International Law

A full chapter on "International Law" appears in this book:

 Canadian Law & Business Studies

What is international law? International law has two main components: international PUBLIC law and international PRIVATE law.

What is International private law? It deals with rules that are applied when there are civil wrongs between or among individuals who reside in different countries. When this occurs, what has to be decided is where the trial should be held; the laws of which country should apply; and how enforcement of the judgment rendered in one country is to be enforced in another. For example, a Canadian books a trip through a company with a head office in New York and that company organizes a tour of Cuba. The Canadian is injured in Cuba by a guide employed by the New York company who was negligent.

What is international public law? International public law pertains to the laws, conventions and norms that apply between or among civilized nations. Looked at in the most basic of terms, if “Nation A” wants something from “Nation B” or vice versa, it may be best that each acts in respectful ways towards each other if conflict and war are to be avoided. Norms, customs, and conventions develop “to keep the peace” and maintain interaction and beneficial relations between them. This can be supplemented with signed agreements or treaties.

This is an oversimplification, but it touches upon the essence of relations between and among sovereign nations interested in an orderly world, customs and conventions, transport of goods, routes of travel, air space, movement of people, and a level of humanity and civility both in peace time and in conflict.

Our book Canadian Law and Business Studies contains a full chapter on International law. You can have a look inside this book by going to https://bit.ly/3Ay0lSR

What is the charge against Vladimir Putin? The first war crime charged by the International Criminal Court (ICC) in March of 2023 against the dictator pertains to the transfer of people including children from the Ukraine to the Russian Federation. it is alleged that those “deported”, and certainly the children, are brought into re-education camps to undergo pro-Russian indoctrination and possibly military training.

What is the International Criminal Court (ICC)? It is a permanent body of international judges headquartered in the Hague (Netherlands). More than 100 countries have agreed to its jurisdiction to prosecute war crimes and other heinous offenses, but none of Russia, China or the United Sates has agreed to submit to the jurisdiction of the ICC. It is the International Court of Justice (ICJ), also called the World Court, which hears disputes between states and is also located in the Hague, Netherlands.

Can international law be enforced? The simple answer may be this: Only to the extent that sovereign nations will allow it to apply “against” them. Sometimes a nation’s power allows it to dictate the level of its compliance and conformity. For example, while there may be international jurists and courts, a country has to agree to come under their jurisdiction and abide by their judgements. And, of course, a country can use its nuclear armaments or economic clout to deter intrusion and determine its own degree of participation, cooperation, and behavior vis-à-vis other nations.

International condemnation helps. As in a small community, bad neighbours may be pressured somewhat into conformity, but obstinate and powerful bad neighbours may dominate and dictate.

But let’s look at some positive measures and institutions. The United Nations and the World Trade Organization play significant roles in helping with world order, regulation, and cooperation.

The United Nations: There are nearly 200 countries that are members of the United Nations and while it does not have an army or police force, since its inception in 1945, it has made significant contributions maintaining international peace, being involved in peacemaking and peacekeeping and in providing humanitarian aid. It is a forum for airing grievances and sharing different points of view and for helping to bring some clarity to disruptive or unsavory occurrences.

What is the WTO? The Word Trade Organization (WTO) fosters freer trade between nations. It mediates and arbitrates disputes between trading partners and can impose trade sanctions against those who do not conform to the rules. The WTO covers trade in goods, services, and intellectual property. Some scholars argue that interdependence as it relates goods and services (international trade) deters armed conflict.

Geneva Conventions: The Geneva Conventions have been signed by some 190 countries to restrict violence during armed conflict and pertain to the wounded and sick in the field, those injured in sea battles and shipwrecks, treatment of prisoners of war, and protection of civilians during war. Indeed, attacks on civilians and non-military facilities are prohibited and constitute war crimes. The Conventions also ban certain weapons. But signing agreements is no assurance the signatories will abide by their commitments when in an armed conflict.

This answer to the question about  “enforcement”  is neither comprehensive nor scholarly. It merely tries to provide some appreciation of how and why world order and peace may be maintained or, at least, what efforts are made and can be made to achieve stability and peace. But there will be many imperfect successes and serious failures as a nation’s self-interest often trumps principles, promises, and global responsibility. Sovereign nations, like humans who lead them, have weaknesses, can be short-sighted, and can be less than honorable if not outright inhuman or brutal. A few are even incorrigible.

International Voluntary Action on Climate Change – COP27

• Some 200 signatories to the  international treaty called the U.N. Framework Convention on Climate Change (UNFCCC) meet annually.
• In 2022, the Conference of  Parties - COP27 – was held in Egypt.
• COP27 agreed to help climate victims – that is, to establish a fund for nations vulnerable to climate disasters aggravated by pollution from the  wealthy, industrialized nations, but few details were hammered out or revealed.
• COP27 renewed its commitment to keep global warming to 1.5 degrees Celsius above pre-industrial levels (a starting point that remains undefined), and there was no agreement on phasing out fossil fuels.

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Canada’s Indo-Pacific STRATEGY: Seemingly welcomed by the current U.S. government, in November of 2022, Canada announced its Indo-Pacific strategy. This focusses on some 40 countries near or touching the Indian Ocean and the North Pacific and which includes China, Taiwan, Japan, India, Thailand, and South Korea.

In general, the policy focusses on cooperation with China but strives to limit its influence, economic clout, and hostile attitude by encouraging and investing in trade and other connections between Canada and the more friendly nations in the region. Canada will also invest in better cybersecurity to combat malicious state and non-state actors.

Canada will also look to adding new members to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) which currently includes Mexico, Japan, and Australia. (The USA is not a member.) In 2021, both China and Taiwan applied to become members of this trade pact.

Protecting Our Critical Minerals

• Canada has now made it clear that it is not encouraging foreign investment in some 31 critical minerals needed for our green and digital economy. These include zinc, lithium, titanium, and nickel.
• Such critical minerals are used in our healthcare, electronics, defence technologies, aerospace, and wind turbines.
• The Canadian policy is aimed at foreign state-owned owned enterprises and private investors that may be influenced by the governments of unfriendly states.
• In the fall of 2022, under the Investment Canada Act, the Government of Canada ordered three Chinese firms to divest themselves of any interest they may have in the critical mineral sector (being 3 junior mining companies).

Can a  Court Judgment Made in China Be Enforced in Canada?

A court judgment awarding damages made in the USA against an individual who has property in Ontario can be enforced in Ontario. Recognition of that judgment in Canada occurs by way of a treaty between the US and Canada. There is no such treaty between Canada and China. However, the common law may assist.

In the case of Cao v Chen, the Supreme Court of British Columbia had to determine whether a judgment pertaining to a husband and wife made in the People’s Republic of China should be recognized in British Columbia, and whether the BC Court should assume jurisdiction on the remaining issues to be resolved between the parties.

The traditional common law position was that, for a foreign judgment to be recognizable and enforceable, it had to be: (a) for a debt or definite sum of money; (b) final and conclusive; and (c) made by a court of competent jurisdiction. The Supreme Court of Canada expanded this to allow judgments in the nature of equitable remedies to be enforceable in certain circumstances. However, that criteria does not always translate well in the family law context.

The BC Court ultimately decided that the divorce order and the order dismissing spousal support in the Chinese Judgment would be recognized in BC, but that China was the appropriate jurisdiction in which to determine any remaining issues with respect to the Chinese assets.

The child custody and child support orders in the Chinese Judgment were not recognized, and British Columbia was found to be the appropriate place in which to resolve any further orders with respect to the children.

Caselaw Sources: Cao v Chen, 2020 BCSC 735 (CanLII) and Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 para 10.

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