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Graduate Speaker Series - Global Affairs and The Rule of Law

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66 Harbord Street

Toronto, ON M5S 1G2

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Graduate Speaker Series - October 2017 Session

GLOBAL AFFAIRS & THE RULE OF LAW

Our October session will focus on global issues and the rule of law. Topics will include law related to combat/military activities, humanitarian interventions, and international law. As always, there will be two speakers who will present their research. This will be followed by an ample time for Q&A and discussion. Pizza will be served.

Speakers

Haim Abraham, SJD Candidate (Faulty of Law)

The Combatant Activities Exception and The Rule of Law

If a person carelessly breaks your arm, she will have to compensate you for your medical expenses, lost wages, pain, and suffering. This notion is enshrined in tort law, the body of law that is applied by courts in civil cases to provide compensation for individuals wronged by others. Yet, if such injuries are inflicted by states on civilians during war, no compensation is awarded, leaving civilians with no mechanism of obtaining a remedy for their injuries. The reason for this lack of liability lies in the ‘combatant activities exception’ that states have in their domestic legislation, which provides them with blanket immunity from any tort liability for injuries inflicted during war. However, this immunity from liability for losses caused by states during battle is an exception to the rule of law, as it provides states special privileges. Hence, the immunity increases the risk of infringements of rights on the battlefield. This presentation will offer a review of the combatant activities exception and its development. Furthermore, it will demonstrate the risks the exception poses to the rule of law by drawing on examples from Canada, Israel, and the United States.


Omar W. Bitar, MGA (Munk School of Global Affairs)

Responsibilities Without Rights: Debating the Legality of the Responsibility to Protect (R2P)

Exemplified in recent memory by the North Atlantic Treaty Organization’s (NATO) illegal use of force in Kosovo in 1999, ‘just’ military interventions conducted in the name of human protection pose a moral challenge to contemporary international law. The converse scenario, a technically legal albeit iniquitous breach of a state's territorial integrity for humanitarian reasons, is no less problematic. Where moral and legal rationales for employing military means toward humane ends do not overlap, the so-called ‘humanitarian intervention dilemma' arises from the tension between law as it is and law as it ought to be. In response to the international community's failure to avert multiple instances of mass atrocities in the 1990’s, the Responsibility to Protect (R2P) arose as a normative attempt to reconcile the moral imperatives of the international human rights regime with the prerogatives of state sovereignty laid out in Article 2(4) of the Charter of the United Nations (UN). By shifting the emphasis from a moral right to intervene to a legal responsibility to protect, R2P's norm entrepreneurs sought to consolidate moral qualifications into an otherwise absolute legal concept of sovereignty, thereby rendering it conditional and dependent for its legitimacy on the fulfilment of the basic duty of human protection. While this new language of humanitarian intervention might incentivize states to ‘work’ to achieve the legitimacy of their sovereignty rather than simply take it for granted, I argue that it has failed to address the very question by which it was initially motivated: Under what conditions does the validity of international law become compromised? How one approaches this question determines their legal interpretation of NATO’s military interventions in Kosovo and Libya; President Donald Trump’s recent military strikes on a government-controlled airbase in Syria; and retroactive justifications of the Iraq War. Largely absent from academic and policy analyses of such contentious cases involving the use of force against a sovereign state, the landmark debate between H.L.A. Hart and Lon Fuller in 1958 indirectly attempted to address this question by offering competing perspectives on the nature of the relationship between law and morality. In support of my argument, I revive the exchange between the two legal theorists, employing each of Hart's legal positivism and Fuller's natural law theory to reveal the legal shortcomings of R2P as an institutionalized norm of human protection in the international community.

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66 Harbord Street

Toronto, ON M5S 1G2

Canada

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