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The Canadian Yearbook and International Law in Canada after Twenty-five Years

Published online by Cambridge University Press:  09 March 2016

Maxwell Cohen
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Extract

In Geological Time a quarter of a century does not rate high on the scale of perspectives. But for law and lawyers, for ongoing politics and policies, twenty-five years in an age of electronic communications, ballistic missile speeds, and space activities can include a planetary march of revolutionary proportions. Indeed, the rise and fall of empires now may be counted in years or decades rather than in centuries. The paradox of our age is that the future marks a constant acceleration of political processes, with conservative forces such as law and other social controls hard put to keep up with escaping events. The compression of time at the end of the twentieth century is its dominant feature.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 25 , 1988 , pp. 3 - 27
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1988

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References

1 The contents for Volume I include 8 articles, 2 “Notes and Comments,” book reviews, and, of course, an index. The articles include 5 with a Canadian orientation; I concerned with Soviet international law ; I dealing with offences on board aircraft; and I with the European Economic Community; while 2 “Notes and Comments” examine the International Court of Justice Opinion on the Expenses case, and the work of the Institute of Air and Space Law of McGill University.

2 These articles are to be found in the Yearbook for 1974, Volume XII, 67–110; for 1975, Vol. XIII, 855–80; for 1976, Vol. XIV 284–56. The first Canadian survey of this kind appears to have been that by Norman MacKenzie, A.M., “The Teaching of International Law and International Relations in Canadian Universities 1931,” (1932) 10 Can. Bar Rev. 519–23.Google Scholar

3 Wiktor, , Canadian Bibliography of International Law (University of Toronto Press, 1984).Google Scholar

4 See, for example, Annals of Air and Space Law, ed. Matte, Nicolas M., Vol. 5 (1985),Google Scholar Table of Contents, for a review of the space age problems that now annually press upon scholarship and the profession.

5 For a review of the universal dilemma, see Our Common Future: A World Report of a World Commission on Environment and Development (Oxford University Press, 1987), cf. Part II of this paper, which draws upon my contribution “Technology, Multiple Fora and the Time-Factor: The International Legal Response,” in International Law at the Time of Its Codifi-fication: Essays in Honour of Roberto Ago (1987), Vol. I, at 219–30.

6 For a review of these issues, see Mendlovitz, , On the Creation of a Just World Order, Preferred World for the 1990’s (1975)Google Scholar; Competitiveness and Security: Directions for Canada’s International Relations, presented by the Right Honourable Joe Clark, Secretary of State for External Affairs, a “Green Paper” designed as a first step in “A Broad Review of Canada’s International Relations to be Conducted by Parliament,” and tabled in the House of Commons, May 14, 1985.

6a Cohen, , “Some International Law Problems of Interest to Canada and Canadian Lawyers,” (1955) 33 Can. Bar Rev. 389–423.Google Scholar

7 Wiktor, supra note 3, at 33–46 and 475–685.

8 See Wright, and Linden, , Canadian Tort Law, Cases, Notes and Materials (1975), Ch. 13, at 578–652.Google Scholar

9 For the environmental response in international law see Schneider, Jan, World Public Order of the Environment: Towards an International Ecological Law and Organization (University of Toronto Press, 1979).Google Scholar

10 See among many other sources, Harris, D.H., Cases and Materials on International Law, 3rd ed. (1983) 21–54 and 459–61.Google Scholar For a recent survey of an important aspect of the growth of customary law see Meron, , “The Geneva Conventions as Customary Law,” (1987) 81 A.J.I.L. 349.Google Scholar

11 Weil, Prosper, “Toward Relative Normativity in International Law,” (1980) 77 A.J.I.L. 413–42.Google Scholar

12 For an overview of “The New Law of the Sea,” see Pinto, M.C.W., “The New Law of the Sea and the Grotian Heritage,” published in T.M.G. Asser Institute Commemorative Colloquium on International Law and the Grotian Heritage (The Hague, 1983).Google Scholar

13 From Ambassador Pardo’s statement in 1967 to the Law of the Sea Convention of 1982 almost encompasses the entire modern debate leading up to the Convention and its ambitious attempt at “codification and progressive development” of the law of the sea in a single document.

14 Fauchille, , Le Droit aérien (1905),Google Scholar discussing “Freedom of the Air and Flight by Heavier than Air Machines,” in 19 Annuaire de l’Institut de droit international, 32 (1902).

15 See McDougal, , Lasswell, , and Vlasic, , Law and Public Order in Space, 260–61 (1963)·Google Scholar

16 Cooper, , The Right to Fly (1947).Google Scholar

17 Supra note 15 for a detailed review of the creation and operation of the Chicago Convention.

18 Ibid., 268–69.

19 For a review of arms control and disarmament agreements and conventions, see Arms Control and Disarmament Agreements, Texts and Histories of Negotiations (Washington, D.G., 1982).

19a The Long Range Transboundary Pollution Agreement, 1985/SO2 Protocol Agreement.

20 Lauterpacht states in 1948 that “primarily states are subjects of international law.” Nevertheless, up to the fifth edition the classical formula was to regard states only and exclusively as subjects. See Oppenheim’s, International Law, 7th ed., Lauterpacht, H., 19–21 (1948)Google Scholar. By 1987/88 no modern writer seems to go beyond the proposition that states are the principal or primary subjects, but that from piracy to war crimes to human rights individuals have long been indirectly and now directly known to the international legal system and “subject” to its obligations.

21 Between the judgments of the major war criminals rendered on November 4, 1946 at Nuremberg and the bringing into force of the two principal human rights covenants in 1966, the modernization of the status of the individual within the international legal system was generally thought to have been brought to its present unchallengeable standing.

22 For the 1925 Protocol, its history and provisions, see supra note 19, at 9–18.

23 Ibid.

24 See supra note 19 for a useful historical annotation and verbatim reproduction of all the principal treaties concerned with arms control limitation arrangements and the particular emphasis on the post-Second World War approach to the nuclear question through these limitation agreements.

24a Cohen, I. Bernard, Revolution in Science (Harvard University Press, 1986).Google Scholar

25 The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Martinus Nijhoff, 1983).

26 Ibid., 1–14; and Professor Johnston’s own paper see pp. 179–335.

27 Claydon, and McRae, , “International Legal Scholarship in Canada,” (1986) 23 Osgoode Hall L. J. 477–93.Google Scholar

28 Cohen, and Bayefsky, , “The Canadian Charter of Rights and Freedoms and Public International Law,” (1983) 61 Can. Bar Rev. 265.Google Scholar

29 Williams, and De Mestral, , An Introduction to International Law, Chiefly as Interpreted and Applied in Canada, 2nd ed., 322–25 (1987).Google Scholar

29a The recent Shultz/CIark Agreement of Jan. 11, 1988 on the access of U.S. icebreakers to Canadian Arctic waters and to the Northwest Passage only after asking Canada for its consent does not alter, and indeed reinforces, the refusal of the United States to recognize Canada’s “sovereignty” over these waters.

30 Message from General Secretary Gorbachev, August 26, 1987, sent by him to the participants in the International Conference on the Relationship between Disarmament and Development. The Agreement was signed in Washington on Dec. 8, 1987.

31 Supra note 19, at 137–47.

32 See the separate Opinion of Madam Justice Wilson, Bertha in “Operation Dismantle,” [1985] I S.C.R. 460.Google Scholar

33 For a comparative study of the use of domestic courts in Western Europe to challenge the possession and/or testing of nuclear weapons, see the address of Mr. Christopher Greenwood of Magdalen College, Cambridge, to the Canadian Conference on Nuclear Weapons and the Law, June 16/17, 1987 (forthcoming).