The Exceptions to Universality of Customary International Law

1. Regional Custom
Asylum case – court examines if there was a customary rule that allowed asylum to be sought in this fashion. First court determined that regional custom had to comprise the dual contents of state practice and opinion juris. Important, however, that Silence CANNOT Constitute State Practice in regional custom. One must create regional customs actively, not passively.

2. Persistent Objection
If one objects persistently, then one is not subject to custom. For example, the USA has persistently objected to Canada’s claim that northwest passage is part of internal waters.

Relationship between Custom and Treaty Law

The basis of the Nicaragua case: what happens when there is the same rule of law in customary law and treaty law.

1. COEXISTENCE The main conclusion from this case is that the two sources of law can continue to co-exist. Just because a norm also exists in treaty law, does not mean that the source from customary law is not extinguished. For example the law of use of force flows both from treaty law and customary IL.

2. TREATY –> CUSTOM Treaty activity can constitute state practice for the formation of a customary norm. One has to be very clear in analyzing state conduct whether states are only acting under their treaty obligations or whether adherence to treaty obligations has grown to include opinion juris and broader state practice. A good example of this is UNCLOS (UN convention on law of high seas). A lot of UNCLOS provisions have become customary IL. States that are not part of UNCLOS are bound by some of the provisions of the Convention. For a treaty to create custom you need non treaty parties acting as if they are bound by the treaty.

3. CUSTOM –> TREATY custom can be restated in a treaty format. When a treaty codifies customary IL, the treaty is restating customary IL.

4. CONTRACT –OUT A treaty can be used to contract out of customary IL. There are however certain obligations that no state can contract out of i.e. jus cogens norms.

Critique of Customary International Law

The main critiques of Customary International Law are that the two requirements of state practice and opinion juris are too simplistic. There is not enough guidance from scholarship vis what is meant by these two requirements. Customary IL is in the ‘eye of the beholder’. There is no reason for the rule of custom or lack thereof. The science of customary law is lacking. Guidance from ICJ is vague. Opinion juris is also vague.

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Pulling the Plug When Family and Health Care Providers Disagree on Care

Some are curious what the law has to say when it comes to making a decision about the care of someone who’s incapacitated. When it comes to the critically ill, when family members and health care providers disagree on the plan of the care, what is the appropriate role of the courts to intervene? Some thoughts.

You could: a) Do what the families say.

    This would mean removal of life support measures without consent constitutes battery. (However, any interference with the body without consent is battery.)

    – the law is also obsessed with the autonomy of the individual. The needs of the family is largely irrelevant within the legal model.

Another scenario b) Do what the doctors say.

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Legal Framework of Health Care System in Canada

Fundamental issues

Division of Powers.

Impacts how health system is structured. Recent decision in QB CA summarizes federal and provincial responsibilities regarding health care. At issue is whether assisted human reproduction should be federally or provincially regulated. The federal government has traditionally placed this matter under the criminal law head of power. If defeated, they may try to classify it under POGG power. However, that would be a difficult argument as POGG is not used very often, and it would be difficult to argue that this is a matter of national concern.

Federal heads of power: criminal law. POGG, spending power (i.e. collection and distribution of taxes), quarantine and border control, patent, defence, penitentiaries, immigration. As we can see, the federal role is indirect, supervisory.

Provincial heads of power: hospitals (92.7); medical profession and the practice of medicine (92.13 – property and civil rights; 92.16 – matters of a local and private nature); education (s93) – includes professional regulation.

At issue here, reproduction is held to be under provincial regulation. Human reproduction is not an ‘evil’, hence cannot be regulated by federal criminal law power. On the other hand, true prohibitions, such as stem cell research can rightly be under the federal criminal head of power.

Canada Health Act. Central piece of federal legislation for health care. Canada Health Act does not prohibit anything explicitly, but rather relies on conditional funding. If programs meet criteria then they are funded. If programs do not meet the criteria then they are not funded.   The act lists five program criteria and conditions that provinces must follow in order to receieve their federal transfer payments: public administration, comprehensiveness, universality, portability, and accessibility. There are two additional conditions which must be met: first, feds are entitled to specific information ; and second, the province must “give recognition” to the federal government in all health documents.

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More Info and Details on the Development of Security Agreements

An oral security agreement is valid. But that agreement is only enforceable as between the parties. If you want to have priority rights against third parties then there has to be a security agreement in writing.

“Enforceability” against third parties:
A security interest is enforceable against a third party only where… a description of the collateral by item or kind or by reference to one or more of the following: “crops”, “goods”, “chattel paper”, etc. etc.”

“by kind” – i.e. a generic description of the item. So you can refer to the item as “a car” rather than “a black on black 2008 BMW M3 with six speed manual transmission” or whatever. That being said, while this generic description may satisfy s10, in real life it may not be specific enough for the world of evidence or contracts if things ever went to litigation.

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Secured Financing Intro

The idea of modernizing finance law has spread around the world. Secured financing is a way to stimulate economic growth and modernize an economy. In theory, capital is not used to develop the community because of the lack of legal infrastructure by which banks can lend capital and can hold an expectation to get it back. Many developing countries adopt systems patterned on the Canadian system.

In Canadian law, the core of the system is the security interest. What is a security interest? A secured interest is Propriety interest in the debtors property. This allows assertion of the nemo dat principle. The secured creditor defeats anyone who thereafter who takes an interest in the property.

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Intro to Regulatory Offences

Regulatory offences: Some offences utilize the machinery of criminal law, but are not truly considered to be criminal offences. These offences deal with everyday civil matters such as traffic infractions, pollution, hunting regulations, and so forth. Besides the supremely important fault requirement (discussed below), there are a number of ways to identify a “regulatory offence” from a “true crime”:

1. true crimes are usually more socially and morally condemned than regulatory offences.
2. regulatory offences are usually aimed at deterring harm to the public, rather than the individual.
3. regulatory offences are often part of a complex regulatory framework.
4. regulatory offences are not in the Criminal Code (R. v Wholesale Travel, 1993).

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