International Law

International Law

International law is the body of rules that governs the conduct of STATES and other international associations, such as the UN, although in the human rights area international law, in some instances, may be directly applicable to individuals as well as to states. Modern international law has its origins in 16th- and 17th-century Europe. Created to regulate relations among a few states with common religious backgrounds and common commercial interests, international law has developed from a system that sought merely to secure peaceful co-existence within the international community to a system that seeks to protect the common interests and achieve the common aims of states. Today, Canada is one of at least 184 countries that consider themselves bound by the principles, customs and standards of international law.

The League of Nations and the Scope of International Law

The peace settlement following WWI led to the creation of the LEAGUE OF NATIONS, the first attempt by the international society to promote international co-operation and to achieve international peace and security. An important feature of the league was its use of unanimity of decision. The league was unable to prevent WWII but it provided a valuable precedent for an international organization after that war. The post-WWII period saw major developments in international law, including the establishment of the UNITED NATIONS, the successor to the league. Canada was a founding member of the UN. A number of former colonies that obtained independence after WWII joined the community of nations as full-fledged members. By 1939, when Canada declared war independently of Britain, it had already established a separate identity.

Today the scope of international law is very extensive, covering laws pertaining to war, recognition of governments and states, LAW OF THE SEA, AIR LAW AND SPACE LAW, international obligations, treaties (seeTREATY-MAKING POWER), INTERNATIONAL ECONOMICS, international political and economic institutions, HUMAN RIGHTS and dispute resolution. Since the inclusion in the international community of nations at varying stages of economic development, issues related to economic justice have begun to play a significant role in international law.

 The UN serves not only as a forum for discussion and deliberation of international issues among the nations of the world, but through its organs it is instrumental in multilateral PEACEKEEPING, in the progressive development of international law, in dispute resolution and in the promotion and fostering of common economic, political and social goals. Canada has been active in the support and development of international law and has played a leading role in the areas of peacekeeping, human rights, the law of the sea and international economic law at the UN and other international forums.

Sources of International Law

Canada's obligations, rights and responsibilities in international law may be found principally in treaties, in the conduct and practice of states, and to a lesser extent in general principles of law, in judicial decisions, in writings of highly respected scholars and in certain UN General Assembly resolutions. Treaties, which may be either bilateral or multilateral, are international agreements between states that are binding in international law. Treaties that reflect customary international law are binding even on nonsignatories of the treaty. For instance, Canada regarded itself bound by many of the provisions of the Vienna Convention on the Law of Treaties, even before it became a signatory to the convention. Treaties concluded by Canada are published in the Canada Treaty Series and are registered with the UN. There are about 200 treaties between Canada and the US alone.

Canada, as all other states, is also bound by customary rules of international law. Custom is evidenced by the general practice of states acting upon a recognition that the practice is legally binding. Canadian courts have accepted the view that customary international law forms part of the law of Canada. However, most custom that formed a source of international law is now incorporated in multilateral conventions. The 1961 Vienna Convention on Diplomatic Relations, for example, codified some rules of customary international law that were centuries old. Largely because of the heterogeneous nature of the community of nations, general principles of law recognized by nations, judicial decisions and writings of highly qualified publicists are treated as subsidiary sources of international law.

Universally accepted principles of international law include the following: that a state will respect the sovereign equality of all states; that a state will refrain from the threat or use of force against another state except in self-defence; and that states will settle their dispute by peaceful means and will perform their international obligations in good faith. These principles are incorporated in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations adopted by the General Assembly in 1970.

Current Issues in Canadian Law

In the years following the Second World War, the international community was preoccupied with maintaining peace and enlarging the membership of the international community through political self-determination and with issues relating to trade. In more recent years, the rapid pace of technological development, telecommunications and travel has led to the development of new branches of international law such as environmental law and space law and to dramatic developments in more traditional areas such as trade and the Law of the Sea. The collapse of the Cold War has contributed to greater possibilities in the area of peace maintenance as was evidenced by Security Council action in the Gulf War.

The United Nations Security Council, which consists of 5 permanent member states and 10 rotating members, has the primary responsibility for maintaining international peace and security. The United Nations Charter imposes on all member states of the United Nations the obligation to accept and carry out the council's decisions. When the Security Council determines the existence of a threat or a breach of the peace, it exercises its powers to bring an end to tension or hostilities. On some occasions the United Nations has sent peacekeeping forces to the site of the troubled area. Canadian troops have been part of ad hoc UN peacekeeping forces on many occasions.

Since its creation, the UN has given priority to the international protection of human rights. In 1948 the Universal Declaration of Human Rights, which set forth basic rights and fundamental freedoms to which all people are entitled, was adopted by the UN membership without a dissenting vote. It has been suggested that the resulting influence of the declaration as well as repeated invocation of the declaration has made it a part of customary international law. A Canadian, Professor John HUMPHREY, served as the first director of the UN Human Rights Division.

In 1976 Canada acceded to an important multilateral human rights treaty, the International Covenant on Civil and Political Rights, and its accompanying Optional Protocol. By signing these documents, Canada has bound itself to an international standard of human rights protection and has opened the possibility for individual Canadians to submit to the UN Human Rights Committee complaints of human rights violations by the Canadian legal system.

After widespread reports about atrocities committed in the former Yugoslavia in 1993, the Security Council took the unprecedented step of setting up an International Criminal Tribunal to deal with the prosecution of crimes against humanity including murder, torture and "ethnic cleansing." Canada strongly supported the establishment of the tribunal and is playing an active role in its deliberations. A tribunal has also been established to prosecute persons responsible for genocide in Rwanda.

One of the major post-WWII achievements of multilateral negotiations is the 1982 UN Convention of the Law of the Sea. Canada's extensive coastline has given it a long-established interest in maritime issues, and Canada played a leading role in UNCLOS negotiations. The convention, which was signed by Canada in 1982, sets out a comprehensive framework of laws to regulate the peaceful uses of the sea. Canada's main objectives during the UNCLOS negotiations were to a large extent satisfied by the provisions of the convention. Canada sought and obtained jurisdiction over fisheries within a 200-nautical-mi (370 km) limit of its coast and over all the resources of the Continental Shelf within and beyond the 200-mi limit. It obtained only limited powers to control POLLUTION along its coastline, but it ensured its ability to take antipollution measures in the Arctic. Canada also supported the innovative UNCLOS idea that the international seabed be reserved for peaceful purposes and that the area be designated the "common heritage of mankind."

The growing gap between rich and poor nations has led many of the latter to challenge the norms of international law and to charge that international institutions protect and maintain the economic interests of Western capitalist countries. In 1974 the majority of UN members voted in favour of the Declaration on the New International Economic Order, which called for a new set of rules to govern international economic relations. Canada abstained from voting on the declaration and its complement, the Charter of Economic Rights and Duties of States. In practice, however, Canada has pursued a policy of supporting the efforts of economically less developed countries to increase their share of world trade and foreign investment. One illustration of Canada's commitment to changing established patterns of trade is the General Preferential Tariffs legislation, which grants preferential treatment to poorer countries.

The development of international environmental law which began in the 1960s is seen most clearly in various bilateral, regional and multilateral treaties. Often criticized for its soft regulation and weak enforcement mechanisms, this area of international law has spawned a number of important concepts relating to environmental protection, eg, "sustainable development", which has been defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Dispute Resolution

The UN Charter clearly prohibits the use of force by states except in self-defence. Canada may settle a dispute with another state in any one of a number of ways: diplomatic negotiation, mediation, international arbitration or, as a final recourse, it may present its case to the 15-member International Court of Justice, a UN organ. The ICJ may preside over disputes between states that agree to submit to its jurisdiction; a decision by the court is binding only upon those states that are party to the dispute in question. Canada and the US submitted their dispute over the maritime boundary in the Gulf of Maine area to a chamber of the ICJ. This was the first time a chamber was utilized instead of the full court. The decision came out in October 1984.

More recently, Canada was charged with breaches of international law for its seizure of a Spanish fishing vessel that was fishing turbot in international waters off the coast of Newfoundland. Spain brought a claim against Canada before the International Court of Justice alleging, among other things, a breach of the customary right to fish on the high seas, a right codified in UNCLOS. A positive outcome of this dispute was the establishment of the United Nations Treaty on Straddling and Highly Migratory Fish Stocks. The treaty gives coastal states, such as Canada, direct enforcement powers to control excessive fishing of migratory stocks such as cod or turbot.

The responsibility for Canada's conduct in external relations is handled primarily by the Department of FOREIGN AFFAIRS AND INTERNATIONAL TRADE (formerly External Affairs) and its ministers.

See alsoEXTERNAL RELATIONS.