IS OUR HOUSE IN ORDER?

Vol. 21 No. 6 (June, 2011) pp.326-328

IS OUR HOUSE IN ORDER?: CANADA’S IMPLEMENTATION OF INTERNATIONAL LAW, by Chios Carmody (ed). Montreal: McGill-Queen’s University Press, 2010. 336pp. Cloth. CA $95.00/US $95.00 ISBN: 9780773537538. Paper. CA $34.95/US $34.95. ISBN: 9780773538146.

Reviewed by Christopher Waters, Associate Dean, Faculty of Law, University of Windsor. Email: cwaters [at] uwindsor.ca.

Several of the chapters in this book, edited by Chios Carmody, begin in the same vein: Canadians think of themselves as good international citizens. Among other things, we contribute to international peacekeeping and the work of the International Criminal Court, and have championed some worthy international initiatives, including the ban on anti-personnel landmines. Canadians have also played an important role in creating the international human rights regime; after all, a Canadian, John Humphreys, was one of the drafters of the Universal Declaration of Human Rights (let’s ignore the fact that Canada was initially opposed to the Declaration – every country needs its national myths). However, somewhere along the way we have departed from our legacy as major contributors to the rule of law in international affairs. Sometimes evidence of our legal decline has been on the international stage – transfers to torture of Afghan detainees for example – but also, and as importantly, on the domestic stage. As the book argues, we simply have not coherently or fully implemented our international obligations at home.

Various explanations are offered in the volume as to why there is a disconnect between Canada’s international obligations and our sometimes sketchy pattern of implementation. Two of the most commonly cited structural causes of – or excuses for – this disconnect are federalism and the executive’s exclusive role in signing and ratifying treaties. Treaties in Canada are not self-executing and, to be given actual effect, must be implemented by the level of government with the jurisdiction to do so, namely the federal government or the provinces. Thus, while the federal government enters into treaties, it may not have the power to implement them. Furthermore, the executive enters into treaties and can bind Canada without real parliamentary scrutiny.

The contributors to this book, however, suggest various ways to overcome or even redefine these apparent structural constraints. For starters, they suggest, the mechanism for federal-provincial consultation needs to be reinvigorated. Although consultation does happen currently, it does not happen in a sufficiently formalized and transparent manner. But the book goes beyond the federal-provincial dynamic and addresses a variety of actors with a role to play. These include courts, which have been timid in terms of their role in implementing both treaties and customary international law, as well as sub-state actors such as cities, private entities and the citizenry – although unfortunately the important role of the [*327] media in shaping public opinion is largely ignored (On the media’s failures to intelligently or consistently deal with international law in Canada and the consequent effect on Canadian public opinion, see Toope 2006). Furthermore, there are various ways to reduce any democratic deficit inherent in the federal executive’s ratification power. An obvious point once stated, but greater Parliamentary scrutiny over treaties prior to ratification is required in order to engage legislators and the public and truly “bring home” our international commitments.

IS OUR HOUSE IN ORDER? consists of twelve chapters on various aspects of reception law and policy. Chapter 1, by Michael Byers, sets the fallen-from-international-law-grace tone of the book and demonstrates Byers’ usual piercing analysis and powerful writing (occasionally edging on polemical, but in a good, Hitchensesque way). He calls for a reengagement with international law at home and abroad. The rest of the book is squarely about “at home.” Chapter 2, by Armand de Mestral, is a thorough and nuanced overview of implementation generally in Canada and a bedrock essay for the rest of the book. Chapter 4, by Stéphane Paquin, compares the Belgian and Canadian approaches to multi-level (in Canada the provinces, and in Belgium the regions and communities) governance in foreign affairs, focusing on formal dialogue mechanisms which work in Belgium, at least in the absence of constitutional crisis. Next, Jaye Ellis, in a short but sound and theoretically informed chapter, tackles Canada’s disregard for its obligations under the Kyoto Protocol and what this says about the failure to internalize international law. In Chapter 6, Lucie Lamarche addresses economic and social rights implementation in the face of new governance models, which encompass decentralization and privatization. Her brief discussion of cities as international law actors alone is worth a read of this excellent chapter. In the following essay, the book’s editor, Chios Carmody, takes some of the book’s themes and applies them to the trade law sphere. He argues that a “combination of exclusion and favouritism feeds the latent sense of skepticism concerning the WTO Agreement and reinforces a sentiment that the treaty, and free trade more generally, are something ‘out there’ – that is, an elite project not fully internalized in either Canadian law or the Canadian psyche” (p.141). In Chapter, 8 Anthony Daimsis shows how uncoordinated provincial implementation of a treaty obligation can result in a patchwork pattern of regulation, in this case with respect to arbitration agreements under the 1958 New York Convention. With a focus squarely on courts and their use, misuse and non-use of international law, Robert Currie then looks at the question of qualified territorial jurisdiction (think cyber crime which may take place only partly in Canada).

As someone who teaches International Humanitarian Law (IHL) and is faced with a paucity of case law or secondary material on the status of this body of law in Canada, I particularly enjoyed Christopher Penny’s Chapter 10 contribution on the reception of IHL. It focuses towards the end of the essay on emerging terrorism issues but is as good a primer on IHL in Canadian law as exists. In Chapter 11, Dwight Newman takes an example of weak Canadian [*328] implementation/enforcement of an international obligation – in this case the OECD’s anti-bribery regime – and shows how this gap may be filled by other jurisdictions’ (ie., U.S.) extra-territorial reach, with implications for sovereignty. Ironically given the tenor of the chapters which precede it, the final chapter by Margaret Ann Wilkinson suggests that full implementation of international law should be avoided when international regimes – in the case of confidential information protection on the one hand and personal data protection on the other – are discordant.

Overall this is an impressive book. Written by several of the leading lights of the international law scene in Canada and skillfully edited with a cross-thematic introduction, this book is timely and important. One of the most attractive features of the collection is that just over one-half of the authors provide specific recommendations on how to get our house in order. (As a side note, editors everywhere will relate to Prof. Carmody’s gentle note; all contributors were asked for specific recommendations: “some of our contributors were able to do so, others chose not to” (p.7)).

By the end of the book, readers will be forgiven for feeling downhearted about Canada’s scofflaw attitude to international law. At this point it is worth rereading the Introduction, where Carmody writes:

[This volume] is not designed to support the assertion that Canada is shirking its obligations on a massive scale. Little could be farther from the truth. Canada is, and can continue to be, a good international citizen and has on the whole played a constructive role in international affairs….[but the book does show] a series of inconsistencies, failures to implement, and occasionally an outright hostility to international law that are, cumulatively, worthy of note” (p.8).

These departures from our self-image are definitely worthy of note, as is this volume.

REFERENCES:

Toope, Stephen J. 2006.“Public Commitment to International Law: Canadian and British Media Perspectives on the Use of Force” in Christopher P.M. Waters (ed). BRITISH AND CANADIAN PERSPECTIVES ON INTERNATIONAL LAW. Leiden: Martinus Njhoff.

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