« Older Entries

Ending North Korea’s Human Rights Abuses

Tyler Meyer is a 2L at the McGill Faculty of Law. He is a Research Fellow with the One Justice Project, an associate editor for the McGill International Journal of Sustainable Development Law and Policy, and is the Newsletter Director for Environmental Law at McGill.

In March, China vehemently rejected a UN report that documented grave human rights violations in the Democratic People’s Republic of Korea. The report, drafted at the request of the UN Special Rapporteur on North Korea, produced unsurprising conclusions: the Democratic People’s Republic of Korea, its institutions and officials, are committing “systematic, widespread and gross human rights violations,” many of which “constitute crimes against humanity.” Despite the criticism by one of the world’s most powerful economies, the veracity of the report’s conclusions is otherwise uncontested. What are contested are the policy initiatives that will end the regime’s human rights violations, as very little has been successful at altering the authoritarian regime’s domestic policies that institutionalize human rights abuses.

Unconventional housing in North Korea. Photo courtesy of the Wikimedia Commons.

Unconventional housing in North Korea. Photo courtesy of the Wikimedia Commons.

Condemnation by the International Community

For years, the international community has repeatedly condemned North Korea’s systematic and widespread human rights abuses and crimes against humanity. However, the North Korean government has “consistently and categorically rejected the resolutions adopted by the former Commission on Human Rights, the Human Rights Council and the General Assembly on the situation of human rights,” demonstrating that international political pressure alone is unlikely to yield significant changes to North Korea’s domestic politics.

Economic Sanctions

Economic sanctions have also had little impact on North Korea’s domestic policies. For example, the increased sanctions imposed in response to North Korea’s nuclear tests in 2009 simply pushed the country away from the global community and its pressure for enhanced human rights, and into closer economic relations with China and other trading partners that are unwilling to pressure North Korea. This is problematic because North Korea’s reorganized external economic relations allow it to insulate itself from economic sanctions from the West, especially since North Korea’s policies have had little impact on trade relations with its two closest partners, China and South Korea.

1000 won note. Photo courtesy of Flickr Creative Commons.

1000 won note. Photo courtesy of Flickr Creative Commons.

Humanitarian Aid

Many argue that politics should be separated from humanitarian aid such that aid should not be contingent upon policy reform. However, this may be an untenable position. North Korea is unable to feed its population and relies heavily on commercially imported food. Despite famines and continued food shortages, the government has used humanitarian aid to substitute, rather than supplement, commercially imported food. The resulting savings are then reallocated to its military and other government priorities. Therefore, although some humanitarian aid may reach the intended targets, knowing that some aid is indirectly used to support the North Korean regime and its military goals makes it difficult for donor states and organizations’ aid to be completely divorced from political pressure and negotiations for reform.

Direction Forward

Without the global community creating a united front that includes China and South Korea, it is unlikely that the world will be capable of ending North Korea’s human rights abuses and security threats in the near future. However, there are many mechanisms that the global community can pursue that may produce long-term change. First, the global community must continue to push China to implement economic sanctions on North Korea. Given that China represents over one-third of North Korea’s trade and is the country’s most generous aid donor, significant sanctions by China “would bring the country to its knees.” This path will become more viable as North Korea’s policies exert greater destabilizing effects on the region and the net benefits of China-North Korea trade relations decrease for China.

Air Koryo North Korean Airlines, Photo Courtesy of Flickr Creative Commons.

Air Koryo North Korean Airlines, Photo Courtesy of Flickr Creative Commons.

Second, instead of simply imposing trade sanctions on North Korea, the global community can implement economic sanctions against North Korea’s international financial intermediaries, which has had some success in the past. This will become increasingly difficult if this simply pushes North Korea into closer relations with China and other states unwilling to pressure it to reform its domestic policies.

Third, the global community should seek to enhance its relations with North Korea, given that as the country’s international ties increase, so does its need to respond to international pressure to end human rights abuses. Foreign trade, investment, and aid should be increased, as this will not only lead to North Korea’s deeper engagement with the world community, but it will also enhance the likelihood of long-term changes to domestic policies. Making aid strictly contingent upon reforms has led to drastic repercussions for North Koreans, as it has led to catastrophic declines in food aid. Donor states and organizations should continue and even enhance aid, but seek to negotiate when supplying North Korea with aid. Donor organizations that have remained in the country claim that they have done so because their presence and continued negotiations have produced visible, lasting changes.

International relations with North Korea remain a sensitive and hotly debated topic. Moving forward, the international community will have to work together to compel the North Korean regime to alter its domestic policies. It will have to continue to walk the fine line between the possibility of pushing the North Korean regime farther away from global humanitarian norms, and the need for careful pressure to produce meaningful change and the possibility of a more prosperous future for millions of North Koreans.

Le droit à l’oubli n’existe plus

Angèle Périllate-Amédée est une éditrice associée avec le JSDLP et une étudiante de troisième année à la Faculté de droit de McGill. Elle complète présentement une mineure en économie à McGill et a un DEC (Sainte Foy) en Langues et cultures. Elle est principalement intéressée par les questions de développement durable en économie et par la propriété intellectuelle. Originaire des Alpes françaises, elle aime les sports d’hiver.

L’auteure de cet article de blog et l’éditrice du site voudraient remercier Michaël Lessard, éditeur français du RDPDD, pour ses contributions lors de la rédaction. 

Activite de web. Photo gracieusete de saintbob, Flickr CC.

Activité de web. Photo: gracieuseté de saintbob, Flickr CC.

Lors de l’évènement « South by Southwest » (SXSW), Eric Schmidt, PDG de Google, a avancé l’idée que « le droit à l’oubli “n’existe plus” ». Il faisait référence au fait que désormais, tout un chacun peut rendre disponible en ligne des informations sur sa vie et sur celle des autres, perdant par le fait même le contrôle de ce qu’il en adviendra. Une fois que l’information est en ligne, on ne peut en maitriser complètement l’accès, ce qu’il en sera fait, ni les conséquences que cela aura dans la vie réelle. Cette facilité qu’a l’information à voyager a changé notre rôle de citoyens en quelques années. Cette facilité inquiète aussi, notamment en ce qui concerne la vie privée, mais il s’avère que nous avons accès aux outils nécessaires pour la protéger. Si le droit à l’oubli n’existe plus, le respect de la vie privée passe par la responsabilisation des internautes.

Quelles informations et pourquoi?

La capacité que nous donne le Web de rendre l’information publique joue un rôle crucial dans la vie citoyenne du début du XXIème siècle. Cela a pu être constaté lors de soulèvements citoyens et de révolutions, par exemple dans le monde Arabe, au Vénézuela et en Ukraine tout récemment, où les réseaux sociaux ont permis de faire circuler nouvelles et vidéos depuis le terrain. La connexion à distance permet aussi à des mouvements citoyens de rejoindre un plus grand public au moyen, par exemple, des pétitions en ligne de change.org, Avaaz ou All Out. Un autre exemple récent de cette utilisation citoyenne du Web est la publication d’images satellites après la disparition d’un avion entre la Malaisie et la Chine. La compagnie à qui appartiennent ces images a alors demandé à ses 25 000 internautes bénévoles d’aider à repérer d’éventuels traces de l’avion sur des milliers de kilomètres carrés d’images. La disparition du droit à l’oubli, c’est aussi l’évaporation du droit d’ignorer ce qu’il se passe dans le reste du monde.

Les supporteurs de WikiLeaks. Photo gracieusete de utu(slowly), Flickr CC.

Les supporteurs de WikiLeaks. Photo: gracieuseté de utu(slowly), Flickr CC.

Ce n’est cependant pas là que les scandales éclatent quant à la protection de l’information, mais plutôt en ce qui concerne les informations privées. Il semblerait que la distinction entre notre vie privée et notre statut de citoyen soit de moins en moins claire. Nous en sommes en partie responsables : les réseaux sociaux sont un lieu de partage entre amis, mais on y trouve notre curriculum vitae, on peut s’y réunir pour des causes politiques. Ce mélange de genres explique le malaise créé par les révélations d’Edward Snowden en juin dernier: la collecte de données de serveurs de messagerie par la National Security Agency était justifiée par la nécessité de protéger la population américaine, mais cette surveillance des actions dites citoyennes d’une partie de la population a impliqué la collaboration de compagnies informatiques (Google, Yahoo, Facebook) détenant aussi des informations d’ordre strictement privé.

Quelles alternatives au système actuel?

Ce 12 mars, Sir Tom Berners-Lee, l’inventeur du « World Wide Web », a soutenu le projet de créer une charte internationale de l’Internet, « an online Magna Carta ». Se présentant comme une liste de principes, qui pourraient être adaptés à des milieux sociaux-culturels différents, cette charte défendrait le droit à la vie privée, à la liberté d’expression et à l’anonymat responsable. Elle devrait aussi traiter des questions, entre autres éthiques, sur la propriété intellectuelle.

L'installation "Key Note". Photo gracieusete de William Neuheisel, Flickr CC.

L’installation “Key Note”. Photo: gracieuseté de William Neuheisel, Flickr CC.

Pour Edward Snowden, la responsabilité de protéger ses données revient aussi à celui qui les détient. Partant du principe que « Il faut rendre la surveillance de masse plus chère et donc moins pratique pour la NSA », il encourage les gens à chiffrer leurs données, c’est-à-dire à en changer la cryptographie. Seul le détenteur du fichier en connaît la clé de chiffrement, une sorte de mot de passe. Il existe pour cela des logiciels tels que TrueCrypt et Cloudfogger qui peuvent chiffrer des données automatiquement avant qu’elles ne soient mises en ligne. Il est aussi possible de chiffrer vos courriels, statuts et photos en ligne. BlockPRISM, par exemple, est une extension disponible sur Google Chrome qui permet de chiffrer vos données sur Facebook. Selon Snowden, « Les gens, qu’ils soient journalistes ou citoyens, doivent avoir accès à cette technologie. Ce n’est pas une technologie qui doit faire peur, ce n’est pas un art obscur. On doit l’étudier […]. Le chiffrement de données fonctionne. »

Chacun aurait alors le pouvoir de contrôler le niveau de publicité donné aux informations qu’il ou elle met en ligne, de distinguer le privé du citoyen s’il le souhaite.

 

 

International Institutions Matter: the UN Commission on the Status of Women

Jess De Santi is a first year law student at McGill University and an associate editor with the journal. She holds a Bachelor of Arts (Honours) in Political Science from McGill University, with a minor in World Religions.

Since most United Nations (“UN”) bodies cannot enforce state action, some critics question their relevance and utility (interested readers can find former American Secretary of State Madeleine Albright’s response to some UN criticisms here). But these criticisms misunderstand both the nature of the UN and its role as an international meeting-place for government and non-government representatives alike. These forums provide a setting in which a diverse set of state representatives can meet and discuss important issues related to achieving peace and development at the international level in a neutral setting. At the same time, these settings allow for the creation of policy measures that national governments can enact to further these goals.

Opening of the CSW's 57th session.  Photo courtesy of UN Women, Flickr CC.

Opening of the CSW’s 57th session. Photo courtesy of UN Women, Flickr CC.

The United Nations Commission on the Status of Women (“CSW”), the major policy-making international body promoting gender equality and empowerment of women, is an example of such an institution. Each March, the CSW holds its annual session to review the progress made globally on gender equality, and proposes policies for countries to adopt domestically in furtherance of these goals. Thus, it is a functional commission and reports to the UN Economic and Social Council (“ECOSOC”), which is responsible for overseeing the implementation of strategies to achieve internationally agreed upon development goals. This body is responsible for about 70% of the UN’s human and financial resources. Thus, rather than putting forward statements of values, the ECOSOC and its subsidiary bodies, like the CSW, attempt to formulate concrete proposals for states to implement.

Beyond the meetings and closed-door negotiations of national representatives, hundreds of representatives from non-governmental organisations (“NGOs”) meet in dozens of side events during which representatives present research, progress reports on programs and initiatives on the ground, and discuss the multitude of ways in which the issues women and girls face are being addressed (see here for a sample list of events from the 2013 session). While these events are usually sponsored by particular governments or international organisations, they nonetheless provide a necessary space for a wide variety of NGOs to share knowledge and to network. This space thus provides opportunities for the people outside of governments, who are often involved in the implementation of international goals and projects, to share ideas, best practices, and feedback on the work and research they do.

This year, the CSW’s main theme will be “Challenges and achievements in the implementation of Millennium Development Goals for women and girls.” These Goals arise from the UN Millennium Declaration of 2000 and aim drastically to reduce poverty by 2015 by concentrating international efforts into eight specific areas, all of which impact the lives of women and girls. Two of these Goals are specifically about women: Goal Three, to promote gender equality and empower women, and Goal Five, to improve maternal health.

Side event at CSW57. Photo courtesy of UN Women, Flickr CC.

Side event at CSW57. Photo courtesy of UN Women, Flickr CC.

The CSW has recently released the draft conclusions, which will be debated, improved, and negotiated before being passed. While the draft mentions the progress made in certain respects, notably access to primary education, it also lists the numerous challenges faced in improving women’s lives. Clause 9 of the draft notes that progress for women on all Millennium Development Goals (“MDGs”) is heavily influenced by factors beyond gender, noting that women living in situations of conflict are least likely to see progress made on the MDGs. Beyond reviewing the progress made, and noting the many challenges governments and NGOs face in accomplishing the MDGs, the draft puts forward several recommendations for surmounting the challenges to achieving the MDGs.

International institutions matter. United Nations bodies such as the CSW continue to play an important role, not only as forums of discussion and debate about pressing global issues at the international level, but as agencies that can evaluate progress and formulate more concrete policy recommendations in an attempt to achieve lasting progress towards international development goals.

After Mandela: South Africa’s Horizons Cloudy at the Loss of Its Champion

Charlotte Harman is an associate editor with the JSDLP. She is in her first year at the McGill Faculty of Law, and holds a BA (Hons) from Queen’s University, where she majored in Global Development Studies and minored in Drama and Theatre.

On Thursday, December 5, 2013, South Africa’s legendary figurehead Nelson Mandela died at the age of 95. World-renowned for his lifelong commitment to peace, equality, and justice, Mandela’s legacy is heralded across the globe. Best known for having carried the African National Congress (“ANC”) to its revolutionary victory over the apartheid government in the 1994 election as South Africa’s first black president, he was also a dedicated legal academic and one of the most committed defenders of the global fight against HIV/AIDS. He spent his later years promoting human rights and democracy through the Nelson Mandela foundation. The flurry of media coverage following his death showed the many titles conferred on him, from “Madiba,” the nickname given out of respect for his Xhosa tribe, to both the “greatest son” and father (“Tata”) of the nation.

Mandela promoted equality before the law and in society through the Freedom Charter, a manifesto that today remains a proclamation of the goals of the ANC. Photo Courtesy of Domenico, Flickr CC.

Mandela promoted equality before the law and in society through the Freedom Charter, a manifesto that today remains a proclamation of the goals of the ANC. Photo Courtesy of Domenico, Flickr CC.

Beyond his role as a political revolutionary, Mandela made countless contributions to the transformation of law and policy in South Africa. He studied law at the University of Witwatersrand in Johannesburg, where he began his involvement in the racial equality movement, forging cooperative relationships between black and white resistance groups and leading demonstrations. Mandela joined the ANC in 1944, initiating his involvement in politics shortly before the dawn of the apartheid regime and the election of the minority Afrikaner-dominated National Party. Along with fellow-ANC member Oliver Tambo, Mandela opened South Africa’s first black law firm in 1952, offering pro bono and low-cost legal counsel to individuals struggling against apartheid legislation. He was a frontrunner in the ANC’s 1952 Campaign for the Defiance of Unjust Laws, promoting equality before the law and in society through the Freedom Charter, a manifesto that today remains a proclamation of the goals of the ANC. During his presidency, he was deeply devoted to the democratic process, emphasizing the maintenance of an independent judiciary and launching anti-corruption units in several government sectors.

Though Mandela’s death concluded a long life and a slow degradation in health, it was nonetheless a great loss to his country. A vast range of speculations about the future of South Africa has erupted in the wake of his passing, which comes during the tide of an upcoming election and a restless social and political climate. The 2014 election will mark twenty years since Mandela’s great victory as the front man of the ANC. Sadly, those years since Mandela passed on leadership to his successor, Thabo Mbeki, have shown a slow departure from the incredible changes Mandela’s term brought to the nation.

The present socio-economic conditions of the State are dire. Conditions of abject poverty and class stagnation extend nation-wide, with access to basic services frustrated by inconsequential growth. HIV rates remain among the highest in the world, and the epidemic of sexual violence continues to devastate. Not surprisingly, the ANC has faced mounting public disillusionment with their strategy, and this coupled with a birth of corruption and elitism that has fundamentally shaken the party’s legitimacy.

Mandela’s death serves as a reminder of many things: of the brutal struggle against the apartheid regime, the glorious day of its abolishment, the hope and spirit of a nation born anew, and of the timeless words and optimism of one of the greatest leaders of our time. Photo courtesy of Jornal Brasil em Forhas, Flickr CC.

Mandela’s death serves as a reminder of many things: of the brutal struggle against the apartheid regime, the glorious day of its abolishment, the hope and spirit of a nation born anew, and of the timeless words and optimism of one of the greatest leaders of our time. Photo courtesy of Jornal Brasil em Forhas, Flickr CC.

Nevertheless, the ANC remains in power, and to many, appears discouragingly unshakeable. According to a preliminary survey, almost one in four South Africans does not plan to vote in the coming election, the majority professing that that “nothing will change.” Indeed, the ANC maintains a cohort blinded by loyalty carried from the foregone liberation era. Posters of Mandela’s familiar smile now inundate the townships of Cape Town, promising “a better life for all.” Opposition to the party’s two-decade rule is now shrouded in race politics that prevent voters from backing other contenders. The Democratic Alliance struggles to shed its image as a party of mainly white middle-class interests, and the Economic Freedom Fighters, lead by Julius Malema (known for his expulsion from the ANC and promotion of hate speech) continue to prey on animosities between races and classes to gain popularity. Still, the strength of free speech institutions and the enduring voice of resistance suggest the democratic climate is more stable and alive in South Africa than it is often given credit for.

Mandela’s death serves as a reminder of many things: of the brutal struggle against the apartheid regime, the glorious day of its abolishment, the hope and spirit of a nation born anew, and of the timeless words and optimism of one of the greatest leaders of our time. It is also a reminder of the failure of the ANC to carry the gauntlet of freedom and democratic change onwards into the modern post-apartheid state. For South Africa, political freedom has not translated to economic freedom, nor has it fostered a nation grounded in equality, social justice, and peace. Nonetheless, Mandela’s death might be the unifying force this country needs to spark a new movement towards this dream. In his own words, “we must use time wisely and forever realize that the time is always ripe to do right.”

Somewhere Out There: Sustainable Development and Direct Experiences

Patrick Shannon is a third year law student at McGill University, and the layout editor for the JSDLP.

Our Editor in Chief, Jessica Magonet, started off Saturday’s Arctic Law Colloquium with a story from her trip to the Arctic through the Students on Ice Program. For her, the experience was a jarring confrontation between the vast, empty frontier most people think of when they imagine the arctic, and the complex and beautiful region that actually exists. This psychological disconnect is at the heart of many crises in sustainable development.

Adults should be encouraged to confront the natural world and the impact of human behaviour on it. The Columbia Icefields, seen from Wilcox Pass, Alberta, original photo by Patrick Shannon

Adults should be encouraged to confront the natural world and the impact of human behaviour on it. The Columbia Icefields, seen from Wilcox Pass, Alberta, original photo by Patrick Shannon

In “The Natural Contract,” Michel Serres offers a distinctly psychological portrait of the climate crisis, describing with a certain acerbic resignation our “individual cultures [...] living only indoors [...] piled up in cities [...] indifferent to the climate, except during vacations when we rediscover the world in an arcadian and clumsy way, naively polluting what we do not know, which rarely hurts us and never worries us” (at p. 3).

These are difficult words to swallow, but they are perhaps a necessary slap in the face to those of us who continue to struggle against Canada’s transformation into a petrostate. If we continue to ignore the psychosocial disconnect between our 21st century culture and the world groaning beneath the weight of our civilizations, we are certain to fail in any attempt at selling the promise of sustainable development. This is particularly important in a psychological milieu so entirely dominated by western consumerism. The Canadian consumer is carefully guarded from the long-term impacts of her purchases. Brand profiles are constructed to exclude anything that might sour the idealized lifestyles these products promise to buyers.The realities of the world have not changed since the advent of the television advertisement and marketing firm. Human beings are still dependent on this planet for their survival. What has changed is that, for the first time in centuries, the vast majority of our species are entirely unaware of even the most basic impacts their everyday choices will have on the earth. This knowledge has been excised from our collective consciousness to the extent that even something as simple as a meal purchased from the local supermarket has become a mystery.

A vast empty frontier? An inlet off the Davis Straight, near Auyuittuq National Park, Nunavut, August 2010. Original photo by Jessica Magonet.

A vast empty frontier? An inlet off the Davis Straight, near Auyuittuq National Park, Nunavut, August 2010. Original photo by Jessica Magonet.

The eco-feminism that emerged during the 1980s acknowledged the need to examine the importance of our psychological standpoint. In the words of Greta Gaard, foundational texts like Carolyn Merchant’s The Death of Nature and Rachel Carson’s Silent Spring sought to bring light to “the linked oppressions of gender, ecology, race, species, and nation” (at p. 28).

This vacuum of human contact with the natural world is a roadblock on the path to convincing Canadians that our relationship with the environment is one that needs repairing. For students, a solution could involve the integration of experiential learning into their curriculum. Adults should be encouraged to confront the natural world and the impact of human behaviour on it. In the realm of international policy, the inclusion of sub-national and experiential expertise into the deliberations of governing bodies like the Arctic Council is a necessary step towards acknowledging the importance of a human perspective.

Michael Bayers, challenging people to go out and see for themselves the beauty of the arctic, to really get to know the people who call it home at the JSDLP Arctic Law Colloquium on offshore resources and international governance, 25 January 2014. Photo courtesy of Patrick Shannon.

Michael Byers, challenging people to go out and see for themselves the beauty of the arctic, to really get to know the people who call it home at the JSDLP Arctic Law Colloquium on offshore resources and international governance, 25 January 2014. Photo courtesy of Patrick Shannon.

For my part, I am committed to encouraging the JSDLP’s mission to include a plurality of voices and perspectives. Although the journal has strong editorial standards, it has always recognized that firsthand experience and a diversity of content is just as important as Academic rigour. In the latest edition of our journal, The Honourable Eva Aariak, Former Premier of Nunavut, provides her unique insight into the impact of the melting arctic on Nunavut hunters. I would invite anyone with experience to share to submit an article to our team. Michael Byers, in his talk during last week’s colloquium, provided a powerful piece of advice. He encouraged everyone to go out and see for herself the beauty of the arctic, to really get to know the people who call it home. Once the gap between information and experience has been bridged, the science and policy of sustainable development will never read the same way again.

 

Transnational Criminal Law as a Mechanism to Increase Individual Accountability for Environmental Harm

Tyler Meyer is a 2L at the McGill Faculty of Law. He is a Research Fellow with the One Justice Project and an Associate Editor for the McGill International Journal of Sustainable Development Law and Policy.

In 2008, the Environmental Defence Fund criticized the Alberta oilsands as one of the most environmentally destructive projects on the planet. However, much of the harmful effects of the oilsands development are sanctioned by the provincial and federal governments. Given the magnitude of the harm caused by the sanctioned exploitation of bitumen, little attention is given to egregious actions, and their severe consequences, that contravene regulations and laws.

Syncrude's Aurora Oil Sands Mine in Alberta. Photo courtesy of  EliasSchewel, Flickr CC.

Syncrude’s Aurora Oil Sands Mine in Alberta. Photo courtesy of EliasSchewel, Flickr CC.

Several studies and reports have emerged in the past decade demonstrating that executives from oilsands extraction companies may be responsible for unsanctioned and intentional emissions that have severe consequences for the environment and human health. For example, in 2013, an independent group of scientists, led by Elaine MacDonald, modeled the amount of particulate matter emitted from two separate stacks, one owned by Suncor and the other by Syncrude. Not only was the deposition rate outside the industrial zone found to be in the hundreds of tonnes, but the information was public, indicating that Syncrude and Suncor officials were very likely aware of the level of emissions and pollution to the surrounding environment.

In addition to their awareness of the high level of pollution, the executives ought to be aware of the harmful consequences of this pollution. In the mid-2000s, scientific studies began to demonstrate clearly that humans and biota downstream, but not upstream, of the oilsands were exposed to significantly elevated levels of toxic contaminants. More recent studies have produced unequivocal results demonstrating a direct causal link between oilsands operations and increased levels of toxins in the Athabasca River Delta and lakes located as far away as 100 km.

2076767788_2044bd73b1_b

The aftermath of Texaco’s toxic dumping in the Amazon Rainforest. Photo courtesy of jgomba, Flickr CC.

Civil liability and fines have proven insufficient to deter extremely harmful corporate behaviour for at least three reasons. First, amounts paid out pale in comparison to the profits reaped from committing the harm. For example, despite the Alberta oilsands being the world’s largest capital project, in 2006 the Alberta government levied fines of just $249,000 in response to over 240 environmental violations, committed by extraction companies. Second, not only are fines negligible, but regulations are rarely enforced. A 2013 study by Timoney and Lee demonstrated that less than 1% of the thousands of alleged violations of legislation were enforced by government officials. Third, individuals who profit from the harm are not held accountable. For example, no executive from an oilsands extraction company has been held personally liable, nor have executives from other high-profile incidents such as Texaco’s dumping of billions of litres of toxic tailings in Ecuador’s Amazon forest.

As long as individuals remain unaccountable for their actions, egregious corporate harms that produce profits either for the company or its executives are unlikely to be prevented. One possible solution is to hold individuals accountable for their conduct through the implementation of a strong transnational criminal law regime (i.e., the adoption of suppression conventions) that criminalizes serious forms of environmental harm. Not only would this oblige states to criminalize, and therefore investigate and prosecute, environmental harms domestically, but it would enhance the political will to respond to environmental harm and socialize communities to view individuals as legally responsible for causing environmental destruction.

International (as opposed to transnational) criminal law currently recognizes intentional and severe damage to the environment as a crime, but only during war time. There are projects such as Eradicating Ecocide that seek to have serious environmental harm included as an international crime during peace time. However, given the political resistance and practical hurdles associated with creating a fifth crime against humanity, transnational criminal law may be a more viable option.

In 1998, the Council of Europe adopted a convention to criminalize intentional and negligent forms of environmental harms at the international level. Unfortunately, it did not receive enough state signatories to enter into force. A significant flaw of the convention is that it would have allowed corporations to continue operating with impunity by moving their ventures to countries with weak criminal law regimes and enforcement mechanisms, creating a race to the bottom. This, in addition to lack of political and social will, may be a reason why countries such as Canada (see the Canadian Environmental Protection Act) do not effectively employ their criminal legal regimes to respond to and prevent environmental harms.

Given that the threat of fines and corporate liability have proven incapable of deterring extremely harmful corporate behaviour, and that the harms from environmental destruction are transboundary in nature, it is time to strengthen transnational criminal law regimes to ensure that individuals running corporations are held accountable for their actions. Extraterritorial jurisdiction mechanisms that enable and oblige states to prosecute harm committed abroad by their nationals will prevent a race to the bottom. Importantly, a strong transnational criminal law regime will send a message that corporate environmental destruction is morally reprehensible and will not be tolerated no matter where it occurs.

 

Australia’s Carbon Tax: Trials and Tribulations

Angèle Périllat-Amédée est une éditrice associée avec le JSDLP et une étudiante de troisième année à la Faculté de droit de McGill. Elle complète présentement une mineure en économie à McGill et a un DEC (Sainte Foy) en Langues et cultures. Elle est principalement intéressée par les questions de développement durable en économie et par la propriété intellectuelle. Originaire des Alpes françaises, elle aime les sports d’hiver. 

Issues related to the environment are not always at the forefront of election campaigns. The carbon tax, however, was an important theme during this September’s Australian federal election. The victory of the Liberal-National Coalition under Tony Abbott was, at least in part, due to its promise to cut this costly policy.

Sydney, Australia. Photo courtesy of Angèle Périllat-Amédée.

Sydney, Australia. Photo courtesy of Angèle Périllat-Amédée.

Talks about a carbon pricing legal scheme date back to the late 90s in Australia. At that point, much of the political focus on the issue was centred on its likely economic effects. Economists considered that the measure would mostly affect commerce, households, and land clearing, which were responsible for an important part of the carbon emissions. Thus, a carbon tax was not expected unduly to damage employment or the export industry. However, it proved to be a damaging measure from an electoral perspective.

The carbon tax was finally enacted in July 2012 under the Labor Party’s mandate. However it came at a heavy political cost for former Prime Minister Julia Gillard, who lost the leadership of the party earlier this year. Her successor, Kevin Rudd, made repealing the tax in its current form one of his campaign promises. In its stead, he proposed an Emission Trading Scheme to drop the price of one tonne of carbon from AUD$25 to about AUD$6.

However this plan was never implemented following the Coalition’s electoral victory over Labor earlier this year. The victorious Coalition has introduced a bill to replace the carbon tax with the Direct Action plan. Under this plan, credits would be made available for highly polluting industries that are willing to reduce their carbon emissions, with eventual penalties for industries that do not perform well. The focus would be on incentives much more than on sanctions. The government also committed to reduce the country’s carbon emissions by at least 5 per cent from 2000 levels by 2020. This target could increase to a 25 per cent reduction, depending on engagements and reductions from the international community.

Prime Minister Abbott defended the bill saying, “It reduces the cost of living, it makes jobs more secure, and improves the competitive position of our country. Why would anyone be against that?” However, concerns raised by the Labor Party suggest that without any legislated cap on carbon pollution, the proposed system is unlikely to be effective.

The Breakaways Reserve in South Australia. Photo courtesy of Angèle Périllat-Amédée.

The Breakaways Reserve in South Australia. Photo courtesy of Angèle Périllat-Amédée.

Without a Senate majority, the Coalition has had to review its strategy. For the bill to pass, it would have to be backed either by the Labor Party or the Green Party, neither of which has voiced any support for the new proposal. As a result, the Direct Action plan is unlikely to pass this year. The Coalition may, however, have a window of opportunity after the Senate elections in June 2014.

Among economists, a carbon tax is preferred to schemes like the Direct Action plan. From an environmental point of view, the carbon tax has also proven to be efficient and a recent editorial written for ABC Environment notes several important metrics to that effect. 30 countries have adopted a similar scheme, and 74 countries endorse various measures aimed at reducing carbon emissions. In Australia, since the tax came into force in 2012, carbon emissions from electricity consumption were reduced by about 7 per cent, the use of coal to produce electricity went down about 17 per cent, and the use of renewable energy increased about 25 per cent. Under the Coalition’s Direct Action plan, environmentalists predict an increase of emissions by up to 9 per cent higher than their 2000 levels. Still, it should be noted that part of the reduction in the electricity consumption is linked to the 70 per cent increase of the electricity price from 2007 to 2012. This increase is partly due to the carbon tax scheme, but also to a lighter regulation on price fixing.

The project to repeal the carbon tax is not the only instance in which the Coalition is favouring financial cuts to environmental protection. The government announced an AUD$500 million cut to the budget of the Australian Renewable Energy Agency and the closure of the Clean Energy Finance Corporation, a public fund investing in renewable energies.

One could defend the Coalition’s plan by saying that it made clear promises during its electoral campaign and that it was elected on that basis with a comfortable majority. However, as Mark Butler, environment spokesperson for the Labor Party has noted, how the Direct Plan will work and its effect are still obscure: “it’s not in the national interest to do this without having very clear detail about the conditions on which that money would be paid, the impact on households in terms of their annual costs, and the way in which this will be effective in actually cutting carbon pollution. We have none of that detail.”

Refugees in Lebanon: Looking for Legislation

Jess De Santi is a first year law student at McGill University and an associate editor with the journal.  She holds a Bachelor of Arts (Honours) in Political Science from McGill University, with a minor in World Religions.

To date, the Syrian civil war has created more than two million refugees. The largest share live in Lebanon where more than 800,000 refugees equal nearly one quarter of the small country’s domestic population. Most of the refugees live in informal camps concentrated in the north and around Beirut. The sudden influx of people into Lebanon places an immense stress on local social services (see also here), even with the efforts of the United Nations High Commissioner for Refugees (UNHCR) and other non-governmental organisations operating in Lebanon. The plight of refugees in Lebanon highlights the difficulties of imposing international norms in regions with scarce resources to meet the demands.

Lebanon is amongst a minority of states that are not parties to the United Nations 1951 Convention relating to the Status of Refugees, nor the 1967 Protocol expanding the scope of protection given by the Convention. Lebanon also does not have any domestic legal framework regarding refugees or asylum seekers. Thus, refugees within Lebanon live in a perpetually precarious state of being, lacking entirely in legal protection.

Unwilling to commit to long-term protection, Lebanon prohibits the construction of permanent housing for refugees, only permitting smaller temporary structures. The interim Prime Minister Najib Mikati has also recently suggested that the government will be reviewing the situations of all Syrian refugees currently in the country and re-examining their status as refugees.

Despite not joining international covenants protecting refugee rights, Lebanon has thus far kept its border open and allowed refugees to remain in the country without seeking their removal. The country also allows the UNHCR to operate within the country registering and providing aid to the refugee populations. Further, the Lebanese government has increased its spending in response to the increased use of the services it provides, dramatically deepening this year’s deficit. However, Lebanese appeals for additional international aid come at the same time as the arrest of the chief government official in charge of administering aid.

Refugee locations in Lebanon. Photo courtesy of UNHCR.

Refugee locations in Lebanon. Photo courtesy of UNHCR.

Meanwhile, Lebanon is in the midst of a governance crisis, the entire Cabinet having resigned in March. Lebanon’s democracy is premised on confessionalism, which guarantees a degree of representation for various religious groups, notably Shia Muslims, Sunni Muslims, and various Christian sects. Increases in the numbers of one sect may provoke tensions in its relations with others.  And indeed, the tension between these groups is rising as a result of the influx of so many Syrians, most of whom are Sunni. In particular, social discomfort has intensified as a result of local economies becoming distorted by the influx of cheap labour and the increasing demand on rental housing.

The evolving refugee crisis in Lebanon demonstrates the dual challenges of conformity to international norms and tackling domestic resource constraints. Though not a party to the Refugee Convention, Lebanon continues to provide a minimum of services and aid to refugees within its borders. Still, the fragile domestic social balance and the resource constraints Lebanon faces limit its ability to do more for the refugee population. Increased targeted donor assistance for Lebanon would be instrumental in alleviating the mounting pressures it faces.

However, the legislative vacuum in which refugees in Lebanon find themselves complicates proper planning for the future. Indeed, legislation articulating a coherent regime for refugees in the country would present two important benefits. First, it would provide a basic legal framework for asylum seekers and government officials alike to manage their relationship. Turkey, also dealing with a sudden influx of Syrian refugees, recently passed legislation fortifying its international protection laws and integration of refugees into Turkish society. Similarly forward-looking legislation, even if it does not go as far as Turkey’s, would help direct the Lebanese government’s focus to expend its limited resources most effectively.

Second, legislation responding to the influx of refugees would signal to the international community the seriousness and willingness of the Lebanese government to respond actively to the crisis. Ideally, this signal would lend credibility to Lebanon’s calls for more international assistance in coping with the refugee crisis it faces, ultimately resulting in improved international assistance. Providing direction for the state to respond to refugees’ needs could better position Lebanon to receive aid by making explicit how the donor government’s money is going to be spent. Greater donor assistance will help substantially in carrying out the goals of such legislation.

This type of legislative response may strike an appropriate balance between the international norms espoused by the Refugee Convention and other international laws on one hand, and the realities of resource constraints in Lebanon on the other. Although Lebanon may not be willing to offer long-term protection, the likelihood of an early end to the Syrian civil war is rapidly decreasing, and it does not seem feasible simply to remove 800,000 persons. A legal framework guiding and directing Lebanese actions towards the refugee population can be critical to the management of the refugee crisis the country currently faces.

Le Pacte Mondial et les impacts de cette initiative

L’auteur, Alexandre Lessard, est un étudiant de troisième année à la Faculté de droit de McGill. Il est principalement intéressé par les questions de politiques environnementales et de développement durable.

Le 13 juin dernier, le Pacte Mondial de l’ONU a lancé son 101e réseau local au Canada. Cette lancée s’est inscrite dans le cadre d’un vaste programme visant à promouvoir la responsabilité sociale et environnementale des entreprises opérant au Canada et à l’étranger. L’établissement de ce réseau par les sept compagnies initiatrices (Barrick Gold Corp, GlobeScan, Scotiabank, Suncor Energy inc., Teck Resources ltd, Telus et Unilever Canada) permettra de favoriser l’apprentissage, le dialogue et les actions collectives des entreprise soucieuses de leur impacts social et environnemental. Toutefois, bien que ce Pacte existe depuis plus d’une décennie, il semble être demeuré relativement inconnu au Canada. Nous allons donc définir en quoi consiste ce Pacte et comment il contribuerait à sensibiliser les entreprises canadiennes.

Le Pacte Mondial 

Le Pacte Mondial a officiellement été lancé en 2000, sous l’initiative de l’ex-Secrétaire générale l’ONU Kofi Annan. Dès son fondement, ce Pacte visait à créer une économie mondiale plus viable et ouvert en faisant la promotion de la responsabilité civique des entreprises et en trouvant des solutions aux défis reliés à la mondialisation. Le Pacte est basé sur dix principes fondateurs, qui sont dérivés de plusieurs traités internationaux, tels que la Déclaration universelle des droits de l’homme et la Déclaration de Rio sur l’environnement et le développement. Ces principes concernent spécifiquement les droits de l’homme, le droit du travail, l’environnement et la lutte contre la corruption. Par exemple, les entreprises signataires sont invitées à appliquer « l’approche de précaution » face aux problèmes environnementaux et à agir contre toutes les formes de corruption, incluant l’extorsion de fonds et les pots-de-vin.

Le Pacte Mondial suggère ensuite aux entreprises de mettre en œuvre ces principes, notamment en les intégrant dans leur stratégie d’affaires, en demandant un engagement clair de la direction à les respecter et en favorisant la coopération et le dialogue avec les autres parties prenantes. Les entreprises sont alors encouragées à communiquer leurs progrès à ces parties et au Pacte.

Le Pacte Mondial a officiellement été lancé en 2000, sous l’initiative de l’ex-Secrétaire générale l’ONU Kofi Annan. Image gracieuseté de World Economic Forum, Flickr CC.

Le Pacte Mondial a officiellement été lancé en 2000, sous l’initiative de l’ex-Secrétaire générale l’ONU Kofi Annan. Image gracieuseté de World Economic Forum, Flickr CC.

Des impacts réels pour les entreprises canadiennes?

La création d’un réseau et de ressources pour les entreprises conscientes de leur responsabilité sociale et environnement est une initiative qui mérite d’être reconnue. Toutefois, bien que ce Pacte constitue un excellent projet de la part de l’ONU, ses impacts réels restent à être démontrés. En effet, comme ce Pacte demeure une initiative volontaire de la part des entreprises, il n’a pas de force contraignante, ni de pouvoir règlementaire sur le comportement social des entreprises. Le Pacte ne peut donc imposer de pénalité aux entreprises contrevenantes. Cette absence de force contraignante est également appuyée par le fait que ses activités sont financées uniquement par contribution volontaire des entreprises et pays participants.

L’évolution de cette initiative sera donc intéressante, puisque la règlementation sociale et environnementale des entreprises internationales est un enjeu clé de la mondialisation. Les nombreux problèmes de juridiction et l’absence du statut d’État membre constituent deux des entraves les plus importantes à une telle règlementation. Il reste donc à savoir si ce Pacte deviendra éventuellement un traité par lequel les États membres s’engageront à règlementer le comportement de leurs entreprises.

Le Canada: porte-drapeau du Pacte Mondial? Image gracieuseté de Don Lyco, Flickr CC.

Le Canada: porte-drapeau du Pacte Mondial? Image gracieuseté de Don Lyco, Flickr CC.

Ontario’s microFIT Renewable Energy Initiative: How Problematic Conditional Contracts and Institutional Discord are Impacting Applicants

Author Charlotte Harman is an associate editor with the JSDLP.  She is in her first year at the McGill Faculty of Law, and holds a BA (Hons) from Queen’s University, where she majored in Global Development Studies and minored in Drama and Theatre.

In the wake of the introduction of Bill 150, the controversial Green Energy and Green Economy Act, into provincial legislature in 2009, the Ontario government launched microFIT, a stream of its feed-in tariff (FIT) program designed to increase the level of small-scale, locally generated renewable energy sources across the province. This program would allow individuals such as homeowners, landowners, and farmers to invest privately in renewable energy sources and feed into the province’s electricity grid in return for compensation of costs and a guaranteed price for the energy produced. Since its inception, the microFIT program has attracted 16,206 applications, 99 percent of which are for solar PV projects, and has directed 150,973.8 kW of power from renewable energy sources into the public grid.

2.35 kW microFIT in Toronto. Photo courtesy of EfstonScience - The Science SuperStore, Flickr CC.

2.35 kW microFIT in Toronto. Photo courtesy of EfstonScience – The Science SuperStore, Flickr CC.

However, this overwhelming response appears to have been unexpected by the provincial government and its subsidiaries. By 2010, applicants to the microFIT program were already facing proposed cuts to the contracted price, conflicting policies, and constraints due to limited capacity in local feeder stations. The complicated bureaucratic procedure of the microFIT program has burdened many prospective participants with massive investments in renewable energy projects that fail to be connected or reimbursed by the Ontario government. Mismanagement, poor planning, and misinformation in the contracting process have left hopeful contestants deep in debt to expensive technologies, rendered useless without connection to a power network.

Indeed, there have been a slew of problems for microFIT participants that arise from its faulty administration and a lack of harmony between the various institutions involved in its application. The bureaucratic process through which each application must pass involves more than six different institutional bodies in order to be considered eligible and complete. Of these six, the three main bodies are The Ontario Ministry of Energy, The Ontario Power Authority (OPA), and the Ontario Energy Board, which together have consistently given conflicting information and contradictory commitments over the course of microFIT’s history. A sheer lack of agreement and cohesion between these three institutions is perhaps the most problematic flaw of the microFIT program.

These bureaucratic conflicts are no doubt a source of the various retroactive policy changes within the program that have caused major problems for microFIT applicants. In particular, the application and contracting process has involved numerous contradictions, including retroactive changes to guaranteed pricing, divergent obligations on the part of the government, and conflicting timeline demands between different bodies. A further source of concern has been the requirement that clients privately contract an exterior supply company to provide the technical information and install the equipment before getting a firm commitment from the government. For many, this requirement has led to sizeable long-term loans to finance the equipment. Despite these debts, many clients move forward with the application process in good faith and end up unconnected as a result of capacity constraints in local grid networks.

Fortunately, the future is looking up for those who have been prejudiced by the microFIT program. Efforts for reprisal are sprouting up in a variety of forms, ranging from individual legal recourse and community support groups to network unions, co-operatives, and budding class action motions by constrained communities seeking to recover losses. Agris Solar is one such initiative that is providing support and solutions to disillusioned microFIT applicants in a cooperative-style empowerment plan. The government, too, has responded to the need for improvements. In 2012, it launched a relocation program for conditional offers in constrained areas, presumably as a result of the immense backlash of disputes from dissatisfied and misled applicants.

Hopeful Ontario. Photo courtesy of Peter Blanchard, Flickr CC.

Ontario had high hopes for a progressive government. Photo courtesy of Peter Blanchard, Flickr CC.

The push for FIT programs in Ontario remains an exciting move towards the promotion and proliferation of renewable energy sources nation-wide. Despite its flaws, Ontario’s microFIT program is poised to create local incentives for green energy source development and investment, which could stand as a prototype for other provinces. MicroFIT was designed to direct green development into residential private spaces, effectively localizing sun-power into community-centred distribution networks. Projects such as this, which orient power sourcing inwards and encourage small-scale generation, are a promising sustainable alternative to the globalized mass-extraction strategies that currently govern dominant power sources worldwide.

As a feed-in tariff program that caters to local and communal renewable energy development, the microFIT program demonstrates the potential for widespread engagement in green energy initiatives, both in Ontario, and in Canada more broadly. Despite the significant complications with its implementation, microFIT has produced a network of individuals determined to participate and to make residentially-generated solar energy a prolific and profitable enterprise. Having initiated the process, it now remains for the Ontario government to address the institutional and policy shortcomings that will allow its microFIT program to become a truly pioneering initiative that sets a precedent for green energy development across Canada.

The presence of solar energy in an urban setting. Photo courtesy of SolarEWorld, Flickr CC.

The presence of solar energy in an urban setting. Photo courtesy of SolarEWorld, Flickr CC.  

« Older Entries
Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.