CML 4150/2129: Globalization and Law

Transcription

1 CML 4150/2129: Globalization and Law 3 credits Professor Errol P. Mendes SEM 1 Monday 10:00-11:30 FTX 102 SEM 2 Wednesday 13:00-14:30 FTX 315 Fall Term, 2014 Teaching Method: Lectures, research by students and seminar presentations Office hours: Tuesdays 2pm - 3pm unless otherwise notified or by appointment emendes@uottawa.ca 1

2 Method of Evaluation: Class participation and a major applied research paper on a topic to be selected from one of the four areas outlined below in consultation with the instructor While the research paper will be marked on a 100% basis, class performance will be taken into account in determining the final grade on the course. Course objective: To prepare students for the globalization of law and its impact on society in selected areas. Given that the current global economic crisis has demonstrated that an understanding of key issues in global governance or lack thereof, can affect every facet of social, economic, business and legal environments around the world, this course attempts to prepare students for the new global realities and context that their future careers in law, government or business will encounter. There is no pre-requirements of international law or other international courses for signing up for this course. A general interest in global issues is the only requirement and the course is suitable for second, third year and graduate law students. The course will therefore seek to prepare students to become involved in international institutions, organizations, law firms and government departments that are involved in the four areas of globalization outlined below. There will be a Globalization and Law Scholarship of $500 awarded to the student with the highest performance and who has demonstrated an interested in an international career in one of the above organizations. Course Content: The course will be divided into four course components. Within each course component, students will research both in traditional sources and online for international news sites, libraries or other resources, to develop or critique themes presented by the instructor in preparation for writing their research paper on their chosen topic. The first course component, Globalization and Human Rights, will discuss the development of a global system of human rights protection since World War II. However, to make the course unique, a thesis will be presented for discussion, based on the writings of Professor Mendes, that the emergence of a globalized human rights protection system has created a tragic flaw in global governance, namely the conflict between territorial integrity and human rights in international law and practice. In addition, this component will discuss new ways to redesign international institutions to incorporate new institutions, such as the International Criminal Court or dealing with the flaws in the established ones along with concepts such as The Responsibility to Protect which have the potential to resolve the Atragic flaw@ of the conflict between territorial and human integrity. The tension between the global system of international human rights and national security concerns in the wake of September 11, 2001, will also be the subject of student research. 2

3 The second course component, Globalization, International Trade, the Environment and the Global Labour Market, will examine how the global economy can balance efficiency in global trade rules within the World Trade Organization with equity and justice in and towards developing countries, both in terms of ensuring access to developed country markets and creating the conditions for sustainable development through respect for core labour standards, the needs of developing countries and the environment. Again the writings of Professor Mendes in this area will be used as a thesis, in particular the required text for the course, Global Governance, Human Rights and International Law, Combating the Tragic Flaw, Routledge, The third course component, Globalization and the Global Private Sector, will focus on the impact of multinational corporations on globalization, in the global social, economic and business environment. The component will deal with concerns raised about the impact of multinational corporations in the area of environment, labour standards and human rights and how international law standards could impact on them. This component will focus also on the emerging initiatives by the United Nations and the private sector to deal with these concerns. Particular attention will be paid to emerging initiatives domestically and internationally in this area which aim to impose legal duties or encourage major multinational corporations to promote corporate social responsibility worldwide in the areas of human rights, labour standards and the environment The instructor s involvement in some of these domestic and international initiatives such as the Global Compact, research findings and practical experience will be a teaching component of this part of the course. The fourth course component, International Finance and Capital Markets, will focus on the root causes of the most recent global economic crisis, including the impact of unregulated parts of the financial and capital markets on vulnerable sectors of the global community and how reforms to the system can protect such vulnerable populations. In particular the origins of the Asian Financial crisis of 1997 and the present global economic crisis will be studied and the course will examine how to avert similar future crises. The common thread weaving its way throughout this course, would be the emphasis on the evolving nature of global governance and how law and justice relate to such an evolution, especially in terms of international law and national sovereignty. The role of information technologies and their impact will also be discussed and researched. Course Materials: Required purchase for the course: Errol Mendes, Global Governance, Human Rights and International Law, Combating the Tragic Flaw, Routledge, New York & London, 2014 Format of Classes: For the first two to four classes, the instructor will lecture on an overview of the multiple faces of globalization and the four areas covered by the Globalization course. This overview will also 3

4 include a multimedia learning environment, including access to information on the Internet and videos. By the second class, each student must choose a paper topic from the list below or another closely related topic of the student=s choice but subject to the instructor=s consent. There will be a maximum of two to three students from each of the four areas listed below depending on the class size. Topics will be assigned on a first come, first acquired basis. Beginning with the third or fourth class, on a rotating basis, students writing major papers will present and discuss their most recent research findings with the rest of the class. All students must keep a journal of such discussions in addition to researching and writing their major papers. The keeping of a journal and class discussions for each student presentation will be the basis of the participation grade or penalty. Students should therefore acquire a separate note taking pad for the purposes of developing the a Globalization and Law journal. This requirement also means that class attendance is mandatory and unexplained absences may be penalized. Interspersed throughout the term will be lectures and discussions by outside practitioners and experts. The purpose of the classes is to have a mixture of passive learning through lectures and audio-visual material, active learning, through individual research and class discussions and experiential learning though applied research and participation of external practitioners and experts. The research paper must be handed in by the last day of classes. The length of the papers must be a maximum of 25 double spaced typed pages. Any papers which exceed the maximum length must be cleared with the instructor in advance of handing in the paper. Graduate students must deliver a paper with a maximum of 30 pages in length and have a detailed bibliography. 1. Globalization and Human Rights Paper Topics for Major Research Paper A. You are a legal officer in the Department of Foreign Affairs, Government of Canada. You are asked to write a memorandum for the Legal Advisor to the Minister as to how to convince the UN Human Rights Council to take appropriate action regarding the increasing evidence of genocidal acts against the Muslim Rohinga population in Myanmar. In your memorandum discuss what relevant UN human rights treaties and documents, including the UN Charter needs to be argued to get the Council to take appropriate action. Your memorandum should also discuss the present make up and record of the Council on grave human rights situations. B. The most important aspects of international humanitarian and criminal laws should be applied to the conduct of the 2014 recent conflict between Israel and the Hamas government in Gaza Examine the strength of this statement and discuss whether there are challenges for either 4

5 side seeking to have the International Criminal Court take jurisdiction on alleged violations of these laws in the conflict. C. The coalition s military intervention in Libya (UNSC 1973) and the French intervention in the Ivory Coast (UNSC 1975) are asserted as an impetus for the Responsibility to Protect principle (championed by Canada) to evolve as a norm of international law, but those hopes have been dashed by the inaction of the international community over the slaughter of civilians in Syria but could be revived given the recent intervention by the US to protect threatened minorities in Northern Iraq Examine and Discuss D. The promise and challenges of universal jurisdiction in international human rights law is being witnessed by Canada in the war crimes investigations and trials that it has undertaken@ Examine and discuss. You may focus on a specific case undertaken by the Department of Justice. OR In the wake of the terrorist attacks on 9/11, it is becoming evident that a military/security global industry has presented grave threats to the promotion and protection of universal human rights Examine and Discuss. 2. Globalization, International Trade, the Environment and the Global Labour Market. A. Discuss and examine the factors that led to the demise of the Doha Round that was supposed to focus on trade and development and whether the multilateral trade rules will be abandoned for bilateral and regional trade agreements that will focus on the developed world at the expense of the poorest countries Examine and Discuss. B. The incorporation of core labour standards into the rules- based system of International Trade Law and bilateral free trade agreements (FTAs) are critical not only to prevent exploitation of the most vulnerable, but also to ensure the long term viability of global free trade, the WTO and the ILO. Examine and discuss. ( ILO is the International Labour Organization). You can focus on how Canada and/or the U.S. and the European Union are incorporating labour standards into its bilateral FTAs. C. The incorporation of the fundamental principles and rules of environmental protection such as the precautionary principle or the rules in Multilateral Environmental Agreements (MEAs) into the rules-based system of International Trade Law or in bilateral trade or investment treaties (BITs) is not only critically important for the planet, but also inevitable. Examine and discuss. OR The past examples of successful MEAs requires that in negotiating MEAs not only is there a need for a focus on their effective implementation, but also consideration of cultural and North- South political dynamics. Examine and discuss. 5

6 D. The dispute resolution process and panels under the North American Free Trade Agreement (NAFTA) have promoted the rights of business but undermined the environment, labour and health and safety standards and human rights Examine and discuss. 3. Globalization and the Global Private Sector A. Corruption involving the global private sector is a cancer that undermines both the economies of countries and their political systems. Examine and discuss appropriate remedies for combating international corruption. You may choose to focus on one or more of the major international conventions dealing with corruption or to focus on how a particular country e.g. Canada, the US or the UK and how these countries are establishing effective laws and enforcement mechanisms to combat corruption. B. Self-regulation initiatives and voluntary codes have been the most effective to make transnational corporations respect the environment, labour standards and human rights; it is neither practical or possible to have a multilateral treaty on business and human rights that imposed legal duties on such corporations Examine and discuss with particular reference to the UN Guiding Principles on Business and Human Rights, the most widely accepted form of proposed voluntary initiatives for corporate social responsibility. C. There are emerging national and transnational legal duties attaching to multinational enterprises (MNEs) in the area of human rights, labour standards, the environment and the fight against organized crime and terrorism, which they ignore at their peril. Examine and discuss. You may focus on one or more emerging areas of legal regulation such as the conflict minerals and publish what you pay regulations under the U.S. Dodd-Frank legislation applicable to all companies, including Canadian companies doing business in the U.S. D. To what extent have relevant national laws and jurisprudence helped to define the concept of legal liability for corporate complicity in gross human rights abuses? For examination of national laws and jurisprudence, you may focus on the Alien Tort Claims Act in the United States or recent attempts in Canada to sue for alleged human rights violations committed by Canadian companies abroad International Financial and Capital Markets and Dispute Settlement A. The root causes of the 2008 global financial crisis has not been dealt with and could lead to another much deeper global crisis in the future if the global financial institutions and the G20 does not address those root causes Examine and discuss. 6

7 B. Systemic failures in corporate governance structures in the private sector in the U.S. and elsewhere were a major contributing factor to the Great Recession of 2008 and earlier corporate meltdowns. Major economies in North America and Europe have not yet learned the lessons from these failures. Examine and discuss. You can focus on Canada and/or the U.S. in your research. C. There is a mixed record of the World Bank and/or the IMF as regards transparency and accountability to communities impacted by the projects or countries they finance Examine and discuss. D. The recent default by Argentina of its obligations to external creditors, including the vulture funds that have caused the default, shows that the global economy is in critical need of an international bankruptcy mechanism or collective action to prevent similar future financial crises. Examine and Discuss. OR The vital interests of Canadian companies trading in some countries will be at risk without the protection of the rule of law guaranteed by binding non judicial dispute settlement agreements in Bilateral Investment Treaties (BITs) or in international business contracts that include arbitration clauses Examine and Discuss what are the key aspects that must be included in these BIT agreements or contracts with arbitration clauses that protect the interests of Canadian companies. ADDITIONAL RESEARCH PAPER OPTION FOR GRADUATE STUDENTS ONLY: 1. Focusing on one or more of the main global regulatory or multinational organizations or trade agreement like the WTO, the World Bank or NAFTA, examine whether there needs to be a more global pluralism approach to their decision making taking into account the literature on global constitutional and administrative law, including Chapter 4 of the Global Governance, Human Rights and International Law text 7