¹ Macdonald, Ronald St. John, Morris, Gerald et al., “International Law and Society in the Year 2000” (1973) 51 Can. Bar Rev. 316.Google Scholar

² Ibid. at 332.

³ Ibid.

⁴ Even in efforts that were essentially retrospective in nature, such as an article from about the same time entitled “An Historical Introduction to the Teaching of International Law in Canada,” there is evidence of a Janus-like gaze simultaneously backwards and forward. In this instance, Macdonald examined the way in which international law as a subject was transmitted in Canada. He provided careful detail about teaching curricula, the backgrounds of those who taught international law and their intellectual commitment to the subject as evidenced from their writings, all as if to pose the implicit question: “How was it done in the past so that we can do it better in the future?” See Macdonald, R. St J., An Historical Introduction to the Teaching of International Law in Canada (1974) 12 Can. Y.B. Int’l L. 67.Google Scholar For other references to the future in his work, see Macdonald, R. St. J., “Future Generations: Searching for a System of Protection” in Agius, Emmanuel and Busuttil, Salvino, eds., Future Generations and International Law (1998) 149.Google Scholar

⁵ Although 1973 was not so very long ago, it was a different time. It was still an era when a federal deputy minister had the luxury of time to write an article for the Canadian Bar Review’s pages and when the typical contributor was often white and usually male. See Gottlieb, A. E., “Some Social and Legal Implications of New Technology: The Impact of Communications and Computers” (1973) 51 Can. Bar Rev. 246.Google Scholar

⁶ War Measures Act, R.S.C. 1970, c. W-2, repealed R.S.C. 1985, c. 22 (4^th Supp.), s. 8o.

⁷ From the vantage point of 1973, it would have been hard to tell that socialism in its ideologic and political sense would be virtually eliminated as a source of international law and reduced in practice to a few outposts. See Tunkin, Gregory I., ed., International Law: A Textbook (1986).Google Scholar

⁸ Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States, UN General Assembly [hereinafter GA] Resolution 2625 (XXV), UN GAOR, 25^th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1971).

⁹ Resolution on the Definition of Aggression, UNGA Resolution 3314 (XXXIX), UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/0631 (1975).

¹⁰ Franck, Thomas M. and Rodley, Nigel S., “After Bangladesh: The Law of Humanitarian Intervention by Military Force” (1973) 67 Am. J. Int’l L. 275.CrossRefGoogle Scholar For more recent commentary, see Henkin, Louis, “Kosovo and the Law of ‘Humanitarian Intervention’” (1999) 93 Am. J. Int’l. L. 824;CrossRefGoogle Scholar Falk, Richard A., “Kosovo, World Order, and the Future of International Law” (1999) 93 Am. J. Int’l L. 847;CrossRefGoogle Scholar Franck, Thomas M., “Lessons of Kosovo” (1999) 93 Am. J. Int’l L. 857;CrossRefGoogle Scholar and Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects” (1999) 10 Eur. J. Int’l L. 1.CrossRefGoogle Scholar

¹¹ The Club of Rome’s conclusions in The Limits to Growth (1972) were to stress the importance of the environment and its essential links with population and energy. In June 1972, the first UN Conference on the Environment adopted the Stockholm Declaration on the Human Environment, UN Doc. A/Conf.48/14/ rev.1 (UN Pub. E 73, IIA. 14) (1973), which referred to humanity’s “solemn responsibility to protect and improve the environment for present and future generations” — a phrase commonly regarded as the first multilateral expression of the concept of sustainable development.

¹² Macdonald et al., supra note 1 at 317.

¹³ Ibid.

¹⁴ Ibid. at 318.

¹⁵ Ibid.

¹⁶ Ibid.

¹⁷ Ibid.

¹⁸ Ibid. at 320.

¹⁹ Macdonald et al., supra note 1 at 321.

²⁰ Ibid. at 322.

²¹ One could think of the following examples: the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 36 I.L.M. 1507 ( 1997), the Rome Statute of the International Criminal Court, 37 I.L.M. 999 (1998), the Cartagena Protocol on Bio-safety to the Convention on Biological Diversity, 39 I.L.M. 1027 (2000), and the Framework Convention for Tobacco Control, 42 I.L.M. 518 (2003).

²² Macdonald et al., supra note 1 at 322.

²³ Charter of the United Nations, June, 26 1945, Can. T.S. 1945 No. 7 (in force October, 24, 1945) [hereinafter UN Charter].

²⁴ The collapse of the Thai currency in July 1997 provoked a financial crisis in several countries in southeast Asia, Russia, and South America that prompted the International Monetary Fund [hereinafter IMF] to provide substantial assistance to countries in trouble in the form of reserve lending and to propose the creation of a new inancial architecture. Later, coordinated IMF and World Bank action is generally credited with staving off the worst effects of monetary col-lapse. See Norton, Joseph J., “A ‘New International Financial Architecture?’ — Reflections on the Possible Law-Based Dimension” (1999) 33 Int’l Law 891.Google Scholar

²⁵ Macdonald et al., supra note 1 at 325.

²⁶ Ibid. at 325.

²⁷ Ibid. at 326.

²⁸ Plummer, William A., “The Big Push: Emigration in the Age of Environmental Catastrophe” (1996) 4 Ind. J. Global Legal Stud. 231;Google Scholar Cooper, Jessica B., “Environmental Refugees: Meeting the Requirements of the Refugee Definition” (1998) 6 N.YU. Envt’l L.J. 480;Google Scholar and Reed, RoseMary, “Rising Seas and Disappearing Islands: Can Island Inhabitants Seek Redress under the Alien Tort Claims Act?” (2002) 11 Pac. Rim L. & Pol’y J. 399.Google Scholar

²⁹ Ibid. at 330.

³⁰ See Weiss, Edith Brown, “The Rise of the Fall of International Law” (2000) 69 Fordham L. Rev. 345;Google Scholar and Sands, Philippe, “Turtles and Torturers: The Transformation of International Law” (2001) 33 N.Y.U.J. Int’l L. & POL. 527.Google Scholar

³¹ “We believe that there will emerge a variety of ordering systems, some more specialized than others, each with its own built-in techniques for correcting disturbances, ironing out deviations, and keeping the system operationally normal. The speciality of these systems will make the task of coordination exceedingly difficult.” MacDonald et al., supra note 1 at 320. The lack of attention to these issues may also be due, in part, to Macdonald’s vision of a People’s Assembly, which might have provided an apparatus for resolving issues of conflict between different subsystems of international law.

³² de Chazournes, Laurence Boisson, Implications of the Proliferation of International Adjudicatory Bodies for Dispute Resolution (1995);Google Scholar and Blokker, Niels and Schermers, Henry G., eds., Proliferation of International Organizations: Legal Issues (2001).Google Scholar

³³ Macdonald et al., supra note 1 at 321.

³⁴ See, for instance, Article 103 of the UN Charter, supra note 23, which states that “[i]n the event of a conlict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

³⁵ Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America; Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of April 14, 1992, [1992] I.C.J. Rep. 114.

³⁶ Franck, Thomas M., “The ‘Powers of Appreciation’: Who Is the Ultimate Guardian of U.N. Legality?” (1992) 86 Am. J. Int’l L. 519.CrossRefGoogle Scholar

³⁷ The MOXPlant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS Case no. 10 (2001) [hereinafter MOX Plant case]. The case involves the transportation to Sellaield of spent uranium fuel rods, which are reprocessed in order to separate the useful fuel for recycling from the waste. Recovered plutonium can be combined with uranium and turned into a mixed-oxide fuel referred to as “MOX” for use in certain reactors. The owner of the Sellaield plant, British Nuclear Fuels, estimates that each six-gram MOX pellet holds the equivalent energy of one ton of coal. Three pellets can provide a family’s domestic energy needs for a year. See Q&A: Sellafield’s Mox Plant BBC (November 8, 2001), available at <http://news.bbc.co.uk/hi/english/uk/newsid_1643000/1643435.stm>.

³⁸ Treaty of Rome (renamed the Treaty Establishing the European Community), 1992 O.J. (C 224) 1 (1992K [1992] 1 C.M.L.R. 573 (1992).

³⁹ Treaty Establishing the European Atomic Community, March 25, 1957, 298 U.N.T.S. 167.

⁴⁰ Convention for the Protection of the Marine Environment of the North-East Atlantic, 32 I.L.M. 1069 (1993).

⁴¹ Convention on the Law of the Sea, 21 I.L.M. 1261 (1982) [hereinafter LOSC].

⁴² The Tribunal decided that “since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispute” (MOX Plant case, supra note 37, Order of December 3, 2001, para. 52). The Tribunal did not find that the urgency of the situation required the prescription of the provisional measures requested by Ireland (principally, prevention of the operation of the plant), but went on to indicate that prudence and caution required the two countries to cooperate in exchanging information concerning risks or effects of the operation of the MOX plant and in devising ways to deal with them.

⁴³ R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte, [1999] 2 W.L.R. 827.

⁴⁴ Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), February 14, 2002 (Judgment), (2000) 41 I.L.M. 536, accessible at <http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm>.

⁴⁵ Marrakesh Agreement Establishing the World Trade Organization, 33 I.L.M. 15 (1994) [hereinafter WTO Agreement]. Thus, Article 3.2 of the WTO Dispute Settlement Understanding, 33 I.L.M. 1125 (1994), describes the role of the WTO dispute settlement as being “to preserve the rights and obligations of [WTO] Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law” [emphasis added]. An example of this treaty-specific focus arose in United States — Import Prohibition of Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (1998), where the Appellate Body interpreted the treaty term “exhaustible natural resources” found in Article XX(g) of the WTO Agreement “in the light of contemporary concerns of the community of nations about the protection and conservation of the environment,” citing to the LOSC, supra note 41, the Convention on Biological Diversity, 31 I.L.M. 818 (1992), and the Convention on the Conservation of Migratory Species of Wild Animals, 19 I.L.M. 15 (1980).

⁴⁶ In this respect, it is interesting to note party arguments about the limits of party jurisdiction. In the MOX Plant case, for instance, supra note 37, Ireland argued that a reason for the tribunal’s appropriateness was that “neither the OSPAR arbitral tribunal nor the Court ofJustice of the European Communities would have jurisdiction that extends to all of the matters in the dispute before the Annex VII arbitral tribunal [under the LOSC, supra note 41 ]” (Mox Plant case, Order of December 3, 2001, para. 46). In other words, the extent of jurisdiction was pre-determined by the breadth of jurisdiction. Ireland also argued that other jurisdictions were cumulative, supplementary to the 1982 LOSC, and invoked the principle that “the application of international law rules on interpretation oftreaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires” (ibid. at paras. 45–52).

⁴⁷ In the Canadian context, this is developed in C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, as well as in later cases. There is also the possibility that over time a spectrum of standards might develop on which to base deference by other tribunals or the exercise of supervisory jurisdiction: Alberta (Workers’ Compensation Board Appeals Commission) v. Penny (1993), 106 D.L.R. (4^th) 707 (Alta C.A.).

⁴⁸ Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179.

⁴⁹ For an example of a case where reference to inter-American jurisprudence was made before the European Court of Human Rights, see Kurt v. Turkey, 27 Eur. Ct. H.R. 373 (1998).

⁵⁰ Millennial Debt Relief — a coalition of non-governmental organizations, churches, and aid agencies has championed a program with respect to the debt relief for heavily indebted poor states, known as Jubilee 2000. See more in, inter alia, Murphy, Sean D., ed., “Contemporary Practice of the United States Relating to International Law” (2000) 94 Am. J. Int’l L. 102, 133 ff.CrossRefGoogle Scholar

⁵¹ Multilateral Agreement on Investment, text available at <http://www.oecd.org>.

⁵² Statute of the International Centre for the Settlement of Investment Disputes, contained within the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, March 18, 1965, 4 I.L.M. 532 (1965) (entered into force on October 14, 1966).

⁵³ LOSC, supra note 41 .

⁵⁴ Grant, John R., “The Background” (1999) 11 Int’l Legal Perspectives 3.Google Scholar

⁵⁵ North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. Rep. 3 (1969).

⁵⁶ Ian Brownlie, Principles of Public Internatiional Law (5th ed., 1998) at 5.

⁵⁷ “In any event, even if norms of treaty origin crystallize as new principles or rules of customary law, the customary norms retain separate identity even if the two norms appear identical in content.” Ibid. at 13.

⁵⁸ Military Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 95–96 (paras. 178–79).

⁵⁹ In this context, the interpretive method will be critical. Bruno Simma has observed that “if one takes modern philosophy of language into account, a dynamic understanding of legal rules becomes simply inevitable.” It is, he says, an “environment in which the meaning of legal rules is continuously being shaped and reshaped.” See Simma, Bruno, “Editorial” (1992) 3(2) Eur.J. Int’l L. 1.Google Scholar

⁶⁰ See Vienna Convention on the Law of Treaties, 8 I.L.M. 679 (1969), Articles 53 (treaties conflicting with a preemptory norm of general international law) and 64 (emergence of a new preemptory norm of general international law).

⁶¹ For instance, although several human rights norms are commonly considered to be jus cogens, governments have been considered by international tribunals as retaining a margin of appreciation as to how many rights are implemented in the domestic order.

⁶² Macdonald, R. St. J., “Future Generations: Searching for a System of Protection” in Agius, Emmanuel and Busuttil, Salvino, eds., Future Generations and International Law (1998) 149.Google Scholar Macdonald sets out to examine the UN high commissioner for human rights, the UN high commissioner for refugees, and UNESCO as “procedural models for the establishment and operation of a guardian for future generations.”

⁶³ Ibid. at 158.

⁶⁴ Ibid.

⁶⁵ Ibid. at 159.

⁶⁶ Macdonald et al., supra note 1 at 327.

⁶⁷ Abraham and Antonia Handler Chayes referred to the fundamental instrument for maintaining compliance with treaties as an “iterative process of discourse” — that is, one where a conversation takes place among parties, the treaty organization, and the wider public. See Chayes, Abraham and Chayes, Antonia Handler, The New Sovereignty (1995) at 25.Google Scholar

⁶⁸ Schwarzenberger, Georg, The Frontiers of International Law (1962) at 13.Google Scholar