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Abstract:
This essay explores the idea, or rather the mirage, of progress in international law. It does so by examining a specific case study from the Cold War era: the conflict resolution efforts of the Security Council in the aftermath of the 1973 Arab-Israeli war. It is contended that the paralysis that characterized the central peacemaking institution at this point in its history is not unique to the specific moment in time. Rather, the historic case study demonstrates that instances of international law's "progress", as scholars are prone to think of such significant institutional and doctrinal events, are more akin to markers along the meandering route of an empty vessel.

In terms of methodology, this essay traces a parallel between the themes of international law and the short stories of Yiddish writer I.L. Peretz. In particular, the essay uses as a parable Peretz' short story "Yom Kippur in Hell", in which a cantor who chants with a beautiful voice, but who is substantively lacking in devotion, is condemned. It is the theory of the essay that the futility of salvation through empty prayer neatly parallels the futility of progress through empty doctrine, as exhibited by international law.

war, aggression, self-defense, Arab-Israeli conflict, Security Council, Resolution 242, Resolution 338, United Nations Charter, article 2(4), literature

Abstract:
This paper revisits some of Canada's early constitutional history, taking as a starting point the view that constitutional evolution is the country's great national project. It also revisits some of Canada's literary history, taking as its starting point the view that the development of Canadian literature has been an ongoing process of national self-contemplation. At its most foundational level, this paper explores the disjointed nature of both projects, comparing the Privy Council's leading constitutional cases from the turn-of-the-twentieth-century with the writings of the same era's leading Canadian literary figure, Stephen Leacock. It observes that constitutional jurisprudence has historically been characterized more by its fractured quality than its rational synthesis, and that literary output has been characterized more by its incompleteness and diversity than by any stylistic or thematic unity. In short, it asks whether we can ever really know Mariposa - i.e. whether Canadians are capable of a coherent national discourse, or whether they are, as Robertson Davies put it, "just too divided in attitudes and feelings and climates and everything else to have a single outlook that would work in a [constitution/novel] of the whole country."

Canada, constitution, law and literature, Leacock

Abstract:
Canadians live by the rules. If the overriding myth of American history is that of rugged individualism and the conquest of the frontier, the story told of Canada is one of socialized, orderly engagement with and development of the north. This article probes the national image as it appears in the poplar and the legal realms. The vehicles for this exploration are Canadian constitutional law and Canadian film. A species of case law - that dealing with the division of powers and, more specifically, with federal criminal jurisdiction - will be juxtaposed with a species of movie - the Canadian North Western and, more specifically, The Grey Fox (1982). The imagery and national aspirations expressed in one medium help illuminate the equivalent motifs in the other. It turns out that if Canadians live by anything, it is a code of continuous dissent, since the constitutional rules that govern national life are in an evolving state of debate.

Abstract:
Today's most eggregious human rights violations - torture and terror - are often considered to have entered the category of jus cogens violations. But while their violation is prohibited by all nations, compensation for their wrongs is rarely awarded. Like a Hunter S. Thompson gonzo journalism tract, the law swirls around these norms in rhetorical circles and undermines its own story line with a distracted and barely coherent narrative.

jus cogens, torture, terrorism, narrative

Abstract:
This paper presents a theory of contract law that attempts to accomodate the arbitrability question addressed by the Supreme Court in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. That case held that actions under antitrust legislation are inherently amenable to private arbitration despite the fact that the arbitrator will be called upon to adjudicate public law remedies. The essay describes how the law often confuses interpersonal rights with state-created rights.

contract, theory, arbitration, damages, jurisprudence

Abstract:
This essay explores the vision of national independence articulated by East Africa's most prominent novelist, Ngugi Wa Thiong’o. It juxtaposes the leading international law instruments and pronouncements on the 'right to self-determination' with the fictional narratives of Ngugi about the colonial and immediate post-colonial experience. In the process, the essay uses Ngugi's insights into national political identity as a lens for understanding the perplexing international law documents in which the meaning of self-determination is buried.

self-determination, international law, Kenya, independence, colonialism, law and literature

Abstract:
In the runnup to the 2007 Ontario election campaign, Progressive Conservative leader John Tory announced his support for public funding of faith-based schools. The policy was articulated in a number of ways, requiring either full association of those schools with existing public school boards or full accountability of those independently managed schools to the Ministry of Education. This policy platform has, in turn, resurrected one of the most venerable, and most contentious, issues in all of Ontario’s constitutional history - that of denominational schooling. No discussion of faith-based schools can omit the fact that Ontario’s educational environment contains a secular public system and a publicly funded Roman Catholic system, but no public funding for any other religious schools.

constitution of Canada, denominational schools

Abstract:
The law of war is characterized by a temporal and normative see-saw. It is all new and old, tentative and foundational, anti-war and pro-defense, non-violent and highly coercive; the law has become, in the words of Kurt Vonnegut, “a trafficker in climaxes and thrills and characterization.” This essay seeks to juxtapose Vonnegut's farcical account of the Second World War and his message of human contradiction with the contemporary law governing the use of armed force as it has played out in Iraq and the Middle East. The message that comes out of this pairing is that international legal doctrines are, like Vonnegut's characters, free ranging creatures that are for the most part unstuck in time, place, and rationality.

Abstract:
This paper reflects on the U.S. Supreme Court ruling in United States v. Alvarez-Machain, in which a Mexican national was abducted from his home in Mexico and taken to California to stand trial for conspiracy to traffic in drugs. The Court upheld the arrest and the jurisdiction of the court, finding among other things that the method of arrest used by federal agents did not violate the U.S.-Mexico Extradition Treaty as that treaty was never invoked. Methodologically, this paper takes seriously the lesson of feminist jurisprudence that the law has an inevitable gender identity. Due to the contradictory nature of international law, however, the gender of the law is, under the circumstances, highly ambiguous.

extradition, crime, jurisdiction, international law, feminism, gender

Abstract:
It is nearly an article of faith in literary criticism and legal scholarship that Western considerations of Eastern societies demonstrate the drive toward, as Edward Said put it in Orientalism, “dominating, restructuring, and having authority over the Orient.” This essay revisits that question of West and East in two of its most prominent guises: medieval literature and modern law. It does so be examining two narratives, the first of which is Chaucer’s “Man of Law’s Tale,” a piece of "The Canterbury Tales" related by an English lawyer that expressly measures the stature of a governing monarch in the Muslim world against concepts of sovereignty embraced by Christianity. The second narrative is the First Circuit Court of Appeals decision in Ungar v. Palestinian Authority, a piece of judicial writing that expressly measures the stature of a governing administration in the Arab world against the concept of sovereignty embraced by an American court applying international law. It is the aspiration of this paper that by setting a 14th century story up against a 21st century judgment, significant portions of Western thought dealing with non-Western societies can be canvassed at once, and that the ‘orientalism’ thesis about the West’s perceptions of the East can be put to the test.

sovereign immunity, orientalism, Edward Said, Geoffrey Chaucer

Abstract:
The self-government rights of American Indians are far more developed and receive a far greater level of protection than those of Native Canadians. In Canada, protections afforded aboriginal people have focused on equal protection of individuals. With the enactment of the 1982 constitutional reforms, Native Canadians face the challenge not of integrating themselves from the constitutional order, but rather, like self-governing American Indian tribes, exiting from it.

aboriginal rights, Native Canadians, American Indians, constitutional law

Abstract:
The breakup of Yugoslavia presented a rare opportunity for international law to renew itself. This essay reflects on those events through the lens of several short stories by Jorge Luis Borges. The writings of Borges suggest themselves as a vehicle through which to examine legal developments such as secession, emergence of new sovereigns, and state recognition, for a number of reasons. Not the least of these is that, as John Updike has pointed out, “his stories have the close texture of argument...” The world of Borges’ work is a closed one, with its own internal logic and a fundamental detachment from the author’s actual surroundings. In this, it is reminiscent of international law’s notorious detachment from the social, and even the historical context of the sovereign states to which it traces its sources.

international law, secession, sovereignty, recognition, Yugoslavia

Abstract:
This article examines two decisions of the Israeli Supreme Court and one of a United States federal court. All three cases pose legal challenges raised by political activist Meir Kahane, the American born founder of the Jewish Defense League and of Israel's rightist Kach Party. As an activist at home on both sides of the ocean, Kahane presented legal and political challenges to two democracies and two sets of national judiciaries.

nationality, democracy, human rights

Abstract:
With the exception of the United States, western democracies and human rights organizations have virtually all abolished the death penalty. At the same time, the judicial organs of those states and institutions have been loathe to declare a universal prohibition on the state putting a convicted person to death. Rather, they attempt to circumvent the question by focusing on the method of execution or its delay. Like Vladimir Nabokov's prisoner waiting on death row, capital punishment is deemed intolerable not because it is wrong, but because it is unaesthetic.

death penalty, extradition, human rights, law and literature

Abstract:
This essay asks How one reviews, audits, or assesses a collection of essays about the reviewing, auditing, and assessing of a discipline whose task is to review, audit, and assess subject matters that now include the process of review, audit, and assessment. Marilyn Strathern's book, Audit Cultures, collects and creates a body of scholarship about the ways in which scholars have created a body of scholarship over the assessing and valuing of scholarship. The conclusion of the work is that audit/policy/ethics, in their various and mobile cultural forms, make up a basic triad of practices in that world in which all academic anthropologists exist and which we know as higher education.

anthropology, audit, culture

Abstract:
This essay explores the theme of betrayal in the drama of the Middle East conflict. It also explores the betrayal by international law of the most fundamental of legal principles. It demonstrates that the betrayal of innocence is a false impression left by the law, and that the principles that the law appears to have abandoned never existed in the law in the first place.

Middle East, Israel, international law, separation barrier, international court of justice

Abstract:
The overall results of Holocaust-era civil claims have much in common with the lessons demonstrated in the Book of Job. The impression is one of random suffering, with losers being morally indistinguishable from winners. On the other hand, when viewed in international law terms, there is a macro design, if not a strict logic, to the pattern of the cases. Each judicial decision suffers not from illogic but from limited horizons, so that no one decision reflects the overall design of the law.

Abstract:
The purpose of this article is to explore the theoretical basis for, and nature of, the discovery process in transnational litigation. In particular, the article examines the case law interpreting 28 U.S.C. §1782, a provision of American federal procedure authorizing the discovery of documents and the deposition of witnesses in aid of foreign litigation where the relevant documents or witnesses are located in the United States. The central doctrinal question is whether the evidence that is subject to the U.S.-based discovery must be ‘discoverable’ in the jurisdiction of the litigation itself, or must only be discoverable under the typically more lenient U.S. procedural rules. This debate over doctrine, in turn, raises a debate on the level of theory: Are civil procedure rules rooted in the jurisdiction in which they arise, or do they potentially span jurisdictions in a way which detaches them from any particular political/legal system? Moreover, why does the answer to this question vary from court to court? The article examines the parallels between an existentialist theory of personality and the operation of procedural rules, concluding that there is ‘no exit’ from the debate over the relationship between competing jurisdictions’ rules and thus no pre-determined outcome for the given doctrinal controversy.

civil procedure, international litigation, discovery

Abstract:
The referendum culminating in the independence of Djibouti marks the end of French colonialism in Africa. Despite the grandiose aspirations of French colonial policy and the inflated economic plans for this last colonial enclave, Djibouti emerged as a non-economically viable and socially divided state.

Abstract:
This article works out a theory of sovereign immunity in the Anglo-Canadian courts. It describes how more innovative approaches to the sovereign immunity question have only accentuated the contradictions that lie at the heart of the immunity question. At bottom, the doctrine revolves around two irreducible versions of the rule of law, alternatively reflecting the equality of litigants and the equality of sovereign states.

civil litigaiton, sovereign immunity, international law

Abstract:
This article is a review essay of Anthony Clark Arend's book Legal Rules and International Society. It is also a comment on innovative, cross-disciplinary work in legal scholarship. It uses Jorge Luis Borges' short story "Menard: Author of the Quixote" as a springboard for analyzing the dilemma of exhaustion of possibilities in international scholarship. Arend's excellent reinvention of international law doctrine from a constructivist international relations point of view is seen through a Borgesian lens as a restatement that reinvigorates legal scholarship.

international law, constructivism, Borges, interdisciplarity

Abstract:
A war crimes trial embodies a combination of representational and presentational drama. The contemporary war crimes trial owes equal inspiration to the ‘realism’ of Henrik Ibsen and the ‘theatrics’ of Bertold Brecht. The question for scholars is whether the trial is but a stylized presentation of the ‘real’ events, or a realistic medium through which to eavesdrop on history. This essay explores this question of war crimes and dramatization in the context of Director of Public Prosecutions v. Polyukhovich, the one war crimes case ever taken to trial under Australia’s War Crimes Amendment Act of 1988.

war crimes, international law, Plyukhovich

Abstract:
Rules of civil procedure are unlikely suspects for entrenchment in constitutional law. Nevertheless, the Supreme Court of Canada has been energetic in the process of expanding the constitution to this formerly technical field. Jurisdictional, discovery, and other procedural questions now reflect a national uniformity and immutability that comes with their inclusion in the expanding pantheon of constitutionally protected rights.

constitutional law, Charter of Rights, civil procedure, conflicts of law

Abstract:
This article traces Nazi war crimes prosecutions from Nuremberg through Eichmann to Demjanjuk. It argues that these adjudications graphically act out not the victimhood but the vindication of Nazi victims as individuals and as a nation. The dramatic retribution visited on the defendants speaks to the juridical personality of those that the Nazis sought to destroy.

war crimes, international law, retribution

Abstract:
International law's treatment of aliens gives them certain process rights but few substantive rights. While modern international law is cognizant of the status of persons rather than just that of states, it nevertheless is far more concerned to preserve the authority of sovereigns than to curtail it. The law therefore vacillates between the sovereignty of states and the sovereignty of the law as its primary value.

immigration, aliens' rights, international law

Abstract:
It is the theory of this paper that while the natural analytic tendency is to seek the legal character of terror in the impugned act, it can actually be found only by examining the narrative of the law. As a legal concept, terrorism strikes not only at the political power of states or at the safety of individual citizens, but at the law's own stability as law.

Abstract:
This article looks at the early stages of the Ethiopia-Eritrea conflict, from a locational point of view. It considers Eritrea's position on the periphery of the Ethiopian state, as well as Eritrea's strategic position along the Red Sea coast. From both a domestic and an international point of view, Eritrea's geo-political situation points to its detachment from Ethiopia.

international relations, Ethiopia, Eritrea, Horn of Africa, geography

Abstract:
This article crosses back and forth across the border between law and literature. Its goal is to mirror the dizzying array of procedural doctrines under discussion with an equally dizzying set of comparisons. Contemporary international litigation is compared to a 1960s work of fiction – Thomas Pynchon’s The Crying of Lot 49 – Canadian civil procedure is compared to American social movements, civil liability for polluting the environment on one side of the border is juxtaposed with the pollution of the civil liability environment on the other side, and so on. The hope is to demonstrate both the exhaustion of meaning and the replenishment of forms taken by international law and the legal procedures used to create it.

Abstract:
This is an essay about the migration of legal ideas not through geographic space but through interpretive space. The raw material that it traces is found in a number of international law instruments, all of which express doctrines that are extensions of the central concept of legal sovereignty. These include self-defense under Article 51 of the United Nations Charter, self-determination under Article 1 of the International Covenant on Civil and Political Rights, territorial sovereignty under Article 49 of the Fourth Geneva Convention, and national security under Article 10 the Oslo Accords. These documents form much of the raw material through which international law has addressed the ongoing violence of the Palestinian-Israeli conflict; and, more broadly, they reflect some first principles with respect to law and terrorism. In 2004, they were collectively interpreted for civil liability purposes in the U.S. federal courts, and then re-interpreted for international relations purposes in the International Court of Justice. It is this visiting and re-visiting of international law’s fundamentals that this paper seeks to address.

international law, sovereignty, terrorism, law and film

Abstract:
It is generally considered that there is a dearth of rights in the field of law and terrorism. In fact, when it comes to the Immigration Act and the process of deporting those alleged to be members of an inadmissible class due to their affiliation with terrorist organizations, there is an embarassment of riches when it comes to procedural rights. Some of Canada's most prominent terrorism cases read like intricate fantasy tales rather than like the deductive reasoning to a straightforward conclusion that one expects of legal writing.

terrorism, immigration law