Category: Law

Posts about law-making, the courts, and legal concepts in general

The torture prorogation?

It was bad enough to prorogue Parliament to avoid an election, but doing the same to try to silence questions about Canada’s role in torturing detainees is far more dubious. As an article in the Ottawa Citizen explains:

When Harper prorogued last fall it was to avoid a vote of non-confidence. This time, it will be to avoid something possibly far more serious — Parliamentary censure of the government, the banishment or imprisonment of Harper and some of his ministers, or the RCMP being asked to execute a Speaker’s warrant.

While the torture allegations are being treated as a partisan issue, I don’t think that is the appropriate frame of view. This is an issue of international law, human rights, and how Canada is going to conduct itself in international military operations. The precise manner in which Canada should deal with detainees and other governments is one that should be scrutinized by Parliament (and, if necessary, the courts) and that scrutiny should occur where Canadians have the opportunity to observe it.

Our procedures for military oversight also need to be examined, to evaluate the question of whether key information is being properly routed up through military and civilian command structures.

[Update: 25 January 2010] This whole situation generated a considerable amount of protest: 200,000 or so coast to coast.

Open thread: Canada and Afghan detainees

As anyone who reads the news knows, it has been alleged that many detainees passed on by Canadian troops to elements of the government of Afghanistan were subsequently tortured, and that the government of Canada was aware of this likelihood. If true, that could represent a violation of Canadian and/or international law on the part of both those who gave the orders to continue making the transfers and those who actually carried them out. Knowingly passing along a prisoner to an authority that will torture and abuse them is a violation of the Geneva Conventions, but it is not yet fully known what Canadian troops and officials knew or believed prior to making these transfers.

The latest development is a reversal of position by Walter Natynczyk, Canada’s Chief of the Defence Staff. He now accepts that a man was taken into custody by Canadian soldiers in 2006 and subsequently severely beaten by Afghan interrogators.

Given that Canada cannot single-handedly reform the Afghan government and security services, this raises the question of how Canadian troops should be dealing with anyone who they capture during the course of Canada’s ongoing involvement in that country. Given that Afghanistan won’t be turning into a liberal-democratic state governed by the rule of law anytime soon, how should Canadian forces deployed there behave in the future?

Climate Cover-Up

Guitar playing man

James Hoggan’s Climate Cover-Up: The Crusade to Deny Global Warming is a valuable exposé of the efforts that have been made by self-interested actors to prevent political action on climate change, by manipulating the public debate and confusing people about the strength of the science. Written by a Canadian public relations professional, and written with a focus on actors and events in Canada, Hoggan’s book examines how the media has been involved in the debate, how companies have worked to create false grassroots campaigns (‘astroturfing’), the role played by think tanks, the use of lawsuits to intimidate and silence critics, the ‘echo chamber’ effect wherein false claims are endlessly repeated by sympathetic sources, and more. Hoggan makes a convincing case that status quo actors – particularly petrochemical firms – have been working for decades to keep the public confused, and keep legislators inactive.

Hoggan provides both logical and documentary evidence to back up his claims – pointing out things like how most of the scientists that actively deny the consensus view of climate change are being funded as advocates, not as scientists:

The Intermountain Rural Electric Association isn’t paying Pat Michaels to go back into his lab and do research helping the world to a better understanding of how human activities are affecting the climate. The coal-fired utility owners are paying him to “stand up against the alarmists and bring a balance to the discussion.”

Hoggan provides many specific examples of malfeasance, and argues that the public relations personal directing the campaign against action on climate change are often indifferent to whether the claims they are making are true or false. They are tested for how well they affect public opinion, not how well they represent the reality of the situation.

Hoggan does sometimes present information in a misleading way. For instance, he compares the risk of climate change with the risk of car and house insurance, and says that: “in both cases the risk of disaster is significantly less than the greater than 90 percent certainty that scientists ascribe to the climate crisis.” He is referring to how the IPCC’s Fourth Assessment Report concluded that: “Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic GHG concentrations.” and defined ‘very likely’ as cases where “expert judgment and statistical analysis of a body of evidence” support an assessed probability of over 90%. The IPCC was saying that there is a scientific consensus that there is a 90% chance that the unequivocal warming that has been observed has anthropogenic causes, not that the “risk of disaster” is 90%. The question of how serious the consequences of warming will be is distinct from the question of what is causing warming. Another odd error is one sentence written as though the consulting company McKinsey was a person: “When McKinsey talks about a carbon revolution, he strikes the right tone.”

That said, Climate Cover-Up succeeds in its key purpose: revealing that not everyone is engaging in the climate debate in an honest or ethical manner. The scientific consensus that climate change is real and risky is exceedingly strong, and yet the public and policy-makers have been very effectively confused and encouraged to delay action. By revealing the extent to which the debate has been manipulated, Hoggan’s book will hopefully contribute to the eventual improvement of public understanding of climate change, and the development of a will to act sufficiently strong to sort out the problem before the worst potential consequences become inevitable. Hoggan also continues that effort through DeSmogBlog – a site he created to provide ongoing updates on climate change misinformation campaigns.

[Update: 13 October 2010] Another good book on the same topic is Naomi Oreskes’ Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming.

The Khalid Sheikh Mohammed trial

A number of recent articles have provided interesting commentary on the upcoming trial of alleged 9-11 plotter Khalid Shheikh Mohammed in an American federal court:

Given everything that has already happened, it is very hard to see how this can have a good outcome. The trial cannot be fair – since there have been so many rights and due process violations, and no impartial jury can be found – and the precedent seems highly likely to make bad law.

Slate contributor David Feige is probably right in summing up the likely outcome:

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

Given the situation they inherited, the Obama administration may not be able to do any better. Still, it is worrisome to think what the future consequences of this may be.

[Update: 12 February 2010] Due to the opposition he has encountered, Obama has abandoned plans to give KSM a civilian trial in New York. Disappointing.

Music economics

Fire escape ladder

According to data featured on Boing Boing, record labels are dying at the same time as musicians are doing better than ever on account of live performances. To a large extent, this must represent the impact of technology on the industry, particularly the internet and file sharing.

Morally and aesthetically, it is difficult to know how to feel about this. In recent decades, recorded studio music has been the major product of the music industry. More and more, that is now being acquired either free or with low margins for producers. Live music has the virtue of being irreplaceable, but the shift in that direction raises questions about where the moral and aesthetic value of music lies.

Personally, I think music studios have alienated the general public to the point that they deserve whatever financial misfortune they encounter. When it comes to musicians, the situation seems more complex. Is it right to keep rewarding someone (and often their heirs) for a song recorded at some point in time, or is it preferable to reward individual performances? Pragmatically, the options available are constrained. That said, there is a case to be made that music that produces a steady stream of enjoyment should produce a stream of revenue for the people who made it.

What do others think?

Milk

Red tow-away sign

Watching Milk was a reminder of the unusual sort of luxury supporting the gay rights movement actually provides. It is the kind of utterly unambiguous moral movement that emerges only rarely: where one side is unassailably aligned with human welfare and human rights, and the other is straightforwardly mistaken from top to bottom.

While it is tragic that significant numbers of educated people – people who think of themselves as ethical – continue to oppose equal rights for gay men, lesbians, bisexuals, and transgendered people, it does seem worth hoping that the movement opposing these basic liberties will falter and die within our lifetimes, at least within the kind of developed states that have largely abandoned bigotry motivated by ill-founded personal revulsion or oppressive religious notions of morality. While it will take longer for the world as a whole to reach such a state, there does also seem to be reason to hope that it will eventually happen.

In the mean time, the movement for gay rights will continue to have a special motivating character, for all those who aspire to a more equitable and less benighted world. It represents one of the purest contests of sense and tolerance against bigotry and violence ongoing in the world today.

Climate science and policy-making

I wrote the following to serve as a one-page introduction, laying out some of the key items for consideration and listing some of the most accessible and reputable sources of information about climate change. For more information on specific subjects, see my climate change index.

The key elements of the general climate science and policy consensus are:

  • On average, the planet is warming.
  • Most of this is because of human emissions of greenhouse gases.
  • Continued warming would be harmful, and perhaps very risky when it comes to human welfare and prosperity. Anticipated changes include melting glaciers and polar ice, more extreme precipitation events, agricultural impacts, wildfires, heat waves, increased incidence of some infectious diseases, sea level rise, ocean acidification, and increased hurricane intensity.
  • By most accounts, the cost of mitigation is less than the cost of adaptation. Some anticipated changes may overwhelm the capacity of human and natural systems to adapt.

While there is a public perception that there is a lot of scientific disagreement about the fundamentals of climate science, this really is not the case. Back in 2004, a survey of peer-reviewed work on climate science demonstrated this. There is also a notable joint statement from the national science academies of the G8, Brazil, China, South Africa, and India.

To borrow a phrase from William Whewell, there is a ‘consilience of evidence’ when it comes to the science of climate change: multiple, independent lines of evidence converging on a single coherent account. These forms of evidence are both observational (temperature records, ice core samples, etc) and theoretical (thermodynamics, atmospheric physics, etc). Together, these lines of evidence provide a conceptual and scientific backing to the theory of climate change caused by human greenhouse gas emissions that is simply absent for alternative theories, such as that there is no change or that the change is caused by something different.

Readers who are dubious about the validity of mainstream climate science, or unsure of what to think, my page for waverers may be useful.

1) Climatic science and history

There are some good primers available from reputable organizations online. For instance, the United Kingdom’s Met Office has a quick guide.

The Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) is the most authoritative review of the scientific work that has been done on climate change. The summary for policy-makers for the synthesis report is available online.

For detailed information on the physical science of climate change, the technical summary of the IPCC’s Working Group I report is a good resource. Unlike the summaries for policy-makers, which are vetted through a quasi-political process, the technical summaries are prepared exclusively by scientists.

For Canadians who want to read one book about climate science and policy, I recommend University of Victoria Professor Andrew Weaver’s book: Keeping Our Cool: Canada in a Warming World.

For those looking for a concise history of the entire development of climatic science, starting in the late 1800s, I very much recommend Spencer Weart’s The Discovery of Global Warming. In addition to the book form, it is available free online.

For a more specific history of what we have learned about climate from ice core samples, see Richard Alley’s The Two Mile Time Machine. For an excellent (though somewhat technical) discussion of the relationships between the carbon cycle and biological organisms, see Oliver Morton’s Eating the Sun.

2) Climate change mitigation

Ultimately, the only way to keep the concentration of greenhouse gases in the atmosphere constant is to reach the point where humanity has zero net emissions. Getting there fundamentally requires two things: the shifting of the energy basis of the global economy to low- and then zero-carbon sources, and the stabilization of the biosphere through actions like ending net deforestation. It is widely accepted that setting a sufficiently high price for greenhouse gas emissions is a vital way to drive mitigation actions.

Three excellent books that evaluate options for moving to a low-carbon economy are:

On the costs of climate change mitigation, the most comprehensive work is probably that which has been done by Nicholas Stern, beginning with the Stern Review. The review’s executive summary is also accessible online. More recently, he has argued that the costs of inaction are even more significant than those projected at that time.

On the political and ethical side of things, the best short summary may be Stephen Gardiner’s article “Ethics and Global Climate Change,” published in Ethics. Volume 114 (2004), p.555-600. One key idea related to international equity and climate change mitigation is contraction and convergence: an arrangement in which the emissions from all states eventually fall to zero, but where the per-capita emissions of developed and developing states also converge over time.

My fantasy climate change policy combines a moratorium on coal and unconventional fossil fuels with a hard cap on emissions.

3) Other major climate change issues

Other areas relevant to climate change policy-making include:

  • Abrupt and runaway climate change scenarios
  • Adaptation to climate change
  • Carbon sinks (physical, such as the oceans, biological, such as the forests, and geological, such as rocks that erode and form carbonates)
  • Economics (carbon pricing, risk management, etc)
  • Emission pathways (and their international breakdown)
  • Equity issues (historical responsibility, climate change and development, etc)
  • Global politics and international law
  • Planning and design (cities, buildings, etc)
  • Science (climatic equilibria, models and projections, etc)
  • Sociological and philosophical issues (ethics, communication, political theory, etc)
  • Targets (stabilization concentrations, temperature change, etc)
  • Technologies (renewable energy, transport, nuclear, efficiency, etc)

I can recommend resources in all of these areas, if someone has a particular interest.

4) Good sources of climate related news

Probably the best scientific climate change blog is RealClimate.

Good responses to climate ‘skeptic’ arguments can be found in the How to Talk to a Climate Skeptic series. I also keep track of my own arguments with climate change deniers.

Climate coverage in mainstream media sources is often inconsistent in quality. The BBC and The Economist often publish good information, but also sometimes include incorrect or misleading information.

5) A few key graphics

Atmospheric concentration of CO2

This ice core record of carbon dioxide concentrations illustrates one major reason why we should be more concerned about human-induced climate change than about natural variation. Our use of fossil fuels is generating a spike in greenhouse gas concentrations that is set to rise far above anything in the last 650,000 years, at least.

Attribution of climate change, from the IPCC 4AR

The above shows how observed warming is inconsistent with climate models that do not incorporate human greenhouse gas emissions, but consistent with those that do.

MIT climate roulette wheels

The wheel on the right depicts researchers’ estimation of the range of probability of potential global temperature change over the next 100 years if no policy change is enacted on curbing greenhouse gas emissions. The wheel on the left assumes that aggressive policy is enacted. (Credit: Image courtesy / MIT Joint Program on the Science and Policy of Global Change)

I would be delighted to answer and questions, or suggest further resources in other areas of interest.

Last updated: 23 January 2012

Inheritance law in Europe

Wheat stalks

One thing I didn’t know about continental Europe is that in many countries there inheritance isn’t something that you can allocate in your will. If you want to give it all to charity, tough luck: it is impossible and illegal. Instead, you are obligated to leave a set portion of your total estate to your children, divided equally among them. This is referred to as “forced heirship.” There are even provisions in place to “claw back” money given away in the last few years of life, so as to prevent people from circumventing the heirship law by donating while alive. As such, if you give a big dollop of money to a charity and die a few years later (less than two in Austria, or ten in Germany), the state might take it back and give some of it to your children.

This all strikes me as rather batty and weird. After all, the privilege of being able to assign where your wealth goes after death is a natural extension of private property rights in general (though is reasonably subjected to things like inheritance taxes). Particularly in the case of very wealthy individuals, you could also argue that giving a large set share of the estate to each child will do more harm than good. This is what Bill Gates, Warren Buffet and others have argued, when setting up their wills to give only a small fraction of their wealth to their children. Indeed, one of the major consolations associated with the way wealth tends to concentrate is that people who assemble truly colossal heaps of it often give a lot to charity as they age and die. Gates is certainly an example, as were Carnegie and others. The European system seems more inclined towards the establishment of dynasties. That said, it is certainly possible for people who have been given the ability to choose who will inherit their estate to make the choices poorly. There are definitely worse options than even distribution among children. Cases of people leaving their estates to their pets spring to mind.

In practical terms, there are lots of ways people could work their way around such requirements. They could hold much of their wealth in jurisdictions where the law is different. They could also convert most of their wealth into a life annuity upon retirement. It would be interesting to know what proportion of people use such mechanisms in European countries, and how they are distributed between different levels of wealth.

Three strikes rules for internet piracy

Charline Dequincey with her violin

The British ISP TalkTalk has been working to show why banning people from the internet, based on unproven allegations of piracy, is a bad idea. Specifically, they have highlighted how many people still use WEP to protect their wireless networks from use by strangers, despite the fact that WEP encryption is easily compromised. That means it is easy for someone to use software tools to access a nearby network and then use it for illegal purposes. My own experience with wireless networks has demonstrated that people really will use them for criminal purposes if they can gain access.

Beyond that, the idea of cutting people off on the basis of three accusations alone runs fundamentally contrary to the presumption of innocence in our system of justice. It would inevitably be abused by copyright holders, and it would inevitably lead to innocent people being cut off from the internet, an increasingly vital part of life for almost everyone. Indeed, Finland recently declared broadband access a right.

To me, the fact that laws like this may well emerge in France, the UK, and elsewhere seems like another example of just how badly broken our intellectual property (IP) systems are, and how badly skewed they are towards protecting the rights of IP owners rather than the public at large. We would be a lot better off if patents were granted more selectively, if licensing of them was mandatory, if copyright was less well defended and expired sooner, and if fair use rights were more effectively legally enshrined. Here’s hoping ‘pirate parties’ continue to proliferate, pushing back the IP laws that have become so unfairly weighted towards those who own the content.

After all, it needs to be remembered that there is nothing libertarian or natural about IP protection. Rather, content owners are having their property claims enforced by the mechanisms of the state. The justification for this is supposed to be that doing so serves the public interest; if that is no longer the case, the laws ought to be watered down or scrapped.

Promoting responsible mining

Previously, I described the phenomenon where mining companies leave behind messes that would eliminate their profits if they were obliged to clean them up. Often, however, these liabilities end up being borne by taxpayers in general, who either fund the cleanup or live with the consequences of the contamination.

Now, a private members bill proposes sanctions on Canadian mining companies that violate good governance and environmental standards abroad. Bill C-300 was proposed by Liberal MP John McKay, and has already passed through second reading in the House of Commons.

Extractive industries, including mining, certainly have a checkered history of international operations. While there are certainly examples of projects that take into account governance and environmental concerns, legal reforms that make these more typical are welcome.