Happy Independence Day, America

In the spirit of harmony and friendship, I won't revisit the merits of the whole stamp duty dispute. Suffice it to say that as a descendent of United Empire Loyalists, I agree with Matthew Yglesias.

Canadian fact: According to highest legal authority, there is no single day on which we became independent. (Anyone saying April 17, 1982 should be summarily shot.) Instead, we were in a quantum state of sovereign indeterminancy for 12 years. According to the Court in 1967:

There can be no doubt now that Canada has become a sovereign state. Its sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931, 22 Geo. V., c. 4

One reason NAFTA isn't going to have real environmental or labour standards

CTV says the Obama campaign has contacted the Canadian embassy to tell them not to worry about their protectionist rhetoric for the Ohio primary. Obama and the Canadian government both deny it, although apparently there was some sort of chat.

The Pithlord is not in a position to shed light on such backroom dealings. However, I do know that serious environmental and labour standards in NAFTA are not going to fly. Among the reasons is that most environmental and labour law in Canada is within provincial jurisdiction and, unlike in the US, there is no way for the Feds to require provinces to meet international commitments. This is the result of a Privy Council decision that made all my profs at U of T gnash their teeth, but nonetheless remains the law.

SCC on International Law: Is there anything new here?

Two posts down, I highlight the Supreme Court of Canada's statement that "the Charter should be presumed to provide at least as great a level of protection [of a right] as is found in the international human rights documents Canada has ratified."

One possible response is that there is nothing new here. Canadian courts have never had a problem with citing those of other countries (or international tribunals) as persuasive authority. In fact, it wasn't that long ago when a lawyer would be a bit apologetic about using a Canadian case at law, possibly explaining that the "English courts do not seem to have considered this question, my lord." Even American cases are allowed, if possibly seen as a sign of desperation.

Still, I am not aware of any other example of holding that international or comparative law is presumptively binding. And yet I don't know how else to interpret what they said in the Bill 29 case. Indeed, the ILO seems more authoritative than past decisions of the Supreme Court itself.

Most Important Sentence from the Supreme Court of Canada in 2007

As Dickson C.J. observed in the Alberta Reference, at p. 349 [in dissent-PL], the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.

Hoo boy.

The Lame Duck and the Northwest Passage

Bush is maintaining the US's traditional position that the Northwest passage -- should it open up as a result of all those Middle American SUVs -- is an international passageway, and therefore not under Canada's sovereignty. The Financial Times notes that former ambassador Paul Celluci is advocating a change in the American position.

You have to wonder what we get out of taking a disproportionate share of the allied burden in Afghanistan. We pay in blood and money, and in increased risk of attack at home. We get passports at the border, the softwood lumber "deal", and an unwillingness to back us on the Arctic.

It is in everyone's interest when a responsible country takes jurisdiction over a waterway. If the Northwest Passage is ours, then our laws apply. We can do something about polluters and terrorists.* Bush is weakening Harper at a time when the Afghan mission is in real doubt.


*Come on, commenters. The jokes write themselves.

North Polarization

Eric Posner has a brief primer on the Law of the Sea issues relating to ownership of the North Pole. It seems the North Pole lies above the underwater Lomonosov Ridge, which extends from the north of Russia to Greenland and Canada. On one interpretation, this amounts to a continental shelf for all 3 countries, and the Law of the Sea provides no rule for shared continental shelves.

Posner makes the plausible assertion that the Russian position will prevail by force of arms unless the NATO countries can get their act together.

Really Cold War

University of Chicago Law Prof Eric Posner says the US should reverse its position opposing Canada's claim over the Northwest Passage to establish a common front against Russia's arctic ambitions.