Rule of Law

Economic Sanctions Under International Law: A Guide for Canadian Policy

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My report on economic sanctions has been published: “Economic Sanctions Under International Law: A Guide for Canadian Policy,” Rideau Institute and the Human Rights Research and Education Centre, University of Ottawa: Research Report (2021).

The abstract is below, and a short blog post that discusses the report was also published on the Rideau Institute blog.

Economic sanctions have become an increasingly favored tool of Western states in their international relations over the last several decades, but there have also been growing questions regarding the lawfulness of autonomous sanctions (those not authorized by the U.N. Security Council) generally, and so-called secondary sanctions and targeted sanctions more specifically. This report provides an examination of the nature and operation of both authorized and autonomous economic sanctions and the distinct areas of international law that govern the various forms of economic sanctions, with a view to informing Canadian foreign policy on sanctions.

The report provides an analysis of the different legal bases for possible objections that these different forms of sanction are unlawful, from claims that they may constitute unlawful coercive intervention, or be an unlawful extraterritorial exercise of jurisdiction, to claims that they violate specific principles of human rights law, or international trade and investment law. It also examines whether any such violations could be justified as legitimate countermeasures. The report finds that there is a degree of uncertainty regarding some of these aspects of international law, with differing perspectives between the developed and developing states on these questions.

The report provides a brief review of the Canadian domestic law authority for imposing economic sanctions, and places Canada’s current sanctions regimes within the context of the foregoing legal framework and analysis. Canadian law authorizes broad autonomous sanctions both against states and against individuals and private entities, though it has thus far avoided the use of secondary sanctions. The report ends with the suggestion that Canadian policy makers should take the unsettled state of the law as a cause for caution. Moreover, they should be mindful of Canada’s role in helping to shape the evolving customary international law regime, and whether the use of some economic sanctions may be inconsistent with its support for human rights, respect for sovereignty, and the international rule of law.

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

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(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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The Danger in Abe’s Constitutional Amendment Proposal

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(Published in The Japan Times, Aug. 5, 2019)

Prime Minister Shinzo Abe has demanded that the Diet move forward with debating his Liberal Democratic Party’s proposal for amending Article 9 of the Constitution, with a view to possibly having a vote on the issue in 2020. Having failed to retain a two-thirds supermajority in the Upper House election on July 21, he will need to sway some members outside of his coalition to win approval of any such amendment, and thus the debate will be more meaningful, its consequences more significant.

Many observers will be struck by how modest the new amendment proposal seems, and thus may be lulled into thinking that there is little to fear from it. This is a grave mistake. Once analyzed in its broader context, the ramifications of the proposal look much more dangerous.

To begin, it will be recalled that Article 9 has two paragraphs. The first provides that Japan renounces war and the threat or use of force as sovereign rights of the nation. The second, which has been more controversial and far less effective, has two clauses: first, a prohibition on the maintenance of land, sea or air forces or other war potential; and second, a denial of the rights of belligerency. While many legal scholars view the existence and size of the Self-Defense Forces as being patently inconsistent with this provision, that is not the official view.

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Challenging and Refining the “Unwilling or Unable” Doctrine

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VJTLMy latest law review article has just been published: “Challenging and Refining the ‘Unwilling or Unable’ Doctrine,” 52 Vanderbilt Journal of Transnational Law 245 (2019). The abstract is as follows:

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.