International Law and Human Rights: The Power and the Pity: McGill Law Journal Annual Lecture

By Abella, Rosalie Silberman | McGill Law Journal, November 2010 | Go to article overview

International Law and Human Rights: The Power and the Pity: McGill Law Journal Annual Lecture


Abella, Rosalie Silberman, McGill Law Journal


About ten years ago, Irwin Cotler organized a conference on the fiftieth anniversary of the Nuremberg Trials and invited me to speak on the topic, "The Instructive Power of Outrage" (1). It launched me on a voyage of legal discovery that has kept me in intellectual thrall ever since. And looking back on that lecture and how hopeful we all were that Nuremberg's lessons would prevail, I find myself wistful for that optimism, and somewhat disillusioned but unprepared to give up. As a result, I have called this lecture about international law and human rights "The Power and the Pity" in the hope that in this audience of brilliant students are the leaders who will take the world by the hand and help show it the way into the future.

Since 1945, the global community has demonstrated an enormous capacity for constructing legal systems and institutions to enhance and advance international law. Many areas of international law are free from controversy and generally effective: telecommunications and broadcasting; the international postal system; laws on shipping and bills of exchange; international travel; passport and customs control; international financial transactions; international trade of goods, services, and ideas; diplomatic and consular relations; and the mutual recognition of marriages, divorces, and university degrees. They are a less visible, but nonetheless significant, series of successes for international law.

And it is a tribute to the perceived legitimacy of international law that it is repeatedly invoked by the Supreme Court of Canada as an interpretire guide when deciding domestic cases. Whereas the Court made use of key international human rights instruments in fifty cases between 1984 and 1996 when interpreting the Canadian Charter of Rights and Freedoms, (2) the Court cited foreign and international law in half of its 114 decisions in 2006 and 2007. (3)

Like international law generally, international economic law since 1945 has witnessed a proliferation of institutional organs established to administer the regime and to participate in legal development, (4) including Organisation for Economic Co-operation and Development (OECD); the World Intellectual Property Organization (WIPO); (5) the International Labour Organization (ILO); (6) the United Nations Commission on International Trade Law (UNCITRAL); (7) the International Bank for Reconstruction and Development (IBR), the International Finance Corporation (IFC), the International Development Association (IDA), the International Centre for the Settlement of Investment Disputes (ICSID) and the Multilateral Investment Guarantee Agency (MIGA); (8) and the United Nations Environment Programme (UNEP). (9) In addition, organizations and legal instruments have been established at the regional level to ensure closer economic co-operation between states, including the European Community (EC); the North American Free Trade Agreement (NAFTA); (10) the Southern African Development Community (SADC); (11) the West African Economic and Monetary Union (WAEMU); (12) the Association of Southeast Asian Nations (ASEAN); (13) MERCOSUR and the Central American Free Trade Agreement; (14) and, of course, the IMF, the World Bank, and GATT. (15)

Then, in 1994, the Marrakesh Agreement established the World Trade Organization (WTO), (16) which came into being on 1 January 1995, dramatically extending the reach of trade regulation and creating a comprehensive international legal and institutional framework for international trade. After only fifteen years in operation, the WTO is in essence international law's child prodigy. Like the UN, the WTO struggles with reconciling the interests of the most powerful states and the least, as is obvious from the tumultuous eight-year saga of the Doha Development Round of negotiations. (17) Yet despite occasional criticism, the WTO and its dispute settlement mechanism in particular are regarded as legitimate, effective, and influential in international relations. …

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