What are Canada’s International Legal Obligations?

Science for Peace Forum and Teach-In, University of Toronto, December 9, 2001

Short presentations by SENATOR LOIS WILSON and PROF. JUTTA BRUNNEE followed by discussion.

Sen. Lois Wilson: What are Canada’s International Legal Obligations?

  • On Sept. 12, the UN passed Res. 1368 calling on Int’l Community to prevent and suppress terrorist acts, with especial reference to Res. 1269, passed Oct. 19, 1999 which calls on countries to enforce already-existing anti-terrorist conventions and to take appropriate action to ensure that terrorists are not granted refugee status
  • Some 15 anti-terrorist conventions have been passed. Three are particularly relevant:
    • Dec. 15, 1997, Int’l Convention for the Suppression of Terrorist Bombings, which denies safe haven to terrorist bombers; ratified by Canada May 2001.
    • Dec. 9, 1999, Int’l Convention for the Suppression of the financing of terrorism, calls on states to limit flow of funds to terrorist organizations. Not yet in force
    • July 17, 1998, Rome Statute of the International Criminal Court, calls for the creation of an international criminal court to trycrimes of international dimensions. Not yet in force.
  • Sen. Wilson submits that of these, the ICC would be the most important, and would certainly be preferable to Bush’s current plans for military tribunals.
  • In Canada, at present no need for repressive legislation to be passed in order to meet our existing international legal obligations. In fact, pre-existing legislation, if applied, would meet the legitimate needs for prosecution of terrorist acts.

Question: why the sudden rush to act on the UN’s recent anti-terror declaration when so many more important treaties have been left to languish, esp. treaties which seek to guarantee human and civil rights to underprivileged groups (e.g., UN Rights of Children, 5 others). Selective implementation indicates opportunistic attitude to international law. Also, Parliament entirely excluded from ratification process, very disturbing; compare with Australia, where treaty ratification is subjected to extensive parliamentary debate.

  • Canadians need to call Canada to account, demand responsible action from gov’t. One small step would be to demand full parliamentary debate over international legislation as well as repressive legislation like C-36.

Jutta Brunnée: Recent events have accelerated slow erosion of UN political power.

  • In principle, UN Security System prohibits use of force against sovereignty of states. Original charter gives important role to UN Security Council, and UN Security Force, to enforce peace worldwide. Has never worked that way (no permanent UN military force, Sec’y Council vetoes ensure that agreement on deployment is almost impossible to reach). UN Sec’y Force used 3 times: once in Korea, twice against Iraq in 1990’s.
  • Since 1998 many resolutions have been passed against terrorism in general and the Taliban in particular. Since Sept. 11, claim has been made that Taliban’s failure to comply with US demands constituted “a threat to peace and security.” important since “threat to peace and security” is required for UN to take action.
  • Since Sept. 11, the Security Council has affirmed the “inherent right of self-defense” of states, which UN Charter also affirms as only legitimate reason for military offensive. US attacks in Afghanistan since Oct. 17 have thus been justified under the rubric of “self-defense.” This assertion is only possible under a very broad definition of self-defense, one which undermines the essential distinction between “self-defense” and “forcible retaliation.” This is a dangerous precedent, especially since before Sept. 11, the notion of self-defense had been used in a very restricted way in international law.
  • Until Sept. 11, armed responses to terrorism could only be undertaken on foreign soil in the light of evidence that a state SPONSORED terrorism (so that the terrorist actions could be seen as actual extensions of state policy).
  • evidence now emerging in Afghanistan suggests that maybe the connection between Al-Queda and the Taliban was sufficiently strong to qualify as “sponsored” terrorism.
  • if this is the case, then there is no need for the language of “harboring”, which has become very widespread in pronouncements of the US government.
  • there’s a real question about how broad and all-encompassing this language of “harboring terrorism” is. When can one say that a country is harboring terrorism” At least three possible interpretations:
    • The state is actively supporting terrorist activity (this is very similar to “sponsoring” terrorism, so there’s no need for the new language if this is what is meant;
    • The state is hapless and ineffective, doesn’t really control its own territory
    • The state has a regulatory apparatus designed to prevent terrorism, but the regulatory apparatus is ineffective. Does such a state “harbor” terrorism” Would it, for instance, be legitimate for the United States to stage raids on Denmark or Germany and sweep up terror suspects”

In conclusion: Since Sept. 11, the expansion of the definition of “self-defense” and in particular the introduction of the language of “harboring terrorism” has contributed to the ongoing weakening of the United Nations and of international law. The introduction of the term “harboring” is particularly pernicious because it is a very vague concept, and international law is already a very difficult endeavor; introducing unnecessary vagueness makes the job that much harder.

Discussion

Discussion was wide-ranging.

Question (Barrie Zwicker, Vision TV): Could the “harboring terrorists” language be applied to the US (e.g. because of School of Americas)?
How would one go about using such language against the US?

  • JB replies: unlikely that would ever work, though in principle could take it to Int’l Court of Justice.

John McMurtry: Will the Senate take action against bills C35, C36, and C42?

  • LW replies: no critical investigative committee has folded after a few of its demands were met.

McMurtry again: What is distinction btwn war, terrorism in International Law” Can anti-war activists make use of it somehow?

  • JB replies: War requires an “armed attack” by another state. Terrorism applies to non-state actions. But important to note that the legal distinction might not matter much for public relations discussion.

Prof. Ursula Franklin: If we are at war, is it the case that the detainees in this conflict (e.g. refugees and immigrants currently incarcerated in US, Canadian prisons) should be accorded all the rights of POW’s” This might be a point of leverage, using language of “war” against war-waging governments.

Ann (last name) from McMaster Peace Studies: what forums exist to help highlight the selective implementation of international obligations”

  • One possibility is the mixed committees chaired by Senators but composed of ordinary citizens and parliamentarians both. The one headed by Lois Wilson on Women, Peace and Security might be such a forum.

On a similar note, a speaker suggested that it is important to call on Canada to implement the Convention on the Elimination of Racism and Discrimination (CERD) and also that Canada stop holding up the release of the final resolutions produced at the Durban Conference on Racism. This is an important area where Canada is ignoring international commitments.

  • Sen. Wilson suggested it would also be important to have a serious delegation to the UN Commission on Human Rights next year, headed by someone who actually knows something about human rights.

(Unidentified speaker): notes that this might be the moment to call for a stronger UN, on the model of a federalist government.

Several speakers note that the parliamentary process, as described by Sen. Wilson, is sufficiently bankrupt as to be hopeless. From this viewpoint it seems that direct action against repressive legislation may be the only approach left (one example raised was projected civil disobedience if Kananaskis is declared a temporary military zone) Prof. Wilson agreed with the general evaluation of the parliamentary process.

Another call to action: Shouldn’t security measures such as C-35, C-36, C-42 be subjected to scrutiny of Auditor General and assessed for their effects on fiscal solvency” This might be a direction in which to take action.

One problem here is with the media. One partial solution would be to encourage reintroduction of UN Radio broadcasts (formerly available on CKLN, now gone).

An unidentified speaker suggested that Science for Peace sponsor a petition against C-36.

John McMurtry: can Science for Peace adopt the following resolution: In view of the failure of the governments of Canada and the United States to demonstrate under law an act of war against the United States (as distinguished from an act of terrorism), the war against Afghanistan is a war crime under international law, and the government of Canada is complicit in it.