Taking Law Seriously
This year’s AALS Conference in San Diego, in the first week of January, was a good one! It was a pleasure to both moderate a fantastic panel on how the war in Ukraine is impacting international law, and to speak on another panel on the significance of Japan’s new National Security Strategy, which is a marked departure from its traditional position, and arguably inconsistent with the constitutional constraints in Art. 9, on the use of force and maintenance of armed forces.
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.
(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.
It was an interesting experience to speak on a panel addressing the climate change crisis as a national security issue, at the ABA Annual Review of National Security Law Conference, on Nov. 17, 2022, along with Mark Nevitt of Emory Law, Erin Sikorsky of the Center for Climate and Security, and Marcus King of Georgetown University. With over 300 people in the room, mostly national security lawyers, there was a surprising mix of views on how seriously one should take climate change as a threat to national security, or as an issue that implicate national security thinking! Very interesting.