I am writing this piece in mid-January, a time to look back and a time to look forward. As I contemplate 2013 and think ahead to 2014, one word comes to mind: resolve. It’s time to assess what past resolve has wrought, and what future resolve can do.
One of the CBA National Section on International Law's long-term projects has been to press for Canada’s ratification of the International Convention for the Settlement of Investment Disputes between States and Nationals of other States (ICSID ), a seminal dispute resolution treaty concluded in 1965 and ratified by 149 other countries. Contracting states to ICSID have access to binding arbitration through the International Centre for the Settlement of Investment Disputes. The resulting awards are recognized as binding by each member state, which must treat the awards like final judgments of the state’s highest appellate court.
This Section was working on the ICSID ratification project when I became involved as a Branch Chair about a decade ago. The matter was still on the Section’s agenda in August 2012, when I assumed the role of National Chair. A decade’s worth of advocating for ratification—during the tenure of no fewer than five different chairs—has finally paid off. Canada deposited its instruments of ratification on Nov. 1, 2013, and ICSID came into effect in Canada on Dec. 1, 2013. Canadians can take advantage of the benefits of the treaty. It’s been a long haul to get to this point, requiring persistence and fortitude, but resolve got us there.
There is also another face to the Section’s resolve to advance international law in Canada. In August, I had the honour of attending the National Council meeting in Saskatoon to move Resolution 13-08-A , concerning the Ministerial Direction on Information Sharing with Foreign Entities. The Direction, issued by the Minister of Public Safety, confers on the Director of CSIS discretion to share with foreign states and officials information that may be derived from, or that may put a person at a substantial risk of, torture or other forms of mistreatment. While the discretion conferred by the Direction is limited, it remains inconsistent with the absolute prohibition on torture in international law and grates against Canada’s domestic prohibitions on torture and mistreatment, including pursuant to the Canadian Charter of Rights and Freedoms.
Resolution 13-08-A calls on the Minister to amend the Ministerial Direction to remove the discretion to share information that is tainted by, or may lead to, torture or mistreatment. It passed with strong support at the National Council meeting. On Jan. 8, 2014, CBA President Fred Headon wrote a Ministerial Direction to CSIS on Information Sharing with Foreign Entities letter to the Minister of Public Safety and Emergency Preparedness to urge the government to bring the Ministerial Direction into compliance with Canada’s legal obligations.
Another project of the Section in 2013 has concerned our flagship publication, the Canadian International Lawyer. After many years overseeing the journal, founding Editor-in-Chief Elo Tulvig-Blais put her last issue to bed in fall 2013. Editorial purview over the journal now passes to the National Section on International Law’s Communications Officer, Noemi Gal-Or. Not only does Noemi take over as Editor-In-Chief, but she and a very capable team of other Section members on the Communications Committee have, over the course of 2013, developed a plan to stabilize the financing of the journal. The work has been anything but glamorous, but it is essential. The financial plan ensures that Canadian lawyers will continue to have access to a peer-reviewed journal that publishes scholarly articles on matters of interest to practitioners of international law in Canada. You can access the most recent and past issues of Canadian International Lawyer online.
Looking ahead to 2014, there is another resolution on the horizon. On behalf of the National Section on International Law, I am pleased to second the Resolution 14-05-M being put forward at the mid-Winter meeting in February by SOGIC for the CBA to urge the International Olympic Committee and other members of the Olympic Movement to create a permanent arm's-length mechanism to monitor human rights in host countries before, during, and after Olympic Games, as well as in the Olympic bidding process; and to urge the International Paralympic Committee to actively incorporate viewpoints from nongovernmental civil society organizations and independent disability rights activists about accessibility requirements in relation to bids to host the Olympic Games, and in host countries before, during, and after Paralympic Games. I look forward to debate of the resolution in Council.
In March 2014, the Supreme Court of Canada will hear argument in Estate of the Late Zahra (Ziba) Kazemi et al. v. the Islamic Republic of Iran et al., a case concerning the constitutionality of s. 3(1) of the State Immunity Act, R.S.C. 1985, S-18. The challenge arises in the context of the Estate’s action for damages for the detention, torture and murder of Canadian Zahra Kazemi in Tehran in 2003. At the motion of the National Section on International Law, the CBA applied for, and was granted, intervenor standing in the case. The CBA ’s factum was filed with the Court in November 2013.
In April 2014, I will be attending the American Bar Association’s spring 2014 meeting in New York City. I hope that I will see some Section members there. Please remember that all CBA Section members are eligible for preferential registration rates at the ABA International Law conferences, pursuant to an agreement between the CBA National Section on International Law and the ABA International Law Section.
Then, on May 30, 2014, the Section will be holding its annual meeting with representatives from the Department of Justice in Ottawa. Section members are welcome to attend. For more information on the meeting, please contact CBA staff lawyer Noah Arshinoff at noaha@cba.org.
Finally if you are resolved to become more involved in the National Section on International Law in 2014 (and I hope you are!), please note that the Section will be holding elections for executive positions in mid-2014. Do consider putting your name forward.
About the Author
Monique Pongracic-Speier is a litigator with Ethos Law Group in Vancouver.