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Our purpose in creating the TWAIL Review is to provide a space for critical scholars, mainly from the global South and their allies oriented to the South, to participate in the project of international law, to produce knowledge creatively through interdisciplinarity, and to push our discipline towards becoming more just, more radical, and more responsive to the collective challenges we face.

Pierre Trudeau’s deep personal commitment to Catholicism was largely unknown to Canadians during his tenure as Prime Minister. Indeed, his religious commitment did not play an obvious role in his political life. Trudeau’s version of Catholicism, ‘personalism’, emphasized the personal – interior – spiritual commitment of the individual and the necessity of the separation of religion and politics. He stressed the importance of individual liberty in matters of faith but also the personal responsibility of the individual to serve others and work towards a more just society. Trudeau was opposed to the recognition of an official religion, and indeed to any form of state promotion of a particular religious belief system. He rejected the assumption that political community or social solidarity required a shared (and public) commitment to a particular faith or culture. His promotion of multiculturalism stemmed from his belief that national identity or political membership should not be based on a shared ethnicity that would necessarily include some and exclude others. His championing of the Charter of Rights rested on the view that citizenship should be grounded instead on a shared commitment to the protection of individual and democratic rights. Trudeau was a committed believer and a secular politician, who sought to separate his public action and private conscience. In a sense then he embodied the separation of religion and politics – of church and state – that is central to the contemporary conception of religious freedom. In this chapter, I want to explore the challenge of separating personal or communal spiritual life from civic life which Trudeau had to navigate, throughout his political career.

Religious beliefs/practices are excluded and insulated from political contest not because they are intrinsically valuable but instead because they are aspects of a collective or cultural identity and markers of membership in the collective. If the state’s duty to accommodate religious practices is about the status of religious groups rather than the liberty of individuals (a matter of equality rather than liberty) then it may not extend to practices that are idiosyncratic and have no link to a religious or cultural group/tradition. The requirement that the state should accommodate religious beliefs or practices (and sometimes compromise its policies) is most often justified as necessary to ensure that the individual’s deepest values and commitments and more generally his/her autonomy in decision- making are respected. I argue, however, that reasonable accommodation is better understood as a form of equality right that is based on the importance of community or group membership to the individual. Understood in this way, the accommodation requirement may not extend to an individual’s deeply held non-religious practices, if they are not part of a shared belief system. The willingness of the courts to protect certain non- religious practices (to require their accommodation by the state) may rest simply on their formal similarity to familiar religious practices such as pacifism or vegetarianism – that are specific in content, peremptory in force and that diverge from mainstream practices. Yet, as a practical matter, practices of this kind are seldom sustained outside a religious or cultural community. It is not an accident then that the very few instances of non-religious, ‘conscientious’, practices that have been accommodated are similar in content and structure to familiar religious practices, and indeed may have arisen from these religious practices.

The most frequently made criticism of the Supreme Court of Canada’s decision in Ktuxana v. BC echoes a familiar and more general criticism of the Anglo-American understanding of religious freedom. The Court’s narrow or ‘protestant’ conception of religious freedom, which is focused on the individual – on his/her belief or commitment and his/her personal relationship with a transcendent God – is said to have the effect of denying meaningful protection to Indigenous and other spiritual systems that emphasize ritual and community life, and that recognize a spiritual presence in the natural world. I will argue that in a religiously/culturally diverse society such as Canada, the protection granted by s. 2(a) (the Charter’s religious freedom right) must be limited to those practices that can be viewed, at least substantially, as personal to the individual or internal to the religious group. The failure of the courts to give religious freedom protection to important Indigenous practices may stem not from a narrow conception of religion but rather from a recognition of the limits of religious freedom in a democratic political community. However, I will argue that the majority of the Court in Ktunaxa went further than this and introduced a limit on the scope of religious freedom that unnecessarily and artificially limits the freedom’s protection based on a Christian understanding of religion, as concerned centrally with the worship of a divine power. In earlier cases, the Court has limited the protection of s.2(a) by defining the concept of religion narrowly or interpreting the practices of a particular religion narrowly so that they did not include communal connections and practices.

Forthcoming, The Political Quarterly.This article is about two ideologies. Welfare-consequentialism holds that government should adopt the policies that can rationally be expected to maximize aggregate welfare. Populism states that society is divided into a pure people and a corrupt elite, and holds that public policy should express the general will of the people. The responses of world governments to the coronavirus pandemic have clearly illustrated the contrast between these ideologies, and the danger that populist government poses to human well-being.I argue that welfare-consequentialism offers a vaccine for populism. First, it rebuts populism’s claims about who government is for and what it should do. Second, the pessimism and distrust that make people crave populism can be satiated by successful welfare-consequentialist government. Finally, welfare-consequentialism’s sunny narrative of progress can be just as compelling to people as populism’s dark story has proven to be.

This article asks which individuals should count in welfare-consequentialist analysis of public policy. Possible answers to this question fall along a spectrum between parochial and inclusive. The most parochial impartial answer is that only welfare effects experienced by the living human subjects of a government should be considered in analysis of its policy options. At the other end of the spectrum, the most inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally. A two-level response to the “who counts” question is proposed. A specification of welfare-consequentialism serving as an ethical ideal might give equal weight to non-human individuals, to foreigners, and to the unborn. However, a welfare-consequentialist decision procedure must take into account the error-proneness of human analysts’ welfare predictions. Predictions of a policy’s welfare impacts on individuals who are more dissimilar from the predicting government are more likely to be wrong, compared to predictions regarding living human subjects. The paper concludes by considering alternative answers to the “who counts” questions that might minimize the combined rate of exclusion and misprediction errors.

Iraq has had a unique, extraordinary, and contradictory historical relationship with international law and world order. From its inception as a modern and sovereign state in 1932, it was considered the pride of the new postwar order – a triumph of the “peaceful” workings of the international institution of the Mandate system of the League of Nations. By the first Gulf War in 1991 and later the 2003 invasion, it was labeled a “rogue” and “outlaw” state that needed to be put in its place by the “civilized” world through the instruments of war, economic sanctions, and unilateral invasion. This chapter will explore this contradictory relationship and its dynamics in history.

A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual information. These conditions, of course, never hold perfectly, but they now seem to be eroding at a rapid pace.The character of public speech has changed in the internet era: how we speak to one another and how we experience that speech. Audiences have become more fragmented. Disinformation and conspiracy theories seem to spread easily and widely, so that distortion and deceit rather than direct censorship may now be the most significant threat to public discourse. There is little common ground in the community on factual matters or the reliability of different sources of information, which has made it difficult, even impossible, to discuss issues and to agree or compromise on public policy. Those who hold competing positions seem rarely to engage with one another and, when they do, their engagement is often combative. A growing number of people feel they should not be expected to hear speech with which they disagree, or which is critical of their views. The spaces or platforms in which public speech occurs have become increasingly privatized and therefore outside the scope of the constitutional right to freedom of expression. What future does the right to free speech have in this changing communication environment?

This paper considers the different types of challenges that technological innovation poses to the Legal Services Act 2007’s regulatory framework, and whether the framework is capable of supporting technological innovation that benefits consumers while also addressing the risks it poses to them.The paper makes some recommendations about how the current regime could be adapted to better address these challenges, but its overall conclusion is that the LSA regime remains capable, for the time being, of responding to them.

This paper examines the recent Supreme Court of Canada judgment in LSBC v. TWU, in which the court upheld the decision of the BC law society not to accredit a law program proposed by an Evangelical Christian university. The paper argues that the task for the courts in this and other religious freedom cases is not to balance competing civic and religious interests but is instead to mark the boundary between the spheres of civic and spiritual life. More particularly, in this case, the issue was whether TWU (in applying to operate an accredited law program) should be viewed as a private religious institution that is free to govern itself according to its own norms, or whether, because its actions directly impact outsiders to the religious group, it should be viewed as performing a public role and therefore subject to non-discrimination and other civic norms. The different judgments in the case begin with different assumptions about the public/private character of TWU (or at least its proposed law program) and so never really address the key issue and never really engage with each other. The paper argues that because admission to law school continues to be a significant barrier to entry into the legal profession in Canada, TWU’s admission decisions will have an impact on non-members. The law society, therefore, was justified in requiring TWU to conform to non-discrimination norms as a condition of accreditation.

In 2017, the Law Commission of Ontario (LCO) initiated an independent study to consider Ontario’s experience with class actions since the enactment of the Class Proceedings Act, 1992 (CPA). During this period, class actions have grown significantly in volume, complexity, and impact in Ontario and across Canada. Class actions also have systemic implications for access to justice, court procedures and efficiency, and government and corporate liability. Finally, this form of litigation has had major financial, policy and even cultural implications across the country.Following an intensive 18-month research project that included over 100 interviews with stakeholders and an empirical examination of Ontario cases, the LCO published its final report, and made over 40 recommendations for amendment and reform of the CPA. It is the first review of the CPA since the Act's inception, and the most detailed examination of class actions in Canada in three decades.

The Canadian government has recently tabled legislation for self-governance of the Canadian patent and trademark agent professions, thereby creating the Canadian College of Patent and Trademark Agents. As such, regulation of the Canadian patent and trademark agent professions might become unique amongst comparable countries – Canada’s self-regulatory body may have authority over setting and administering competency-based standards, ethical standards and continuing professional education.With respect to patent agency, self-regulation of the Canadian profession comes at a pivotal time, not just for Canada, but in technological history generally. We are now moving into the age of the fourth Industrial Revolution, where file sharing, additive manufacturing (i.e. 3D printing) and artificial intelligence (AI) are democratizing invention and along with it challenging long-standing patent law concepts. Furthermore, developments in AI are set to disrupt our traditional notions of professionalization and the delivery of professional services. Patent agency rests on the nexus of both movements and as such, patent agency and patent agent self-governance are approaching unique historical crossroads.Part 1 of this piece highlights some of the issues that the Canadian profession has had to contend with in recent years along with several emerging trends, such as the growing IP clinical movement, new AI-driven service providers and a growing academic interest in the sociology and administration of patent law, all of which are coming to prominence while the Canadian patent agent profession is acquiring self-regulatory authority. Combined with changing notions of the patent system’s role in society, this raises the possibility of conflicts between professional self-interest entrenched within a self-regulatory governance model and shifting perceptions of the public interest. How the new Canadian patent agent self-regulatory body responds to these challenges will define whether Canada will be a leader in forward-thinking patent agency or whether patent agent self-regulation will become a convenient front for professional, rather than public interests.

The Canadian government has recently tabled legislation for self-governance of the Canadian patent and trademark agent professions, thereby creating the Canadian College of Patent and Trademark Agents. As such, regulation of the Canadian patent and trademark agent professions might become unique amongst comparable countries – Canada’s self-regulatory body may have authority over setting and administering competency-based standards, ethical standards and continuing professional education.With respect to patent agency, self-regulation of the Canadian profession comes at a pivotal time, not just for Canada, but in technological history generally. We are now moving into the age of the fourth Industrial Revolution, where file sharing, additive manufacturing (i.e. 3D printing) and artificial intelligence (AI) are democratizing invention and along with it challenging long-standing patent law concepts. Furthermore, developments in AI are set to disrupt our traditional notions of professionalization and the delivery of professional services. Patent agency rests on the nexus of both movements and as such, patent agency and patent agent self-governance are approaching unique historical crossroads.Part 2 of this piece critically analyzes the new College of Patent Agents and Trade-mark Agents Act [College Act] in view of the issues and concerns set out under Part 1. Part 2 argues that a responsive regulation approach to patent agent governance is required to ensure that Canadian patent agency remains open and flexible to the challenges ahead. From this perspective, Part 2 assesses the ways in which the proposed College Act appears to achieve the necessary responsiveness and where it falls short. In some instances, the analysis under Part 2 will also provide proposed revisions or additions to the College Act intended to better address the concerns set out under Part 1.

Graffiti is vilified, and at the same time is increasingly revered and celebrated. This ambivalence is reflected in the general legal landscape that surrounds graffiti and other forms of street art at the criminal, civil and municipal levels. Within this general legal framework, the application of copyright law to graffiti and street art reveals a complex web of interwoven issues about the protection of the graffiti artist’s economic and moral rights and questions of illegality and public policy, and about the rights of the property owner of the “wall” on which the art resides, and the public. This book chapter explores how the law mediates between the rights of graffiti and street artists, the rights of the property owner on which the art resides, and members of the public. The application of copyright law to graffiti and street art offers an opportunity to investigate where the balance should lie between various competing rights and interests relating to these types of works.

Populist candidates and causes have scored a series of remarkable victories in Europe and the Americas since 2015. It is too soon to say whether we are living in a populist “moment,” or at the dawn of a new populist age. It is not, however, too soon to think carefully about the consequences of populism for public policy. Nor is it too soon to consider policy decisions by non-populist governments today that might affect the likelihood that this will be only a moment and not an age.This paper considers the relationship between two ideologies: welfare-consequentialism and populism. Welfare-consequentialism, reviewed in Part 1, holds that governments should always try to adopt the policies that are most likely to make individuals’ lives go best. Part 2 juxtaposes it with populism, defined as the view that (i) society is divided into a pure people and a corrupt elite, and (ii) public policy should give effect to the general will of the pure people (Mudde 2004). The paper then argues that welfare-consequentialism and populism are diametrically opposed ideologies. They are fundamentally incompatible in their representations of “the people,” and in the weight they give to public opinion. Populism’s anti-elitism may sometimes be reconciled with welfare-consequentialism, but not in the many cases where it takes the form of anti-intellectualism. Part 3 concludes by asking whether, in the long-term, welfare-consequentialism makes a polity more or less vulnerable to populism.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

How can we preserve and extend what's good about contingency fees, while minimizing the bad and the ugly? In order to identify the regulatory tools best suited to this challenging task, this Chapter proposes a consumer welfare analysis. The consumers of contingency fee legal services are the individual clients, and the members of classes, represented by law firms working on this basis. These consumers, like other consumers, have interests in:(i) quality, (ii) price, (iii) fairness, and (iv) choice. Part 2 of this Chapter will analyze these four sets of consumer interests, all of which are affected by the regulation of contingent fees. Part 3 scrutinizes various regulatory approaches to contingency fees against the consumer welfare criterion. I argue that heavy-handed interventions, such as fee caps and retrospective price review, can do as much harm as good for consumers. "Light touch" alternatives such as disclosure and standardized contracts, and fostering the "invisible hand" of the market, are preferable approaches for a regulators interested in maximizing consumer welfare.

In popular culture and imagination, World War I was a bloody, muddy, senseless, almost accidental conflict. International law seems far removed from the causes of the war or the way hostilities were conducted. This seeming irrelevance of international law in popular imagination is rejected in intellectual, literary, and scholarly accounts. However, during the centenary of the war, it is time to rethink the role law played in this first large-scale conflict of the twentieth century. Drawing on recent legal historiography as well as original research, this article will argue, through a look at the conduct of naval warfare, that law was central to how Allied, Central, and neutral states navigated the conflict. Specifically, we examine the role law played in the practices of the warring parties in navigating the interdiction of – and attacks on – the civilian shipping of belligerents and neutrals.

Since 2009, the United Nations has been engaged in a process of ‘strengthening’ the human rights treaty body system which monitors the implementation of the core international human rights treaties. The number of human rights treaty bodies has, over time, expanded to ten, with each treaty body independently tasked with monitoring an increasing number of States Parties’ compliance with human rights treaties and optional protocols. This proliferation has in turn precipitated the need for a process to improve the overall functioning of the system.While significant attention has been dedicated in the treaty body strengthening process to the issue of States Parties’ under-reporting and capacity deficits, comparatively little attention has been directed towards accessibility issues, capacity building, and technical assistance for domestic civil society organizations (CSOs) - groups whose informed and active participation are essential to the proper functioning of the entirety of the treaty body system. In light of this lack of attention, an ecosystem of intermediary non-government organizations (NGOs) has emerged organically to provide much needed capacity building, advisory services, and technical assistance to domestic CSOs looking to engage with treaty bodies. However, the ad hoc nature in which these intermediary NGOs have emerged and the lack of formalized institutional relationships with treaty bodies has resulted in a number of systemic issues that desperately need to be addressed in the treaty body strengthening process.This paper will discuss the ongoing process of treaty body strengthening, current services provided by intermediary NGOs to assist domestic CSOs in engaging with human rights treaty bodies (as well as the Universal Periodic Review), gaps within the current framework, and recommendations to improve access for domestic CSOs within the current treaty body strengthening process.

The Supreme Court of Canada’s decision in Google Inc. v Equustek has been criticized as amounting to an excessive claim of extra-territorial reach and possibly a way to bring the right to be forgotten to Canadian shores. In this comment, the author argues that the case is in fact an orthodox application of equitable principles, and one that stresses the importance of the notion that equity acts in personam. On occasion, equity does purport to exert an influence on a litigant’s conduct which takes place beyond the court’s geographical jurisdiction, but it does so, mindful of the practical limitations on enforcement of such orders.