Category Archives: International Law

Canadians in Paris – Some Thoughts on the Paris Agreement

When the COP 21 (the 21st session of the conference of the parties to the United Nations Framework Convention on Climate Change or UNFCCC) started this fall in Paris, I had little hope we would accomplish anything. In all honesty I spent more time thinking about what would happen if the world couldn’t agree on something concrete in Paris. However, the international community realised it was no longer possible to postpone or ignore the issue. We needed to act now, and to my great relief we did through the last minute adoption of the Paris Agreement and the accompanying COP 21 Decision.[1] It is of course not the best agreement, and on its own it is clearly not enough to stop catastrophic climate change. But it is a first step that binds the international community, and a much needed signal that we need to take climate change seriously. In this post I will first briefly summarize what the Paris Agreement entails. I will then offer some thoughts on what the Agreement means for Canada.

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Torture costs: How Canada can deport you to torture and make you pay the bill

Sometime I am very proud of being Canadian, especially when we claim the moral high ground while blatantly disregarding basic international law norms. Do as I say, not as I do. For those who didn’t catch the sarcasm, this post does not talk about nationalistic pride. Instead it will explore briefly a major failure of our refugee and immigration system. This failure, I fear, is far from being the only one; it just so happens that we were made aware of it unlike most removed refugee claimants’ cases. The case I am referring to is the one of Adel Benhmuda and his family. Originally from Libya, he claimed refugee status in Canada in 2000, an application that was rejected by the Immigration and Refugee Board (IRB) in 2003. The government began removal procedure in 2008. Adel applied for a Pre-removal risk assessment, a procedure supposed to ensure that the removee will not be at risk of torture, cruel or unusual treatment, or death.[1] The application was dismissed by an immigration officer and he was removed to Libya where he was detained upon arrival. He was subsequently tortured. He managed to smuggle his family out and claimed refugee status in Malta.[2] Status was granted and Adel is now trying to come back to Canada.

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One step forward, two steps back: the SCC, immigration & refugee law and discretion

The past decade has not been kind to migrants. The events of 9/11 added extra hurdles to immigration process as immigration authorities’ paranoia grew. Western countries’ hospitality is much colder as xenophobia increased fuelled by right wing political groups such as the Tea Party in the USA, the Front National in France or the Conservatives in Canada and the UK. In Canada, since the election of the conservative government of Prime Minister Harper, we have adopted a series of reforms in immigration and refugee law. The focused is now on so called “desirable” migrants, usually people with education and language proficiencies in English or French.[1] Inadmissibility rules continue to prohibit family from reuniting, disabled and sick migrants from settling, and otherwise qualified migrants with tenuous link to alleged terrorist groups from immigrating.[2] Parliament adopted the so called Balanced Refugee Reform Act in 2010 making it harder for refugees to seek protection in Canada.[3] Additionally, Refugees’ access to health care was cut by the federal government.[4] Many of those changes are being or will be challenged in court. Whether these challenges will succeed is hard to predict as the Supreme Court has tended to be deferential towards the government on immigration and refugee issues. Two cases handed down in the last two months may shed some light on what the future holds for refugee and immigration law.

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Mexican Queer Refugees Need Not Apply

We are all aware (hopefully) that the human rights situation, especially for LGBTQ people, is highly variable around the world. Many means of advocating for changes in countries with less enviable situations than ours (and by ours I mean Canada specifically but the global west generally) make me uneasy as they are often tainted with imperialism and colonialism, even if unconsciously (homonationalism). Beside direct interventions and other saviour type interventions, one thing that can help and does not require forcing western values on developing countries is welcoming and protecting refugees. It is the 1951 Refugee Convention and its 1967 Protocol,[1] adopted in the aftermath of the Second World War as a reaction to States who turned back Jewish and other refugees, that establish the prohibition to return refugees to their country of origin (the obligation is called non-refoulement). Crucial to this obligation on State is the determination of refugee status which is done mainly by the State of refuge in accordance with the Convention or by the Office of the United Nations High Commissioner for Refugees (UNHCR). In Canada it is the Immigration and Refugee Protection Act that governs refugee status.[2] This post looks at recent problems encountered by Mexican queer refugees within the refugee determination system of Canada. Mainly it looks at the impact of perceived state protection, as exemplified by X (Re), 2012 CanLII 91398, and of Designated countries of origin.

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Bye Bye Miss Environmental Law

This past year brought a lot of change and sometime stagnation in environmental law. For someone who tries to wear the mantle of environmental law scholar I should have been stimulated or at least productive in my writing and my comments. And I must say I have been in a way through my more “official academic” writing. However my public silence except for the occasional twitter comment has a reason beside my overcharged schedule. I haven’t participated to the public debate mainly because I have nothing good to add and my mental health requires it. I try to stay optimistic as much as possible about our future, but one cannot ignore the facts: the dire situation we are in and our stagnation. There is little I can do or say that will change the will of the public, the government or the international community. Therefore, out of self-preservation, I stay silent in order not to plunge into pessimism and depressive thoughts. But I am a stubborn academic and I am opinionated; in the end expressing my anger and dissatisfaction is probably more constructive, if only for myself.

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The International Rule of Law Part Deux: Good Faith, Kyoto and Canada

It has been a while since I wanted to write this post. As work and graduate applications kept my mind away from this blog, the situation that inspired this post evolved, evolved further, ended and restarted. In the end, I’m glad I waited as the developments made this topic much more interesting. That topic is the involvement of Canada in the Durban Conference negotiations and its Canadian climax: the repudiation of the Kyoto Protocol.[1]

After what can be considered many failed attempts to agree on the next step to implement the United Nations Framework Convention on Climate Change[2] (UNFCCC) (basically the replacement of Kyoto after its end), the State Parties to the UNFCCC met in Durban, South Africa, at the 17th conference of the parties (COP17), hoping that some agreement could be reached over the pressing issue of climate change. The Copenhagen Conference resulted in what many considered a sad failure. However, it seemed that the international community had matured sufficiently to reach something concrete in Durban. Sadly, that statement does not apply to Canada, who seems to have regressed in it international maturity level since 2006.

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