Tribunals and Guidelines: Exploring the Relationships between Fairness and Legitimacy in Administrative Decision-Making
The objective of this paper is to address two questions: why do administrative tribunals such as the Immigration Refugee Board resort to developing guidelines, and what are the principles and values which legitimize these initiatives? The role of tribunals in policy-making and/or policy-implementing raises important questions. For example, to whom are tribunals accountable for the development and application of guidelines where the functions of a tribunal - especially the adjudicative functions - are intended to be independent of government?The authors seek to understand better the dynamics of tribunals’ role in the policy process. They propose a classification of guidelines based on the function they perform in administrative proceedings and provide an analysis of the normative framework underlying guidelines. The authors explore how a legal analysis of guidelines might shed on the theory and practice of public administration. The authors conclude that in the absence of a nuanced understanding of the legal status of guidelines, the relationship between administrative practice and the rule of law remains uncertain and unstable.
Discretion Unbound: Reconciling the Charter and Soft Law
The issue of when, how and why the court may remedy the unconstitutional exercise of administrative discretion is largely unexplored. This study explores the relationship between discretion and the Charter and argues for a broader, more contextual approach to remedying the source of unconstitutional discretion. Guidance as to how to exercise broad discretionary authority comes in the form of “soft law,” which encompasses a variety of non-legislative instruments such as policy guidelines and training materials, and which, more informally, extends to administrative culture. Administrative discretion involves choices and judgments usually shaped by a range of legal, bureaucratic, social and personal factors. Under present jurisprudence, the less precise a statutory discretion and the greater the reliance on non-legislative guidelines, the more difficult that discretion will be to subject to constitutional scrutiny. This article challenges this logic and concludes that respect for governmental accountability and the rule of law require bringing soft law out of the constitutional shadows. The first part of the analysis examines the regulation of discretion generally and soft law specifically outside the Charter. The second part analyses the leading case law on the regulation of discretion under the Charter. The third section explores the intersection of discretion, soft law and the Charter. Finally, the fourth section considers the problem of remedying unconstitutional exercises of discretionary authority. Alternative principles are suggested for the development and application of soft law, which envisions a central role for the Charter in rendering the discretionary decision-making process more accountable and just.
Protection of the Marine Environment: The International and National Regulation of Deep Seabed Mining Activities
This chapter provides an overview of the international and national regulatory framework pertaining to deep seabed mining activities. It begins by discussing the UN Convention on the Law of the Sea, the backdrop for all marine activities – be they national or international – and examines the obligations of states to protect the marine environment from the harmful effects arising from deep seabed mining. Next, the chapter examines the international regime for deep seabed mining (i.e. “activities in the Area”), explaining the “common heritage of mankind” status of the Area (i.e. the international seabed); the functions of the International Seabed Authority (ISA), the international organization established to govern deep seabed mining in the Area; and the concept of state sponsorship of non-state entities (i.e. private actors) for deep seabed mining in the Area. The chapter follows with a discussion of the development of national legislation to regulate deep seabed mining, examining efforts in the Pacific region where many prospective deep-sea mining sites are located. This includes a look at the legislative regimes of several Pacific Island nations, namely, Papua New Guinea, Tonga and the Cook Islands, for whom deep seabed mining may soon become a reality – as well as New Zealand and Japan, countries with comparatively developed rule of law and legislative regimes that have undertaken or considered deep seabed mining in their national waters. Overall, the chapter critically describes and evaluates the current regulatory status in the international and national seabed areas and highlights some salient gaps that require urgent attention in order to ensure marine environmental protection and mitigate impacts on humans.