The Power of Perspectives

The Canadian Bar Association

Erika Schneidereit

International law

The law of armed conflict: Does it apply to space?

By Erika Schneidereit December 4, 2018 4 December 2018

The law of armed conflict: Does it apply to space?

 

When the White House announced earlier this year the creation of Space Force, a new branch of the armed forces, many observers were left scratching their heads. Space technology has undoubtedly come a long way since Neil Armstrong’s lunar escapades in 1969, but the idea of an interstellar infantry still seems to many of us a stretch of the imagination. And yet, outer space and space technology now play a pivotal role in nearly every facet of human life, in a way that was inconceivable even a few decades ago. Weather forecasts, communications technology, navigation systems — all of these rely on space. As we continue to incorporate our thinking about space into the design of new technologies and new avenues for exploration, the possibility of future conflicts involving space rights and resources seems far from abstract.

So, what happens when national defence strategy starts looking to the stars? Does international law follow? As a starting point, the answer appears to be yes. International lawyers categorize outer space as territory comparable to the high seas — a “global commons.” Therefore, the wider body of international law on military conduct applies to outer space, meaning that any space conflict or use of military force in space would be subject to international humanitarian law (e.g. the Geneva Conventions) and the law of armed conflict. In practice, however, it is unclear exactly how these rules translate from one realm to the other.

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Legal education

Why international law should be part of every law grad’s education

By Erika Schneidereit June 28, 2018 28 June 2018

Why international law should be part of every law grad’s education

 

The curriculum of law schools across the country is designed with this question in mind. While some fundamental courses (contracts, criminal law, and torts) are perennial staples of Canadian legal curricula, subjects like international law are notably absent from the program requirements. But are new law graduates at a disadvantage without a faculty-mandated understanding of international law? Or should Canadian law schools focus on equipping their students with more “traditional” tools of the trade?

Few law schools in Canada deem international law worthy of “required course” status. Of the 19 Canadian law schools offering common law programs, only four (the University of British Columbia, University of Toronto, University of Windsor, and Université de Montréal) require students to receive some form of international legal education.

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International law

Prohibiting chemical weapons: The short arm of the law

By Erika Schneidereit May 28, 2018 28 May 2018

Prohibiting chemical weapons: The short arm of the law

 

In March 2018, the poisoning of former Russian military officer Sergei Skripal and his daughter Yulia on British territory captured the international media spotlight. Reports later claimed that the pair had been exposed to a Novichok nerve agent, quickly leading to allegations that its use constituted a violation of international law. But what international law actually says about the use of chemical weapons, and the options available to states subjected to a chemical attack, is regrettably absent from most conversations on the topic of chemical warfare.

The international legal prohibition on the acquisition and use of chemical weapons is grounded in the Chemical Weapons Convention (CWC), a multilateral treaty with 192 state-parties. Only three states (Egypt, North Korea, and South Sudan) have neither signed nor ratified the convention. This near-universal ratification is impressive given the CWC’s wide-ranging prohibitions – banning use as well as the development, production, acquisition, retention and transfer of chemical weapons. Also targeted is any assistance provided to other states to engage in activities prohibited by the CWC.

Even so, violations of the treaty (or at least, allegations of violations) continue to occur. So what actually happens when states fail to adhere to the strict rules of the CWC?

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International law

Women are still seriously underrepresented in the shaping of international law

By Erika Schneidereit March 7, 2018 7 March 2018

Women are still seriously underrepresented in the shaping of international law

At first glance, it is perhaps understandable how international law could be misconstrued as gender-neutral. With seemingly objective doctrines and the fact that international legal rules apply primarily to states, it is difficult to see how this particular body of law could possibly be subject to feminist debate. But the very fact that international law appears to draw no gendered distinctions raises a red flag, as it suggests that international legal norms and institutions are free from bias. Contrary to its apparent universality, however, the development of international law has continually under-represented women and marginalized female perspectives.

The clearest example of how women are excluded from international law is their striking absence from the institutions shaping how international rules are made and applied. Despite recent progress, women remain under-represented in domestic legislatures around the world. In a system where states negotiate and ratify treaties (one of the two main sources of international law), this absence of female decision-makers is striking.

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International law

When the laws on universal jurisdiction mix with politics

By Erika Schneidereit December 5, 2017 5 December 2017

When the laws on universal jurisdiction mix with politics

 

Part 1 of this series provided an overview of universal jurisdiction, and looked at how Argentina has used this doctrine to dig into Spain’s troubled past. But how has Spain itself grappled with the benefits – and drawbacks – of embracing universal jurisdiction?

The doctrine of universal jurisdiction is certainly a polarizing subject in international law – so why dig into the history of its use in one particular country? While exploring the rise and fall of universal jurisdiction in Spain is undoubtedly intriguing from an academic perspective, it is more importantly a crucial exercise for advocates of the doctrine who seek to entrench universal jurisdiction as one of the core jurisdictional bases in customary international law.

Despite its recent fall from Spanish good graces, since its 1985 adoption into Spanish law “no country has been more assertive in using [universal jurisdiction] than Spain.” Spain’s championing of a legal tool used to prosecute human rights violations beyond national borders is somewhat surprising, given the country’s own historical experience with post-conflict justice — notably, Spain’s decision to effectively prohibit prosecution of the crimes occurring under the Franco dictatorship and the Spanish Civil War. Alternatively, it is perhaps precisely because of this reluctance to turn its historical gaze inward that Spain so readily allowed for the pursuit of justice outside its borders. 

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