Panel 8C: Theoretical Approaches to International Law: Beyond Multilateral Treaties
November 17, 2014
Saskatchewan College of Law
Ryerson School of Law and Business
Ibironke Odumosu-Ayanu Saskatchewan College of Law
2017 JD Candidate
The first speaker, Professor Newman sought to explore the general principles of international law in the context of multilateral treaties. General principles are used in areas such as criminal law, environmental law, and investment law. Their methodologies differ across various areas of international law. Two cases allow us to explore general principles that are more theoretical. The first case is the Sarayaku decision of the Inter-American Court of Human Rights in Ecuador, which enunciated that the state duty to consult with indigenous people is grounded in international law. Concerns about redundancy between international law and customary international law are resolved by viewing general principles as foundations for conventions and customs grounded in natural law. The second is about an environmental law issue in Latin America, which reflected different general principles. Judge Cancado-Trindade advocated a methodology of interactions between general principles and domestic legal orders which pressure courts and the state to comply with international law. There are standard positions in conventions and customary international law on when the principles become part of domestic law. However, much theoretical work still needs to be done in the interactions between general principles and customs.
The second speaker, Professor Graben discussed the recognition of increasing reliance and practice of the Canadian government in advising Latin America on how to deal with communities and resource conflicts. One solution is regulatory experimentalism, which draws on democratic experimentalism and promotes consensus and economic growth through dialogue. The question at hand is whether the Canadian regulatory framework is applicable in the Latin American context. Canada’s success in regulatory experimentalism is not necessarily predictive of success elsewhere due to differing local preconditions. Civil society can play a larger role alongside environmental organizations in supporting regulatory conflicts and indigenous environmental claims. We should try to establish comparative supports in the absence of civil society, support racialized minorities, internalize government decision-making and use courts as effective measures.
The third speaker, Professor Dolidze addressed the issue of internationalization of laws—how laws were adopted at the international level from the domestic level. International law and domestic law are taught as different avenues of practice, but domestic law often inspires international law. Three factors influence internationalization: the policy gap related to structural transformation at the global level, activities of known entrepreneurs and their access to decision-makers. Two case studies show that ideas can be adopted internationally: the internationalization of the Amiscasria participation procedure and the internationalization of English law property concept of “trust” adopted into Article 22 of the Covenant of the League of Nations. In addition, one should pay attention to the role of non-state actors, legal interest groups and individuals and understand the culture of international law.
The final speaker, Professor Odumosu-Ayanu continued to explore the interactions between domestic law and international law. Local communities have faced challenges in natural resources investments to which international lawyers have responded with treaties, general principles and customary international law. These issues can be analyzed using the multi-actor approach to resource extraction and constructivist human rights theories. She advocated the recognition of current practice but also the articulation of perspective that directly incorporates local communities into foundational contracts that define and regulate resource extraction. There is a need to foster more sustainable extraction of resources, agency of local communities in decision-making and amicable relationships in natural resources development.