The ICC’s Africa Problem:
What to make of Burundi’s exit

International Criminal Court building (2016) in The Hague

By William Onyeaju, JD candidate, Osgoode Hall Law School

On October 27, 2017, the Republic of Burundi became the first country to leave the International Criminal Court (ICC). As one Burundian activist lamented, “The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi. Today, Burundian justice, as it is so called, has lost contact with life. It has become a mere tool of repression of any dissenting voice.” In contrast, a Burundian government spokesman called the withdrawal “a great victory for Burundi because it has defended its sovereignty and national pride.”

About the ICC

The ICC was created by the Rome Statute in 2002 to try individuals for war crimes, crimes against humanity, and genocide. Generally, the ICC takes on those cases that participant countries are unable or unwilling to handle domestically. Of the 123 countries that are State Parties to the Rome Statute, 33 are from Africa. In the fight against impunity, the ICC has brought charges against high-profile individuals, ranging from warlords to heads of state, including Joseph Kony (Ugandan rebel leader), Omar al-Bashir (President of Sudan), Muammar Gaddafi (former leader of Libya), and Laurent Gbabgo (former President of Côte d’Ivoire).

The ICC was established to ensure “that the most serious crimes of concern to the international community do not go unpunished.” Burundi’s departure threatens to hamper the ICC’s work, not only within that country’s borders, where leaders stand accused of serious human rights violations, but also across the African continent. Its withdrawal has only served to exacerbate tensions between the ICC and Africa, where countries are increasingly turning their back on the institution.

Africa and the ICC

The ICC has been disparagingly labelled the “African court”, with critics alleging it disproportionately targets African countries while ignoring serious human rights abuses in other parts of the world. Critics point to the fact that ten out of the eleven current investigations at the ICC involve African countries, and that most of those indicted in its two-decade history have been from the continent. (However, as we will see below, this criticism appears to be at least partly misguided.)

Things came to a head in 2013, after the ICC indicted Kenya’s sitting President, Uhuru Kenyatta, and Vice-President, William Ruto, for crimes against humanity during the 2007 Kenyan elections. Kenya’s leaders accused the ICC of targeting Africans, with Kenyatta going so far as to call the ICC “a toy of declining imperial powers.”

Following the indictments, leaders at an African Union summit in 2013 unanimously agreed that no sitting African head of state should stand trial during his or her tenure, further expressing their support for Kenya’s embattled politicians. Ethiopia’s Prime Minister said, “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations.”

The Threat of Other Departures

Shortly before Burundi’s withdrawal, South Africa’s ruling African National Congress also announced that it was planning to pull out of the ICC. This was in response to the court’s ruling that South Africa had violated its ICC obligation to arrest Sudanese president Omar al-Bashir, who had visited the country the previous year. al-Bashir had been indicted by the ICC in 2009 for crimes against humanity, war crimes and genocide relating to the Darfur conflict. In a surprising turn of events, in 2017 the South African High Court declared the government’s withdrawal announcement not valid due to lack of parliamentary approval, leading the government to rescind its planned exit. As of 2018, South Africa’s long-term future as a signatory of the Rome Statute remains uncertain.

At one point, The Gambia also threatened to exit the ICC, following the lead of Burundi and South Africa. In late 2016, Gambia’s then-Information Minister described the ICC as “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” However, after a new government was elected in 2017, The Gambia announced it will retain its membership with the court.

Rumblings of further African departures persist, although so far no countries have taken any meaningful steps towards doing so.

Understanding the Criticism

The criticisms of the former Gambian Information Minister, while hyperbolic, may be partially born out of frustration with perceived geopolitical biases at the ICC. Some of the world’s most powerful countries, including the United States and Russia, did not ratify the Rome Statute, and so are largely outside the court’s jurisdiction. African governments also point to conflicts and grave human rights situations in countries such as Venezuela, Iraq, and Myanmar which have not led to ICC indictments.

The ICC has defended itself against these criticisms by stating that the victims, to whom they are providing justice, are Africans, and that indictments by the ICC come from referrals to the court by African governments. For instance, the governments of Uganda, Mali and the Democratic Republic of Congo have referred cases and assisted with investigations that have led to convictions. The current chief prosecutor of the ICC (and Gambian national) Fatou Bensouda has said, “Any time I hear this about ICC targeting Africa, ICC doing double justice (standards), it saddens me, especially as an African woman.” She went on to say, “Most of these conflicts are happening on the continent … The ICC’s concentration on Africa is always a result of the engagement of the African people with ICC.”

Burundi’s Withdrawal from the ICC: Understanding the Context

In October 2016, Burundi’s parliament voted by a large majority to exit the ICC, leading to Burundi’s withdrawal in the fall of 2017. Burundi’s exit from the ICC came at a pivotal time in the country’s history. After decades of conflict between ethnic Tutsis and Hutus, the country was plunged into a twelve-year civil war which lasted until 2006. The end of the civil war ushered in multi-party elections with Pierre Nkurunziza (a former Hutu rebel leader) becoming Burundi’s new president. However, in 2015, Nkurunziza’s decision to seek a controversial third term in office sparked a new crisis which led to attacks on human rights.

According to a United Nations Commission of Inquiry, there are reasonable grounds to believe that crimes against humanity, such as extrajudicial killings, torture and sexual violence, have occurred. An estimated 500,000 refugees have fled the country. Investigations by Human Rights Watch (HRW) suggest that youth members of the ruling party, the Imbonerakure, are some of the main instigators of the violence. HRW’s research further indicates that Burundian police and intelligence officers are utilizing the Imbonerakure to identify opponents of the regime who have then been tortured and, in some cases, killed.

The timing of Burundi’s exit suggests the decision was driven by apprehension regarding international condemnation for human rights abuses, and the looming possibility of an ICC investigation. If this was Burundi’s strategy, it was ineffective. On October 25, 2017, the ICC opened an investigation into the Burundian crisis, asserting that the court had jurisdiction over human rights violations which occurred while Burundi was still a State Party.

Burundi stands alone (for now)

Burundi’s departure from the ICC has added another dimension to the sometimes difficult relationship between the court and the African continent. Although Burundi’s relatively small size may lead to perceptions that the country is less influential than other countries in the region, its exit can still be seen as another blow to the ICC’s legitimacy in Africa.

Meanwhile, many African states, including Nigeria, Tanzania, Botswana, Senegal, and Sierra Leone, have re-affirmed their commitment to the ICC. Their support suggests that calls from African governments to leave the ICC may be the statements of a “vocal minority.” With The Gambia rescinding its withdrawal, and with South Africa’s future at the court uncertain, it remains to be seen what kind of precedent the Burundi withdrawal will actually set.


By |January 26th, 2018|Blog|

Legal Literacy in the Digital Age

Sample search for legal information.

Pictured: the future of legal access?


By Katherine Golobic, JD candidate, University of Toronto

Cody (not her real name) is a PhD student renting a basement apartment in Toronto. She struggles to balance her academic workload with two jobs and endless personal obligations. One evening in early December, her landlord came over to complete some repairs. During the visit, Cody introduced the landlord to her fiancée, Ellen. Cody could immediately tell that the landlord was not comfortable with their relationship, and he left soon after the introduction.

In the weeks that followed, Cody noticed that the landlord became increasingly negligent in his duties – he would wait days before replying to her messages and rarely acknowledged her maintenance requests. Cody is certain that her landlord’s behaviour has changed since his visit in December.

A few weeks ago, Cody’s hot water stopped working. She sent the landlord multiple urgent messages and received only vague replies stating that he was out of the country. The lack of hot water has forced Cody and her fiancée to shower at friends’ homes and at a local gym. Neither Cody nor her fiancée believe they have the resources to find another apartment or access legal help. They were not even aware that a legal remedy for their problem might exist. Feeling overwhelmed and at her landlord’s mercy, Cody wishes that she could access definitive answers and solutions without spending inordinate amounts of money or wasting time in a legal system that she does not trust to begin with.


Legalese, or Legal ease?

Cody’s story (some details have been modified to protect the individuals involved) exemplifies the threats to personal welfare that may arise where individuals lack knowledge about their rights or the availability of legal aid services. According to the Canadian Bar Association (CBA)’s 2013 Reaching Equal Justice Report, over a three-year period of time, 45 per cent of Canadians will experience a legally relevant event. Research has also shown that legal issues tend to “cluster” and disproportionately effect marginalized people (who also tend to be the least well-informed about the justice system).2 For Cody and other vulnerable Canadians, the access to justice crisis is far more complex than merely overcoming economic barriers to legal aid. It lies in a fundamental lack of public legal education. This often manifests itself in distrust of the judicial system, as well as the perception that the law only works for those with a certain degree of social or economic capital. As Cody’s story demonstrates, many people who experience legal problems may even fail to identify them as such. In such cases, lack of knowledge about one’s rights effectively nullifies them.

Research has shown that Canadians tend to view the justice system as untrustworthy, person-dependent, and difficult to navigate. The most commonly cited barriers to access include language, literacy, education, and disability. However, in most circumstances, the absence of basic knowledge of one’s rights is the largest initial hurdle.3 While lack of information is not the sole factor contributing to the realization of legal rights, addressing it may prove to be an efficient and cost effective strategy.

The Digital Future is Now

Comprehensive expansion of public legal knowledge should be as uniform as it is robust, in order to account for the diverse needs of those it serves. Digital technologies and internet platforms are well suited to such a role. According to the Canadian Internet Registration Authority, Canadians are among the top internet users globally, with over 87 per cent of Canadian households having access to online services.4 Mobile and web-based applications have the potential to educate and empower even the most remote citizens at every stage of the legal process. Efforts are currently underway to integrate new technologies into every step of the legal process. The CBA’s 2013 report outlines over thirty distinct targets to be reached between 2020 and 2030,5 including the use of technology in dispute resolution6 and the integration of online legal education into the delivery of services.7

Globally, Canada still trails behind many members of the European Free Trade Association and other developed nations in the accessibility, affordability, and timeliness of its civil justice system.8 While the CBA’s action plan involves harnessing the power of well-established technologies such as the internet, telephone, and audio-visual technology, on the international stage even more innovative projects are underway.

Tech Companies Take the Lead

Private organizations both within and outside Canada are shaping smart phones, cloud computing, and social media into useful tools for citizen engagement with the civil justice system.9 One example is LegalSwipe, a mobile application that provides public legal education and builds community engagement. While the developers concede that only a lawyer can provide legal advice, their goal is to inform citizens of their rights instantaneously and in plain language. The company also operates a not-for-profit called The LegalSwipe Foundation, which offers free legal rights workshops.

Other organizations are challenging ideas of access at even more complex stages of the legal process. The web-based “e-negotiation” application Smartsettle, developed in Vancouver, tackles mediation and dispute resolution, even in cases of multiple parties and/or issues. In the UK, a legal artificial intelligence tool called CaseCrunch is making legal decision predictions with alarming accuracy, exceeding the predictions of lawyers by more than 20 per cent.

Legal Literacy and Digital Literacy: Paths Forward

Ideally, applications such as these will reduce delays through the early management of disputes and help to overcome physical and social isolation from the justice system. However, it remains important to consider inequalities in technological literacy and distribution, as well as ideological backlash from those concerned that technological determinism will become the dominant trend in solving the legal aid crisis.13

These fears are not unwarranted. Many of those who lack access to justice are vulnerable citizens, and saturating the justice system with technological developments could exacerbate its complexity for this population. This demographic also tends to prefer acquiring legal advice from a human.14

Anticipating these issues before they arise and accommodating them will be no easy task, particularly because both traditional and modern approaches face the challenge of ensuring uniformity of information within and across jurisdictions. Nevertheless, a healthy interplay between law and technology can create more opportunities for public participation in the justice system and help to ease the burden of facing such a complicated system in complete isolation.



By |January 19th, 2018|Blog|

Access to Abortion:
An International Human Rights Perspective on Canadian Law

Logo for the Committee on the Elimination of Discrimination against Women (CEDAW)

Logo, UN Committee on the Elimination of Discrimination against Women (CEDAW)

By Isabel Dávila, J.D. candidate, Osgoode Hall Law School

Canadian abortion policy historically derives both from case law and international instruments. In 1969, Parliament partially legalised abortion under s. 251 of the Criminal Code, which permitted abortion as long as a Therapeutic Abortion Committee decided the abortion was necessary for the woman’s health. In 1981, Canada ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which sets out a woman’s right to reproductive choice, although it does not specifically refer to a right to abortion.

The ratification of CEDAW was followed shortly by the 1982 adoption of the Canadian Charter of Rights and Freedoms. The Charter, combined with CEDAW and other new legal developments, opened up the possibility of a Supreme Court challenge to Canadian abortion laws. This challenge was eventually launched by famed Montreal physician Henry Morgentaler in the late 1980’s.

Dr. Morgentaler had founded the first freestanding clinic to offer safe abortion services in Canada in 1968. In 1970, the clinic was raided by police and he was charged with performing illegal abortions. Over the following decades, he was charged several times more, at one point serving ten months in jail. Then, in R v Morgentaler [1988] 1 SCR 30, Morgentaler’s appeal of his most recent criminal conviction led the Supreme Court to strike down s. 251 of the Criminal Code. This meant the full decriminalization of abortion in Canada.

Nevertheless, women continue to face many barriers to accessing abortion. According to constitutional law expert Martha Jackman,

Few Canadian hospitals provide abortion services, with most of these located in urban areas near the US border. The process for obtaining an abortion, wait-times, gestational limits, and the availability of counselling services vary greatly between provinces/territories and from hospital to hospital. Uninformed and anti-choice hospital staff members and health care professionals create additional barriers for women seeking abortions.[1]

Similarly, in 2016, the CEDAW Committee, a UN human rights body that monitors implementation of the CEDAW Convention, raised concerns that, even as Canada had taken “measures taken to facilitate access to legal abortion services,” there remained significant disparities in access across the country. The Committee recommended that Canada: “a) Ensure access to legal abortion services in all provinces and territories; [and] b) Ensure that the invocation of conscientious objection by physicians does not impede women’s access to legal abortion services.”

Other UN human rights bodies have declared that the denial of abortion can constitute a form of torture under the UN Convention Against Torture (CAT), which Canada ratified in 1987. In April 2016, the UN Working Group on Discrimination Against Women in Law and in Practice observed that “[i]n some situations, failure to protect women’s rights to health and safety may amount to cruel, inhuman or degrading treatment or punishment or torture, or even a violation of their right to life.” Furthermore, “[t]he Committee Against Torture and the Human Rights Committee have determined that, in some cases, being forced to carry an unwanted pregnancy to term amounts to cruel and inhuman treatment.” More recently, the CEDAW Committee’s general recommendation No. 35 stated,

[v]iolations of women’s sexual and reproductive health and rights, such as […] denial or delay of safe abortion and post-abortion care, […] abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.

Thus, there is a significant possibility that Canada’s current practice on the provision of abortion services does not comply with its international human rights obligations. (For more on the role of international law in the domestic context, readers are encouraged to check out a recent CLAIHR overview on applying international law in Canada.)

Improving Access

Several jurisdictions in Canada have implemented plans to improve access to abortion. Ontario passed a bill in late 2017 to forbid anti-abortion protests near clinics, with the aim of protecting patients from harassment and violence. In September, the premier of Nova Scotia announced a plan to implement universal cost coverage for the medical abortion drug Mifegymiso; since November 2017, women are now able to access reimbursement for the cost of the pill. This brings Nova Scotia in line with existing policies in New Brunswick and Alberta.

The Canadian government can also take action to continue these positive trends by ensuring that provinces meet the country’s international human rights obligations. While the division of powers means that the federal government cannot enact abortion service laws specific to every province, it can provide general guidance, in accordance with sections 3, 4, and 22(1) of the Canada Health ActHealth Canada has recently exercised this power by announcing changes to how Mifegymiso is prescribed and dispensed nationwide.

In their advocacy for more accessible abortion services, many Canadian civil society organisations have called on the federal government to develop a national gender equality plan addressing all forms of discrimination against women and girls, including access to abortion services. The Native Women’s Association of Canada has documented some of the most serious challenges:

We are very concerned about access to abortion, including access to both medical and surgical abortions, particularly in rural and northern areas. Canada is one of the only countries with a public health care system that does not have a national pharmacare program. Because of the cost of some drug regimes, this has penalizing effects for certain groups of women, including pregnant women seeking medical abortions and women with HIV.

The provision of general minimal guidelines for provinces would help satisfy these concerns by improving Canada’s compliance with several UN recommendations on women’s human rights. Federal guidance could also help to address the issue of disparate services and protection across the country.

Whatever steps come next, it is clear that, despite the legal provision for abortion, its actual provision remains limited and inconsistent nationwide. As civil society and academia call for further access, Canada remains at serious risk of violating its international human rights obligations.


[1] Martha Jackman, “The Future of Health Care Accountability: A Human Rights Approach” 47 Ottawa L. Rev. 437

By |January 10th, 2018|Blog|

Investor-State Dispute Settlement: Human Rights vs. Corporate Profits

CETA Protest in Brussels 2016

By Cassandra Knapman, J.D. candidate, University of Western Ontario

In late 2016, long-running negotiations on the EU-Canada Comprehensive Economic and Trade Agreement (CETA) came to a shuddering halt when a small French-speaking region inside Belgium refused to add its signature to the deal. Wallonia, which for complex political reasons needed to sign off on CETA in order for Belgium – the lone holdout – to join, had objected to the inclusion of an Investor-State Dispute Settlement (ISDS) mechanism. Such mechanisms permit companies to sue states for alleged discrimination against foreign investors, although in practice they have long been criticised for undermining domestic regulations.

Wallonia’s reluctance about the mechanism reflected, in part, the criticism that these mechanisms cause states to trade human rights protections for investor money, a concern that has been echoed by UN Special Rapporteurs and scholars.[2] After a flurry of negotiations, Wallonia extracted an agreement to exclude the relevant ISDS sections from the provisional application, pending an opinion from the European Court of Justice as to their compatibility with existing European treaties.[3]

According to proponents, ISDS is intended to protect investors from adverse state action and supplement domestic dispute resolution systems.[4] It permits corporations to sue the foreign nations in which they do business for discriminating against or expropriating their business ventures.[5] These claims are sent to arbitration before the applicable judicial body outlined in the relevant treaty, with arbitrators typically chosen by the parties involved.[6] Under CETA, the proposed judicial body is the Investment Court System.[7]

Arbitration is an expensive process and traditionally requires each party to pay its own fees, regardless of the outcome. Alongside the costs of the arbitration, successful arbitration for the investor typically results in a monetary penalty against the state.[8] A study of eighty-two ISDS cases found the average monetary award for investors to be 10.4 million USD.[9] While the majority of international treaties do not allow arbitration decisions to permanently annul or infringe on domestic laws, arbitrators often order certain actions by the state, such as preliminary injunctions.[10] Alongside the costs and potential payouts, states are concerned that successful arbitration by investors will discourage future investment.[11]

One of the main critiques of ISDS is that it causes states to avoid passing more stringent legislation on human rights, labour, or the environment for fear these could trigger investor claims.[12] Some states have rescinded or watered down legislation challenged by investors before their claims proceed to arbitration. An example is Germany’s relaxation of pollution controls in response to arbitration claims from Swedish nuclear company, Vattenfall.[13] Canada has also conceded human rights protections to avoid arbitration.[14] For instance, in 1998 Canada backed down from a proposed ban of a neurotoxic fuel additive, after an American company sued the government under NAFTA. As part of a negotiated settlement, Canada was forced to issue a statement declaring that the company Ethyl’s MMT additive was not dangerous to public health or the environment.[15] This statement directly contradicted many studies warning of the environmental and health risks of the additive.[16]

According to a report by several UN Special Rapporteurs, ISDS mechanisms have penalized states for enacting legislation on issues such as “food security, access to generic and essential medicines, and reduction of smoking … or raising the minimum wage” among other human rights concerns.[17] As the effects of ISDS ultimately affect the rights and protections of individuals, arbitrations have also been criticized for their lack of transparency and their failure to allow public participation.[18] These concerns have led to states either hesitating or refusing to enter into treaties with ISDS clauses, including CETA.[19]

In developing CETA’s ISDS, the parties, including Canada, attempted to address these criticisms. They clarified the meaning of “fair and equitable treatment” of investors, which is usually not defined and so its interpretation has been left to tribunals.[20] Since tribunals have no formal system of precedent and are often composed of different members for each hearing, the meaning of “fair and equitable treatment” has varied by dispute.[21] Without a consistent definition, it is difficult for states to ascertain whether they have provided investors with “fair and equitable treatment.” Building on interpretations commonly used by international tribunals, CETA defines “fair and equitable treatment” to refer to discrimination on protected grounds, loss of due process or access to legal proceedings, arbitrariness and abusive treatment.[22] This stricter definition appears to provide for greater predictability of arbitration outcomes, and may also decrease investor claims by limiting what is included as unfair and unequal treatment by the state.

In addition to clarifying the language of ISDS, CETA’s provisions aim to introduce greater objectivity, certainty, and transparency into the arbitration process. CETA incorporates the UN Convention on Transparency in Treaty-based Investor-State Arbitration to allow for greater transparency in the arbitration process.[23] Furthermore, the arbitration process is made more objective by the introduction of the Investment Court System (ICS).[24] The ICS will have a standing arbitration panel to hear all ISDS claims made under CETA.[25] The panel members are appointed for five to ten-years by the CETA Joint Committee. During an arbitration, arbitrators must demonstrate independence from those involved in the dispute.[26] The ICS also maintains an appellant body to review arbitration decisions and ideally create greater consistency in arbitration decisions.[27] Greater objectivity and consistency should allow states to better foresee the outcome of arbitration and thus decrease the number of states self-limiting human rights legislation to avoid unknown arbitration outcomes. Lastly, CETA alters the rewards available as a result of ISDS arbitration such that the unsuccessful party pays all costs of arbitration. Moreover, should the state lose the arbitration, only monetary awards can be assigned.[28] These changes in arbitration awards will hopefully limit the negative effects that ISDS can have on human rights.

Despite these apparent improvements, many remain critical of the CETA approach. Belgium – or to be more accurate, Wallonia – lists “arbitrator remuneration,” “ability to seek external employment,” and “selection and dismissal” amongst its concerns that the ICS will not function as an independent and objective judicial body. Critics are also concerned that despite CETA’s additional environmental, labour, and human rights protections, ISDS arbitration will continue to deter states from instituting further such legislation.[32]

While CETA has taken steps to address concerns related to ISDS, critics remain concerned about how the ICS will function in practice and whether the additional protections will actually limit negative arbitration effects on domestic human rights legislation. However, depending on the decision of the European Court of Justice, the current ISDS mechanism may never be put into practice.

Whatever form the dispute resolution system between investors and states under CETA ends up taking, it is clear that human rights must outweigh investor profits.


[1] “CETA Belgian Request For An Opinion From The European Court Of Justice” (6 September 2017), Kingdom of Belgium, Foreign Affairs, Foreign Trade and Development Cooperation, online: <>. [Belgium]

[2] “Investor state dispute settlement (ISDS): Background”, Business & Human Rights Resources Center, online: <> [Resource Center]

[3] Ibid.

[4] Ibid.

+ Organisation for Economic Co-operation and Development Investment Division, “Investor-State Dispute Settlement” (16 May 2012), Organisation for Economic Co-operation and Development, pg 13, online: < >.

[5] “The Arbitration Game”, The Economist, (11 October 2017), online:<>. [Economist]

[6] “The Basics”, ISDS Platform, online: <>.

[7] J. A. VanDuzer,” Investor-state Dispute Settlement in CETA: Is it the Gold Standard?” online: (2016), C.D. Howe Institute at pg 9 – 16 <>. [CD Howe]

[8] Organisation for Economic Co-operation and Development Investment Division, “Investor-State Dispute Settlement” (16 May 2012), Organisation for Economic Co-operation and Development, pg 24-25, online: < >. [OECD]

[9] European Commission, “Investor-to-State Dispute Settlement (ISDS) Some facts and figures” (12 March 2015) European Commission, pg 8, online: < >.

[10] CD Howe, supra note 7.

OECD, supra note 8.

Resource Center, supra note 10.

[11]Resource Center, supra note 10.

[12] Ibid.

[13] Ibid.

[14] Ken Traynor, “How Canada Became a Shill for Ethyl Corp.” (July 1998), Canadian Environmental Law Association, online: <>.

[15] Ibid.

MMT is methylcyclopentadienyl manganese tricarbonyl and has been linked to heavy metal poisoning.

[16] Ibid.

[17] Alfred de Zayas, Catalina Devandas Aguilar et al, “UN experts voice concern over adverse impact of free trade and investment agreements on human rights” (2 June 2015), Office of the United Nations High Commissioner for Human Rights, online: <>. [OHCHR]

[18] Resource Center, supra note 10.

[19] Economist, supra note 5.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] OHCHR, supra at note 12.

[24] CD Howe, supra at note 7.

[25] Ibid.


[27] Ibid.

[28] Ibid.

[29] Belgium, supra at note 1.

[30] CD Howe, supra at note 7.

Scott Sinclair and Stuart Trew, “Why progressives oppose Canada-EU trade deal”, Toronto Star, (22 September 2016) online: <>. [Sinclair]

[31]Sinclair, supra at note 24.


By |January 3rd, 2018|Blog|

The Omar Khadr Controversy:
Child Soldiers in Canadian and International Law

Omar Khadr being interrogated by CSIS 2


By Madeline Torrie, J.D. candidate, University of Toronto Faculty of Law

One of the biggest controversies of 2017 was the Trudeau government’s decision to pay $10.5 million in compensation to Omar Khadr, a Canadian citizen and former child-detainee at Guantanamo Bay. Khadr had sued the Canadian government for violation of his s.7 Charter rights while in U.S custody, where he had been interrogated by Canadian officials. Supporters of the payment highlighted Khadr’s age ­­­— he was 15 years old at the time of the alleged grenade attack which killed U.S. soldier Christopher Speer — and role as a child soldier. Opponents of the payout – including the vast majority of the Canadian public – argued that, at best, the government should have waited for the courts to decide on the lawsuit. According to Shelly Whitman of the Roméo Dallaire Child Soldiers Initiative, this may have related to the idea of Khadr as “child terrorist”: the public believes there is less responsibility owed to children who were “recruited for terrorism”, compared with those abducted as child soldiers.

In an official statement on Khadr, Senator Roméo Dallaire wrote “International law and norms, which Canada is signatory to, are put in place so as to protect those children who are unscrupulously used as weapons of war and to hold those who recruit and use them to account.” In an interview for Global News, War Child founder Dr. Samantha Nutt stressed the importance of rehabilitation and reintegration, even for child soldiers who have done worse than Khadr, who have “raped, killed dozens of people, who have slaughtered villages and wiped out entire communities.” A Globe and Mail editorial echoed these sentiments, pointing out that our justice system “gives special protection to children, because of the diminished moral and mental capacity of youth, rather than singling them out for special forms of mistreatment.”

On the other side of the debate, Jenni Byrne, a Conservative Party political advisor, drew a sharp distinction between the teenaged Khadr and, i.e., the seven-year-old children who were kidnapped and drugged during the Sierra Leone Civil War. For Byrne, Khadr was “no child soldier.” In a commentary for Global News, radio host Andrew Lawton cited Howard Anglin, a former policy advisor to Stephen Harper, to argue, “no international law or treaty prevents the prosecution of minors for war crimes.”

Child Soldiers in Canadian Law

In the 2010 decision Canada (Prime Minister) v. Khadr, the Supreme Court of Canada specifically noted Khadr’s status as a minor to highlight the severity of the breach to fundamental justice caused by Canada’s role in interrogating him while he was detained in Guantanamo: “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel […] offends the most basic Canadian standards about the treatment of detained youth suspects.”

Section 7 of the Canadian Charter of Rights and Freedoms clearly protects the right to “life, liberty and security of the person” except in “accordance with the principles of fundamental justice,” which the Supreme Court concluded were violated in the case of Omar Khadr. Furthermore, while the crime took place outside of Canada’s criminal law jurisdiction, the treatment of Omar Khadr in Guantanamo did not align with the values that Parliament outlined for young offenders in the Youth Criminal Justice Act. The Act requires that convicted and detained youth be separated from adults, and places a strong focus on rehabilitation rather than detention.

Canada’s military became the first in the world to adopt a doctrine issuing guidelines on how to address child soldiers in combat on March 2, 2017. The doctrine instructs that a detainee under the age of 18 must be “immediately removed from the adult population,” again emphasizing separation and rehabilitation. While the doctrine also acknowledges the right of soldiers to use force to protect themselves, even against child soldiers, it is a meaningful policy step towards addressing the reality of child soldiers in international conflict while also respecting their status as minors.

Child Soldiers in International Law

The treatment of Khadr contradicts Canada’s long history of supporting protections for child soldiers in international law and treaties. The 1977 Additional Protocols to the Geneva Convention prohibited the recruitment of children under the age of 15 in armed conflict and stipulated protection for child detainees which included separation from adults. This was followed by the 1989 Convention of the Rights of the Child which also included the 15-year-old age limit. This age limit of recruitment was raised to 18 in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which Canada helped create and ratified, and was adopted by the UN General Assembly in 2000. However, the recruitment of soldiers between the ages of 15-18 is still debated in some jurisdictions.

The Supreme Court wrote in Khadr (2010), that since Khadr was 16 at the time of his detention and he had no access to counsel, that “Canada’s Participation in the illegal process in place clearly violated Canada’s binding international law obligations.” Canada has chosen to recognize children recruited younger than 18 as child soldiers. As such, its participation in the interrogation of Khadr without proper counsel contradicts Canada’s commitments to international treaties protecting the rights of child soldiers.

That said, child soldiers are not immune from war crimes prosecution. Dominic Ongwen, who was abducted by the Lord’s Resistance Army in Uganda at age 10, is currently facing 70 counts of crimes against humanity and war crimes at the International Criminal Court, for crimes he is alleged to have committed as he rose through the LRA’s ranks. The Ongwen indictment raises difficult questions about whether to see child or youth soldiers as victims or perpetrators. Like Ongewen, Khadr was a victim of his circumstances, but who also allegedly committed a war crime.

In the end, the decision to settle, though politically unpopular, was informed by a combination of legal factors, including the Canadian Charter of Rights and Freedoms, the earlier Supreme Court decision, the Youth Criminal Justice Act, and decades of international law. These all point to the conclusion that Khadr was deserving of the rights and protections Canada affords to minors, and the reintegration and rehabilitation Canada has committed to provide to child soldiers.

What’s next for Khadr?

Khadr’s legal troubles are not over, however. Although out of prison, he was only released on bail from his eight-year prison sentence, under conditions which have affected, for example, access to his controversial family. In 2015, a Utah court ordered Khadr to pay out US$134.2-million in a wrongful death lawsuit filed by the widow of Christopher Speer. Khadr has so far refused to pay, and analysts are skeptical that it will ever be enforced in a Canadian court.


By |December 15th, 2017|Blog|

Genetic Non-Discrimination:
Civil Rights in the 21st Century

Cadena de ADN

By Gregory Ringkamp, J.D. candidate, University of Toronto Faculty of Law

As genetic information becomes increasingly easy to access, new questions have arisen as to how society should permit the information to be used. When the United States adopted the Genetic Information Nondiscrimination Act in 2008, Senator Ted Kennedy couched it in terms of human rights, referring to it as the “the first civil rights bill of the new century of life sciences.”[1] The Genetic Non-Discrimination Act, which became law in May 2017, is set to bring similar protections against genetic discrimination to Canada.

Genetic testing is a powerful predictive tool, and rapid advances in medical technology have made it more available to the public than ever before. 23andMe, a private genetic testing company, allows users to learn about their susceptibility to certain diseases, and about their likelihood of passing them on to their children, for the cost of just $249. The medical community is moving toward a better understanding of how a person’s unique genetic characteristics influence their response to treatment, opening the door to a future of better-tailored drugs.

But the increasing prominence of genetic information has also brought new concerns about how such powerful predictive information ought to be used. An accurate prediction about someone’s future wellness may be of particular interest to employers and insurers, who could plausibly use the information to make hiring or coverage decisions. Because one’s genes cannot be changed, such a possibility raises issues of fairness. Individuals cannot choose their genes any more than they can choose their race, sex, or national origin; it would seem to offend basic notions of fairness to allow someone to be treated differently on this new basis. Additionally, fears of genetic discrimination (even if unrealized) may make it harder for researchers to advance the field of genetics. Fear of genetic discrimination has been found to be a significant reason why patients choose not to participate in genetic studies.[2]

The Genetic Non-Discrimination Act, like similar acts in the United States and Europe, addresses these concerns. By assuring Canadians that the genetic tests they undergo will not be used against them by insurers, employers, and others, the Act theoretically makes the tests more attractive, while also preventing unfair discrimination on the basis of genetic information.

In addition to amending the Canadian Human Rights Act to add “genetic characteristics” as a prohibited ground of discrimination, the Act amends the Canada Labour Code to prevent employers from requiring their employees to undergo genetic testing. The Act also prohibits anyone from requiring genetic testing, or the disclosure of genetic results, as a precondition for providing goods or services. In its most obvious application, these provisions of the Act would prohibit insurers from requiring genetic information when deciding whether or not to cover someone.

However, the Act faces a number of challenges – first, on its fundamental usefulness. Although it might seem logical that a genetic non-discrimination act would make genetic tests more attractive by easing fears of discrimination, at least one study has found this not to be the case.[3]

Furthermore, although the Act would prohibit discrimination on the basis of genetic characteristics, it would create a new inequity – patients with genetic conditions would gain the unique ability not to disclose a preexisting condition to their insurer. It would be fraud for any other patient to do the same, even if their condition was similarly unavoidable.[4]

Additionally, individuals whose genetic tests show that they are at risk for developing a condition tend, naturally, to seek more insurance coverage to offset the risk.[5]. Because of this, the Act may result in increased rates for policy-holders, as insurers increase premiums to account for the greater number of high-risk individuals receiving coverage. Indeed, the Canadian Institute of Actuaries has suggested the Act may cause term life insurance premiums to rise by up to 30 per cent for men and 50 per cent for women.[6] The people least able to afford insurance will be hardest-hit by any such increase in rates.

The Act’s constitutionality is also in question. In July 2017, the Quebec government referred the constitutionality of the act to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament’s power over criminal law. At the time of writing, the question has not been decided.




[1] David H. Kaye, “Gina’s Genotypes” (2010) 108 Mich. L. Rev. First Impressions 51. Available at:

[2] AA Lemke, “Public and Biobank Participant Attitudes Toward Genetic Research Participation and Data Sharing” (2010) 13:6 Public Health Genomics 368-377

[3] Amalia Miller & Catherine Tucker, “Privacy Protection, Personalized Medicine, and Genetic Testing” (2017) Articles in Advance, Management Science 1-21

[4] Canadian Institute of Actuaries, “Proposed Amendment to Bill S-201, An Act to prohibit and prevent genetic discrimination” (November 2016), Available at:

[5] In the REVEAL Study, Harvard researchers found that individuals positive for a certain version of the APOE gene, which is associated with a greater risk of developing Alzheimer’s disease, were five times more likely to purchase long-term insurance. (

[6] “Proposed Amendment”, supra at p 2


By |November 22nd, 2017|Blog|

Araya v Nevsun Resources Ltd: An Overview

By: Jacqueline Ting

I. Introduction

Canadian multinational corporations may have to be more diligent when it comes to suspicious dealings between their subsidiaries and foreign officials, governments, and other companies abroad. In Araya v Nevsun Resources Ltd,[1] a groundbreaking decision released October 2016, Mr. Justice Abrioux of the British Columbia Supreme Court held that victims of human rights abuses committed by corporations abroad may be able to sue for a tort based on customary international law (“CIL”). Justice Abrioux dismissed the application of Nevsun Resources (“Nevsun”), a British Columbia-based company, to strike the claims of the three Eritrean nationals. The plaintiffs allege that they were subject to forced labour and torture at the Bisha mine in Eritrea, which Nevsun partially owns. While the case is currently on appeal, in the meantime, this decision could usher in a new age of transnational civil litigation.

II. The Facts

The Eritrean plaintiffs, Gize Yebeyo Araya, Kesete Tekle Fshazion, and Mihretab Yemane Tekle, are refugees in Canada and are alleged to have been conscripted into the Eritrean National Service Program (“NSP”) which forced them to provide labour, a form of slavery, to the companies constructing the Bisha gold mine.[2] They claim that Nevsun and its Eritrean subsidiary, Bisha Mine Share Company (“BMSC”), entered into contracts with two Eritrean companies, to develop the Bisha gold mine.[3]

The plaintiffs filed suit against Nevsun in British Columbia, raising numerous causes of action. Damages are being sought under CIL for the use of forced labour, torture, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.[4] This is the first time a Canadian court has had to decide whether a party to an action can receive damages for cause of action based entirely on CIL. The plaintiffs are also seeking damages for the torts of conversion, battery, unlawful confinement, conspiracy with BMSC, Segen, Mereb and the Eritrean military, and for entering into an unlawful agreement to use forced labour. They are also claiming that Nevsun is directly liable for failing to stop practices at the mine site and for condoning the conduct of the Eritrean military and affiliate companies, while alleging that it is vicariously liable for the conduct of the military, Segen, and Mereb.[6]

Nevsun applied to the Court to strike portions of the plaintiffs’ claim, denying their allegations that the Eritrean military or its subcontractors engaged in forced labour or slavery and denying that Nevsun agreed, aided, abetted, approved, or condoned any such conduct.[7] It made four applications:

  • to stay the proceedings on the grounds that Eritrea is a more appropriate forum (forum non conveniens[8]);
  • to dismiss, stay, or strike out the plaintiffs’ claims on the grounds that they disclose no reasonable cause of action because they are contrary to the “act of state doctrine”;
  • to strike the plaintiffs’ CIL-based damages because they lack a reasonable cause of action;
  • for an order preventing the plaintiffs from continuing the proceedings on a representative basis.[9]

III. Important Human Rights Issues

       A. Forum Application

In BC, the factors that a court must consider on an application for forum non conveniens are stipulated in subsection 11(2) of the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”).[10] They include:

  • The comparative convenience and expense for the parties and witnesses when litigating in the alternative court;
  • The law to be applied;
  • Enforcement; and
  • The fair and efficient working of the Canadian legal system as a whole.[11]

Accordingly, Nevsun needed to prove that Eritrea was a “clearly more appropriate forum” and that it would result in justice for the parties. After reviewing expert testimony from both parties on Eritrea’s judicial system, evaluating potential procedural barriers for the plaintiffs, and undertaking an extensive analysis of the s. 11(2) factors, Justice Abrioux found that the plaintiffs would face severe barriers to justice in Eritrea. Particularly persuasive was the evidence about the integrity of the Eritrean judicial system, leading the Court to conclude that it is not independent and does not have a constitution or functioning legislature, nor does it recognize international human rights stemming from customary international law.

While the forum application in this case can be seen as a victory, it is a small one given that Eritrea has been labelled a rogue state by the UN Human Rights Council. According to the Council’s Report,[12] the Eritrean government has committed widespread and gross human rights violations, some even constituting crimes against humanity.[13] The Report describes conditions of indefinite forced labour, noting that attempts at democracy and the rule of law have been aggressively suppressed[14]

       B. Act of State Doctrine

The act of state doctrine is a judicial rule limiting the courts’ competence with respect to a certain subject matter, in this case the lawfulness of a foreign state’s actions within its own territory.[15] The rule presents a major roadblock to recourse in international human rights disputes, including sovereign equality, reciprocity, and comity.[16] It has yet to be applied in Canada.[17]

Nevsun argued that the act of state doctrine should be applied, claiming that Canadian courts cannot evaluate the alleged involvement of Eritrean state officials and members of the military in forced labour. They argued that the matters should be left to Eritrean or international courts.[18] Justice Abrioux found that the act of state doctrine was part of Canadian common law,[19] but did not accept that the doctrine applied to the case at bar on the basis that it had yet to be applied in Canada,[20] or in any appellate level court in comparable jurisdictions such as Australia or the UK.[21]

       C. CIL Application

Nevsun’s third motion to strike was based on the grounds that a breach of CIL was not actionable and did not disclose a reasonable cause of action. Prior to this decision, a Canadian court had yet to find that a party may be entitled to damages in a civil case due to a breach of [22] CIL is unwritten law that comes from the settled practice of sovereign [23] To prove that a particular practice forms part of the CIL, a party must demonstrate a pattern of behaviour among states in conformity with the alleged rule (state practice), and a pattern of behaviour arising out of a sense of a legal obligation (opinio juris).[24]

Justice Abrioux disagreed with Nevsun that the tort allegations based in CIL were bound to fail, concluding that Nevsun had not proven that the claims disclosed no reasonable cause of action. He rejected Nevsun’s argument that customary international law norms are crimes of international law rather than torts, referring to a similar case from the Australian Federal Court which held that whether a claim is brought civilly or criminally, the common law must be developed with “emphatically expressed ideals of public policy, reflective of universal norms.”[25]

Justice Abrioux also rejected Nevsun’s argument that Parliament, through statutes such as the Crimes Against Humanity and War Crimes Act and the Justice for Victims of Terrorism Act, had intended not to recognize private law causes of action for breaches of CIL norms, finding that this legislation did not demonstrate an express derogation.[26] He disagreed with Nevsun’s claims that CIL norms are crimes at international law rather than torts, which would have meant that recourse should be in the form of sanction or punishment, rather than compensation or damages

       D. Representative Claims

Nevsun also applied for the Court to issue an order that the Plaintiffs could not proceed on a representative basis based on Rule 20-3 of the Supreme Court Civil Rules (the “Rules of Court”),[28] and that the Plaintiffs were attempting to bring a common law class action proceeding consisting entirely of non-resident class members, which the Rules of Court do not permit.[29]

The Plaintiffs argued that a representative proceeding, rather than a class action proceeding pursuant to the Class Proceedings Act (the “CPA”),[30] was the only way to achieve the goals of judicial economy, access to justice, and behavior modification with respect to the alleged wrongs.[31]

In circumstances where a province does not have a comprehensive class action legislation, if the proceeding fulfills the requirements in Western Canadian Shopping Centres Inc v Dutton (“Dutton”),[32] the case may proceed as a “common law class action”.[33]

The Dutton requirements are as follows:

  • the class is capable of clear definition;
  • there are issues of fact and law in common to all class members;
  • success for one class member means success for all and;
  • the proposed representative adequately represents the interests of the class.[34]

However, Justice Abrioux found that because British Columbia did have a comprehensive code of class action procedure, the Dutton factors did not apply.[35] Moreover, he found that the Plaintiffs were precluded from seeking relief under the CPA because of the residency requirement as per subsection 2(1) of the CPA.[36]

He further held that expanding Rule 20-3 to preclude the residency requirement non-resident plaintiffs or group members to commence a claim would not be in the role of the Courts but the Legislature.[37]

Regardless, Justice Abrioux ultimately found that the requirements for a representative proceeding on the basis of Rule 20-3 were not met in this case, since there were no principal issues of fact or law that were essentially the same with regard to all members,[38] and an individual examination of the circumstances of each plaintiff and proposed class member would be needed.[39] Justice Abrioux found that the Plaintiffs could proceed with their claims in separate actions but would likely proceed by joinder.[40]

 IV. The Importance of this Case

By permitting the plaintiffs’ claims to proceed, the Court is allowing a new cause of action to be tested, namely tort claims based on CIL. International legal scholars have been advocating for this development for years in a movement that has been coined “transnational law,” the convergence of CIL and private claims for human rights redress.[41] In the United States, much of this litigation and advocacy has focused on the creative use of the Alien Tort Statute.[42] This case may have opened the door to transnational litigation in Canada. All eyes will be on the British Columbia Court of Appeal in September 2017.

[1]             2016 BCSC 1856 [Nevsun].

[2]             Ibid at para 4.

[3]             Ibid.

[4]             Ibid at para 43.

[5]             Ibid at para 42.

[6]             Ibid at para 445.

[7]             Ibid at para 5.

[8]             Legal rule permitting a court to refuse to hear a case where there is clearly a more appropriate court available to the parties.

[9]             Nevsun, supra note 1 at para 6.

[10]            SBC 2003, c 28.

[11]            Ibid, s 11(2)(a)–(b), (e)–(f).

[12]            UN Human Rights Council, Detailed findings of the commission of inquiry on human rights in Eritrea, A/HRC/32/CRP.1, online:

[13]            Ibid at para 106.

[14]            Ibid at para 75.

[15]            Nevsun, supra note 1 at para 349.

[16]            Ibid at para 341.

[17]            Ibid at para 348.

[18]            Ibid.

[19]            Ibid at para 373.

[20]            Ibid at para 375.

[21]            Ibid at para 419.

[22]            Ibid at para 445.

[23]            Ibid at para 434.

[24]            Ibid.

[25]            Ibid at para 457.

[26]            Ibid at para 462.

[27]            Ibid at para 458.

[28]            BC Reg 168/2009.

[29]            Nevsun, supra note 1 at para 488.

[30]            RSBC 1996, c 50.

[31]            Nevsun, supra note 1 at para 489.

[32]            2001 SCC 46 [Dutton].

[33]            Nevsun, supra note 1 at para 490.

[34]            Dutton, supra note 30 at paras 38–41.

[35]            Nevsun, supra note 1 at para 493.

[36]            Ibid at para 510.

[37]            Ibid at para 518.

[38]            Ibid at para 524.

[39]            Ibid at para 528.

[40]            Ibid at para 571.

[41]            Ibid at para 2.

[42]            28 USC § 1350. The U.S. Alien Tort Statute is a federal law enacted in 1789 that gives U.S. courts jurisdiction to hear lawsuits commenced by non-U.S. citizens for torts committed in violation of the “law of nations”, or international law. More recently, U.S. courts have interpreted the statute to allow foreign citizens to seek remedies in U.S. courts for human rights violations committed outside the U.S.

By |April 6th, 2017|Blog|

Regulating Business and Human Rights Across Borders

By Jinny Kim

With the spread of globalization and the rise of multinational business, the adverse impact of corporate actors on human rights has been the subject of increasing attention. For Canadians, the deaths of over 1,100 Bangladeshi workers making Joe Fresh garments in a horrific factory collapse in 2013 brought these concerns front and centre.[1] In Ontario, a case concerning the murder and rape of Mayan villagers in Guatemala by security forces allegedly under the control of Canadian parent company HudBay Minerals Inc. has been ongoing since 2010.[2] As more corporations expand their operations internationally, there is a growing need to supervise their actions, and actions which may be attributed to them, so as to prevent human rights abuses and enable victims to seek redress.

In 2011, the United Nations Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights (UNGPs).[3] The UNGPs set out the “Protect, Respect and Remedy” framework, which consists of the state duty to protect human rights, the corporate responsibility to respect human rights, and the right to a remedy for victims of human rights abuses.[4]

The UNGPs have received significant support from the private sector. [5] According to a 2014 survey of senior corporate management from around the world, a “large majority of executives now believe that business is an important player in respecting human rights, and that what their companies do – or fail to do – affects those rights.”[6] Over 80 percent of the respondents saw human rights as a matter for both businesses and government, while 71 percent said their companies’ responsibilities went beyond simply complying with local laws.[7]

While some regard the UNGPs as having created a positive change in corporate actors’ approach to human rights, others remain concerned about their non-binding nature.[8] In response to this concern, the governments of Ecuador and South Africa drafted a UN Human Rights Council resolution calling for a legally binding international instrument on transnational corporations and human rights.[9] In June 2014, this resolution was adopted by the UN Human Rights Council.[10] It creates an open-ended intergovernmental working group (IWG) with the mandate to negotiate a binding treaty on transnational corporations and other business enterprises that operate globally.[11] Thus far, there have been two negotiation sessions.

The most recent session was held in October 2016. Member states, intergovernmental organizations, NGOs in consultative status with the UN Economic and Social Council, and several other groups engaged in comprehensive discussions on the potential treaty. Many NGOs agreed “that any binding instrument must clearly establish the obligations of transnational corporations to comply with environmental, health and labour standards and international humanitarian law.”[12] Also discussed was the need to bolster the remedy component of the UNGPs to include “the right of individuals and affected communities to access to justice and include provisions for the accountability of parent companies, protection of human rights defenders and the right to self-determination.”[13] The session’s keynote message highlighted the need for a binding treaty on the grounds that transnational corporations can often be more powerful than governments. A treaty with the power to hold corporate actors accountable could help to “strengthen the capacity of [governments] to ensure remediation.”[14]

The first two working group sessions were “dedicated to conducting constructive deliberations on the content, scope, nature and form” of the potential treaty.[15] The Panel discussions from the latest session indicate that some of its main themes were: 1. the scope of the state’s duty to protect human rights, including extraterritorial obligations; 2. the types of human rights violations that will trigger corporate liability; 3. which transnational corporations and business enterprises will be overseen by the Treaty giving consideration to the complex corporate structures of today; and 4. the interactions between domestic and international laws in providing victims with appropriate remedies, among others.[16] It is hoped that in the result, the Treaty will lead to effective oversight of Canadian transnational firms and their subsidiaries, as well as ensuring that victims of business-related human rights abuses have access to suitable remedies.


[1] Matthew McClearn,“Global Report: The Uncomfortable Truth about Bangladesh; Loblaw had Plenty of Warning”, Canadian Business, (6 June 2013), online: <>.

[2] Marina Jimenez, “Mayan Families’ Quest for Justice against Canadian Mining Company HudBay”, The Star (20 June 2016), online: <>.

[3] Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, HRC Res 17/4, UNHRCOR, 2011, UN Doc A/HRC/17/31.

[4] Ibid.

[5] Paul Kielstra, The Road from Principles to Practice: Today’s Challenges for Business in Respecting Human Rights (The Economist Intelligence Unit 2015).

[6] Ibid at 4.

[7] Ibid.

[8] Republic of Ecuador, Statement on Behalf of a Group of Countries at the 24th Session of the Human Rights Council, UNHRCOR, 24th Sess, (2013).

[9] Ibid.

[10] Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, HRC Res 26/9, UNHRCOR, 26th Sess, UN Doc A/HRC/RES/26/9, 2014.

[11] Ibid at 2.

[12] Report on the Second Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UNHRCOR, 34th Sess, UN Doc A/HRC/34/47 (2017), at 6.

[13] Ibid.

[14] Ibid at 4.

[15] Ibid at 3.

[16] Ibid at 9-22.

By |March 21st, 2017|Blog|

The Canada-U.S. Safe Third Country Agreement: Canada During a Refugee Crisis


Hundreds of protesters shut down the U.S. Embassy in Toronto on Jan. 30, 2017.

By Jeremy Greenberg

Photography by Radu Caracaleanu

While global outcry over Donald Trump’s refugee ban continues unabated, pressure has been mounting on U.S. allies to take action. For Canada, that has meant the requisite calls to take in more refugees, as well as one proposal that has recently been gaining traction: suspension of the 2004 Canada-US Safe Third Country Agreement[1].

What Is the Safe Third Country Agreement ?

Under the Agreement, refugee claimants arriving in the US or Canada are required to register in the first country they arrive in. For example, an individual who landed at JFK Airport in New York would not be permitted to file for refugee status at the Canadian border.

Much like the European Union’s Dublin Regulation[2], the Agreement grew out of a desire to prevent individuals from making refugee claims in multiple countries. The thinking went, if the U.S. and Canada are equally secure, there should be no reason for refugees to traverse one country to settle in the other. That being said, data suggests that the vast majority of these cases now involve claimants coming north. Thus, according to critics, the Agreement is really about preventing people from leaving the United States to make a refugee claim in Canada[3].

What Critics Are Saying

By issuing such a wide-ranging ban on refugees, and indeed whole classes of migrants, critics say that the United States can no longer reasonably be considered a “Safe” country. They argue that the blanket ban contravenes the 1951 UN Convention Relating to the Status of Refugees, as well as the 1984 UN Convention on Torture (by sending people back to places where they are at risk of torture).

Were Canada to rescind or suspend the Safe Third Country Agreement, the argument goes, it would enable those suffering under Trump’s ban to find safe haven north of the border. And as a question of international law, critics believe Canada may be failing its own obligations by refusing to hear the cases of those left in refugee limbo.

The growing chorus of critics ranges from leading civil society actors such as Amnesty International[4] and the Canadian Council for Refugees[5], to legal groups including the Canadian Civil Liberties Association, the Canadian Bar Association, the Canadian Association of Refugee Lawyers[6] and a national coalition of legal scholars.[7]. Critical editorials have appeared in the Toronto Star[8] and National Post,[9], among other major news sources.


What Canada Is Doing

A day after Trump’s announcement, Prime Minister Justin Trudeau tweeted to the effect that Canada remained open for “those fleeing persecution, terror & war”.[10] Advocates took this as a promising sign, but the government later clarified that no refugee increase was planned, and that the Safe Third Country Agreement would not be reviewed.[11]

From a political perspective, that government’s hesitancy to touch the Agreement makes a certain amount of sense. Given the new president’s penchant for retributivist foreign policy, any action could lead to a serious diplomatic falling-out. Moreover, there remains a whole host of issues to be ironed out with the Trump administration that could be at risk if Canada suddenly stripped the US of its “Safe” status – everything from NAFTA renegotiations to the fate of NATO.

What Comes Next

The most immediate effect of the ban is to put a hold on thousands of pending, and in some cases already approved, refugee claims.[12] The Washington Post, for example, recently profiled a number of refugee children who had been on their way to the US for urgent medical treatment, but now find their way blocked.[13] Due to the Agreement, they are unlikely to be considered for emergency relief by Canada.

Meanwhile, at least 10 refugee claimants were recently reported to have crossed into Canada at the Minnesota-Manitoba border[14]. That group includes at least one family who may prove a crucial test case: not only did they arrive in the United States first, but they have a pending refugee claim there. Under strict application of the Safe Third Country rule, their days in Canada may be numbered.


There are also rumblings of a Constitutional challenge, brought forward by a coalition including Amnesty International and the Canadian Council for Refugees, among others. According to Lorne Waldman, a leading immigration lawyer who worked on a previous challenge to the Agreement, such a case is “extremely likely in the near future”.[15]

Indeed, one interesting aspect of this crisis is that it has shone a light on a long-burning controversy, one that culminated in a 2007 Federal Court decision in which the Agreement was deemed unconstitutional.[16] Although that decision was later overturned, the judge at the time ruled that the US was no longer a “safe” country for refugees, and that the Agreement contravened refugees’ Charter rights to life, liberty and security of the person (section 7) and to non-discrimination (section 15).[17]

That was a decade and two presidents ago, and Trump’s order has changed things. With global condemnation mounting, it all sets up a potentially explosive showdown here in Canada, with activists pressuring politicians to legislate a suspension, and the courts once again considering whether the Agreement is legal at all.

A National Day of Action is scheduled for Saturday, February 4.






















By |February 3rd, 2017|Blog|

Are We Getting Too Cozy With China?

By Michael Christopher Ly

On 13 September 2016, the Federal government of Canada announced that it has commenced high-level dialogue on national security and the rule of law with China. The ongoing discussions would be a mechanism for consultations concerning judicial and law-enforcement cooperation, with the objective of addressing counter-terrorism, cyber security and combatting cybercrime, combatting transnational organized crime, law enforcement issues, consular issues, judicial cooperation and exchanges on rule of law. [1]

The dialogue however is not without controversy. China has an unjust legal system that has issued death sentences after unfair trials.[2] The Toronto Star reports that Amnesty International and Human Rights Watch are questioning the dialogue’s near-term objectives, specifically Canada’s pursuit of an Extradition Treaty and a Transfer of Offenders Treaty with China. [3]

Canada has a framework of laws and policies to prevent torture and the elimination of cruel, inhuman and degrading treatment or punishment. Notable legal and operational measures include the Canadian Charter of Rights and Freedoms, the Criminal Code, the Immigration and Refugee Protection Act, the Extradition Act, and the Corrections and Conditional Release Act (CCRA).[4] The Minister of Foreign Affairs has also stated that Canada would begin a process to join the Optional Protocol to the Convention Against Torture (OPCAT).[5] The OPCAT provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.[6]

Although its appears that Canada has been making developments for the protection and promotion of human rights, an Extradition Treaty and a Transfer of Offenders Treaty with China may be a step in the wrong direction. There are significant differences in the ways in which the two countries treat human rights advocates, and the stark contrasts between China’s Criminal Law and Criminal Procedure Law and Canada’s Criminal Code may be a telling sign of the trouble to come if Canada gets too cozy with the world’s top executioner.[7]

In the first of a three-part series, we will begin by analyzing Canada and China’s commitment to the United Nations Convention against Torture (CAT), with a particular focus on China’s criminal law system. Subsequent articles will focus on the differences between the legal systems of the two countries through a criminal law lens.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The CAT is an international human rights treaty that aims to prevent torture and other cruel, inhuman, or degrading treatment or punishment. The United Nations General Assembly adopted the CAT on 10 December 1984 and it came into force on June 26, 1987.[8]

Article 1.1 of the CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession”. [9] Article 2 of the CAT requires its parties to take measures to prevent torture under their jurisdiction, and Article 3 forbids states to transport people to any country where there is reason to believe they will be tortured.[10]

Amongst the 83 CAT signatories,[11] Canada signed the CAT on August 23, 1985, [12] and ratified it on June 24, 1987, while China signed the CAT on December 12, 1986, and ratified it on December 8, 1987.[13] Despite this, there are many concerns that torture and other cruel punishment continue to be prevalent in situations where authorities deprive individuals of their liberty in China.[14]

China: Torture and Forced Confessions

Amnesty International has raised ample evidence of problematic state action by the Chinese government in connection with the death penalty. China is statistically the world’s top executioner, but what is more concerning is the true extent of the use of the death penalty in the country. Amnesty International claims that the execution data is considered a state secret, and the official figure of 1,634 executions in 2015 excludes thousands of executions believed to have been carried out in China.[15]

There are also concerns about a number of issues with the Chinese government, including the exclusion at trial of evidence obtained through torture as well as arbitrary detention where there is a high probability of torture and other ill-treatment.[16]

The Chinese government itself has acknowledged the extent of these problems and has allegedly increased attempts to address it. Nevertheless, in a country where the fundamental problem remains at the police authority level, in combination with a criminal justice system that is heavily reliant on forced confessions,[17] critics are chastising the Chinese government for having done little to change the country’s deep-rooted practice.

In the next article, we will delve into state punishment in China by analyzing its Criminal Law and Criminal Procedure Law, with a focus on the death penalty of the ‘principal punishment’ regime.[18]


[1] Office of the Prime Minister, “Terms of Reference: Canada-China High Level Dialogue on National Security and the Rule of Law”, September 2016, online:

[2] Amnesty International, “Death Penalty,” (2015), online:

[3] Blanchfield, Mike, “Canada Looking at Extradition Talks with Chinese,” Toronto Star, 20 September 2016, online:

[4] UN Universal Periodic Review, “National Report – Canada,” August 2016, online:

[5] Canadian Civil Liberties Association, “Canada to Join Critical Anti-Torture Protocol”, 3 May 2016, online:

[6] UN Office of the High Commissioner, “Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online:

[7] Amnesty International, “Death Penalty 2015: Facts and Figures,” April 2016, online:

[8] UN Office of the High Commissioner, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online:

[9] Ibid.

[10] Ibid.

[11] United Nations Treaty Collection, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, (2016), online:

[12] Government of Canada, “Reports on United Nations Human Rights Treaties,” (2016), online:

[13] Human Rights in China (HRIC), “China and the CAT,” (2016), online:

[14] Amnesty International, “China: Torture and Forced Confessions Rampant Amid Systematic Trampling of Lawyers’ Rights,” November 2015, online:

[15] Supra note 5.

[16] Supra note 14.

[17] Amnesty International, “No End in Sight,” November 2016, online:

[18] Jianfu Chen, “Criminal Law and Criminal Procedure Law in the People’s Republic of China”, (Leiden: Koninklijke Brill, 2013) at 29.

By |January 30th, 2017|Blog|