized character.

Canadian courts are approaching the task of mediating the relationship between international law and domestic law with newfound energy. Yet, for all their declared openness to international law, courts are still inclined to avoid deciding cases on the basis of international law. This does not mean that international law is given no effect or that its broad relevance is denied. The avoidance strategy is more subtle: even when they invoke or refer to international law, Canadian courts generally do not give international norms concrete legal effect in individual cases. Although international law is brought to bear on a growing range of questions, its potential impact is tempered — and we fear largely eviscerated — because it is merely one factor in the application and interpretation of domestic law. Within the Canadian legal order the question of “bindingness” of international law is closely intertwined with the manner in which it comes to influence the interpretation of domestic law. In the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms, as far as this is possible. By contrast, norms that do not bind Canada internationally (for example, soft law or provisions of treaties not ratified by Canada) can help inform the interpretation of domestic law and, depending on the norm in question and the case at issue, may even be persuasive. Courts may, and in some cases should, draw upon such norms for interpretative purposes, but they are not strictly speaking required to do so. However, especially following the Supreme Court’s decision in Baker, there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner — as relevant and perhaps persuasive, but not as determinative, dare we say obligatory. Our concern is that if international law is merely persuasive, it becomes purely optional, and can be ignored at the discretion of the judge. We argue that it is not enough to treat all normative threads in this fashion — over time this approach risks weakening the fabric of the law.

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?