Economic Sanctions Under International Law: A Guide for Canadian Policy

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

(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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What are the Limits on Lawfare?

(Published on Opinio Juris, May 5, 2019)

Questions regarding the meaning, importance, and operation of “lawfare” were recently discussed at a great conference on Legal Resilience in an Era of Hybrid Threatsat the University of Exeter. Several speakers explained how lawfare is being used by adversaries of Western states, and urgently argued that “we” must ourselves engage in lawfare as part of a comprehensive response to such hybrid threats. Yet I was left thinking that not nearly enough attention is being paid to the importance of developing principled limits on the conduct of lawfare, and that it is dangerous to urge the practice of lawfare in the absence of such limits.

The Meaning and Scope of Lawfare

It was interesting to note that there is not even a clear consensus on the meaning of the term “lawfare.” Generally speaking, it is understood to mean the use of law, or exploitation of aspects of a legal system, to achieve tactical or strategic advantages in the context of conflict. As the sub-title of Orde Kittrie’s book on the subjectsuggests, lawfare is the use of “law as a weapon of war.”

Kittrie, speaking at the conference, cited human shields as a prime example. On the one hand, adversaries such as ISIS use human shields to deter attacks by exploiting Western compliance with principles IHL, and to reap public relations benefits in the event civilians are killed. On the other hand, in response there have been recent efforts by Western states to pass domestic legislation and pass resolutions within UN institutions to facilitate the prosecution of those who use human shields. Both of these are characterized as lawfare—the use of law as a means to further strategic ends in armed conflict. While the enemy’s use of it is nefarious, ours is benign. This all sounds well and good, but as I will return to below, that distinction can be blurred.

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The Omar Khadr Settlement Reaffirms Canada’s Values

(Published in the HuffPost, July 17, 2017).

Omar_Khadr_-_PD-Family-released

Much has been written both for and against the recent Khadr settlement, in which the Canadian government provided Omar Khadr with an apology and a $10.5 million payment. But the debate has largely focused on the wrong issue. Much of the discussion revolves around what Omar Khadr “deserves”—whether he deserved the treatment he received because he is a “confessed killer and terrorist”; or whether he now deserves the apology and payment because he is a “victim of torture and a denial of justice”.

As much as the settlement is about Omar Khadr and what he may deserve, it is more importantly about what Canada and Canadians deserve. An apology is not only for the benefit of the aggrieved, but for the integrity of the apologizer. Canada and Canadians deserves the atonement, the reaffirmation and restoration of our values, that is made possible by the settlement. Let me explain.

Canadian Values

The starting point has to be with our own values as a nation. What does Canada stand for, and what does it mean to be Canadian? We we are a liberal democratic country founded on constitutionalism, respect for human rights, and the rule of law. While the Charter of Rights and Freedoms has only been part of our constitutional system for some 25 years, surveys show that it has come to be the most significant determinant of Canadian national identity. This is likely because Canada has for much longer been a champion of international human rights, and international law more generally. In short, we are a nation that respects and embraces human rights.

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