This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

The importance of the role of discipline in the military and the way in which it has been viewed from historical times to the present day are surveyed by the author. The practices of different armies in various conflicts are considered and attempts to codify rules through international conventions and decisions of tribunals are discussed.

Traditionally, international law has come to be regarded as consensual in nature, depending for its authority upon the recognition and acceptance of those entities which it seeks to bind. This view was accepted by the Permanent Court of International Justice in the S.S. Lotus: “The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Article 38 of the Statute of the World Court, when listing the “sources” of international law, also acknowledges its consensual basis. In its substantive portion the article refers to conventions “establishing rules expressly recognized by the contesting States.” It then refers to custom “as evidence of a general practice accepted as law,” which has been explained by the International Court of Justice in the Asylum Case: “The Party which relies on a custom … must prove that this custom is established in such a manner that it has become binding on the other Party. [It] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the [one] State … and a duty incumbent on the [other] State.”

A series about the judges of the International Court must be based ontwo postulates: first, that the unique character and, of course,“value-structure” of each judge ü a variable of some importance inthe application, if not incremental formation, of international law;and second, that the International Court is an important institutionand has played a significant role in “the progressive development ofinternational Law.” While welcoming the idea of thü series, thereviewer has reservations about the way these postulates have beenembraced and adopted by the author and outlines his reservationsabout key jurisprudential assumptions and strategic choices thatwere made in designing the idea and about the ways those assumptionsand strategies have been implemented.

The legal status of the Northwest Passage (NWP) has been the subject of much debate in academic, government, and media circles. To date, much of this discussion has centred on the legal regime governing maritime navigation. However, the question of whether the NWP is subject to guaranteed freedoms or Canada’s unqualified sovereign control also involves the right of overflight. This article investigates the circumstances that led to the inclusion of the freedom of overflight in Part III of the United Nations Convention on the Law of the Sea. It then highlights some of the legal standards that would govern air navigation if the NWP were to be considered an international strait.

The United Nations (UN) human rights treaty bodies play an important role in defining the scope and the nature of non-citizens’ rights. This article offers a critical overview of the UN human rights case law from 2008 to 2018 pertaining to non-citizens — notably undocumented migrants, refused asylum seekers, and permanent residents ordered deported — in Canada. It examines the jurisprudence of the three UN human rights treaty bodies recognized by Canada as having competence to receive and consider individual complaints — namely, the UN Human Rights Committee, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women. The purpose of this examination is two-fold. First, it intends to foster a better understanding of the cases lodged by non-citizens before the UN human rights treaty bodies. The second aim is to explore the substantive issues that the UN committees’ jurisprudence on non-citizens reveals about Canada’s immigration decision-making and enforcement. It is argued that some groups of non-citizens in Canada are at risk of being deported to persecution or hardship in violation of the non-refoulement principle and Canada’s international human rights obligations. The article illuminates several loopholes identified by the UN treaty bodies in Canada’s immigration and refugee protection system that heighten the risk of refoulement.

The first volume of The Canadian Yearbook of International Law/ Annuaire canadien de droit international (CYIL/ACDI) was published in 1963. Anniversaries being a time for reflection, this article examines the Canadian aspect of the CYIL/ACDI’s heritage, aspirations, and contributions on the occasion of its fiftieth year of publication. In addition to indicating its locality, the Canadian identity of the CYIL/ACDI also serves to highlight the journal’s important role as an outlet for scholarship by academics and practitioners based in Canada, resulting in a collection of works that provides insight into the views of Canadians on matters of international law. Mention is also made of the professional value of the CYIL/ACDI in its provision of an authoritative record of Canadian practice in the field.

Since its beginning in September 2004, the negotiation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions has raised a great deal of interest and even tension among UNESCO member states. A record number of members and non-governmental observers have been involved, and, on many occasions, the debates have taken place in overflowing rooms. During the study of the draft convention by Commission IV, on 77 October 2005, the debate even had to be temporarily suspended in order to find a larger room. Obviously, the negotiations, which addressed head on the problem of the interface between trade and culture, dealt with a very sensitive matter. On 20 October 2005, the convention was finally adopted by the UNESCO General Conference (148 votes for, two against, and four abstentions). Considered to be a historical moment by several delegations in their closing declaration, the results of this decision was vigorously denounced by the United States. It went so far as to assert, in a declaration made public by the US embassy in Paris, that the proposed convention was deeply flawed since it dealt with trade rather than culture and that it therefore fell outside UNESCO jurisdiction. How was such a result achieved? This article attempts to clarify these issues, following the negotiation step by step as well as the dynamic that led to the ultimate result.

On August 18, 1972, the International Court of Justice delivered its Judgment in the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) in which:

(a) By thirteen votes to three, it rejected Pakistan’s objections on the question of its competence, and found that it had jurisdiction to entertain India’s appeal from a series of decisions of the ICAO Council which had found that the Council had jurisdiction to entertain the application and complaint made before the Council by Pakistan on March 3, 1971, the details of the application and complaint being given below.

(b) By fourteen votes to two, it held the ICAO Council to be competent to entertain the above-mentioned application and complaint.

The caracas meeting was only the first of three, or possibly four, sessions of the Third Law of the Sea Conference that will try to bridge the gap between the rambling six volume result of the Seabed Committee’s work and the concise articles of a new Law of the Sea Convention. The work at Caracas did not reach a stage at which it became possible to submit draft articles for the approval of the Conference. As a result, the final documents of the session made no commitment on any matters of substance. Such movement towards agreement as was achieved is therefore not binding, and is extremely vulnerable to changes of position by states in the six months preceding the next session in Geneva. Because of this, the emphasis of the present report will be more on the political process at Caracas than on the development of international law. My purpose is, first, to examine the new proposals on seabed issues and relate them to previously existing positions; second, to analyse the alignments behind the key positions; and third, to look at the other factors emerging as influences on the seabed negotiations.