See you in Geneva? Democracy, the Rule of Law and the WTO (Working Paper 16)

This paper is a constructivist attempt to understand a global political space where states as actors (the traditional domain of international relations theory and international law) are joined by international organizations, firms, NGOs, and others. Today we know that many supposedly private or international orders (meaning sources of order other than the central institutions of the territorial state) are engaged in the regulation of large domains of collective life in a world where the sources of power are multiple, sovereignties are overlapping, and anarchy is meaningless. The paper begins with an attempt, discussed in the first section, to sort out what the rule of law might mean in the context of the WTO, where we soon see that it can only be understood by also considering the meaning of Administrative Law. Much of the debate about rule of law depends on positivist and centralist theories of “law,” whose inadequacy for my purposes leads, in the second section, to a discussion of legal pluralism and implicit law in legal theory. These approaches offer an alternative theoretical framework that respects the role of the state while not seeing it as the only source of normativity. The third section looks directly at WTO law and dispute settlement. I tr y to show that the sources and interpretations of law in the WTO and the trading system cannot be reduced to the Dispute Settlement Body. I conclude in the fourth section with some suggestions on how a WTO rule of law could be understood as democratic.

The Evolution and Reform of Summary Trials in Canadian Military Justice

There is a place where a Canadian citizen can be sent to 30 days detention, by someone who is not a judge, without being represented by counsel, and without having a meaningful right to appeal. It is the summary trial system of the Canadian Armed Forces. This thesis analyses that system and suggests reforms. It is aimed at those who have an interest in improving the administration of military justice at the unit level but want to sufficiently understand the issues before doing so. Through a classic legal approach with elements of legal history and comparative law, this study begins by setting military justice in the Canadian legal firmament. The introductory chapter also explains fundamental concepts, first and foremost the broader notion of discipline, for which summary trial is one of the last maintaining tools. Chapter II describes the current system. An overview of its historical background is first given. Then, each procedural step is demystified, from investigation until review. Chapter III identifies potential breaches of the Charter, highlighting those that put the system at greater constitutional risk: the lack of judicial independence, the absence of hearing transcript, the lack of legal representation and the disparity of treatment between ranks. Alternatives adopted in the Canadian Armed Forces and in foreign jurisdictions, from both common law and civil law traditions, in addressing similar challenges are reviewed in Chapter IV. Chapter V analyses whether the breaches could nevertheless be justified in a free and democratic society. Its conclusion is that, considering the availability of reasonable alternatives, it would be hard to convince a court that the current system is a legitimate impairment of the individual’s legal rights. The conclusion Chapter presents options to address current challenges. First, the approach of ‘depenalization’ taken by the Government in recent Bill C-71 is analysed and criticised. The ‘judicialization’ approach is advocated through a series of 16 recommendations designed not only to strengthen the constitutionality of the system but also to improve the administration of military justice in furtherance of service members’ legal rights.