UBC Journal of International Affairs 2014

2014 EDITION THE UBC JOURNAL OF INTERNATIONAL AFFAIRS

JIA

THE 2014 EDITION of the UBC JOURNAL OF INTERNATIONAL AFFAIRS

The Annual Publication of the International Relations Student Association The University of British Columbia Vancouver, B.C.

Cover Design: Sandy Chu Cover Photograph: Kelsey Franks Dome of the Reichstag Building in Berlin, Germany, symbolizing transparent governance and unity

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THE JOURNAL OF INTERNATIONAL AFFAIRS

Faculty Reviewers Dr. Rumee Ahmed

Department of Classical, Near Eastern, and Religious Studies

Dr. Michael Byers

Department of Political Science

Dr. Maxwell Cameron

Department of Political Science

Dr. Robert Crawford

Department of Political Science

Dr. Christopher Erickson

Department of Political Science

Dr. Laura Janara

Department of Political Science

Dr. Philippe Le Billon

Department of Geography

Dr. Steven Lee

Department of History

Dr. Allen Sens

Department of Political Science

Dr. Lisa Sundstrom

Department of Political Science

Dr. Benjamin Warren

Liu Institute for Global Issues

Special Thanks Irina Florov

Department of Political Science

Julie Jenkins

UBC Journal of Political Studies

Dr. Richard Johnston

Department of Political Science

Andrea Reynolds Ian Roote Dr. Steven Lee

International Relations program MET Fine Printers Chair, International Relations Program

2014 UBC International Relations Students Association | all rights reserved.

313 – 6476 NW Marine Drive | Vancouver, BC | Canada | V6T 1Z2 The UBC Journal of International Affairs is publication of the International Relations Students Association of the Alma Mater Society of British Columbia. The UBC logo and the name “UBC” are official marks of the University of British Columbia and are used in accordance with UBC Public Affairs visual guidelines.

All articles published in the Journal of International Affairs represent the opinions of the authors and do not reflect the policies or opinions of the University of British Columbia, the staff of the Journal of International Affairs, or the International Relations Student Association. The University of British Columbia does not assume any responsibility for errors or omissions in this journal.

V

CONTENTS

III

Contributors

VI

Foreword

VII

Introduction

1

The Politization of Sino-African Relations: Analyzing Political Variancein Zambia, Kenya, and Tanzania

25

Small Arms and Light Weapons Proliferation in the Kivu Region of the DRC

37

Beyond the Status Quo: Child Soldiers and Peace in Colombia

49

Human Rights, Transnational Extraction Corporations and Global Jurisdiction: The Case for Canada›s Bill C-323

61

Women Under Sharia Law: The Public Concern with Private Arbitration

72

Towards Shipping in the Northwest Passage: Overcoming Entrenched Legal Positions

84

Biographies

86

Sponsors

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THE JOURNAL OF INTERNATIONAL AFFAIRS

FOREWORD Dear Reader, On behalf of the UBC International Relations Students Association, it is my pleasure to welprovided undergraduate students with the rare opportunity to have work published in one of UBC’s most esteemed peer- and faculty-reviewed undergraduate journals.

Each year the JIA showcases some of the most outstanding work of UBC’s undergraduates on the edition is no exception. ticular, I would like to thank the Editor-in-Chief, editorial board, and publication team for their time, hard work and dedication. I would also like to acknowledge IRSA’s gracious sponsors, including the Liu Institute for Global Issues and the UBC International Relations Program, for their continuous support of IRSA and the JIA. I now wish you happy reading!

Sincerely, Kelsey Brooks President, 2013/2014 UBC International Relations Students Association

SINO-AFRICAN RELATIONS

1

The Politicization of Sino-African Relations AnAlyzing politicAl vAriAnce in zAmbiA, kenyA, And tAnzAniA Isabelle Plessis*

ABSTRACT

INTRODUCTION

1 2

*

, Afrobaromter 2

PLESSIS

2

4 5

conditions,6

8

this

9

The China Quarterly 199 4

Strategic Studies Institute, U.S. Army War College 5

China Returns to Africa: A Rising Power and a Continent Embrace 6

The China Quarterly The Jamestown Foundation China Brief Dead Aid: Why Aid Is Not Working And How There Is A Better Way For Africa The Dragon’s Gift: The Real Story of China in Africa 8

Dead Aid A Dragon’s Gift 9

SINO-AFRICAN RELATIONS

3

10

10

Afrobarometer

PLESSIS

4

1. UNPACKING DEFINITIONS: “POLITICIZATION” AND “CHINESE ENGAGEMENT” 1.1. Politicization

11

as the point w 12

Internationalization and Domestic Politics

11 12

British Journal of Political Science

the

SINO-AFRICAN RELATIONS

5

1.2. Chinese Economic Engagement

14

15

14 15

PLESSIS

6

16

2. STRUCTURAL CONDITIONS OF CHINESE INVESTMENT: CASE STUDIES

16

SINO-AFRICAN RELATIONS

7

Table 1: Zambia, Kenya, and Tanzania Country Comparison ZAMBIA

KENYA

TANZANIA

1964

1964

1964

yes

yes

Colonial History Independence First Chinese engagement Population

Government Type

Democratic Status GDP, 2011 GDP/Capita, 2010 (adjusted to PPP) 5 year GDP/capita growth rate, 2010 Unemployment rate, 2010 (As % of workforce) Structural Adjustment yes Program in 1990s UN Development Index Ranking Sources: CIA World Factbook, UN Development Index, Legalum Institute Prosperity Index, Freedom House

PLESSIS

8

2.1 Primary Sector Differences in Zambia, Kenya, and Tanzania

18

19

18 19

The World Factbook 2013

SINO-AFRICAN RELATIONS

9

2.2. Chinese investment in Kenya, Zambia, and Tanzania

Table 2: Chinese Investment: Zambia, Kenya, and Tanzania ZAMBIA

KENYA

TANZANIA

$ Chinese FDI: (Calculated as a % of FDI Stock) $ Chinese FDI: (Calculated as a % of GDP) 2011 Top sectors of investment

Type of Chinese company investing

Sources: African Economic Research Consortium, Scoping Studies on China-Africa Relations, various authors, http:// aercafrica.org/publications/category.asp

PLESSIS

10

20

2.3. Chinese Trade in Zambia, Kenya, and Tanzania 21

22

Africa Today 56, no 4

20

African

21

Journal of Agricultural Research 22

SINO-AFRICAN RELATIONS

11

Figure 1: Identifying Winners and Losers in Sub-Saharan African Economies

Source: Adapted from Kaplinsky, The Impact Of China And India On The SSA: A Methodological Framework. African Economic Research Consortium: 2006, 12.

24

25

24 25

African Economic Research Consortium

PLESSIS

12

26

28

2.4. Chinese Aid in Zambia, Kenya, and Tanzania

29

26

28 29

African Economic Research Consortium Asian Foreign Direct Investment in Africa: Towards a New Era of Cooperation Amongst Developing Countries

SINO-AFRICAN RELATIONS

13

2.5. Domestic Policy Space

2.5.i. Zambia

this

PLESSIS

14

2.5.ii. Kenya

Zambia, Mining, and Neoliberalism

Investment Climate Report Kenya

SINO-AFRICAN RELATIONS

2.5. iii. Tanzania

2.6.The Role of Structural Conditions in Politicization

15

PLESSIS

16

3. OF AGENTS AND ENTREPRENEURS

3.1 Political Entrepreneurs

40

41

42

the

The Semisovereign People: A Realist’s View of Democracy in America 40 41

The Art of Political Manipulation Entrepreneurial States

42

Perspectives on Framing,

SINO-AFRICAN RELATIONS

17

3.1.i. Michael Sata: A Political Entrepreneur in Zambia

44

45

46

48

44 45

The Irish Times

46

The Spectator, 48

PLESSIS

18

49

3.1.ii Tanzania: Political Entrepreneurs and Anti-Foreign Sentiment in the 1990s

50

49

Studies in Comparative International

50

Development

SINO-AFRICAN RELATIONS

19

51

3.1.iii Political Entrepreneurs and Politicization

3.2. TRADE UNIONS AND INTEREST GROUPS 52

51 52

The International Handbook of Trade Unions,

PLESSIS

20

54

55

56

58

54 55 56

58

SINO-AFRICAN RELATIONS

21

H

3.3. Focusing Events and Media Coverage the c 59

60

61

59 60 61

PLESSIS

22

62

4. CONCLUSIONS: TOWARDS A FRAMEWORK ON POLITICIZATION

62

SINO-AFRICAN RELATIONS

23

Table 3: Summarizing Factors Affecting Politicization FACTOR Foreign Direct Investment

Trade

Aid

Primary Sector

Open Policy Space

Political Entrepreneur Unions or interest group mobilization Focusing Events

STRUCTURAL OR AGENT-BASED

ROLE IN POLITICIZATION

24

PLESSIS

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

25

A Symptom, Cause, and Medium of Conict

SMALL ARMS AND LIGHT WEAPONS PROLIFERATION IN THE KIVU REGION OF THE DEMOCRATIC REPUBLIC OF CONGO Christopher Brodkin, Daniel Golston, Jen McGowan, Klaudia Wegschaider

INTRODUCTION Global attempts to combat the proliferation of Small Arms and Light Weapons (SALW) have led to the formulation and implementation of international, regional, and bilateral treaties. Nevertheless, throughout the world, SALW remain a destabilizing force. Using the Kivu region of the Democratic Republic of Congo

address SALW proliferation, suggesting an increasing recognition of the urgency

improvement. In this paper, we will delve into the regional complexities that underlie

failure to guarantee the security of citizens, and the second is the failure of external actors to consider regional dynamics when operating in the region. Historically, a major external actor in the Kivu has been Rwanda, whose economic and security In light of these failures and observations, we argue that SALW proliferation needs to

EVOLUTION OF DIPLOMATIC EFFORTS civil society. During the last two decades, the DRC has had two regional wars resulting

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

26

many populated areas becoming infected with disease.1 Over the last 15 years, many treaties and agreements have been considered to control the presence of SALW in

law that increasingly recognizes the importance of addressing SALW multilaterally.

of people living in unstable zones needs to be guaranteed before disarmament

Although this treaty sought a coordinated regional approach to the importation, exportation, and manufacturing of SALW, it had several issues that prevented it from objectives, and failed to address the regional manufacturing of SALW. In the following and the Nairobi Declaration4.

Community (SADC) Firearms Protocol was written.5 However, this agreement focused too heavily on action at the state level while failing to incorporate comprehensive regional or interstate involvement. Furthermore, the implementation of the protocol 1 Declaration of a Moratorium on Importation, Exportations and Manufacture of Light Weapons in West Africa,

Weapons

.

4

, Regional .

5

Southern African Development Community, Protocol on the Control of Firearms, Ammunition and other Related Materials, (2001): Article 21, accessed 12 March 2013, http:/ www.issafrica.org/cdct/mainpages/pdf/Terrorism/International%20Instruments/Protocols/SADC%20Protocol%20on%20the%20Control%20of%20Firearms%20and%2 Ammunition%20and%20.pdf

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

27

by both the DRC and Rwanda.

With this multitude of agreements addressing SALW across the African continent, limiting SALW proliferation the Kivu region appeared feasible. However, obstructions

legislation between signatory countries through educational programs detailed in its annual reports.

In recent years, the issue of SALW has received increasing diplomatic attention that arms trade has become a priority on the international agenda. Within the African Union (AU), progress was made by transforming the Regions Steering Committee with the addition of a promising a Disarmament, Demobilization and Reintegration (DDR) program.

, Regional

Materials

African Union Peace and Security Council, “First meeting of the AU-Regions Steering Committee on Small Arms Light Weapons (SALW) and Disarmament regions-steering-committee-on-small-arms-light-weapons-salw-and-disarmament-demobilization-and-reintegration-ddr.

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

28

on research and information provision.11 generally been unable to adequately confront the complexities of regional dynamics

THE DRC: ANALYZING THE EFFECTIVENESS OF TREATIES Despite these agreements, violations of international and human rights law DRC, the region has experienced widespread human rights violations and more than

soldiers also increased dramatically throughout the Kivu region. ous, the presence of arms continues to contribute to the destabilization of the Kivu national involvement. Overall, the objectives of SALW nonproliferation treaties must

ence of weapons can lead to a rapid escalation of minor tensions.

11 demobilization-and-reintegration-ddr.

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

29

THE DRC: INTERNAL FACTORS In the DRC, the main obstacle to limiting SALW proliferation is the failure to

of the Democratic Republic of Congo (FARDC), as well as other branches of the security In a recent report released by Amnesty International, researchers argue that due to the central government’s inability or unwillingness to pay living wages to FARDC that often compromise the DRC’s sovereignty and lead to human rights violations.14 15

Researchers found that

many soldiers regard their weapons as personal property and are unwilling to return them after service, opting to bring them home instead. In some instances, soldiers have used their weapons to exploit local populations for survival; there have been documented cases of sexual violence, rape, and other human rights violations at the hands of FARDC soldiers using FARDC weapons.

whom they are conducting military operations. there is a causal relationship between government legitimacy, low salaries, and SALW

out, the DRC only holds formal governmental presence in small portions of the country.

14 15

Ibid., 16.

Ibid., 15.

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

30

these areas, while the rest of the country remains out of the government’s sphere of Herbst’s argument helps to contextualize how SALW proliferation occurs in sovereign territory. been unable to guarantee the safe storage of weapons. In combat zones FARDC weapons caches are often raided and weaponry stolen. Furthermore, Amnesty International claims that many FARDC soldiers sympathize with rebel groups, supporting claims

and ensure societal safety brings their legitimacy into question. For example, while the legally binding Nairobi Protocol calls for the seizure of SALW,

standardized

and an end to corruption, many parts of the country. Hence, the Nairobi Protocol’s optimistic provisions remain mainly as a cause, instead of recognizing them as a symptom of a failed security sector. of impunity on the part of the central government that further leads to an erosion of

When there is a reported human rights violation,

Ibid., 1.

Nairobi Protocol

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

31

from the civilian court system. While admittedly this is common practice in most countries, in the DRC it has led to many crimes of war circumventing fair trial, which

all suggest that impunity on the part of the central government is a factor in continued SALW proliferation and the subsequent failure of legal protocols.

THE DRC: OUTSIDE ACTORS International Western actors attempting to aid the situation have also hindered the process of addressing SALW because they approach the problem from a ‘Western

human rights violations. When Amnesty International met with FARDC soldiers in

national pride, all of which could compel a Western soldier to wear his ID card. Instead, we see the fragmented identity of FARDC soldiers leading to their decisions to sell their weapons, uniforms, or ID badges. in the DRC. If the DRC were willing to reform parts of its security sector to allow more transparency and, in turn, gain public legitimacy, then perhaps it could initiate

Ibid., 21.

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

32

goals, security sector reform would begin to address legitimacy issues and help build

RWANDA: ANALYZING THE EFFECTIVENESS OF TREATIES Prevailing mistrust between the Rwandan and DRC governments has hindered

constituted a breach of both the UN arms embargo for the DRC and the legally

two central areas of national interest in the Kivu region. Firstly, in the aftermath of the genocide, Rwanda has stated that it feels threatened by the Democratic Forces for

that contribute to instability in the region.

RWANDA: NATIONAL SECURITY AND ETHNIC INTERESTS in the Kivu region. James Kabarebe, the Rwandan defense minister, purports that the

In contrast, the Rwandan government has expressed fear that “the FDLR leadership is still dominated by leaders of the former Rwandan army and

and because the DRC does not have the capacity to bring them to justice, Rwanda has

Financial Times, Ibid.

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

33

pursued these alleged criminals unilaterally.

In order to rid the Kivu region of the FDLR, Rwanda appears prepared to FDLR’s political and military objectives, the movement aims, in general, to overthrow the current government of Rwanda and claims to favor the further democratization of Rwanda. Given that the FDLR’s stated aim is to remove President Kagame from power, his government is eager to see them defeated. Ortega Rodriguez, however, argues that the group is no longer a real threat to the Rwandan government.

Republic of Congo, on the other hand, states that the FDLR currently recruits a growing

RWANDA: ECONOMICS

of stability in the Kivu region. Rwanda’s President Kagame has stated that he envisions turning his country into an African Singapore. For Rwanda, a stable DRC represents

Ibid., 11.

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

34

Since then, demand for the mineral (used in mobile phones and other electronic devices) has increased steadily. minerals and resources in the DRC, especially by Rwandan actors:

individual enrichment of top Ugandan military commanders and civilians; or businessmen.

An example of this came after the Second Congo War, when Rwandan forces delayed

region. Over time, many armed groups such as the National Congress for the Defense of Rwanda. In short, as Laura Seay stated in her report, “most minerals sold on world 41

Coltan extraction occurs through the presence of entrenched smuggling

UN report notes that “the scale of laundering of Congolese minerals in the Rwandan of the problem. However, this issue is far from negligible, as trends suggest that the Institute for Security Studies (ISS) Africa, “Rwanda Economy,” accessed 4 March 2013,

.

.

41

.

A SYMPTOM, CAUSE & MEDIUM OF CONFLICT

35

44

Rwanda’s dominance in the mineral sector. Of late, some companies have become wary

45

Consequently,

demand for minerals directly from the DRC has plummeted, devastating the local economy.

Rwanda.

Despite the economic gains from instability in the DRC, some sectors in Rwanda are disadvantaged by its neighbor’s condition. For example, Rwanda is currently planning the KivuWatt project, which is expected to increase Rwanda’s power generation by a third. If the Kivu region cannot be stabilized, the project, in which Rwanda has Potential mineral wealth, however, trumps this sum; during a two month period of high coltan prices, it is estimated that the Rwanda Patriotic Army and, subsequently, the With respect to economics, Rwandan state actors have interests in both maintaining and ending instability in the Kivu region. Rwanda’s allegedly support

have withdrawn their aid to Rwanda, economic interests have changed, increasing the pressure on Rwanda to stabilize the Kivu region instead of subverting it.

44 45 speccorpdisclosure.shtml.

The New York Times Deutsche Welles

BRODKIN, GOLSTON, MCGOWAN, & WEGSCHAIDER

36

forward, international pressure seems to be a viable option, and should be included in choose to continue the proliferation of SALW.

CONCLUSION International treaties and agreements to limit SALW proliferation have not

and curb the movement of weapons and the subsequent violence that results from their presence.

In the case of the DRC, two prominent factors have led to the continued

failed to act as a supporting neighbor to the DRC. As UN reports have shown, Rwanda has contributed to weapons proliferation in the DRC in the pursuit of economic and

regional contexts, as opposed to with the prevailing broad and vague application of

BEYOND THE STATUS QUO

37

Beyond the Status Quo

CHILD SOLDIERS AND PEACE IN COLUMBIA Brett Donnelly

INTRODUCTION

1

2

Armado y la Criminalidad en Colombia Child Soldiers: From Recruitment to Reintegration

DONNELLY

38

1. BACKGROUND

La Guerra de Los Mil Días La Violencia 3

La Violencia

Fuerzas Armadas Revolucionarias de Colombia Ejército de Liberación Nacional

Autodefensas Unidas de Colombia (United

Child Soldiers in Colombia: The Recruitment of Children into Non-State Violent Armed Groups Michigan Journal of International Law

BEYOND THE STATUS QUO

39

La Violencia most

11 12

Journal of Latin American Studies , Human Rights Quarterly International Law and Politics

IDS Bulletin Overcoming Lost Childhoods: Lessons Learned from the Rehabilitation and Reintegration of Former Child Soldiers in Colombia

You’ll Learn Not To Cry: Child Soldiers in Colombia

11

Como Corderos

12

You’ll Learn Not To Cry

DONNELLY

40

13

21

13

Child Soldiers: From Violence to Protection Como Corderos You’ll Learn Not To Cry, Como Corderos International Committee of the Red Cross, You’ll Learn Not To Cry, United Nations Treaty Collection

21

United Nations Treaty Collection

BEYOND THE STATUS QUO

41

22

2. RECONCILING THEORY AND PRACTICE

23

22 23

Child Soldiers Global Report Overcoming Lost Childhoods

Cape Town Best Principles and Practices

DONNELLY

42

31

32

Child Soldiers: From Recruitment to Reintegration

The International Journal of Transitional Justice 31 32

Child Soldiers

BEYOND THE STATUS QUO

43

33

Ministerio del Interior y Justicia

Instituto Colombiano de Bienestar Familiar

33 You’ll Learn Not To Cry, Overcoming Lost Childhoods Child Soldiers in Colombia: The Recruitment of Children into Non-state Violent Armed Groups

DONNELLY

44

You’ll Learn Not To Cry,

Overcoming Lost Childhoods You’ll Learn Not To Cry

Como Corderos

BEYOND THE STATUS QUO

45

3. TOWARDS RECONCILIATION: ADDRESSING STIGMA THROUGH A TRUTH AND RECONCILIATION COMMISSION

Stigmatization also creates Overcoming Lost Childhoods You’ll Learn Not To Cry Overcoming Lost Childhoods You’ll Learn Not To Cry

DONNELLY

46

Overcoming Lost Childhoods

Cape Town Best Principles and Practices Overcoming Lost Childhoods

BEYOND THE STATUS QUO

You’ll Learn Not To Cry

Children and Truth Commissions

47

48

4. CONCLUSION

DONNELLY

THE CASE FOR CANADA S BILL C-323

49

Human Rights, Transnational Extraction Corporations and Global Jurisdiction THE CASE FOR CANADA S BILL C-323

Lauren Riva

INTRODUCTION Within the international legal system, it remains a challenging endeavour to hold transnational corporations accountable for human rights abuses. This claim is particularly evident and pertinent for Canada, where a substantial percentage of the global extraction industry’s major companies are incorporated. Justifying jurisdiction in Canadian courts for human rights abuses committed abroad by Canadian extraction companies proves problematic. Those denied justice in the state where the abuses were committed, as well as the home state of the transnational corporation involved, An Act to Amend the Federal Courts Act, as a legitimate way to protect human rights through Canadian courts and argues would extend the jurisdiction of Canadian courts to include human rights abuses committed outside of Canada.1 It would also align with and further establish norms within the international legal system, thus promoting the legal practice of holding transnational corporations accountable for human rights abuses and providing redress to their victims.

CANADA AND THE GLOBAL EXTRACTION INDUSTRY Canadian corporations are incredibly in world’s mining companies were headquartered in Canada, of which many have , An Act to Amend the Federal Courts Act (International Promotion and Protection of Human rights Business and Politics

RIVA

50

extraction companies and host communities in developing countries recorded in The Canadian government and Canada’s two major mining associations have no mandatory corporate social the government and the associations therefore rely solely on voluntary corporate measures. 4

surveyed Canadian companies publicly report their compliance with international

responsibility.6 The issue of holding Canadian companies accountable, without disadvantaging them in the global industry or impeding on the sovereignty of foreign governments, has thus confronted Canadian governments for more than a decade. detrimental for many mining projects’ host communities, which are increasingly located in remote areas of developing countries. Incidents include harassment and

Communities against transnational corporations. Canada rarely accepts jurisdiction for such Canadian Journal of Development Studies/Revue Canadienne D’études du Développement

Canadian Foreign Policy Journal CIPS

THE CASE FOR CANADA S BILL C-323

51

cases, while fair legal proceedings in host states’ courts can be unrealistic due to the complexity of their interests. It appears that only seven lawsuits have been of Canadian extraction companies. To date, no lawsuit in Canadian courts against a Canadian extraction company has provided relief payments to abuse victims.

for the community’s food production, resulting in disastrous and life threatening consequences for local inhabitants. the case on the forum non conveniens11

seven cases lodged in Canadian courts, three, including the Guyana Case, have been dismissed, while four are ongoing. This demonstrates that Canadian courts do not have a strong tradition of holding transnational companies accountable for abuses committed abroad, or in aiding victims to receive compensation.

TRANSNATIONAL CORPORATIONS AND INTERNATIONAL LAW Transnational extraction companies complicate prosecution procedures due to the unique space that they occupy within international law. Their corporate personality is neither that of a state nor an individual, and it is problematic to determine whether a company acting within the international system falls under domestic or international jurisdiction. In Canadian common law, a company’s is determined by the location of the company’s management seat. Thus, corporations

11

Non conveniens is a legal doctrine that allows a court to decalre that another state’s court may be more appropriate or better equipped to decide a case.

International Law

RIVA

52

their respective home states’ practices, regulations, and laws. Within the extraction

Transnational corporations can control operations in multiple countries as well as hold and receive investments outside of their home country. These entities intersect important as corporations develop the ability to evade home and host state regulation.

Developing countries with natural resources often attract transnational corporations

over host government policies, which may not serve the best interests of locals.14 Despite the development of international law, transnational corporations continue to evade accountability for human rights abuses. While host countries maintain jurisdiction over crimes committed in their territory, government interests may prevent the prosecution of corporations.16

Guyana Case, the

home states of transnational corporations can reject jurisdiction for legal and political transcending domestic borders as well as public and private international law. The jus cogens principle contends that certain rights should not be violated on any accounts. problematic, they do not transcend all international laws or norms. Therefore, the development of both domestic and international policies concerning transnational governments can play a critical role in developing international customary law.

Yale Human Rights and Development Law Journal 14

International Law Research Torture as Tort,

16 Torture as Tort, Jus Cogens refers to a customary rule within international law, cannot be violated, regardless of formal state consent. While controversial and debated to a degree, International Law, Torture as Tort.

The American Journal of International Law

THE CASE FOR CANADA S BILL C-323

53

ATCA’S IMPLICATIONS FOR THE ADJUDICATION OF INTERNATIONAL HUMAN RIGHTS ABUSE CLAIMS in recent decades. Three important cases, Filartiga v Pena-Irala, Kadic v. Karadzic and Doe I v. Unocal Corp accountable for human rights abuses for legal scholars, yet it has had little success. any civil action by an alien for a tort only, committed in violation of the law of nations Sosa v.

Alvarez-Machain Sosa v. Alvarez-Machain in claims involving abuses by corporations largely because of the political nature surrounding the interpretation of court decisions.

incoherence in international legal and customary norms renders such legislation vulnerable to various applications in domestic courts. John Terry asserts there is still optimism with respect to the ability to hold transnational corporations liable under law, suggesting that it applies only to states and individual actors, and not transnational corporations. to specify the manner in which it can be applied in order to contribute to international legal norms regarding transnational corporations.

Melbourne Journal of International Law

Ibid.

Torture as Tort Ibid.

RIVA

54

BILL C-323, WITHIN THE CANADIAN CONTEXT

of laws adhering Canadian extraction companies to international human rights standards. The negative consequences for developing countries prompted a request extraction companies operating internationally.

The Canadian government’s

An Act to Amend the Federal Courts Act international promotion and protection of human rights). human rights focus. for actions occurring outside of Canada that violate international law or treaties Courts as it plainly states that jurisdiction would include a wide range of human rights abuses committed outside of Canada. This would establish clear, legitimate

An Act Respecting Corporate Accountability for the Activities of Mining, Oil and Gas in Ibid.

This Magazine, An Act to amend the Federal Courts Act (international promotion and protection of human rights) Straight,

,

THE CASE FOR CANADA S BILL C-323

55

Developing Countries for Canadian extraction companies operating in developing countries, but did

courts where the abuses violate any treaty to which Canada is a signatory. This

Canadian government policies have addressed industry regulation and human rights standards relating to extraction companies by focusing

sustainable practises. the issues of territorial jurisdiction that would arise with the violation of a human protecting human rights, Canada arguably has both a legal and moral responsibility to support redress claims for victims of abuse by corporations outside of Canada.

To a certain extent, states have the responsibility to enforce against human

Canadian Mining Journal CIPS

RIVA

56

their corporations, and that in most cases, the actions of a corporation are seen as separate from the state from which they originate. have some obligation to regulate and redress the harm done by their corporations, jus cogens violations. With a degree of

While international customary law continues to develop the responsibility of states outside their borders, domestic legislation. commitment and leadership towards principles of international human rights. to apply human rights laws. Canadian tort law does allow for lawsuits against Canadian exists, yet establishing such connections has seen very limited success. Currently, forum non conveniens. 41 which could have both positive and negative repercussions. It does, however, provide a legal guide that establishes Canadian jurisdiction over a range of human rights abuses committed internationally, which can be applied to transnational corporations.

In Canada, there is a clear dualist tradition between international customary and domestic law, despite the fact that Canadian law deems international customary law to be a part of domestic law. Therefore, domestic legislation is required for international law, treaties, or norms to hold clear legal value.

Thus, by passing

Report of the International Law Commission: Fifty-third Session, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities,

Torture as Tort.

41

Ibid., Valparaiso University Law Review

Doc.

THE CASE FOR CANADA S BILL C-323

57

have argued that in the context of protecting human rights, clearer responsibilities of transnational corporations by domestic governments’ legislation and policies would be advantageous for international law. transnational corportions to respect human rights internationally, in Canadian courts.

Canadian Courts are starting the process of change in prosecuting human rights abuses committed internationally by Canadian mining companies. The attempted in Canadian courts44 Canadian courts. In Choc v. Hudbay Minerals Inc rights abuses against the local Indigenous population. 46 While this might signal and international legal norms of prosecuting human rights abuses committed by transnational corporations. Canadian Courts have not declared any merit to the case, which is embroiled in controversy and it remains to be seen whether the proceedings will provide justice to the victims. The fact that there is now a precedent of allowing a yet arguably it signals the need for additional progress in order to guarantee victims receive compensation within the Canadian and the international legal system.

BILL C-323 WITHIN THE INTERNATIONAL LEGAL SYSTEM it is essential that the legal norms that develop do not assume the superiority international legal system, domestic and international customary law should Torture as Tort.

44 The Canadian Press, 46

Choc v. Hudbay Minerals Inc. Globe and Mail,

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58

contribute to establishing competing or concurrent jurisdiction. With regard to transnational companies, situations of concurrent jurisdiction should be seen as normal. the most appropriate and fair avenue for jurisdiction, which ideally would be the

victims with compensation where it otherwise would not be provided, to discourage human rights abuses, and develop enforcement practises. appropriate, with regards to a guarantee of fair, timely, and legally binding conduct.

proceedings not be the sole mechanisms to hold Canadian extraction companies accountable abroad. Transnational human rights law, where public and private law

political, such as human rights. it susceptible to dilution by states or leaders’ political values.

In essence, courts

should not be the only means of addressing issues that are innately political, such as

the jurisdiction of Canadian courts in addressing human rights abuse claims, Canada

abroad.

Torture as Tort.

An Act to amend the Federal Courts Act (international promotion and protection of human rights) Torture as Tort.

Ibid.

,

THE CASE FOR CANADA S BILL C-323

59

Canadian legal system in a multitude of unnecessary lawsuits by those opposing

disadvantaged as foreign companies operating in host states. area of legal complexities, Canadian courts are presently open to the types of claims international legal norms that already exist, as seen with Hudbay. In addition, Canadian of industry regulation, and governmental support than extraction companies from other states.

hold wrongdoers accountable. Whether or not jurisdiction needs to be extended to the adjudication of claims involving transnational corporations involved in human rights abuses, and thus serve the purpose of holding corporations accountable for involvement in abuses. the adjudication of relief claims by the victims of human rights abuse. Canada’s introduction of such a bill is important due to the extent to which its transnational means, interest, or impartiality to prosecute the corporations for their human rights abuses, while in Canada, jurisdiction over human rights abuses and transnational corporations is unclear. Thus, there is a present need for a mechanism which would more clearly establish jurisdiction in Canadian courts, as an additional avenue to

establish their legality in Canadian courts. With a clear avenue to provide justice for Fraser Institute Competition & Change

60

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the victims of human rights abuses by transnational corporations in Canadian courts, it will promote best practices among Canadian corporations, while developing international practice regarding human rights protection.

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Women under Sharia Law

THE PUBLIC CONCERN WITH PRIVATE ARBITRATION Jaspreet Kular

INTRODUCTION Contemporary politics can be summed up quite accurately, however dishearteningly, by the term “post-9/11 world.”1 Just as the Cold War era split the world into a Soviet/Western dichotomy, the post-9/11 world is characterized by an ideological battle between the West and the Muslim world. The anti-Islamic sentiments rampant throughout the United States and many parts of the western world are undeniable, leading many Muslim groups to feel like an oppressed people, even in the secular countries where they hold citizenship and have been law-abiding citizens for decades.

This perceived oppression has led many Muslim groups to demand certain legal rights and recognition in accordance with their religion, as means to protect their religious identity. One of the most contentious issues to arise from such demands is the implementation of Sharia law, which governs diet, rites, dress codes, and criminal and civil matters.

While the majority of Muslims do not demand or even wish for secular states to allow for Sharia law to govern criminal matters, there is an increasing demand for civil matters to be solved through private arbitration under the guidance of Sharia law principles.2 Proponents of Sharia law argue that Muslim marriage, divorce, and child custody settlements should be handled through Sharia councils, and that council Sharia Council Courts currently operate in England and adjudicate civil family matters 1

Post-9/11 world refers to the time period after the September 11, 2001 attacks against the World Trade Centre. It is characterised by the US led global War on Terror and heightened suspicion of Islamic fundamentalism.

2

For the Sharia law debate in Ontario, Canada, see Larry Resnick, Family Dispute Arbitration and Sharia Law (Vancouver: BC Civil Liberties Assn, 2007), 1-13, http:/ site.ebrary.com/lib/ubc/docDetail.action; for the debate in Australia, see Ann Black and Kerrie Sadiq, “Good and Bad Sharia: Australia’s Mixed Response to Islamic Law,” University of New South Wales Law Journal 34, no 1 (2011): 383-412, http://search.informit.com.au.ezproxy.library.ubc.ca/fullText;dn=20114199;res=AGISPT; for the debate in the United States, see Robert K. Vischer, “The Dangers of Anti-Sharia Laws,” First Things 221 (2012): 26-28 for the debate in American states; for the use of Sharia councils in the United Kingdom, see Jessie Brechin, “A Study of the Use of Sharia Law in Religious Arbitration in the United Kingdom and the Concerns That This Raises for Human Rights,” Ecclesiastical Law Journal 15 (2013): 293-315.

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beyond the reach and scrutiny of the country’s courts of law.3 In this paper I argue that a state’s legislative and judicial authorities cannot be sidelined or undermined by a religious authority without dire implications, such as creating a two-tier segregated community and suppressing the individual rights of women in favour of religious sensitivity. Moreover, I will focus exclusively on the application of Sharia law to western secular democracies.

The recognition and continuance of Sharia law as currently interpreted and applied in civil matters is detrimental to the advancement and empowerment of women. Allowing religious authorities to inform the decisions of courts and legislatures religious legal system an important candidate for public scrutiny. The Abrahamic religions are widely considered patriarchal in nature and as such, personal laws derived directly and applied unaltered from their origin stories or early writings are innately discriminatory to women.4

SHARIA LAW Sharia law is considered by many practicing Muslims to be based on the revealed word of God as received by Prophet Mohammed.5 Sharia translates to “the Path to be followed.”6 The four components of Sharia law are Sunna (the traditions of the Prophet Mohammed), Qiyas (the modern interpretations of the Sunna and the Koran),7 Ijma (the consensus of the religious community regarding the adoption of the Qiyas),8 and the Koran – the supreme authority.9 While this paper cannot reasonably attempt to describe and evaluate every aspect of Sharia law in its intricacies, interpretations, and

3

Arsani William, “An Unjust Doctrine of Civil Arbitration: Sharia Courts in Canada and England,” Stanford Journal of International Relations 10, no 2 (2010): 43.

4

Amali Philips, “Sharia and Shah Bano: Multiculturalism and Women’s Rights,” Anthropologica 53, no 2 (2011): 277. Philips more broadly refers to gender discrimination being a component of many religions, as well as patriarchal secular institutions. I have put the emphasis on Abrahamic religions as they are the most dominant organised religions worldwide and the focus of this paper is law derived from one of the Abrahamic religions, Islam.

5

Vincent O. Nmehielle, “Sharia Law in the Northern States of Nigeria: To Implement or Not to Implement, the Constitutionality Is the Question,” Human Rights Quarterly 26, no 3 (2004): 737.

6

Amira Mashhour, “Islamic Law and Gender Equality: Could There Be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt,” John Hopkins University Press 27, no 2 (May 2005): 565.

7

As the Koran and Sunna are ancient texts, many innovations and changing politics could not be foreseen by the authors. Qiyas therefore attempt to interpret teachings of the Koran to apply to modern issues and transactions.

8

Nmehielle, “Nigeria,” 738.

9

Ibid., 738.

WOMEN UNDER SHARIA LAW

63

Sharia’s standing as “divine law.” The Koran as the revealed word of God is immutable and unalterable,10 and thus the prescriptions set forth in the Koran are not adaptable to interpretations in a modern context.11 Qiyas and Ijma are considered “human based” rather than divine,12 but these interpretations sre still faithful to the ethical principles established in the Koran and Sunna.

Sharia law governs both legal and non-legal areas of life including criminal and civil conduct, clothing, diet, and funeral rites.13 While the Sharia criminal code is not applied in most Muslim countries, the civil components of Sharia law are practiced in the majority of Islamic states,14 and many Muslim groups are demanding recognition of Sharia civil law in many Western states that are constitutionally secular. Sharia civil law mainly governs areas of family arbitration such as marriage, divorce, and child custody.

Processes for divorce and spousal maintenance are aspects of Sharia law which divorce is initiated by the husband15 a simple pronouncement known as a talaq the marriage.16 If the request for divorce is initiated by the wife, and the husband refuses to grant a talaq, she must then obtain permission to divorce from a Sharia council.17 Furthermore, if the wife cannot establish fault18 on the part of the husband, she must return her mahr (dowry) in order to obtain permission for a divorce. As divorce is traditionally frowned upon, Sharia councils aim to counsel and reconcile couples before granting divorce, which can force women to stay in dysfunctional marriages and accept Sharia decisions that grant men disproportionate power. Some women wait for well over a year while attempting to convince a Sharia council to allow them to divorce.19

10

“Islamic Law,” Fair Observer, accessed 14 November 2013, http://www.fairobserver.com/article/can-islamic-law-evolve.

11

It is important to note that while Koranic verses are not altered, in modern times they are not strictly followed by the majority of Muslims worldwide, for example, stoning for the crime of adultery.

12

Mashhour, “Islamic Law,” 566.

13

Vischer, “The Dangers of Anti-Sharia Laws,” 26.

14

Robert W. Hefner, Shari’a Politics: Islamic Law and Society in the Modern World, (Bloomington: Indiana University Press, 2011): 2.

15

The discussion on divorce and custody arrangements will follow traditional man-woman unions as homosexual unions are not recognised in Sharia law thus there are no principles to govern such arrangements.

16

Black, “Australia,” 399.

17

Ibid., 399.

18

Faults include absence, impotency, certain illnesses, cruelty, and failure to maintain his wife and child. Ibid., 400.

19

“Secrets of Britain’s Sharia Councils,” video clip, accessed 15 November 2013, Youtube, http://www.youtube.com/watch?v=2W4W736oPZY.

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When a marriage is dissolved through a talaq, a husband pays any remaining portion of the mahr and supports his wife for an iddah period, which is three months.20 For no-fault divorces that are requested by the wife, a husband is relieved of such obligations.21 Whether through the pronouncement of a talaq or divorce initiated by the wife, the husband is only required to provide support for a maximum of three months regardless of the work/stay-at-home spousal arrangement during the course of the marriage. If a woman is unable to support herself after the iddah period, the 22

Such obligation on her natal family

cannot, however, be legally enforced.

Under Sharia law, child custody arrangements favour the mother while guardianship of the child is granted to the father. Custody refers more to the care of the child, while guardianship implies greater legal responsibility.23 If the father is unable to act as a guardian, rights are then passed along the paternal line to the grandfather or uncle of the child, over the mother.24 A mother can lose custody of a child if “she supervision of, and contact with, his child, or if she converts out of Islam.”25 Divorce and child guardianship arrangements tend to the favour the male in much the same fashion Western legal practices would favour the father, prior to reforms made in the mid-20th century to abolish “patriarchal leanings.”26 The progress made in secular Western democracies to further the rights of the woman and secure her maternal rights are threatened if marriage and custody laws Sharia councils would not replace the law courts of the country, their introduction and recognition by the state could pressure practicing Muslims to choose the legal avenue marriage and custody arrangements, places Muslim women in secular countries in

20

Black, “Australia,” 407.

21

Ibid., 407.

22

Philips, “Shah Bano,” 282.

23

Black, “Australia,” 400.

24

Ibid., 400.

25

Ibid., 400.

26

Ibid., 396-397.

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65

the contentious position of choosing to respect their faith or exercise their democratic right to have their family law case adjudicated by a state court where decisions are

THE CASE FOR SHARIA IN DEMOCRACIES: CONSTITUTIONAL RIGHT Proponents of Sharia in matters of personal law argue that secular countries pride themselves on their guarantee of freedom of religion and expression as constitutional rights. Robert Vischer, Dean of the Faculty of Law at the University of St.Thomas, contends “anti-Sharia legislation does not defend against theocracy but calls into question [a] society’s fundamental commitments to meaningful religious liberty and meaningful access to the courts.”27 Vischer presupposes that a society that grants citizens the right to conduct themselves in accordance with their religion, must then also commit itself to allow citizens to arbitrate decisions, such as those regarding marriage, divorce, and child rearing arrangements, according to their religion. Sharia law is then an instrument to protect religious norms around practices grounded in religious faith.

Furthermore, proponents contend that recognition of Sharia civil law would not replace state Family Courts but be a legal form of private arbitration, a common avenue for parties to expedite settlements in civil matters.28 Also, private religious tribunals are already the norm in many secular countries such as the UK, and Muslim groups contend that Sharia councils are receiving unfair and undue scrutiny.29 Sharia councils are not intended to circumvent state laws but to adjudicate matters in a manner consistent with the faith of the parties involved.30 Private arbitration rulings still leave options for council decision, she can appeal the ruling in a state Family Court or Supreme Court.

However, as this article will later discuss, the Shah Bano Case strong religious and governmental opposition that a woman faces in doing so.

27

Vischer, “The Dangers of Anti-Sharia Laws,” 26.

28

Resnick, Family Dispute Arbitration and Sharia Law, 2.

29

Brechin, “A Study of the Use of Sharia Law,” 3.

30

Vischer, “The Dangers of Anti-Sharia Laws,” 27.

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THE CASE AGAINST SHARIA IN DEMOCRACIES: REPATRIATION OF PATRIARCHY opponents argue that recognizing Sharia civil law would place women’s rights as secondary to religious sensitivity. Proponents of Sharia law are correct in their assertion that religious freedom is a constitutionally protected right, but equality is also fundamental and inviolable under constitutional law. If an issue of gender equality is in direct opposition to one of religious practice, it is the state’s responsibility to protect the rights and safety of the individual over any religious institution. Unilaterally asserting that individual rights take precedence over the rights of a religious institution – or faithbased practices – is a claim that many may point to as being culturally relative, but in order to progress on even the most basic set of global ethics, relativists should shed this caveat. There must be some universally accepted principles to serve as a baseline for global ethics and the equality of genders must be the foundation. The strength and purpose of the secular state31 is to grant equal protection to its citizens under the law, regardless of religion, race, or gender.

The freedom to practice one’s religion and express oneself through faith is a protected right and governments cannot infringe upon that liberty. However, one’s religious identity and duty to their faith is not one’s only obligation when living in a free and democratic society. Mike Higton, Professor of Theology and Religion at Durham University, paraphrases the words of Rowan Williams, Archbishop of Canterbury: Among the various identities that a particular human being might have (father, university lecturer, Anglican, Christian, Englishman) there is that person’s identity simply as a member of the human race. To put it another way: the Enlightenment required for its emergence the thought that people cannot be reduced to their particular identities, their identities within multiple particular systems of human social life; there is more to them than that, and they have rights and responsibilities simply as members of the human race, beyond the rights and responsibilities they have as members of particular communities.32 31 their accommodation of religious minorities and their respective personal laws but an important aspect of secular liberal democracies is the emphasis on the individual and the individual’s right to equal protection under the law. For an analysis of contrasting State methods in accommodating religious minorities see: Natasha Bakht, Arbitration, Religion and Family Law: Private Justice on the Backs of Women (Ottawa: National Association of Women and the Law, 2005), 40-45.

32

Mike Higton, “Rowan Williams and Sharia: Defending the Secular,” International Journal of Public Theology 2 (2008): 407-408.

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67

Beyond the responsibility of the government to uphold laws of equality to protect its citizens, the duty is also upon the citizen to uphold universal laws of equality.

Citizens cannot propound gender discriminatory laws as a faith-based practice without recognising that such practices violate their obligations as members of the human race.

The defense of undue scrutiny of Sharia councils is invalid when the potential actions of such councils, unregulated by governmental bodies, may violate the rights of women.

If an institution informed by religious guidelines will not or cannot uphold laws of gender equality, then the state must enforce these rights. Many feminist groups and human rights proponents argue that private arbitration in religious tribunals removes safeguards for women that the state has the responsibility to defend. Private arbitration requires parties to be independent, free, and well informed. Larry Resnick, author for the British Columbia Civil Liberties Association, states that in family law arbitration, “the family is the very antithesis of a set of independent individuals not in a position 33

Furthermore, under Sharia law principles of

dispute resolution between husband and wife, the wife’s testimony is valued half the amount of a husband’s testimony,34 violating laws of fairness established in secular state courts. Consequently, in disagreements or allegations during a divorce hearing, the husband’s testimony is the defeault position and is valued over that of the wife.

Such principles undermine laws of gender equality as well as equality among women; a woman negotiating the terms of divorce, support, and child custody in front of a Sharia Law Court.

When the use of Sharia law in private adjudication was proposed in Ontario, Canada in 2003, there was a public outcry from secularists, Muslim groups, and feminist groups.35 Syed Mumtaz Ali, an Ontario lawyer, sought to establish Sharia councils in Ontario to preside over civil law matters for the Muslim community and proclaimed, “Muslim arbitration would be the only option open to “good Muslims” and that the 36

33

Resnick, Family Dispute Arbitration and Sharia Law, 2.

34

Brechin, “A Study of the Use of Sharia Law,” 5.

35

Philips, “Shah Bano,” 280.

36

Ibid., 279.

The Canadian

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Muslim Congress and the Iranian-born leader of the International Campaign against the Sharia Court, Homo Arjomand, vehemently opposed its implementation and raised concerns that the terms of a Sharia divorce would create a “ghettoization”37 of Muslim women in Canada. Canadian women adjudicating their divorce settlements in a Canadian civil court would have greater protection and rights to alimony and child custody than Muslim women before a Sharia council. This would hypothetically create a two-tier system for married women. The Women’s Legal Education Action Fund added that the introduction of Sharia law was a step backward for women’s rights and “ideas put to rest through family law reform which were originally grounded in religious [Christian] precept were resurfacing in the name of multiculturalism and religious freedom.”38 The process of private arbitration through use of religious councils would relegate women to a male dominated sphere where religious leaders enforce principles and adjudicate decisions under a patriarchal system.39 and binding” is not legally supported (or permissible), but does hold weight when upon in private arbitration. To challenge an arbitration decision one must prove that or unconscionability.40 Arbitration decisions made through a religious tribunal guided by religious principles also places secular courts in a precarious position: they are bound by their position to uphold the law of the land but are under political pressure to respect the religious faith of minority groups. Amali Philips, an anthropologist at Laurier University, refers to a study by Natasha Bakht, Associate Professor of Law at the University of Ottawa, which concludes that the courts “have an interest in upholding parties’ private bargains without interference and are more reluctant to [reverse decisions] if the arbitration awards are informed by religious laws.41 The appeals process

37

Ibid., 280.

38

Ibid., 281.

39

This is noted previously in the discussion of male-favoured guardianship rights and lenient spousal maintenance payments under Sharia law.

40

Resnick, Family Dispute Arbitration and Sharia Law, 9.

41

Philips, “Shah Bano,” 284.

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of a Sharia council are ultimately challenging the authority of their religious leaders. woman in her religious community and act as an additional barrier to appeal.

SHARIA IN A SECULAR DEMOCRACY India is a secular democracy with a large Muslim population that has struggled to balance the secular principles of the country with religious tolerance and freedom.

However, in 1987 when the two issues clashed in the now infamous Shah Bano Case, the case for religious sensitivity won out. Shah Bano, a Muslim woman, sued her husband for alimony in an India civil court after their Sharia divorce provided inadequate maintenance.42 She had received her mahr and three months’ support, but the secular court ruled that such an arrangement violated Indian civil law and her request for alimony was granted.43 The conservative Muslim community protested the decision of the secular Indian court and claimed that it violated their right to adjudicate divorce through Sharia law.44 The protests by the Muslim community pressured the governing party, the Indian National Congress (INC), to reverse the decision of the court,45 and violate the principle of separating church and state in the name of religious freedom.

The INC further passed the Muslim Women’s Protection of Rights on Divorce Bill, that was introduced by an independent Muslim Member of Parliament which upheld the Sharia rule of three months’ support during the iddah period.46 The Shah Bano Case provides a cautionary case study for other secular democracies balancing an increasingly multicultural population. Shah Bano’s rights as an Indian citizen were violated when they contradicted her religious faith and the religious interests of her community. Additionally, the rights of Muslim women to access Indian Civil Courts in the future were hindered by the pressure of minority groups on a government who neglected to uphold its secular constitution. Understandably, the Indian government was under considerable political pressure and the Muslim electorate

42

Stuart Corbridge and John Harriss, Reinventing India (Cambridge: Polity Press, 2006), 115.

43

Ibid., 15.

44

Philips, “Shah Bano,” 281.

45

Corbridge and Harriss, “Reinventing India,” 115.

46

Philips, “Shah Bano,” 282.

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its responsibility to protect the equal rights of women in favour of respecting religious institutions.

WOMEN’S RIGHTS PARAMOUNT: STATE RESPONSIBILITY TO REJECT RELIGIOUS PRESSURE Western countries will inevitably need to confront demands for religious accommodation as the world becomes increasingly globalized and minority populations in secular countries grow. Western supporters of Sharia law argue that Western countries “need not accept whatever interpretation of religious law emerges from a given community,”47 but rather that secular laws must take precedence over religious councils, especially where the individual rights of women are concerned. The delicate nature of encroaching upon religious law and practices tends to make the issue of regulation black-and-white; either religious communities are accommodated or they are not. Since it has been demonstrated that current Sharia practices are incongruent with democratic and equality principles, the former is not a fair and ethical option.

While the latter may serve to further strain the relationship between Muslim minorities in Western countries and Western lawmakers, this is a necessary and crucial battle for women’s rights.

Ann Black and Kerrie Sadiq of Queensland University acknowledge the challenges in attempting to transplant a legal system such as Sharia law into a secular institutions, and culture that have sustained it.”48 They recognise that Sharia law cannot exist exclusively in private arbitration religious tribunals where processes are hidden from governmental oversight. In order to guarantee the rights of women litigating in religious tribunals, the process must be transparent, with strict rules prohibiting gender discriminatory laws. By allowing matters such as divorce settlement, support payments, and child custody arrangements to occur in private, under pressure from vulnerable citizens.

47

Vischer, “The Dangers of Anti-Sharia Laws,” 27.

48

Black, “Australia,” 406.

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Governments walk a delicate line when interfering in the matters of religious groups, but have the responsibility to do so when such matters are incongruent with the secular laws that guarantee gender equality. Consequently, governments must show greater respect for the right of equality in the face of the institutionalization of gender discrimination. Such action is not an attack on religious freedom, but a repudiation of inequality under the guise of religious sanction. When it comes to freeing women from patriarchal systems of male dominated ideologies and human history, terms such as “immutable” and “unalterable” do not accommodate such adaptability.

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72

Towards Shipping in the Northwest Passage OVERCOMING ENTRENCHED LEGAL POSITIONS

Klaudia Wegschaider

INTRODUCTION In 2010, Canada reasserted its sovereignty over the Northwest Passage (NWP) by initiating two major policy changes. First, the government made it mandatory for ships to report to the Canadian Coast Guard before entering, traveling through, and government extended the area regulated by the Arctic Water Pollution Prevention Act (AWPPA) from 100 to 200 nautical miles from its straight baselines. The Baltic and half of the international shipping industry, responded to this measure by sending

concerns at an IMO sub-committee meeting.

This case study reveals the extent to which positions on the legal status of the NWP have become entrenched. The discussion of the legitimacy of the Canadian legislation distracts from the urgent need for environmental protection and safety

sovereignty solutions in the NWP. Initiating this discussion would be an opportunity for Canada to showcase its Arctic leadership.

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LEGAL UNCERTAINTY ADMIST ENVIRONMENTAL AND SAFETY CHALLENGES The future of Arctic shipping in the NWP looks promising. Transiting the NWP shorter.�1 However, the ongoing debate over the legal status of the NWP complicates these economic prospects. Canada considers the NWP to be historic internal waters 2

in a statement in 1973.3 baselines around the Arctic archipelago to delimit its internal waters. because it connects two parts of the high seas (the Arctic and North Atlantic Oceans).

4

as

Corfu Channel Case. International strait status would guarantee states the right to transit passage,6 which does not require the permission of the coastal state.7 between the neighboring countries was papered over in the 1988 Arctic Cooperation Agreement in which both sides expressed the willingness to cooperate despite

permission.8 is a top national priority.�9

United Kingdom of Great Britain and Northern Ireland v. Albania 6

UNCLOS

7

Michael Byers, International Law and the Arctic

8

Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation, NSPD-66/HSPD-25, htm.

SHIPPING IN THE NORTHWEST PASSAGE

74

Today, in an age of rapid climate change, there is a short time frame during which policy makers can pass adequate legislation to protect the fragile Arctic environment 10

the Arctic archipelago will be. Even more alarming is the prospect of oil spills, as harsh conditions in the Arctic make clean-up extraordinarily costly and nearly impossible.11 Environmental concerns are especially relevant to the Inuit in Canada’s North who and consequently [seek] to preserve the sustainability of their natural environment.”12 The need for environmental legislation and infrastructure development increases the urgency for clarifying jurisdiction in the NWP.

CANADIAN LEGISLATION: NORDREG AND AWPPA Canadian attempts to protect the Arctic environment and ensure safe shipping are overshadowed by the lingering legal uncertainty over the status of the NWP. Canada uses the NORDREG regulations and the AWPPA to assert its sovereignty. NORDREG is

the safety of vessels, crew and passengers, and will safeguard the unique and fragile Arctic marine environment.”13

10

14

Arctic Council, Arctic Marine Shipping Assessment Report

11

The Globe and Mail,

12 Communications Branch, 13 14

, 2006, 42, emphasis added.

Fisheries and Oceans Canada

to send

WEGSCHAIDER

75

In addition to making NORDREG mandatory in the NWP, Canada extended the area protected by the AWPPA by passing Bill C-3, An Act to amend the Arctic Waters Pollution Prevention Act.

16

because

that do not comply with this or other required environmental standards are prohibited 17

Canada argues its decision is consistent

prevention, reduction and control of marine pollution from vessels in ice-covered areas 18

Based on this article, Canada argues

NORDREG.19 Canada had several reasons to make NORDREG mandatory and to extend AWPPA. The most apparent reason is that Canada aims to ensure safety measures and environmental protection in the Arctic. Beyond that, Canada reasserts its claim of the NWP through this legislation, as it prevents vessels from entering the NWP without permission from the Canadian Coast Guard. This signals that Canada actively governs its Arctic archipelago and is therefore crucial for Canada’s claim of the NWP. Instances constitutes an international strait.”20 Though the ‘critical date’ of this legal dispute lies

strengthen Canada’s position.”21

16 regulations-asppr-421.htm 17

Arctic Waters Pollution Prevention Act

18

UNCLOS, Article 234, emphasis added.

19

The Law of the Sea Convention: US Accession and Globalization

20 21

The Arctic Institute, 23 December 2011.

SHIPPING IN THE NORTHWEST PASSAGE

76

BIMCO’S RESPONSE

international shipping industry.22 behalf of its global membership to promote higher standards and greater harmony in regulatory matters.”23 Given BIMCO’s prominent role, its comments on the Canadian regulations merit consideration. With regard to Canada’s policies mandating NORDREG and extending AWPPA, BIMCO questions Canada’s right to pass such measures 24

to be enacted in the interest of the shipping industry. Voluntary compliance with NORDREG was as high as 97 percent before it became mandatory. Furthermore, the 26

The

27

safety implications.”28 things, supply the vessel with useful information, this safety argument is unconvincing.

29

22 23 24

CanWest News Service , Lecture 2 Feburary 2011, Ottawa, Canada, 1.

26 27

Canadian Coast Guard Ocean Development and International Law

28 29

Canadian Shipper Online,

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BIMCO states that the reason for this concern is that the regulation would 30

In a speech given three years after the message was sent to Transport Canada, BIMCO’s president Denholm points out that often legislation meant to protect the requirements.”31 sustainability agenda.”32 33

While these comments were not made in

direct reference to the Canadian legislation, they retrospectively depict the context in which BIMCO decided to write to Transport Canada. Especially in times of economic hardship, BIMCO would have wanted to avoid additional costs for its members, representative of the shipping sector, it is in BIMCO’s interest to ensure that legislation and secondly, that regulation is enforced taking into account the time necessary for the industry to accommodate changes.

To fully understand the reasons for BIMCO’s objection, it is necessary to look beyond the precise provisions of the 2010 decision, and consider the broader context.

BIMCO values free market principles, which entail that government regulations be kept 34

In areas that

are considered high seas or international straits, the IMO is responsible for passing preferable to have regulations passed by the IMO than by individual nation-states, because compliance with universally applicable rules is easier than having to check

30 31 32

Ibid.

33

Ibid.

34

Ibid.

SHIPPING IN THE NORTHWEST PASSAGE

78

related activity” is a central component of BIMCO’s mission statement. The main IMO legal text to ensure universally applicable environmental regulations is the International

include Antarctic but not Arctic waters.36 Arctic waters. Already in 1990 Canada urged the IMO to implement a Polar Code.37 IMO

important initiative for […] Arctic shipping.”38 The Polar Code was supposed to be signed in 2012,39 but was delayed to 2014 with an expected implementation date of 2017.40 The at which the IMO is advancing with Arctic environmental protection.

BIMCO seems to favor regulations passed by the IMO since those tend to be less stringent than legislation implemented on a state-by-state basis. Canada’s legislation 41

this is partly because the IMO is weakened by

proponents of shipping interests.42 An example of how IMO policies are more lenient is the issue of ballast water. Introducing new organisms in the Arctic environment as decrease in abundance, loss of biodiversity, and even extinction of native species.”43 Regulations concerning ballast water are found in the recommended Part B instead of BIMCO 36

International Maritime Organization

37 38 39 40

World News

41 Environmental Regulatory Regimes,” Ocean and Coastal Law Journa 42 43

Nunatsiaq Online Environmental Reviews

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the mandatory Part A of the Polar Code.44 In comparison, Canada’s AWPPA follows a Most importantly, BIMCO’s message to Canada states that it would have been committee for safety of navigation.” The message later refers to Articles 11.2 and 12.3 of

developing guidelines, criteria and regulations on an international level for ship reporting systems. […]”46

in sea areas within the territorial

47

regulations that Canada passed, but also Canada’s right to impose regulations in the

THE IMPACT OF BIMCO’S RESPONSE position has no direct impact on the Canadian claim concerning the NWP. However, that is not to say that BIMCO’s actions have no relevance. Rosalyn Higgins, the former international law as a particular decision making process.”48 various non-state actors trying to advance their interests through the leverage of state 49

it would be a mistake to overlook

44 BIMCO’s message to Transport Canada, 2010.

46

International Convention for the Safety of Life at Sea

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SOLAS, Article 12.3.

48 Non-State Actor Dynamics in International Law 49

Non-State Actor Dynamics in International Law,

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the role of non-state actors in international law. Corresponingly, BIMCO also sought th

consistent with key law of the sea principles related to freedom of navigation,” while

to the 88th session of the Maritime that Canada’s failure to submit the mandatory NORDREG system to the IMO for At these meetings, it became apparent that the concern with NORDREG was not the ship reporting system Canada’s circumvention of the IMO arguably shows that it assumes full sovereignty in the NWP. was a diplomatic avenue for contesting Canada’s claim of the NWP without explicitly position that the NWP is an international strait was never stated outright. However, regulations were consistent with key law of the sea principles related to freedom of navigation, including the right of innocent passage and the right of transit passage through straits used for international navigation.” The reference to the right of transit straits but not internal waters. While Canada attempted to assert its sovereignty

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comprise one element in the culture of a long decision making process, as expressed

by Higgins, that will eventually determine whether or not Canada’s claim will be NORDREG regulations in the NWP.

When the cargo ship Nordic Orion travelled

Guard according to NORDREG’s requirements. While sections of BIMCO’s message reached the media, the letter to Transport Canada is not publicly accessible. The debate occurred mostly in diplomatic circles at IMO meetings. This highlights the intent

through state actors. The legal uncertainty about the status of the NWP prevails.

COOPERATION BEYOND ENTRENCHED POSITIONS? A short summary of events reveals the extent to which positions on the NWP are entrenched. Canada passed a regulation that made NORDREG mandatory and

the NWP, representatives of the shipping industry objected by stating that Canada’s safety and protection of the Arctic maritime environment. Canada responded to the this debate has become, this back-and-forth shows the need to (re)assert one’s position has become an obstacle to facilitating a lucrative, safe and environmentally friendly will be a cooperative approach, which requires stepping beyond entrenched positions.

The Globe and Mail,

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In the Arctic context, this would entail Canadian investment in infrastructure development in the NWP, especially with respect to increasing the presence of the coast guard, as well as searchand-rescue teams that can quickly reach any place in the NWP. There are long lists of infrastructure currently lacking in the NWP. Even, detailed, reliable charts, the very percent of the Canadian Archipelago’s sea bed is mapped.”

Theoretically, BIMCO

risks that the shipping industry currently faces in the NWP. The question remains as to whether Canada will make large-scale investments in the NWP’s infrastructure before the route becomes viable for shipping. At the moment, Canada has only a few relatively old icebreakers. Plans to build a new icebreaker, the CCGS John G. Diefenbaker, have been delayed, with delivery now anticipated in 2021.60 61

Bearing in mind these limitations,

establish and maintain,”62 a new cooperative approach is needed. Ryngaert argues that of such measures with greater compliance and fewer protests.63 Charney even proposes the inherently frail international legal system.”64 Meeting the safety and environmental challenges in the NWP will require greater inclusion of stakeholders, including indigenous peoples, environmental groups, and the shipping industry.

60

National Post

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IMO,

62 63

Non-State Actor Dynamics in International Law

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Duke Law Journal

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In the past, Canada has shown its willingness to look for cooperative solutions in

from a cooperative approach to sovereignty in the NWP. At the moment, Canada sees its claim of the NWP threatened even by collaborative structures such as the IMO. The potential for a non-Canadian body, like the IMO, to regulate activities within Canadian territory violates sovereign governance over the region.� Canada could gain greater acceptance of its sovereignty by demostrating a willingness to cooperate with various stakeholders in the NWP. The Russian government, for example, has taken a more

coverage� amongst other things.66 The shipping industry would regard its interests less threatened by Canada’s sovereignty aspirations in the NWP if Canada, as suggested, had submitted its regulations to the IMO for review, and not solely for recognition.

This presumes that the IMO will address Arctic issues in a more timely manner than in the past, and that it will be guided by the principle of the preservation of the Arctic Although it is unclear what such a cooperative sovereignty approach would look like, the answer to the NWP governance dilemma could be inspired

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Journal of Military and Strategic Studies 66 67

For the NWP a

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cooperation with the IMO in the NWP would not undermine but strengthen its legal Canada needs to prove that the intention is not to infringe upon the rights of foreign ships to pass through the NWP, but to ensure that a safe and environmentally responsible passage is possible. A cooperative approach is the best way to gain acceptance from other stakeholders contesting Canada’s NWP claim.

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BIOGRAPHIES

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STAFF Editor-in-Chief KELSEY FRANKS

Managing Editor CAITLIN MOUNCE

Editors LEE ALDAR

ASHLEY BOWRON

RILEY BUSHELL

ISABELLA CASCIOLA

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THE UBC JOURNAL OF INTERNATIONAL AFFAIRS

ALEX CHEN

LAUREN CLAROTTO

TERRALYNN FORSYTH

ZAK JACQUES

NATALYA KAUTZ Ubyssey

ALEX KILPATRICK The Syrup Trap AGATHE DE MARCILLAC

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LISA MARTIN

OREN NEWSON

CARLY PEDDLE

VYAS SARAN

KLAUDIA WEGSCHAIDER

GLENDA YAP

Layout and Design SANDY CHU

ANITA HUNG

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AUTHORS CHRISTOPHER BRODKIN

BRETT DONNELLY

DANIEL GOLSTON

JASPREET KULAR

JEN MCGOWAN

LAUREN RIVA

KLAUDIA WEGSCHAIDER

THE UBC JOURNAL OF INTERNATIONAL AFFAIRS

SPONSORS

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SPONSORS INTERNATIONAL RELATIONS STUDENTS ASSOCIATION

THE AMS SUSTAINABILITY FUND

THE UBC INTERNATIONAL RELATIONS PROGRAM

OTHER SPONSORS