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.

The traditional legal process has been inefficient in ensuring the right to receive food in developing countries, thereby preventing the estalishment of true food security in the Third World. This situation is largely due to developed countries giving priority to their own economic interests to the detriment of the hunger problem and of the already weak negotiating power of developing countries regarding any agreement reached on this issue. The mechanism for sustainable development does, however, offer new possibilities to developing countries. The cooperation and assistance duties imposed on states under international agreements on food entitlement compel developing countries to use that mechanism to promote their interests regarding the supply of food.

Although there have been few international adjudications dealing directly with fishing disputes in the past, all but one of the cases before ITLOS have been fisheries cases. This article first reviews the different ways in which a fisheries dispute can get before ITLOS and considers the disputes that have been on the docket of ITLOS so far. These have resulted in five decisions on requests for prompt release, two decisions on request for provisional measures, but only one decision on the merits of a dispute. The conclusion is that ITLOS has played a useful role in fisheries dispute settlement particularly when contrasted with the history of international dispute settlement for fisheries disputes.

In the last decade, the human rights accountability movement has made remarkable inroads into the classical law of immunities. The developments strike a new equilibrium between the need to promote accountability and the need to protect international discourse. These developments form a coherent picture if one looks to the underlying rationales of these areas of law. Immunities ratione materiae, enjoyed by current and former officials, protect official functions on behalf of a state. The landmark Pinochet decision affirmed that official functions could not include the commission of international crimes condemned by international law. Conversely, immunity ratione personae flows from a different rationale. This form of immunity protects only certain high officials representing their state and only during office and facilitates official visits by precluding arrest on any grounds. The International Court of Justice Yerodia decision and other developments confirm that this immunity remains absolute, irrespective of the conduct alleged. However, even this absolute immunity may be relinquished through Security Council enforcement action or acceptance of the jurisdiction of the International Criminal Court.

As civil conflicts between ethnic or religious groups have increased in number, the United Nations has developed greater effectiveness in intervening in such conflicts and has made preventive measures a focus of planning and undertakings of the UN system. One obstacle to implementing preventive measures is the problem of national sovereignty. This article looks at the still relatively unused potential of the UN to deploy military troops as a measure to deal with crises of serious magnitude before they erupt into genocide, highlighting both the obstacles posed by state sovereignty and the potential for success. The article offers a comprehensive study of the human rights provisions of the UN Charter to show how they can operate to authorize the UN to take action to prevent impending genocide. Further, Security Council action in southern Rhodesia, northern Iraq, Bosnia, Somalia, Haiti, and Rwanda is examined, both illustrating the potential of early military action and raising questions about the timing of preventive measures. The article concludes that the most important challenge facing the UN is how to improve its capacity to prevent impending genocide. The success of military action in preventing genocide will determine the acceptance of future preventive measures of this nature, as states weigh whether the cost to their sovereignty is reasonable in view of the benefits obtained.

On the occasion of a conference in honour of Ronald St. John Macdonald, the author revisits Macdonald’s important 1974 article “The Relationship between International Law and Domestic Law in Canada.” Macdonald’s discussion of the judicial notice of international law by Canadian courts is considered in light of recent case law. In particular, the practice of international lawyers giving expert evidence on international law is criticized as inconsistent with the doctrine of judicial notice. Finally, the author reflects on Macdonald’s view that a theoretical framework is needed to explain the reception of international law in the law of Canada

In this article, the author focuses in particular on Macdonald’s writings on the relationship between the International Court of Justice and the UN Security Council. After considering the continuing uncertainties in that relationship, the author argues that the emerging practice of “evolving reinterpretation” of Security Council Chapter VII resolutions suggests yet another important role for the court — that of guardian of Security Council authority through authoritative, judicial interpretation of purported Security Council authorizations to use force.

The word “utopia” is a pun on eu topos (a good place) and ou topos (no place). While utopia in the sense of eu topos refers to an ideal society and its realization, utopia in the sense of ou topos emphasizes a mode of narrative rather than a political goal. Traditionally, the utopian form is a traveller’s account of a visit to an imaginary country where the journey is either to a far-off land or to the distant future. This article offers an appreciation of Ronald St. John Macdonald as a practitioner, presenter, and promoter of the utopian form in international law. Beyond the ability of a particular eu-topia to confront us with a complete package of ideas for international law that would otherwise remain unimagined, ou-topia generally encourages comprehensive and radical thinking about international law’s future and perhaps even jolts us into a heightened consciousness of our creativity and potential for change. The article also touches on the corresponding disadvantages of utopias and speculates that Macdonald reconciles the advantages and disadvantages partly through the fact that the power of the utopian form is available even to those who have been historically and unjustly excluded from international law.

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

In May 1973, an article entitled “International Law and Society in the Year 2000” written by Ronald St. John Macdonald, Gerald Morris, and Douglas Johnson, appeared in the Canadian Bar Review. The article attempted to provide a vision of what international law would look like three decades in the future. If Macdonald and his co-authors were mistaken about some of the details they forecasted, they were deWnitely right about the multiplication of actors, the growing diversity of sources, and the expanded coverage of international law. More particularly, they were correct in their assessment that environmental concerns — as opposed to the more evident military, humanitarian, or criminal ones — would be the principal catalyst for change in times to come. A look back at “International Law and Society in the Year 2000” therefore offers a valuable retrospective on Macdonald’s contribution to international law and helps to frame the central question that we must take up in our own time: how will international law evolve from here?

Récemment, dans l’affaire Fretté c. France, l’État français a échappé d’extrême justesse à une condamnation de la Cour européenne des droits de l’Homme pour discrimination fondée sur l’orientation sexuelle. Dans l’affaire Fretté, la Cour européenne conWrme que l’interdiction d’adoption opposée par l’administration française aux personnes homosexuelles ne porte pas atteinte aux droits de la personne. Selon l’auteure, la Cour a négligé le fait qu’un grand nombre d’hommes gais et de lesbiennes presentment les qualités humaines et éducatives requises d’un candidat à l’adoption, et elle a préféré avaliser une différence de traitement discriminatoire et absolue envers les personnes homosexuelles. La Cour ne fonde aucunement ses motifs sur une preuve explicite et concluante quant au préjudice que peut présenter l’homosexualité d’un parent pour l’enfant adopté. Elle invoque plutôt la controverse publique pour motiver sa décision en faveur de l’interdiction d’adoption par les gais.

On March 26, 2002, an ad hoc arbitration tribunal determined the line of delimitation dividing the respective offshore areas of the province of Newfoundland and Labrador and the province of Nova Scotia. In making its decision, the tribunal, which was established by the federal minister of natural resources, applied the principles of international law governing maritime boundary delimitation and, pursuant to its terms of reference, treated the two provinces as if they were states subject to the same rights and obligations as the government of Canada. The tribunal had issued a Wrst decision in May 2001, ruling that the delimitation line had not already been established by agreement between the provinces, as Nova Scotia had contended. The tribunal’s decision on the boundary line is Wnal and binding on the two provinces. It awards to Newfoundland and Labrador the greater part of the offshore area that had been in dispute. The tribunal’s decision marked the end of the uncertainty created by the provincial disagreement and paved the way for the commencement of hydrocarbon exploration in the formerly disputed area.