Weaving a new world order.

September 11th has changed our lives in both obvious and subtle ways. Those of us fortunate enough to live in North America have been sharply reminded of our vulnerability. The attacks on the World Trade Centre and the Pentagon and subsequent developments may even cause Canadians to consider some of the international challenges that have been too easy to ignore prior to September 11th. We may think more about our interconnectedness with people in other nations and on other continents.

International Criminal Court

One timely initiative is the development of the International Criminal Court ("the ICC"). Osama bin Laden may not be tried in such a court, but we are certainly much closer to the realization of such a possibility. In 1998, the United Nations decided to create the ICC. The stated purpose was to promote justice, to deter further crimes, to restore peace and then to maintain it. In dealing with genocide and crimes against humanity, the ICC will attempt to establish personal criminal responsibility. This is particularly important given the limitations inherent in domestic criminal courts. Proud nations don't usually want to accede to the jurisdiction of a criminal court in another nation. The ICC will have a much stronger claim to legitimacy. Part of the reason for the ICC is that ad hoc "criminal" tribunals such as the former Yugoslavia and Rwanda tribunals proved cumbersome and difficult to establish and operate. The ICC process will start when a prosecutor presents an indictment to a Tribunal judge for confirmation. If confirmed, an arrest warrant is served on the country in which the accused resides. If that country doesn't turn over the accused, then the matter is referred to the UN Security Council.

The ICC is not yet operational, but there already has been a lot of debate over just how effective it may be. The ICC will only have jurisdiction over those nations that agree to be bound by it, and over foreign soldiers physically in those nations. What is the likelihood that nations who are led by bullies and despots will accept the jurisdiction of such an international criminal court? Even if such a nation agrees to be subject to the ICC, the court will have no jurisdiction unless and until the prosecutor can show that a domestic prosecution is not undertaken in good faith.

Madam Justice Louise Arbour of the Supreme Court of Canada has offered some valuable insights into the future of the ICC. With her prior experience as a prosecutor for an ad hoc international tribunal, she is in an excellent position to assess the prospects for the ICC. Justice Arbour has acknowledged the shortcomings in the ICC. She has suggested that the ICC will not present a credible deterrent until the court actually has been able to progress from investigation to an indictment, to arrest, and finally to a conviction.

Intellectual Property

How will nations of the world resolve the issues that result when biotechnology collides with patent law in different nations? What legal structures and rules will be required to deal with genetic research? Traditionally, life forms could not be patented since they were viewed as part of nature. In 1980, the US Supreme Court concluded that genetically modified bacteria could be patented. The bacteria in question had been genetically altered to dissolve oil. The basis for this decision was that the genetically engineered bacteria did not occur naturally. This decision has led to patents being issued in the US for fragments of DNA. Patents have also been issued for genetically engineered animals and plants. Even a genetically engineered mouse that is particularly susceptible to the growth of tumours has been the subject of a US patent. These developments have led to questions about what the impact will be on important genetic research. Clinical researchers in one nation doing genetic research may be constrained by the patent rights of a corporation based in some other nation. To what extent will other researchers have to obtain a licence from a DNA patent holder to undertake further research? Will private ownership of the building blocks of life itself impede life-saving research in other parts of the world? Is it in the public interest to allow a patent owner or licensee monopolistic control over what genetic testing and research is undertaken by other medical researchers?

These are not theoretical questions. On May 31, 2001, the Ontario government received a notice from the Utah-based Myriad Genetic Laboratories Inc., requesting them to stop an Ontario test for genes implicated in breast cancer because Myriad owns the patent on genes BRCA 1 and 2. The company has requested that all genetic tests for breast cancer be sent to the company's Salt Lake City laboratory. For the moment, Ontario has stated it will continue using its own tests. What the outcome of this situation will be remains to be seen.

Environmental Protection

"The parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof." These words are part of the text in the UN Framework Convention on Climate Change, which came into force in 1994. We seem to still be a very long way from realizing the promise of that international instrument.

The legal framework to battle global warming certainly reflects the different capacity of nations to clean up a major environmental hazard. This convention is severely handicapped, however, given the unwillingness of the US to sign on to tough CO2 emission cuts. To succeed, all of the major industrialized nations must agree to be bound by the climate control convention. We will also have to recognize that underdeveloped nations that choose to curb resource exploitation will require compensation. We will have to recognize that developed nations like Canada bear a greater responsibility for cleaning up environmental problems, which they have created in other parts of the world either directly or indirectly. In addition, and quite apart from questions of fault, poor nations will need a lot of money and technology to implement new environmental protection practices.

Deforestation is reported to be a significant contributor to global warming yet the United Nations Conference on Environment and Development (UNCED) in 1992 in Rio could not produce a binding agreement in sectors like forestry. It had to settle for a non-binding statement of principles on the protection of forests and sustainable development of forests. The challenge for international environmental protection law is daunting. It requires both developed and underdeveloped nations to agree on effective and enforceable laws to protect the global environment.

International Trade and Commerce

Private international law will likely see many far-reaching initiatives that will impact international business. Private international law has to do with the regulation of private business relationships across the boundaries of nations. This is particularly important for a trading nation like Canada. Some private international law is bilateral such as the original Free Trade Agreement between Canada and the US that subsequently expanded to include Mexico in NAFTA. Other private international law such as the General Agreement on Trade and Tariffs is more global in scope. Such a law may also be regional in scope. An example of a regional law is the Privacy Directive that has been adopted by the European Union.

The European Union has developed a sophisticated legal tool to protect personal privacy in the business field. The Privacy Directive requires that EU nations trade in data only with non-member nations that have legislated data protection. Nations that don't meet that standard risk losing international business opportunities with Western Europe. Canada responded by enacting the Personal Information Protection and Electronic Documents Act. The US on the other hand has resisted any general law to regulate use of personal data by the private business sector. It has instead developed something called "Safe Harbours". Certain industries can register as a safe harbour and thereby agree to abide by a stipulated standard of privacy protection. This approach is seen as less than adequate and there is widespread speculation that the US Federal Trade Commission will push for more comprehensive privacy protection.

International laws can be vexing to legislate, difficult to enforce, and slow to change, but we need the certainty and the strength they provide. The challenges posed by crimes against humanity, genome patents, global warming and personal privacy will impact individuals in all nations. We can only hope that our international legislative solutions are equal to such a test.