Canada’s Not Back Yet: Debating Canada’s Place in the World

(Published in A Blog Called Intrepid, Jul. 27, 2020).

Canada’s failure to win a seat in the United Nations Security Council has provoked a debate over Canada’s place in the world. It was seen as a personal failure of Prime Minister Justin Trudeau, who when elected famously declared that “Canada is back!” But it has raised deeper questions regarding the reasons for the failure, what Canada’s role in the world should be, and indeed what it once was—should we want to be “back?” And what does that mean anyway?

Some have suggested that the past that Trudeau invoked is more myth than fact, and that we should, in any event, look to the future with a more narrowly pragmatic and realpolitik approach. But the soft power and outsized diplomatic influence that Canada wielded during the latter half of the Twentieth Century is no myth—and I would argue it is important to understand what explained Canada’s stature in the world, and indeed to get “back” to embracing the principles that made us who we then were. Those principles are closer to the values that still make us who we are today as a nation.

I personally witnessed evidence of this influence in the autumn of 1989. I was a junior naval attaché seconded to serve in the Canadian Mission to the United Nations in New York City. Joe Clark, then the Minister of External Affairs in the Mulroney government, was to address the General Assembly at the end of September, and Canada was to take over the rotating presidency of the Security Council in October. It was an exciting time to be at the UN, as the Berlin Wall was coming down and there were other seismic shifts suggesting a coming new world order. But like most members of Canada’s then under-funded military, I shared the perspective that Canada’s anemic hard power gave it little influence in the world.

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New Podcast on the Laws of War

In mid-July I launched a new podcast series called “JIB/JAB – The Laws of War.” It will feature conversations with experts in the various legal regimes that govern aspects of the use of force and armed conflict — namely, the jus ad bellum, jus in bello, international human rights law, constitutional war powers, and some others in the margins — focusing on both their recent work, and how it may relate to recent events. I am hoping to strike a delicate balance wherein it will be of interest and value to both experts and non-experts (including students) alike. For more information and to peruse the episodes already up, check out the website at http://jibjabpodcast.com — or subscribe on most podcast platforms.

Atmospheric Intervention?

cjelMy latest law review article has just been published: “Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime,” 45 Columbia Journal of Environmental Law 331 (2020). Here is the abstract:

Many governments have begun to understand that the consequences of climate change will increasingly create both direct and indirect threats to national security. Under some projected scenarios these consequences may pose an existential threat to human civilization. Yet there has been little attention to how this will implicate the jus ad bellum regime. As the climate change crisis becomes more severe, states will begin to view not just the consequences but some of the causes of climate change as comprising a threat to national security. Specifically, they will begin to characterize other states’ recklessly excessive and flagrantly unlawful contributions to climate change as a threat to international peace and security. The international climate change regime will be sufficiently developed to help frame such characterizations, but incapable of enforcing or mobilizing compliance with its obligations.

States will thus look to the collective security regime to coerce such “climate rogue states” to comply with their climate change law obligations. The identification of climate rogue states as posing a threat to international peace and security will trigger the basis for collective action, up to and including the threat or use of force. In the face of UN Security Council inaction, there will be increasing pressure on the jus ad bellum regime to adjust so as to permit and justify such action. Recent efforts to relax the constraints of the jus ad bellum regime, in response to other purportedly novel threats — such as nuclear proliferation, transnational terrorism, cyber-attacks, and humanitarian crises — provide templates for the kind of arguments we may anticipate for justifying action against “climate rogue states.” We will see efforts to expand the doctrine of self-defense, or to establishing new exceptions to permit “atmospheric interventions.”

The logic of these arguments for adjusting the jus ad bellum regime are more powerful than recent efforts, because the threat they seek to address will increasingly appear to outweigh the resulting increased risk of armed conflict. They will likely gain traction as the crisis deepens. This requires us now, before fear drives the agenda, to begin a discussion of how such adjustment might best be shaped, limited, or resisted. As compelling as they will become, the arguments are dangerous. They will not only weaken the jus ad bellum regime but are likely to compound some of the injustices of the climate change crisis and undermine the international rule of law in ways that will be counterproductive to our efforts to respond to the crisis.

Questions on Legality of Israeli Strikes in Iraq and Lebanon

(Published in Just Security, Sept. 9, 2019)

A flurry of news reports during the final week of August detailed recent Israeli air strikes against Iranian affiliated groups in Iraq, Lebanon, and Syria. The Washington Post published an Editorial questioning the wisdom of this Israeli policy, though typically, and regrettably, utterly neglected to consider issues of legality. It did repeat the media mantra that “Israel has a right to defend itself from Iranian attacks,” but then failed to examine whether any of the Israeli strikes had been responding to actual or imminent armed attacks. A New York Times analysis of the escalation similarly avoided the legal questions.

The short answer, based on publicly available evidence (discussed below), would be that the strikes were unlawful. Only one of the strikes on Syria was reportedly responding to an imminent attack, which should thus make for a very short analysis on the legality of the rest of the strikes. But a brief and somewhat disjointed exchange among some international law scholars on Twitter last week raised some questions and advanced some arguments (to the extent Twitter can sustain such a thing) that suggested a perhaps more complex and interesting analysis. I explore that line of analysis here.

Some Facts

First, a brief review of some of the facts. Israel carried out several air strikes in July and August in Syria, Iraq, and Lebanon. For simplicity I will leave the strikes in Syria aside for now, and focus on the strikes in Iraq and Lebanon, though it should be understood that Israeli representatives have argued that most of the strikes (or those that have been acknowledged by Israel) served the same broad purpose of preventing Iran from establishing a weapons supply line through Iraq and Northern Syria to Hezbollah in Lebanon.

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