It is no secret that international law has been under strain in recent years given the global rise of populism, authoritarianism, protectionist policies, and states’ strategic retreat from multilateral institutions, including, notably, various international dispute settlement (IDS) mechanisms. This trend includes states withdrawing from international tribunalsFootnote ¹ and from provisions on investor-state dispute settlement (ISDS) in recent international investment agreements (IIAs) or from treaties altogether.Footnote ² The withdrawal from such mechanisms, which some publicists dubbed an “assault on international adjudication,” has reinforced the fundamental assumption that the international legal order’s success remains inextricably tied to states’ submission of their international disputes to adjudication or other peaceful dispute settlement mechanisms.Footnote ³

As a corollary, this phenomenon signals broader implications for the international legal system, such as a larger retreat from multilateralism, which has propelled the perceived dwindling relevance and efficacy of international law as a discipline to the forefront of academic and policy commentary. Various evocative terms — ranging from “total collapse,”Footnote ⁴ to “crisis,”Footnote ⁵ “dystopia,”Footnote ⁶ “destruction,”Footnote ⁷ and “death”Footnote ⁸ — have been invoked to describe the challenges currently afflicting international law and its institutions, which American posture and acts have likely exacerbated.Footnote ⁹ At a minimum, the shunning of both international law and IDS mechanisms by powerful states disrupts and arguably threatens to erode the carefully balanced equilibrium between post-Second World War progress and the increasingly demanding needs of a multipolar world. It also ignores the decades of hard-fought negotiations, adjustments, hard-learned lessons, and the progressive development of norms, institutions, and processes in the IDS field and beyond.

Against this backdrop, and without resorting to unnecessary patriotic chest thumping, the Editorial Board of the Canadian Yearbook of International Law thought it would be a propitious time to dedicate this symposium issue to the theme of “Canada before International Courts and Tribunals.” This volume of the Yearbook comes at a time of historically high tensions between Canada and the United States, exemplified by several frictions, including trade tariffs and counter-tariffs, security and other cross-border issues, and threats of annexation.Footnote ¹⁰ Yet the picture that emerges over the last decade and beyond is one in which Canada has remained steadfast in its support for, and involvement in, IDS processes and institutions. What is more, Canada has consistently and resolutely promoted the international rule of law and championed human rights and other fundamental international legal norms.

The present symposium provides a fitting opportunity to take stock of and celebrate Canada’s engagement with, and contributions to, international courts and tribunals. The basic but important premise that undergirds this volume — namely, that Canada has remained an active participant and contributor to IDS, committed to the promotion of international justice and the fight against impunity — should come as no surprise to the reader but nonetheless warrants re-emphasis at this perilous time for our discipline. After all, Canada has had a long-standing and privileged history with international law and IDS, both as their proponent and frequent user.

From a strictly historical standpoint, Canada was both the locus and a key stakeholder in foundational international law cases. For instance, a transborder altercation in 1837 during which Canadian irregulars attacked the American steamboat Caroline, targeting Canadian rebels led by William Lyon Mackenzie, ultimately established the authoritative legal principles to ascertain the legality of anticipatory self-defence in international law.Footnote ¹¹ Canada also played a pivotal role in the factual matrix surrounding the Alabama Claims dispute,Footnote ¹² which culminated in the 1871 Treaty of Washington,Footnote ¹³ thereby cementing both Canada’s sovereignty and the important role of peaceful IDS.Footnote ¹⁴ Similarly, the famous Trail Smelter case involved noxious fumes emanating from British Columbia, which affected rights and interests in Washington state, opposing Canada and the United States in this seminal arbitration.Footnote ¹⁵ And the list goes on.

Canada’s active engagement with international courts and tribunals has continued — unabated — in the intervening decades, with a strong record of participation before various dispute settlement mechanisms. For example, Canada has been a party in seven contentious cases before the International Court of Justice (ICJ), three of which are currently pending: Delimitation of the Maritime Boundary in the Gulf of Main Area (Canada v United States of America); Fisheries Jurisdiction (Spain v Canada); Legality of Use of Force (Serbia and Montenegro v Canada); Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and Netherlands v Syrian Arab Republic); Alleged Violations of State Immunities (Islamic Republic of Iran v Canada); Aerial Incident of 8 January 2020 (Canada, Sweden, Ukraine and United Kingdom v Islamic Republic of Iran); and Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Islamic Republic of Iran v Canada, Sweden, Ukraine and United Kingdom). Footnote ¹⁶ It is also an intervener in two pending cases and has participated in several advisory proceedings before the ICJ.Footnote ¹⁷

Canada also participated in forty-four cases as complainant, twenty-five as respondent, and 181 as a third party in the World Trade Organization’s (WTO) dispute settlement system.Footnote ¹⁸ However, since 2017, the WTO’s Dispute Settlement Body and its Dispute Settlement Understanding (DSU) have become unfortunate casualties of the political climate prefaced above, despite comprising one of the most prolific (if not the most prolific) IDS bodies in history.Footnote ¹⁹ As widely discussed in various circles, the United States has resisted the WTO’s dispute settlement system in various ways, including through the prospects of handling trade disputes outside the WTO system (an option not available under the DSU)Footnote ²⁰ or of flat-out defying the WTO’s rulings with which it disagrees and blocking the selection procedure for new members of the Appellate Body.Footnote ²¹

To many commentators, this stance sends undesirable signals about binding multilateral norms and systems in which all players have agreed to play by the same rules, including potentially unfavourable outcomes being imposed on them in dispute settlement contexts. This state of affairs even prompted James Crawford — while he was a sitting judge hearing state-to-state disputes at the ICJ — to call out the Trump administration for “challenging the whole post-1945 system as put together by the United States,” opining that “[a] serious economic recession and the collapse of the WTO appeals body would be the worst case scenario from current US trade policy and a move from multilateralism.”Footnote ²² Echoing our earlier remarks, Judge Crawford affirmed that the WTO’s Appellate Body was “the most successful appellate mechanism in international history,” adding that “[i]t’s associated with the considerable success of the WTO as a trade regulator” and “[i]f that breaks down, we’re really back to square one.”Footnote ²³

Despite these challenges and this rather grim prognosis, Canada has remained committed to the WTO’s underlying aims and its rules-based legal order, while embracing potential reforms to its functions and procedures to strengthen its effectiveness and modernize the institution. In fact, Canada volunteered a discussion paper in the context of the WTO’s ongoing reform efforts that formulated several proposals, including recommendations to enhance the efficacy of its dispute settlement system.Footnote ²⁴ Canada also participated in the workaround procedures set up by states parties to palliate the Appellate Body’s paralysis, including notifying one appeal of a WTO panel report “into the void.”Footnote ²⁵ More importantly, Canada joined the Multi-Party Interim Appeal Arbitration Agreement Arrangement (MPIA) — conceived by select WTO members pursuant to Article 25 of the DSU — which implemented an alternative appeal mechanism to ensure review of panel reports in light of the Appellate Body’s current inability to do so.Footnote ²⁶ In that context, Canada acted as complainant in one ongoing MPIA case and respondent in another pending MPIA proceeding.Footnote ²⁷ It was also involved as a third party to the original proceedings that resulted in two finalized MPIA awards,Footnote ²⁸ and it is involved in the same capacity in five ongoing MPIA cases.Footnote ²⁹

Shifting from state-to-state dispute settlement to the mixed disputes space, Canada has also been an active proponent of investment arbitration and a participant in ISDS cases in various contexts. For one thing, Canada was one of the original parties to the North American Free Trade Agreement (NAFTA), the first trade deal with an investment chapter containing the now familiar detailed menu of procedural and substantive obligations that we see replicated in newer generation IIAs, including in recent so-called “mega-regionals.”Footnote ³⁰ In many ways, this pathbreaking treaty — coupled with the illuminating jurisprudence, hard-fought battles, and valuable lessons learned in the wake of its adoption — paved the way for future treaty drafting and interpretation across various corners.

NAFTA’s legacy and influence have been pervasive, embodying Canada’s enduring commitment to ISDS as a viable dispute settlement mechanism, specifically, and to the value of entrusting such a function to international tribunals, more generally.Footnote ³¹ To date, Canada has been involved in at least thirty-six publicly known ISDS cases as a respondent,Footnote ³² while Canadian investors have launched at least seventy-six ISDS cases against third states,Footnote ³³ which have been administered by institutions such as the International Centre for Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA). Moreover, Canada’s intellectual resources — both private and public — have enriched the work of international courts and tribunals in a wide range of international disputes. By the same token, the participation of several Canadian government officials, academics, and scholars as agents, counsel, advocates, and expert witnesses before such institutions has contributed to our country’s enduring legacy of promoting international justice, strengthening the international rule of law, and facilitating the peaceful settlement of international disputes.

Over the years, several distinguished Canadian jurists have served as judges and arbitrators within international courts and tribunals. John Erskine Read, a native of Halifax who enjoys a privileged place within the Canadian Council on International Law,Footnote ³⁴ was the only Canadian to serve as a judge at the ICJ and held that noble judicial office from 1946 to 1958. In that capacity, he participated in some of the Court’s early, foundational cases, such as Corfu Channel (United Kingdom v Albania) and the advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations. Footnote ³⁵ Furthermore, Judge Read issued, inter alia, robust dissenting opinions in the Fisheries Case (United Kingdom v Norway),Footnote ³⁶ the Nottebohm (Liechtenstein v Guatemala) case,Footnote ³⁷ and the Certain Norwegian Loans (France v Norway) case.Footnote ³⁸

In addition, at least six Canadian nationals have served or are currently serving as judges ad hoc in contentious ICJ proceedings — namely, Louise Arbour (one case), Maxwell Cohen (one case), John H. Currie (one case), Yves L. Fortier (two cases), Marc Lalonde (two cases), and Donald M. McRae (eight cases).Footnote ³⁹ On this score, the ICJ’s database does not include Philippe Kirsch, a dual national of Belgium and Canada, who served as judge ad hoc in one case.Footnote ⁴⁰ To this list, one could add, perhaps as “adoptive Canadian,” the eminent scholar Thomas M. Franck — known primarily for his seminal academic workFootnote ⁴¹ — who also served as judge ad hoc in one ICJ case and whose history was intimately tied to Canada.Footnote ⁴²

While no Canadian individual has ever served as a member of the WTO’s Appellate Body, several Canadian nationals have acted as members of WTO panels in adjudicating trade disputes at the first instance level. These individuals include Armand de Mestral, Valerie Hughes, and Donald McRae, although no comprehensive database of WTO panellists exists.Footnote ⁴³ Similarly, while there is no comprehensive listing of Canadians having served as arbitrators in state-to-state proceedings — be they under the aegis of Annex VII of the United Nations Convention on the Law of the Sea, the Canada-US Free Trade Agreement, NAFTA, the Canada-United States-Mexico Agreement (CUSMA), and so on — some Canadians have received such prestigious appointments including Yves L. Fortier, Robert A.E. Greenshields, Valerie Hughes, Marc Lalonde, and Donald McRae.Footnote ⁴⁴

It is similarly impossible to produce an exhaustive list of individuals who have served as arbitrators in ISDS disputes, although many Canadians have done so across various territories and industries, including in notable cases like Yukos v Russian Federation, The Eurotunnel Arbitration, CMS Gas Transmission Company v Argentina, and Sempra Energy International v Argentina. Notable examples of distinguished Canadian ISDS arbitrators include Henry C. Alvarez, Pierre Bienvenu, Ian Binnie, Stephen Drymer, Yves L. Fortier, David Ross Haigh, Marc Lalonde, Beverley McLachlin,Footnote ⁴⁵ J. William Rowley, and J. Christopher Thomas.

Moreover, various Canadians have served in different capacities, including in senior and/or managerial positions, in the staff of many international courts and tribunals, including at the International Criminal Court (ICC), the ICJ, ICSID, the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), the PCA, the Special Tribunal for Lebanon, and the WTO. Recent appointments include Meg Kinnear’s tenure as ICSID’s first full-time secretary-general from 2009 to 2024, Kevin Nash’s current tenure as the director general of the London Court of International Arbitration and his past appointments as deputy registrar and registrar of the Singapore International Arbitration Centre from 2011 to 2024, Marek Krasula’s ongoing appointment since 2020 as director of arbitration and ADR for North America at the International Chamber of Commerce, and Martin Doe’s current tenure as deputy secretary-general and principal legal counsel of the PCA. Debra Steger served as the first director of the WTO’s Appellate Body Secretariat from 1995 to 2001, a position later held by Valerie Hughes from 2001 to 2005, who was also later appointed director of the WTO’s Legal Affairs Division from 2010 to 2016.Footnote ⁴⁶ Similarly, Gabrielle Marceau joined the General Agreement on Tariffs and Trade Secretariat in 1994 and served at the WTO in various capacities until 2025, including as legal advisor, acting director of its Legal Affairs Division, and senior counsellor in its Economic Research and Statistics Division.Footnote ⁴⁷

Over the decades, Canada also remained a strong proponent of international criminal law and justice — for instance, by playing a “brokering role in negotiations” concerning the establishment of the ICC, its jurisdiction, the definitions of crimes, and its procedures and general principles.Footnote ⁴⁸ The Canadian delegation included Valerie Oosterveld, who assisted in negotiating various gender provisions in that context. As chairman of the Committee of the Whole of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Philippe Kirsch spearheaded the final global proposal for the ICC, which received robust approval from the states parties.Footnote ⁴⁹ Kirsch was later elected judge at the ICC from 2003 to 2009 and served as its first president.Footnote ⁵⁰ In 2017, Kimberly Prost became the second Canadian individual elected to the ICC as a judge, having previously served as chef de cabinet of the ICC president.Footnote ⁵¹

Throughout the years, Canada has supported the ICC’s work in various ways, including by being the first nation to legislate its relevant obligations domestically through the 2000 Crimes against Humanity and War Crimes Act, which granted Canadian courts universal jurisdiction over the core crimes and established a comprehensive network for it to cooperate with both the ICC and the ad hoc tribunals while ensuring mutual assistance with other key actors.Footnote ⁵² Canada continues to promote and champion the ICC through its leadership and advocacy for the Court’s work, providing both resources and personnel to facilitate ICC investigations and prosecutions and generating broader support from diverse constituencies through lobbying and other means.Footnote ⁵³

Similarly, Canadians have left an indelible mark at the ICTY through their commitment to international justice and the fight against impunity, with Louise Arbour serving as its chief prosecutor from 1996 (and as chief prosecutor of the ICTR). With the assistance of legal staff, including Payam Akhavan, who served as both legal advisor to the ICTY’s Office of the Prosecutor and special advisor to the ICTR, Arbour indicted Slobodan Milošević in 1999. This milestone marked the first time in the ICTY’s history that a head of state was indicted.Footnote ⁵⁴ Three Canadians also served as judge ad litem at the ICTY during its operation — namely, Jules Deschênes, Kimberly Prost, and Sharon Williams.

Again, Canada unfailingly supported the ad hoc international criminal tribunals by adjusting its domestic legislation to facilitate cooperation with the tribunals, extradition, arrest, and surrender of perpetrators of international crimes to the tribunals (or those complicit therein), denying safe haven to individuals believed to have committed such crimes, and lending legal expertise to the development of international criminal legal norms. Moreover, Lieutenant General Romeo Dallaire’s testimony about the Rwandan genocide in different ICTR proceedings proved instrumental for that tribunal to achieve its judicial mission.Footnote ⁵⁵ Needless to say, many other Canadians made valuable contributions to the work of international and hybrid criminal tribunals, and those contributions cannot be enumerated in this brief introduction.

Finally, it is important to highlight that Canadian jurisprudence on international law has also enjoyed considerable traction and influence worldwide. Again, it is impossible to do justice to the breadth of influence that Canadian case law has exerted beyond our borders. After all, it is no secret that the Supreme Court of Canada’s (SCC) decisions have considerable purchase throughout the world, as do some decisions of our provincial appellate courts. This process, through which foreign and international courts take stock of Canadian jurisprudence, has resulted in transnational judicial dialogue, which in turn has empowered the marketplace of legal ideas through processes such as legal borrowing and cross-fertilization.Footnote ⁵⁶ Suffice it to identify a few examples illustrating the transnational influence of Canadian jurisprudence and the rich judicial cross-pollination that has ensued.

For instance, the SCC’s R v Finta Footnote ⁵⁷ judgment played an important role in informing the work of international criminal tribunals on the constituent elements of crimes against humanity,Footnote ⁵⁸ including in the seminal ICTY Tadić trial and appellate proceedings.Footnote ⁵⁹ For its part, the SCC’s Reference re Secession of Québec Footnote ⁶⁰ was largely received as a robust international law treatment of legal issues surrounding secession between national political entities, with particular relevance as to the results of a referendum in such a context. As a result, it gained considerable global traction and was widely cited, including by the ICJ in its Kosovo advisory opinion.Footnote ⁶¹ Similarly, the Court of Appeal for Ontario’s decision in the Bouzari case,Footnote ⁶² which addressed immunities and related legal questions, provided guidance to the ICJ on key issues in its judgment in Jurisdictional Immunities of the State. Footnote ⁶³ In that same judgment, the ICJ further enlisted the support of other notable SCC decisions — namely, Schreiber and Kuwait Airways Corp. Footnote ⁶⁴ Several SCC decisions were also recently relied on by the participants in the pending advisory proceedings on the Right to Strike under ILO Convention No. 87. Footnote ⁶⁵ These and other examples show the multifaceted contribution of Canadian practice in shaping the pleadings of states and, ultimately, the jurisprudence in different areas of international law, going well beyond multiple instances of direct involvement by Canada and Canadians in dispute settlement proceedings.

We have curated this symposium with the above considerations in mind. It brings together contributions from both seasoned IDS practitioners and more junior scholars, serving as a fitting tribute to celebrate Canada’s inspiring and enduring legacy in promoting international justice, the international rule of law, the peaceful settlement of international disputes, and the fight against impunity. The first part of the symposium features relatively short pieces by established Canadian practitioners and scholars who have actively contributed to Canada’s role in IDS. The symposium opens with a preface by Donald McRae, who was counsel in the Gulf of Maine case, the very first contentious case for Canada before the ICJ. Colleen Swords shares words of wisdom on Canada’s past efforts to secure better representation of Canadians on the bench of international courts and tribunals and reflects on key challenges and prospects in that context. Douglas Harrison provides a rich historical account of the Bering Sea (Fur Seals) case, the very first arbitration involving Canada, which has profoundly shaped Canada’s involvement in subsequent arbitrations and the development of international environmental law. Alison FitzGerald undertakes a thoughtful inquiry into the evolution of ISDS and the significant role that Canada has played in shaping that regime, including through its NAFTA cases. Gabrielle Marceau and Antoine Comont unveil significant contributions that Canada and Canadians have made to the architecture of the WTO’s dispute settlement system, including in developing the most recent solutions, such as the MPIA, to address the blockage of the WTO’s Appellate Body.

The second part of the symposium features longer pieces that reflect on specific aspects of Canada’s role before international courts and tribunals. Céline Braumann and Vladyslav Lanovoy examine Canada’s legacy before the ICJ and its multiple contributions to shaping the Court’s jurisprudence. Christopher Penny zooms in on the analysis of the different versions of Canada’s Optional Clause declarations at the ICJ, arguing that the scope of its current consent to the compulsory jurisdiction of the Court is extremely limited. Bill Dodge makes a positive case for why Canada’s exception to sovereign immunity does not violate international law, an issue currently pending before the ICJ in a case brought by Iran against Canada. Gaëlle Foucault and Steve Tiwa Fomekong reflect, respectively, on different aspects of another case involving Canada, which it brought alongside the Netherlands against Syria under the Convention against Torture. Footnote ⁶⁶ While Foucault shows the prospects and limits of the Court’s potential decision in this case, Fomekong considers other parallel avenues to the ICJ that Canada should explore and how it could build its claims based on the Convention against Torture, while having due regard to international humanitarian law as a matter of treaty interpretation. Jean-Michel Marcoux and Waldo Ali provide an original assessment of the notion of “legitimate objectives” in Canadian investment treaties, drawing on existing case law. Finally, Guillaume Larouche examines the links between international and domestic courts — in particular, the ways in which domestic judges have construed and applied the scope of their power in set-aside proceedings concerning investor-state arbitral awards.

The variety of issues covered by these contributions is a testament to Canada’s active and cross-cutting role in IDS, the consistency of its efforts to seek peaceful resolution of international disputes, and its ability to develop new institutional solutions in moments of crisis or uncertainty, as the present one. Canada and Canadian jurists have left a significant footprint on the development of third-party binding dispute resolution mechanisms and have contributed to shaping the jurisprudence of the ICJ, the WTO, and ISDS. It is hoped that current and future generations will continue this path.