McGill Law Graduate Work Symposium: 2011

We will post abstracts from conference participants as we receive them.

Kuzi Charamba, "The State Under Siege and the Need for Effective Regulation of Multinational Corporations"
Panel 4 - Friday afternoon

Globalisation is an ubiquitous term that has essentially dominated a large part of today’s popular discourse, and rightly so. The product of this phenomenon, manifesting itself through greater interconnectivity and innovation, has produced many benefits for peoples across the globe. At the forefront of such innovation has been the multinational corporation (MNC). Their international growth and investment have spurred job creation, infrastructure development, and formative skills training, amongst other things. Consequently, States all around the world have been receptive to MNCs and sought to create an environment conducive to their growth and development. Conversely, however, the establishment and growth of MNCs has also created a plethora of negative externalities. Around the world, reports of child labour abuse, environmental damage and international trade distortions, amongst a host of other violations, have become regular occurrences. This problem of legal violations is particularly acute in developing countries where governments lack the mechanisms to hold these corporations to account, turn a blind-eye to the infractions or engage in other improprieties in order to sustain the inflow of investment.

The challenge of regulation is made more difficult upon the realisation that MNCs have been able to create competing parallel orders to that of the State. This, coupled with competing transnational regulatory orders, have effectively usurped power from the State and displaced it as the sole regulator. At the heart of this is the consequence for the implicit social contract between citizen and state as it is challenged by that of citizen and corporation. Consequently, the issue for discussion lies in how States are able to effectively regulate MNCs in a manner that supports economic growth and development whilst holding MNCs accountable for any transgressions, both legally and ethically.

Roisin Hennessy, "Legal Empowerment or Cooptation? : Towards a more Complex Understanding of the Role of Legal Empowerment as a Development Strategy in the

Within development co-operation programming the concepts “legal empowerment of the poor” and “access to justice” have emerged in recent years, and are now being prioritised by development donors as important elements within the broader "law and development" agenda. The claim is made that poverty persists in the Global South partly because the poor do not enjoy legal rights, with an estimated over three billion people currently considered to be living without legal protection. While diverse definitions and programs for legal empowerment exist, legal empowerment has been broadly defined as the “use of law to bring about a process of systemic change that enables the poor to use the law to advance their rights and their interests”. However, the extent to which legal strategies can effectively address structural inequalities has long preoccupied legal scholars and remains highly disputed. This paper will explore some elements of critical legal theory’s critique of the formalist limitations of legal and rights based strategies. According to this critique, through a process of “legal cooptation”, legal strategies and rights discourse can in fact disrupt political solidarity, undermine social movements, narrow the range of issues under consideration and divert energy away from more effective and transformative extra-legal alternatives. Contrasting official development discourse which proclaims the virtues of “legal empowerment”, with some elements of this critique, I aim to begin to explore, in a preliminary way, some of the risks and implications that legal empowerment and rights based strategies can give rise to in the development process. I will ground my analysis in examples from public interest litigation strategies and legal aid clinic programs, two site through which donor agencies currently seek to promote legal empowerment.

Global South"

Lina Winkler, “Regulation of intermediaries in the music business – game rules for managers, agents and lawyers?”

Panel 4 - Friday afternoon

Over the last two decades the music industry has gone through massive changes. The technological revolution has not only forced the industry into changing to new distribution channels and revising their business models, it has also altered the power relations in the industry; a musician no longer needs a deal with one of the big record companies to get his or her music published. In fact, today every musician has the opportunity to create a business from his or her talent, but in order to become successful the musicians need to embrace that they are now business entities. Piracy downloading and changes in consumer purchase patterns over the last decades have meant lost revenues for the music industry; but it is still a business that turns over billions of dollars each year. But, to make money from creativity, you must not only create music that the audience likes, but you must also be creative and skilled in business, legal affairs and marketing.

Lawyers, agents and managers have long been around to assist and represent musicians in the business in music business. Seeing to the development of the music business, these “intermediaries” seem likely to become even more important in the future. The legal responses to the new technology and the distribution possibilities it brings have primarily aimed to sustain and strengthen the legal rights of creators by harmonizing copyright laws. But in order to enjoy the benefits from the legal rights created from and connected to their creation, many musicians are dependent on a representative; few musicians are capable of dealing with their legal business on their own.

In many other fields of business, the practice of business and law is left to legally trained, and many times also officially certified, professionals. Regulating business and legal professionals is a way to control that they will act in a professional and ethical manner and that they will conduct their profession with their clients best in mind. Yet in many jurisdictions, the intermediaries in the music business are left unregulated, even though the music business is heavily, and increasingly, dependent on these intermediaries’ management of the legal structures constructed to protect artists’ rights. What are the consequences of little or no regulation of the music business intermediaries to the individual musician and to the music business as a whole? By comparing regulation of music intermediaries in USA, Canada and – surprisingly enough one of the worlds’ top ten music-exporting countries – Sweden, we might find out.

Bethany Hastie, "The Boundaries of “Coercion” in Human Trafficking Legislation
(Panel 2, Thursday afternoon)

The inception of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children sparked renewed interest in academic inquiry into issues surrounding “modern day slavery”. A decade since the creation of the Protocol, national and international bodies continue to be plagued by interpretive issues arising from the Protocol in developing domestic anti-trafficking laws. This presentation will attempt to address a significant interpretive issue that has arisen in relation to human trafficking laws by examining the meaning of “coercion” for the purposes of trafficking in persons for forced labour. Drawing on documented control tactics used in forced labour situations, this presentation will present a conceptual framework from which a definition of “coercion” can be illuminated. The conceptual framework will address several issues which arise in relation to appropriately defining “coercion” for legal purposes, including the issue of agency and consent, and issues surrounding the fine line between labour exploitation and human trafficking. To conclude, the boundaries of “coercion” can be drawn for the purposes of human trafficking, illuminating gaps in relation to the development of anti-trafficking laws, and highlighting the need for complementary reform of labour laws and enforcement in order to successfully combat forced labour.

Paul Fitzgerald, "Freeing 'Open Skies': the Need for Consistent and Harmonized Regulation of Aviation" (Panel 1, Thursday morning)

The airline industry is one of the most heavily regulated on earth and international services are often governed by different and even incompatible rules at either end of the flight. Matters are further complicated when anti-trust immunity mandates a “joint venture” or “metal neutral” arrangement between airlines based in different countries.
While the Chicago Convention provides a fairly consistent regime with respect to safety and air navigation, States may adopt compatible, but not identical regulations. In other cases, notably dealing with aviation security, passenger rights, or environmental emissions the regulations that States may adopt vary widely, often to the point of incompatibility.
This is because the Sovereignty of States is the centerpiece of the Chicago Convention and thus State are uniquely responsible for regulating their airlines subject only to ensuring compliance with international safety standards.
The regulations that a State adopt may be motivated by factors or policies that are unknown in the second State to which service will be provided. Indeed, the motivation of two States in promoting international commercial air service may be based on entirely different desired outcomes, different rule-making processes and use different regulatory tools.
International aviation is not included in the GATT, and the commercial air services between any two countries are principally governed by a Bilateral Air Services Agreement between those two countries. Indeed, outside of the European Common Aviation Area Agreement and the Multilateral Agreement on the Liberalization of International Air Transportation, there is no system of compatible regulation encompassing issues broader than safety at both ends of an international air route.
My research will focus on ways to ensure that a level playing field with respect to airline competition applies across the majority of major markets for airlines, especially, where possible at both ends of an international air route.

Benoît Mayer, "At the Frontiers of Rights: Protecting Human Rights Beyond National Borders, in Law and Practice" (panel 2, Thursday afternoon)

Despite the inherently universal character of the human rights project, states obviously never accepted to bind themselves to actively protect everyone’s human rights, everywhere, at every time. A fair international protection of human rights must only ensure that the rights of each individual are protected at all time by at least one state. Yet, international human rights law rarely took a clear position on how to ensure that the rights of one individuals are always protected by at least one state. A limitation of states human rights obligations to their nationals or to the people within their territory or jurisdiction has led to some of the most striking and “cold-blooded” human rights violations committed by Western states in the last decades. Through an original reflection on these elements, I present four theories on the scope of application of human rights obligations: allegiance, territory, jurisdiction and state conduct. These four chronological and logical stages can be analyzed as a slow but constant extension of a “magic circle” of equal rights-holders.

Duncan Blake
“Adequacy Of The Current Space Law Framework From A Military Strategic Perspective”.
(Panel 1 - Thursday morning)

Space-faring nations and those who rely on the space systems of major powers to support their own space-dependent military capabilities recognise the need to regulate the behaviour of states with respect to outer space. This is true of Australia, which depends heavily on assured access to US space systems. The latest Australian Defence White Paper and other strategic documents strongly emphasise the need to promote international norms to avoid events that are destabilising and that disrupt access. However, the current international legal regime leaves considerable areas of uncertainty. Some ambiguity has historically suited major powers, but as outer space becomes more contested and congested, other major powers, such as Russia and China, have proposed new international legal instruments, naturally adapted to their specific strategic interests. Conversely, the EU has drafted more detailed ‘rules of the road’ for outer space in non-legally binding form. The recent Bush administration was opposed to any such instrument, but other states are in the process of considering their position on this draft code and some, such as Canada, have even proposed alternatives of their own. The Obama administration still opposes a formal treaty, but is actively considering a ‘Code of Conduct’. Such an instrument could improve strategic certainty and avoid the risk of strategic miscalculation, but would it be practicable and especially verifiable? My Masters thesis will examine a Code of Conduct for Outer Space and its alternatives as means to address the deficiencies in the current space law framework from an Australian strategic perspective. However, my presentation will address one aspect of my thesis - namely, some deficiencies in the current space law framework from a military strategic perspective.

Charles Paul Hoffman
Visual Representations of the Nova Scotia Legislative Council
Panel 3 - Friday morning

In 1928, Nova Scotia finally abolished the upper house of its legislature, the Legislative Council, after a fifty year battle that included attempts to abolish the Council locally, appeals to the United Kingdom to amend the British North America Act, substantial reform along the lines of the 1911 imperial Parliament Act, and, finally, litigation before the Privy Council in London. Throughout this extended debate, the Council was generally portrayed by politicians and perceived by the public as an unnecessary relic, though the Council itself frequently fought these representations, arguing that it played a vital role in maintaining the quality of Nova Scotian legislation.

While most of these representations of the Council were verbal or written, inevitably many of them were visual. The editorial cartoons of Donald McRitchie of the Halifax Herald regularly portrayed the Council as an elderly man with a long beard and usually balding. Without writing a word, McRitchie’s message was clear: the Legislative Council was past its prime and should be retired. In contrast, the images produced by the Council itself generally emphasized the dignity of the office, with official photographs showing Councillors at their desks working. But, in an era when newspapers published relatively few photographs, the Councillors’ images of themselves simply could not compete with those coming from their opponents.

In his presentation, Charles Paul Hoffman will examine some of these visual portrayals of the Nova Scotia Legislative Council and use them as a means of telling the strange story of its reform and abolition.

Nelcy Lopez Cuellar
“Correlative lack of authority and lack of obedience as a dynamic of legal pluralism within the state”.
Panel 3 - Friday morning

Legal pluralist authors typically view the coexistence of competitive authority-claiming institutions and the existence of either disobedience or accommodation as independent indicia of legal pluralism. That is, legal pluralists usually regard each of these phenomena as a sufficient condition of legal pluralism. Perhaps for this reason, legal pluralists tend to discuss these phenomena separately and discretely. Nonetheless, I argue that there is a strong connection between these features of legal pluralism. I contend that disobedience and accommodation are species of the lack of obedience overall. I assert that, if the subject denies recognition of authority, it follows that there is no duty to obey the ruler’s commands. And, subsequently, a lack of obedience follows from this lack of a duty to obey. I also assert that to generally disobey or merely comply with authority’s commands signals the denial of recognition of authority. Finally, I argue that a refusal to recognize the authority of a particular authority-claiming institution is indicative of the coexistence of putative authorities.

Liam McHugh-Russell
“Regulating Human Rights: From Legal Problems to Cultural Tensions”.
Panel 2 - Thursday afternoon

Legal research has recently begun to take a second look at the genealogy, legitimacy and administration of "law" as a type of regulatory mechanism. This “regulatory approach” to legal study has turned the methodologies of regulatory research toward bodies of legal rules which have generally been placed in the background of the field. At least one novelty of such an approach offers to legal studies is that it allows legal systems themselves to be understood as subjects of meta-regulation. Perhaps the more substantial innovation of the approach, however, lies in its focus on the question of effectiveness, i.e. how well the given body of law achieves the ends it is thought to serve. In accordance with these two perspectives, however, regulatory approaches to law have now increasingly paid attention to the larger social, political and legal contexts which influence the outcomes of 'legal systems' narrowly defined. My paper will explore some of the implications of applying such a regulatory model to "human rights." Specifically, I hope to address some potential inconsistencies between the theoretical framework of a regulatory approach and the cultural dimensions of human rights as a legal and political practice. To that end, I rely on research investigating the way in which a promotion of "human rights" entails not only a statement about normative life, but also relies on a particular ontological universe - its own "integrated system of difference." I attempt to provide some clarity about possible directions for inquiry implied by such a project, and try to answer some potential objections to studying human rights in this way.

McGill Law Graduate Work Symposium

Thursday, May 26, 2011

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Wednesday, May 25, 2011

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Tuesday, May 24, 2011

ABSTRACTS

Lina Winkler, “Regulation of intermediaries in the music business – game rules for managers, agents and lawyers?”

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Sunday, May 22, 2011

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