I was invited to testify before the Senate of Canada, Standing Committee on Foreign Affairs, on issues relating to two pieces of legislation that form part of Canada’s economic sanctions laws. The full testimony can be found here (commencing half way through the full session), and a couple of clips of my answers to questions on the effectiveness of economic sanctions, and the lawfulness of secondary sanctions, were posted to YouTube by Senator Woo, and can be found here, and here. I was invited to testify in light of my report Economic Sanctions Under International Law: A Guide for Canadian Policy, published in 2021.
Canada’s ‘Royal Prerogative’ Allows it to Wage War Without Parliamentary Approval
(Published in The Conversation, Oct. 24, 2022).
Questions are being raised again about how the Canadian government makes decisions to use force or participate in armed conflicts, prompted by reports that special forces units of the Canadian Armed Forces were operating on the ground in Ukraine.
While ostensibly deployed strictly for “training purposes,” such involvement can lead to more direct engagement in an armed conflict.
The decision to engage in armed conflict is one of the most consequential decisions a government can make. Who is involved in the decision-making, and what conditions or principles govern that process? Even more importantly, how should these decisions be made?
As a recent report suggests, the Ukrainian deployment has rekindled interest in these questions on Parliament Hill. But there should be a broader public discussion and debate.
Most Canadians would be surprised to learn that the prime minister and the cabinet have a far more unfettered power under the so-called royal prerogative to take the country to war than most other western democracies.
Early limits on war-waging powers
The modern idea that the power of the executive branch to wage war should be limited can be traced back at least as far as the Glorious Revolution in 1688, when English parliament placed constraints on the king’s ability to raise and maintain an army.
Climate Change and Global Security: Framing an Existential Threat
(Published in American Journal of International Law: Unbound, Aug. 15, 2022).
Abstract: Should the climate change crisis be framed in security terms? Many argue that it is dangerous to treat non-military threats as security issues. Such “securitization” is associated with the expansion of executive power and the exercise of exceptional measures involving the suspension of individual rights, secrecy, state violence, and a weakening of the rule of law. Nonetheless, climate change has already been identified as a security issue by many government agencies and international institutions. But, as Benton Heath explores in “Making Sense of Security,” the very concept of security is both ambiguous and contested. There are different and competing ideas about what it means, when and by whom it should be invoked, the kinds of law and policy responses it should trigger, and, crucially, who gets to decide these questions.
Heath argues that differing approaches to security reflect deeper struggles over whose knowledge matters in identifying and responding to security threats. He develops a typology for assessing these different approaches, and the implications they have for international law and institutions. But, while he notes that climate change is precisely one of those issues around which there are competing security claims, he leaves to others the question of whether, or how, to frame climate change in security terms.
This essay takes up that question, continuing the inquiry into how best to understand the concept of security, and how Heath’s typology helps think about the question. It argues that it may indeed be important to frame climate change in security terms, but as a matter of global security rather than national security.
What was the International Legal Basis for the Strike on al-Zawahiri?
(Published in Just Security, Aug. 9, 2022)
The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as “justice served.” Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.
Let us acknowledge up front that Ayman al-Zawahiri was the second-in-command of al-Qaeda at the time of the 9/11 terrorist attacks on the United States – which were heinous crimes, terrorist acts, and amounted to an “armed attack” against the United States under international law.
Nevertheless, his killing some 21 years later requires a legal justification under international law. What is more, the drone strike also constituted a use of force against Afghanistan, with which the United States is no longer engaged in an armed conflict – and so that too requires legal justification. This essay briefly reviews the international law regimes that are implicated (leaving aside entirely the domestic law considerations, such as the 2001 Authorization for Use of Military Force), and some of the questions regarding the lawfulness of the strike that arise under each regime – and argues that these questions are important.