Arbitrations Involving States And Foreign Private Parties: A Study In Contemporary Legal Process

Arbitrations involving states and foreign private parties are a complex phenomenon, sharing certain animating values with other forms of adjudication, particularly international arbitrations of private commercial disputes, but reflecting at the same time singular values that must be fostered if the institution is to play a beneficial role in the international community. A study of institutional forms of arbitration designed primarily to resolve commercial disputes between private parties reveals that their emphasis upon stability and upon the certainty and predictability of rules can make such institutions inappropriate for the arbitration of disputes involving states. Regimes designed specifically to regulate arbitrations between states and foreign private entities may be more successful in displaying sensitivity to the needs and aspirations of both public and private parties, but the work of the largest specialised institution, the International Centre for Settlement of Investment Disputes, is hampered by its governing Treaty for it does not deal adequately with the enforcement of awards against states. Ad hoc arbitration continues to be a useful means of resolving commercial disputes between states and foreign private parties, especially because the parties are free to design or to choose a delocalised procedural law which need not hinder enforcement. The great difficulty with all forms of arbitration between states and private entities is the substantive law to be applied by such tribunals. Under the principle of the autonomy of the will, the parties are free to choose the governing law, and they may select international law. If they do so, however, the choice does not imply that the foreign private party is assimilated to a state or that the international responsibility of the state party is engaged directly vis-a-vis the private party. The enforcement of arbitral awards is also a troubling problem, but recent municipal case law reveals a growing pro-enforcement bias. Nevertheless, the experience of the Iran-United States Claims Tribunal reveals the significant advantages that accrue to the parties if they agree in advance upon an independent enforcement mechanism. The political tensions inherent in most "mixed" arbitrations demand flexibility in the application of procedural and substantive rules, and require an approach to dispute resolution that emphasises the value of compromise. As such, the awards that emerge from mixed arbitrations are likely to be idiosyncratic or, at the very least, vague. Nevertheless, if one stresses the importance of process values rather than the elaboration of substantive rules, arbitration between states and foreign private parties can play an important role in the enhancement of the international rule of law

Launch of The Unruly Salon Series at the University of British Columbia Green College

These are remarks made by Professor Stephen J. Toope at the launch of The Unruly Salon Series at the University of British Columbia Green College

International Law and the Practice of Legality: Stability and Change

Drawing on the practice-turn in constructivism and in international relations (IR) theory more generally, we argue that a particular approach to managing stability and change is inherent in, and indeed characteristic of, legality and the rule of law in international as in domestic law. Our "interactional law" framework places particular emphasis on what we call the "practice of legality". This concept is central to understanding how law can both enable and constrain state actions, and why international law is a distinctive language of justification and contestation. In turn, the focus on stability and change is helpful because it directly confronts some of the persistent doubts and assumptions about international law, in particular in relation to international politics. Our work is animated by the intuition that the dominant views in IR and international law scholarship underestimate international law's capacity to mediate stability and change, in part because they focus on the surface of law (treaties, statutes and so on) and external factors (interests, enforcement). They neglect the deeper structure of what makes norms "law", and the distinctive practices that account for both its relative stability and its capacity for change

Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers

This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 (“9/11”) and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for asylum seekers onto the United States. In the first case, Canada took advantage of U.S. preoccupations with border security shortly after 9/11 to persuade the United States to sign the Canada-U.S. Safe Third Country Agreement (“STCA”)—an agreement that allows Canada to direct back asylum seekers who present themselves at land ports of entry on the Canada-U.S. border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the United States to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada’s successful use of these moments of crisis to persuade the United States to take on additional responsibilities for asylum seekers for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the United States without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the United States to take on additional responsibility for asylum seekers—and moments of crisis will be important drivers for those efforts

A social justice perspective on strengths-based approaches: Exploring educators’ perceptions and practices

What does it mean to engage in strengths-based (SB) approaches from a social justice perspective? In this paper we explore the accounts of educators who work with youth experiencing social and educational barriers to describe what it might mean to engage in SB practices from a social justice perspective. Using data generated from interviews, we draw on educators’ perspectives and reported practices to inform our conceptual understanding of a SB social justice approach. We propose that a social justice perspective of SB educational work involves at least four interconnecting sets of practices: recognizing students-in-context, critically engaging strengths and positivity, nurturing democratic relations, and enacting creative and flexible pedagogies. We contend that these interrelated sets of practices are necessary for youth to engage more fully in schooling.Key words: Social justice; strengths, youth, students deemed to be ‘at risk’, educator perspectivesQue cela signifie-t-il de s'engager dans des approches basées sur les points forts du point de vue de la justice sociale ? Dans cet article, nous étudions les récits d'éducateurs qui travaillent avec des jeunes et qui se confrontent à des barrières sociales et éducatives, pour décrire ce que pourrait signifier de s'engager dans des pratiques basées sur les point forts dans une perspective de justice sociale. En utilisant les données générées à partir d'entrevues, nous nous appuyons sur les perspectives de ces éducateurs et faisons état des pratiques pour renseigner notre compréhension conceptuelle d'une approche basée sur les points forts du point de vue de la justice sociale. Nous proposons que dans une perspective de justice sociale tout travail éducatif basé sur les points forts implique au moins quatre ensembles de pratiques interconnectés : la reconnaissance des élèves en contexte, l'engagement critique du potentiel et de la positivité, le maintien de relations démocratiques, et la promulgation de pédagogies créatives et flexibles. Nous soutenons que ces ensembles interdépendants de pratiques sont nécessaires pour que les jeunes s'engagent pleinement dans leur scolarité.Mots-clés : La justice sociale, les points forts, les jeunes, les élèves considérés comme «à risque», les perspectives des éducateurs

Constructing an International Community

What unites states and other global actors around a shared governance project? How does the group—what I will call an “international community”—coalesce and stay engaged in the enterprise? A frequent assumption is that an international community is cemented by its members’ commonalities and depleted by their intractable disagreements. This article critiques that assumption and presents, as an alternative, a theory that accounts for the combined integration and discord that actually characterize most global governance associations. I argue that conflict, especially conflict that manifests in law, is not necessarily corrosive to an international community. To the contrary, it often is a unifying force that helps constitute and fortify the community and support the governance project. As such, international legal conflict can have systemic value for the global order, even when it lacks substantive resolution. The implications for the design and practice of international law are far-reaching

The International Law of Secession and the Protection of the Human Rights of Oppressed Sub-State Groups: Yesterday, Today and Tomorrow

This paper focuses on significant patterns/features in the historical development of the international law of secession and its contribution over time (or the lack thereof) to the struggle to afford greater protection to oppressed sub-state groups the world over. It was Crawford Young who once observed that “the state as an analytical quarry is an elusive and complex prey.” With the necessary modifications, this observation applies with almost equal force to the international law of secession. Complexity and confusion loom too large in this area of international law. For example, there is, at best, little clarity in the literature of the discipline of international law and in related fields of study regarding the existence or otherwise of an international legal entitlement to secession in favor of even the most highly oppressed and subjugated sub-state groups

Benchmarking the scientific output of industrial wastewater research in Arab world by utilizing bibliometric techniques

Rapid population growth, worsening of the climate, and severity of freshwater scarcity are global challenges. In Arab world countries, where water resources are becoming increasingly scarce, the recycling of industrial wastewater could improve the efficiency of freshwater use. The benchmarking of scientific output of industrial wastewater research in the Arab world is an initiative that could support in shaping up and improving future research activities. This study assesses the scientific output of industrial wastewater research in the Arab world. A total of 2032 documents related to industrial wastewater were retrieved from 152 journals indexed in the Scopus databases; this represents 3.6 % of the global research output. The h-index of the retrieved documents was 70. The total number of citations, at the time of data analysis, was 34,296 with an average citation of 16.88 per document. Egypt, with a total publications of 655 (32.2 %), was ranked the first among the Arab countries followed by Saudi Arabia 300 (14.7 %) and Tunisia 297 (14.6 %). Egypt also had the highest h-index, assumed with Saudi Arabia, the first place in collaboration with other countries. Seven hundred fifteen (35.2 %) documents with 66 countries in Arab/non-Arab country collaborations were identified. Arab researchers collaborated mostly with researchers from France 239 (11.7 %), followed by the USA 127 (6.2 %). The top active journal was Desalination 126 (6.2 %), and the most productive institution was the National Research Center, Egypt 169 (8.3 %), followed by the King Abdul-Aziz University, Saudi Arabia 75 (3.7 %). Environmental Science was the most prevalent field of interest 930 (45.8 %). Despite the promising indicators, there is a need to close the gap in research between the Arab world and the other nations. Optimizing the investments and developing regional experiences are key factors to promote the scientific research