1. Introduction
This article examines Canada’s contribution to the case law of the International Court of Justice (ICJ). The central claim of this article is that Canada, a “middle power” in international relations,Footnote 1 has left a significant mark on the Court’s jurisprudence and, as a result, on the development and clarification of international law. As we show below, far from only paying lip service to the rules-based international order, Canada’s commitment to international law and its institutions has found an important and ascertainable expression in the docket and practice of the ICJ. The earliest examples of Canada’s contribution predate the establishment of the ICJ, and even that of its predecessor, the Permanent Court of International Justice (PCIJ) (together often referred to as the “World Court”). Arbitral awards involving Canada as a disputing party, such as the Bering Sea case (also known as the Fur Seals),Footnote 2 the S.S. “I’m Alone” case,Footnote 3 and the Trail Smelter case,Footnote 4 remain authoritative and relevant today. They have shaped the ICJ’s jurisprudence in critical areas such as the law of the sea and international environmental law.
Canada’s early participation in arbitrations was prescient of its general attitude towards inter-state dispute settlement. In 1929, Canada made its first optional clause declaration, subjecting itself to the PCIJ’s compulsory jurisdiction.Footnote 5 While the content of that declaration has evolved considerably since the 1970s, Canada remains committed to the ICJ’s compulsory jurisdiction.Footnote 6 Canada’s continued commitment to the Court’s role in the peaceful settlement of disputes is reinforced by the fact that Canada has not appended reservations to the compromissory clauses in major multilateral treaties that provide for the Court’s jurisdiction. This is noteworthy since Canada is party to many such treaties and has now been involved in cases brought under several of these compromissory clauses, including the Genocide Convention, the Torture Convention, and the Convention on the Suppression of Unlawful Acts Against Civil Aviation. Footnote 7
Between 1946 and 2021, Canada appeared before the ICJ in three contentious and five advisory proceedings. Since 2022, Canada has been involved in six contentious cases (four as a party and two as an intervener) and three advisory proceedings, including two that have recently concluded and another that is currently under deliberation. While this increase in activity reflects, to some extent, the volume and nature of cases before the ICJ over the past few years, Canada is nevertheless one of the most active litigants in contemporary ICJ proceedings. In addition to Canada’s involvement as a party, intervener, and participant, Canadian scholars and practitioners have left a significant mark on the Court’s case law and procedure. Although Canada has had only one judge elected to the ICJ bench, Judge John Read, many others have served as judges ad hoc or as counsel in proceedings before the Court.
This article proceeds as follows. Section 2 describes Canada’s role at the PCIJ and shows how some of the early arbitral awards involving Canada remain central to legal argumentation today, including before the Court. Section 3 examines Canada’s direct influence upon the Court’s case law through its participation in contentious and advisory proceedings. Section 4 examines Canada’s indirect influence on the Court’s case law – notably, how Canada’s practice, both domestic and international, has informed the pleadings of other states and, occasionally, the Court’s reasoning and that of its individual judges. Section 5 concludes.
2. Canada’s early contributions to international dispute settlement
Canada demonstrated a propensity for international adjudication even before gaining independence from the United Kingdom. It was involved in some of the most significant arbitrations at the end of the nineteenth and early twentieth centuries. Likewise, since its early days, Canada has been a strong proponent of the World Court. This section discusses Canada’s seminal cases and its engagement with international courts and tribunals prior to the establishment of the ICJ in 1945.
A. Canada and the PCIJ
Canada’s mark on the establishment and the early days of the World Court was subtle. The transcripts of the Advisory Committee of Jurists that prepared the Statute of the Permanent Court of International Justice (PCIJ Statute)Footnote 8 only mention Canada twice: as an example of a self-governing colonyFootnote 9 and as a member of the same national group as the United States.Footnote 10 A similar picture emerges from the subsequent negotiations at the League of Nations in 1921, which led to the adoption of the PCIJ Statute. Canada was represented in those negotiations by its minister of justice, Charles Joseph Doherty, but did not take an active role.Footnote 11 This passive stance should not be interpreted as a lack of interest in the World Court. Canada took several concrete actions to support the Court following the adoption of the PCIJ Statute. The Protocol of Signature of the PCIJ Statute was signed on behalf of the Dominion of Canada and ratified in 1921, and the Statute entered into force later that year.Footnote 12 In 1929, even before Canada’s distinct legal personality from the British Empire was recognized through the Statute of Westminster of 1931, Canada deposited its optional clause declaration accepting the PCIJ’s compulsory jurisdiction.Footnote 13
During the first decade of the PCIJ’s activities, Canada became a more active and outspoken supporter of the World Court, with Sir George Foster as its representative at the League of Nations in matters relating to the PCIJ. In 1926, when members of the League of Nations considered whether to amend the PCIJ Statute to accommodate the United States’ reservations and prospective accession to the Statute, Sir George Foster argued in favour of such an amendment.Footnote 14 Although Canada was again not represented on the Committee of Jurists that was tasked with preparing this revision of the PCIJ Statute in 1929, it was mentioned repeatedly during one of the Committee’s more animated debates. This debate concerned the question whether a judge from the British dominions could be elected when there was also a judge from the United Kingdom on the bench, even though they shared the same nationality. Sir Cecil Hurst from the United Kingdom used Canada as his example of a British dominion that would not “consider that [it] was represented on the Court by a judge of her own nationality, owing to the sole fact that the Court comprised an English judge among its members.”Footnote 15 When he faced resistance on this point in the Committee of Jurists,Footnote 16 Sir Cecil Hurst assured the members “that the autonomy of the Dominions was developing fast and that no close union in legal matters existed between them and the mother-country.”Footnote 17
In 1929, after the League’s members had adopted the protocol for the United States’ accession, Sir George Foster enthusiastically accepted the Committee’s draft and expressed strong optimism about the United States’ future involvement in the Court.Footnote 18 However, the United States ultimately never acceded to the PCIJ Statute, which, according to John Read, also explains why Canada never got involved in any cases before the PCIJ:
The reason for this apparently anomalous attitude is to be found in the failure of the United States to accede. It was necessary to deal with controversies arising with the United States by improvising ad hoc tribunals or by using the services of the International Joint Commission. The nature of Canadian relations with other countries is such that controversies are unlikely to arise and there were, in fact, no substantial disputes requiring adjudication with countries other than the United States during the period under consideration.Footnote 19
This is not to say that Canada did not participate in the early days of modern inter-state dispute settlement. Since the United States refused to subject itself to the PCIJ’s jurisdiction, Canada resorted to alternative means — especially arbitration — to resolve disputes with its only neighbour. In a way, this reflected the state of the art of inter-state dispute settlement at the time: throughout the nineteenth and early twentieth centuries, arbitration was the preferred mechanism for resolving disputes between states, while the idea of a permanent judicial mechanism did not materialize until 1922 with the establishment of the PCIJ. Even after the establishment of the World Court, Canada continued its efforts to settle disputes through other jurisdictional or diplomatic means — not so much because it was unwilling to take cases to the Court but because the disputing parties preferred those other means.Footnote 20 As a result, Canada and the United States participated in some of the most influential inter-state arbitrations, which have left a lasting mark on the subsequent development of the World Court’s case law.
B. Early precedents: disputes between Canada and the United States
John Read, chief Canadian representative in the Washington Committee of Jurists preparing the draft of the ICJ Statute in 1945 and Canada’s first and only elected ICJ judge, used Canada’s and the United States’ repeated reliance on arbitration to illustrate that the PCIJ had failed to truly become a “World Court” beyond Europe and to supplant ad hoc tribunals.Footnote 21 In his view, these tribunals had proved their value, and he would know given that he had represented Canada before two of these ad hoc tribunals — namely, in the S.S. “I’m Alone” and the Trail Smelter cases, which are discussed below. What is more, Read noted that the new ICJ Statute incorporated “to an appreciable extent” the North American experience of dispute resolution.Footnote 22 With this, he referred in particular to the novelty of Chambers under Articles 26–29 of the ICJ Statute, which could be “called upon to deal with the sort of case that was formerly referred to an ad hoc tribunal … like the I’m Alone or Trail Smelter questions.”Footnote 23 As it happens, Read was prescient about the impact of this procedural innovation, which was in fact first resorted to in a dispute between Canada and the United States in the 1980s — the Gulf of Maine case.Footnote 24
Beyond inspiring the drafters of the ICJ Statute to allow for Chambers, the US-Canadian arbitrations have remained relevant in ICJ proceedings as an authority for certain primary and secondary rules, especially in international environmental law. Even though the Court is not bound by precedent,Footnote 25 in practice, it has often relied heavily not only on its own jurisprudence but also on that of other international courts and tribunals, including inter-state arbitral awards.Footnote 26 The following subsections outline the three most notable Canadian inter-state cases.Footnote 27
i. Bering Sea / Fur Seals
The first international case that forms part of Canada’s legacy in inter-state dispute settlement is the Bering Sea (also known as the Fur Seals) arbitration of 1893.Footnote 28 Although the parties to this arbitration were formally the United States and the United Kingdom, the interests at stake were clearly Canadian, and it was Canada that pressured the United Kingdom to resolve the matter.Footnote 29 The case concerned the United States’ enforcement of its prohibition of killing fur seals by arresting the vessels of Canadian sealers in the high seas of the North Pacific in the 1880s.Footnote 30 The tribunal, which also included Canadian Prime Minister Sir John Thompson among the arbitrators, rejected the United States’ claims to exclusive jurisdiction and rights of protection or property over the fur seals in the Bering Sea and awarded the United Kingdom compensation for the Canadian vessels.Footnote 31 Notably, however, the parties also asked the tribunal to devise “[r]egulations for the proper protection and preservation of the fur-seal.”Footnote 32 The tribunal went on to stipulate a regime that prohibited sealing in the entire Bering Sea during certain months, and year-round at a major breeding ground. This made the Bering Sea arbitration the very first international decision on the sustainable use and protection of marine living resources, at a time when the notion of international environmental law did not yet exist. To this day, the Bering Sea case is frequently cited in this context. Indeed, the reliance on it by states in both advisory and contentious proceedings before the ICJ is a direct testimony of the decision’s continued relevance.Footnote 33
Despite the tribunal’s attempt to preserve the species with its regulations,Footnote 34 the seal population nearly collapsed in the following decades. Their full collapse was ultimately avoided with the 1911 North Pacific Fur Seal Convention between Japan, Russia, the United States, and the United Kingdom, a novum of inter-state cooperation in the protection of marine living resources.Footnote 35 This “sequel” to the Bering Sea dispute bears a sad resemblance to Canada’s issues with overfishing a century later in the Northwest Atlantic, which culminated in the Newfoundland cod stock collapse of 1992 and serious concerns about other straddling stocks. Like the fur seal saga, inter-state cooperation through multilateral conventionsFootnote 36 and regional fisheries management organizations,Footnote 37 including the Northwest Atlantic Fisheries Organization (NAFO), appears to have improved the situation.Footnote 38 These Canadian interests in fisheries conservation and management palpably influenced Canada’s practice at the ICJ and will be a recurring topic in this article.
ii. S.S. “I’m Alone”
The S.S. “I’m Alone” arbitration between Canada and the United States is another famous precedent, again featuring a Canadian ship and the United States’ claims to enforcement jurisdiction on the high seas. In contrast to the ad hoc nature of the Bering Sea arbitration, the S.S. “I’m Alone” case was arbitrated under a 1924 treaty between the United States and the United Kingdom, which concerned the prevention of alcohol smuggling.Footnote 39 The Canadian-flagged S.S. “I’m Alone” was a “rum-runner,” a ship smuggling contraband alcohol to the United States during the ban on the sale of alcoholic beverages in the 1920s. When the US Coast Guard intercepted the S.S. “I’m Alone” on the high seas in the Gulf of Mexico in March 1929, the ship disobeyed the US orders to stop and be examined. After a hot pursuit that lasted two days and two nights, the US Coast Guard ultimately shelled and sank the S.S. “I’m Alone.” One of the eight crew members of the S.S. “I’m Alone”, French-Canadian Leon Maingui, drowned, while the other seven were rescued, arrested, and jailed.Footnote 40
In 1932, Canada initiated arbitration proceedings against the United States for damages under the arbitration clause of the 1924 treaty.Footnote 41 The Claims Commission’s reports of 1933 and 1935 determined that the intentional sinking of the vessel was an unlawful act, which was neither justified by any provision in the 1924 treaty nor by any principle of international law.Footnote 42 The Claims Commission awarded compensation for material damages to the captain and the crew members and ordered the United States to compensate for moral damages (“as a material amend in respect of the wrong”) and to apologize to the Canadian government. Conversely, the Commission did not award compensation for the loss of the ship and its cargo per se: although the vessel was formally Canadian flagged, it was in fact owned by US nationals. The S.S. “I’m Alone” arbitration has been cited as precedent before the ICJ for this latter point, which concerned non-compensation for vessels flying the flag of the applicant state but owned by citizens of another state.Footnote 43 It has also been cited in ICJ proceedings as a precedent for the award of damages for non-material harm resulting from an internationally wrongful act.Footnote 44
iii. Trail Smelter
Last but certainly not least, the 1938 and 1941 decisions that put an end to the Trail Smelter dispute between the United States and Canada may be the most widely cited precedents in contemporary international environmental law.Footnote 45 The dispute arose from sulphur dioxide fumes emanating from a zinc and lead smelter in Trail, British Columbia, causing environmental and property damage in the neighbouring State of Washington along the Columbia River.Footnote 46 The US government intervened in 1927, and Canada and the United States concluded a special agreement in 1935 to settle the dispute through arbitration.Footnote 47 The arbitral decisions in this case highlight the tribunal’s painstaking approach to fact-finding as “probably the most thorough study ever made of any area subject to atmospheric pollution by industrial smoke” at that time.Footnote 48 From a modern perspective, the centrepiece of the Trail Smelter case, and what makes it a landmark decision on transboundary pollution to this day, is the enunciation of the “no harm” principle:
[U]nder the principles of international law, as well as the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.Footnote 49
As a result, the tribunal held Canada responsible for the smelter’s conduct, ordered a specific regime to minimize future harm to the United States (thereby accepting that the smelter may continue to operate even if some harm could not be avoided), and awarded an indemnity. Notably, the United States was denied damages for costs incurred in investigations stemming from Canada’s “violation of sovereignty” of the United States: the tribunal briefly referred to the different “type of facts” to distinguish the case from the moral damages awarded in S.S. “I’m Alone”, while noting that the special agreement did not empower it to decide on the possible violation of the United States’ sovereignty.Footnote 50 The United States unsuccessfully petitioned the tribunal for a revision of this part of the award, challenging, inter alia, the tribunal’s reliance on the S.S. “I’m Alone” as a material error of law.Footnote 51
The Trail Smelter case is the original precedent for many substantive and procedural principles of international law, now universally accepted and restated in different contexts.Footnote 52 Crucially, the ICJ has invoked the Trail Smelter decisions and the famous passage on transboundary pollution in several judgments, thereby dispelling any doubts that this principle forms part of customary international law.Footnote 53 The many references to Trail Smelter in the ICJ advisory proceedings concerning Obligations of States in Respect of Climate Change, as well as the advisory opinion itself, reconfirm the continuing authority of the principles first set out in Trail Smelter. Footnote 54
3. Canada’s direct influence on the case law and practice of the ICJ
Canada’s direct influence on the ICJ’s case law finds expression in its optional clause declaration recognizing the Court’s compulsory jurisdiction, its involvement as an applicant, respondent, or intervener in contentious cases, and its participation in advisory proceedings. After briefly considering Canada’s record of commitment to the Court’s compulsory jurisdiction through its optional clause declaration,Footnote 55 we analyze past and pending contentious cases involving Canada as well as the advisory proceedings in which Canada has participated. This overview shows the diversity of issues on which Canada has contributed to the Court’s case law over time.
Today, Canada is at the forefront of dispute resolution efforts in respect of mass atrocities and wide-scale violations of major multilateral human rights conventions in Syria, Myanmar, and Ukraine.Footnote 56 These efforts contribute to consolidating public interest litigation regarding violations of erga omnes (partes) obligations.Footnote 57 Canada is also seeking to establish Iran’s responsibility for alleged breaches of the Convention on the Suppression of Unlawful Acts against Civil Aviation and to obtain, along with other states, compensation for victims in respect of the Aerial Incident of 8 January 2020. Footnote 58 At the same time, it faces complex legal claims brought by Iran, challenging the consistency of Canadian legislation and practice with customary international law regarding states’ sovereign immunity.
A. Canada’s declaration on the compulsory jurisdiction of the ICJ
Canada has recognized the World Court’s compulsory jurisdiction continuously since the early years of the PCIJ. Over the past century, Canada has submitted five optional clause declarations: in 1929,Footnote 59 1970,Footnote 60 1985,Footnote 61 1994,Footnote 62 and 2023.Footnote 63 The original declaration of 1929 was particularly broad, recognizing the compulsory jurisdiction of the PCIJ and, subsequently, that of its successor, the ICJ.Footnote 64 Canada has modified its declaration several times since the 1970s, adding reservations that better reflect developments in Canadian foreign policy. Still, the different versions of the optional clause declaration show a pattern of Canada’s engagement with, and openness to, litigating disputes before the Court, even if it has introduced significant limitations to its consent.
In April 1970 — a month after the 1958 Convention on the Continental Shelf became effective for CanadaFootnote 65 and just before Canada adopted its legislation on the protection of the marine environment and marine living resources and commenced formal negotiations with the United States concerning the Gulf of Maine disputeFootnote 66 — Canada replaced its broad optional clause declaration of 1929 with a declaration that contained a notable reservation concerning:
(d) disputes arising out of or concerning jurisdiction or rights claimed or exercised by Canada in respect of the conservation, management or exploitation of the living resources of the sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to the coast of Canada.Footnote 67
This was the very first reservation to limit the Court’s jurisdiction with respect to pollution of the marine environment.Footnote 68 Canada sought to protect its environmental interests in the Arctic, an area it considered insufficiently regulated under international law.Footnote 69 Accordingly, while reaffirming that “Canada strongly supports the rule of law in international affairs,” then Prime Minister Pierre Trudeau explained this reservation to the House of Commons as follows:
It is well known that there is little or no environmental law on the international plane and that the law now in existence favours the interests of the shipping states and the shipping owners engaged in the large scale carriage of oil and other potential pollutants. There is an urgent need for the development of international law establishing that coastal states are entitled, on the basis of fundamental principle of self-defence, to protect their marine environment and the living resources of the sea adjacent to their coasts.
In spite of this new reservation, Canada’s acceptance of the compulsory jurisdiction of the court remains much broader than that of most other members of the United Nations, and it is the hope of the government that it will prove possible to reach agreement with other states on the vital need to develop the law to protect the marine environment and its living resources so as to make it possible for Canada again to broaden its acceptance of the court’s jurisdiction.Footnote 70
The genuine concern beyond the new reservation was the existence, according to the Trudeau government at the time, of a “very grave risk that the World Court would find itself obliged to find that coastal states cannot take steps to prevent pollution. Such a legalistic decision would set back immeasurably the development of law in this critical area.”Footnote 71 Indeed, Canada’s subsequent declaration of 1985 — which removed the reservation with respect to marine resources — made good on the promise that the reservation was an “interim measure” and would only be in place until the law of the sea had caught up with Canada’s environmental concerns through the recognition of an exclusive environmental zone (EEZ) and the rights and obligations that come within that zone for the coastal and third states.Footnote 72 Canada’s decision to revert to a broader consent to the Court’s jurisdiction may be explained by developments in the Court’s case law on the law of the sea — notably, the recognition of the customary law character of the continental shelf and the EEZ, as well as the 200-nautical-mile distance criterion.Footnote 73
Canada modified its declaration in 1994 again, adding the following reservation concerning fisheries conservation and management:
(d) disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.Footnote 74
The political context of this new reservation was, in Canada’s own words, “foreign overfishing” and the imminent or actual collapse of straddling fish stocks in the Northwest Atlantic in the 1990s, which culminated in the “Turbot War” between Canada and Spain in 1995.Footnote 75 On the same day it deposited the 1994 declaration, the Canadian government submitted an amendment to the Coastal Fisheries Protection Act to Parliament.Footnote 76 This amendment also entailed a prohibition of fishing for straddling stocks and enforcement measures against foreign fishing vessels in the NAFO regulatory area, including on the high seas. The new reservation to the Court’s compulsory jurisdiction was expressly “to preclude any challenge which might undermine Canada’s ability to protect [its] stocks. This is a temporary step in response to an emergency situation.”Footnote 77
The reservation was tested before the ICJ and proved its purpose: less than a year after the 1994 declaration entered into effect, it shielded Canada from the Court’s compulsory jurisdiction in the Fisheries Jurisdiction case instituted by Spain during the Turbot War.Footnote 78 However, the fisheries reservation of the 1994 declaration was not temporary as originally planned. It remained in force since and still forms part of the status quo, now relegated to paragraph (f) in Canada’s new declaration of 2023.Footnote 79
In 2023, Canada was seemingly caught by surprise after the Court delivered its judgment on the merits in the Certain Iranian Assets case.Footnote 80 The case concerned the adoption by the United States of a series of measures that Iran claimed to be in violation of the 1955 Treaty of Amity Footnote 81 and that had an adverse impact on Iran and Iranian companies. While Iran originally claimed violations of sovereign immunity — namely, in connection with measures taken by the United States against Bank Markazi, Iran’s Central Bank — the Court had found, in its judgment on preliminary objections of 2019, that it lacked jurisdiction under the 1955 Treaty of Amity to entertain claims for alleged violations of the rules on sovereign immunity.Footnote 82 The Court subsequently concluded, in its judgment on the merits, that Bank Markazi was not a company within the meaning of the Treaty of Amity and did not enjoy the protections it afforded.Footnote 83
In the immediate aftermath of this judgment, Iran acted strategically, deposited an optional clause declaration and launched proceedings against CanadaFootnote 84 — the only other country with domestic legislation similar to that of the United States that carves out “States sponsoring terrorism” from the benefit of sovereign immunity from jurisdiction and enforcement. Iran’s strategy was simple: if Iran was to succeed in its case against Canada — culminating in a finding that the aforementioned exception violated customary international law — then Iran would have a concrete basis on which it could resist the enforcement in different jurisdictions of judgments rendered against Iranian assets not only by Canadian courts but, albeit by proxy, also by US courts.Footnote 85
After Iran filed an optional clause declaration on 26 June 2023 and, on the following day, an application instituting proceedings, Canada belatedly filed its revised declaration on 28 August 2023. The revised declaration only pertains to future cases and does not retrospectively apply to limit the ICJ’s jurisdiction concerning cases instituted before 28 August 2023.Footnote 86 In its new declaration, Canada essentially added two categories of disputes that are now excluded from the scope of its recognition of the Court’s compulsory jurisdiction, namely:
(d) disputes in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court;
(e) disputes or claims in respect of which the dispute or claim in question has not been notified to Canada by the State or States concerned in writing, including of an intention to submit the dispute or claim to the Court failing an amicable settlement, at least six months in advance of the submission of the dispute or claim to the Court.Footnote 87
These reservations are standard in the practice of optional clause declarations under Article 36(2) of the ICJ Statute. It is thus surprising that Canada had not added them earlier, at the very latest once Iran had launched its Certain Iranian Assets case against the United States.Footnote 88
To summarize, Canada’s position vis-à-vis the scope of the Court’s compulsory jurisdiction has evolved over time. While Canada maintained a very broad declaration recognizing the World Court’s compulsory jurisdiction for the first forty years of its existence, its stance began to change in the 1970s in response to its expanding activities in the law of the sea and environmental protection. Since then, Canada has progressively carved out several types of disputes, with the latest change occurring in 2023.Footnote 89 Nevertheless, taken in the context of the general lack of appetite among states for making optional clause declarations (seventy-five states having made one at the time of writing, the large majority with significant reservations), Canada’s approach still signals a great degree of trust in the Court as the principal judicial organ of the United Nations (UN).Footnote 90
B. Contentious cases
Prior to 2022 — that is, prior to the recent wave of cases — Canada had appeared as a party in only three cases brought before the ICJ. While this number may seem low, it is important to remember that many states have not yet been involved in any contentious case before the Court, while others are repeat players. Moreover, as we shall see, the cases involving Canada have left a very important mark on the ICJ’s jurisprudence.
i. Gulf of Maine (Canada/United States)
Canada’s first contentious case at the ICJ was the Gulf of Maine case, which concerned the delimitation of its maritime boundary with the United States. The dispute arose in the 1960s in connection with the parties’ overlapping continental shelf and crystallized in 1969 when Canada declined to agree to the United States’ proposal of a moratorium on hydrocarbon activities on Georges Bank in the Gulf of Maine.Footnote 91 Canada’s position on the delimitation was that it should follow the equidistance line, whereas the United States held the view that it would be inequitable in light of the special circumstances, claiming that the boundary should follow the Northeast Channel, which would have resulted in Georges Bank being on the US side of the boundary.Footnote 92 In 1977, both Canada and the United States also adopted fishery zones off their coasts, thereby broadening the dispute to include the boundaries of those zones.Footnote 93
On 25 November 1981, the parties notified the ICJ that they had concluded a special agreement. The parties agreed that the case proceed to a Chamber of the Court and that a technical expert be appointed to assist the Chamber. Canada, which did not have a judge of its nationality on the bench, appointed Judge ad hoc Maxwell Cohen to serve on a five-member Chamber. The use of a Chamber of the Court was, in and of itself, a novelty in the history of the Court’s practice until then.Footnote 94 The case raised numerous substantive issues, many of them for the first time in the jurisprudence on maritime delimitation. As Stephen Fietta and Robin Cleverly note,
Gulf of Maine was a case of many firsts: the first delimitation dispute (indeed, the first dispute of any kind) to be referred to a Chamber of the ICJ under Article 26(2) of the ICJ Statute; the first maritime boundary case to be decided after the adoption of UNCLOS; the first time the court had been asked to delimit a single maritime boundary encompassing the continental shelf and exclusive fishery zones; and the first time the court had been charged not just with the enunciation of principles and methods, but also with the delimitation of an actual boundary line.Footnote 95
With respect to delimitation, this was the first time the parties had requested that the ICJ adopt a single delimitation line for the boundary between the continental shelf and fisheries zones, and the Chamber acknowledged that there were “disadvantages inherent in a plurality of separate delimitations.”Footnote 96 Similarly, it was one of the very first occasions for the Court to pronounce itself on what would constitute relevant circumstances in a maritime boundary delimitation. The Chamber set the tone for the jurisprudence that followed in this field, declaring that any equitable criteria that could impact the boundary delimitation line were “essentially to be determined in relation to what may be properly called the geographical features of the area.”Footnote 97 Accordingly, the Chamber recognized that circumstances such as differences in the lengths of the relevant coasts, the prevention of a significant cut-off on the seaward projections, or the effect of the presence of islands or groups of small islands lying off the coast could affect the delimitation line in order to ensure an equitable result.Footnote 98 This could be distinguished from other political or economic considerations, such as fishing or other economic activities or the conduct of the parties, which in principle could not affect the delimitation line, except if the line was “radically inequitable” or “likely to entail catastrophic repercussions” for the coastal population, and that was not the case at hand.Footnote 99
To construct its single delimitation line, the ICJ ultimately applied three different methods to three distinct segments of the boundary (bisector, adjusted median/equidistance line, and perpendicular). The overall result is not far off from the equidistance line originally claimed by Canada.Footnote 100 The Chamber’s judgment could be regarded as one of the early authorities contributing to the consolidation of the rules and principles on the delimitation of the continental shelf and the EEZ under the 1982 United Nations Convention on the Law of the Sea (which was not yet in force at the time) and the quickly developing customary international law in this field.Footnote 101 The judgment remains an authoritative reference today not only in respect of certain aspects of the methodology of maritime delimitation but also on broader questions of acquiescence and tacit agreementFootnote 102 and the identification of customary international law.Footnote 103
ii. Fisheries Jurisdiction (Spain v Canada)
The second contentious case involving Canada was Fisheries Jurisdiction (Spain v Canada). This dispute arose in respect of Canada’s amendments to its Coastal Fisheries Protection Act and its implementing regulations and specific measures under that act — namely, the boarding on the high seas of a fishing boat, the “Estai,” flying the Spanish flag. In its judgment of 4 December 1998, the Court upheld Canada’s preliminary objection. It found that the dispute arose out of “conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area” and “the enforcement of such measures.” It thus fell within the scope of the reservation in the Canadian 1994 optional clause declaration, discussed earlier in this article.
The Court’s judgment, which accepted the gist of Canada’s arguments on the interpretation of its declaration and reservationFootnote 104 — despite the exceptional quality of the pleadings presented by Spain on this point by a renowned international law expert, Pierre-Marie DupuyFootnote 105 — left a significant mark on subsequent case law concerning the interpretation of optional clause declarations under Article 36(2) of the ICJ Statute. In particular, the Court clarified that
[c]onditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively. All elements in a declaration under Article 36, paragraph 2, of the Statute which, read together, comprise the acceptance by the declarant State of the Court’s jurisdiction, are to be interpreted as a unity, applying the same legal principles of interpretation throughout.
In its reasoning, the ICJ emphasized the sui generis character of the optional clause declaration as “a unilateral act of State sovereignty,” which “establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute.”Footnote 106 Thus, while noting that the regime relating to the interpretation of such declarations “is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties,” the Court accepted that the latter “may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction.”Footnote 107 The Court drew from this that it should “thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court,” which prompted the Court to consider “the explanations in the form of Canadian ministerial statements, parliamentary debates, legislative proposals and press communiqués.”Footnote 108 The Court was not persuaded by Spain’s argument, according to which reservations contained in declarations shall be interpreted “consistently with legality” and in accordance with “the Statute of the Court, the Charter of the United Nations or with general international law,” as otherwise they would be inadmissible.Footnote 109 The ICJ also rejected Spain’s argument that conditions or reservations made in such declarations should be interpreted restrictively or that the contra proferentem rule had any role to play in the interpretation of declarations.Footnote 110
On the facts, the ICJ highlighted an intrinsic link between the 1994 optional clause declaration, which included the relevant reservation, and Canada’s new coastal fisheries protection legislation, which was submitted to the Canadian Parliament the very same day that Canada communicated the new optional clause declaration to the UN Secretary-General.Footnote 111 In the Court’s view, and based on the parliamentary debates and the various statements of the Canadian authorities, the very purpose of the new optional clause declaration and the reservation in question “was to prevent the Court from exercising its jurisdiction over matters which might arise with regard to the international legality of the amended legislation and its implementation.”Footnote 112
In its analysis, the ICJ paid particular attention to the broad wording of the reservation — namely, its reference to “disputes arising out of or concerning” the conservation and management measures in question and their enforcement.Footnote 113 As for whether an impugned measure could be characterized as a “conservation and management measure,” it was “sufficient that its purpose [was] to conserve and manage living resources and that, to this end, it satisfied various technical requirements.”Footnote 114 The Court considered that the relevant assessment was to be made “by reference to factual and scientific criteria” and that “[t]he question of who may take conservation and management measures, and the areas to which they may relate, is neither in international law generally nor in [specific] agreements [reviewed by the Court] treated as an element of the definition of conservation and management measures.”Footnote 115 According to the Court, those aspects are relevant for determining the legality of such measures under international law but not for jurisdictional purposes. The Court accepted that the measures were applied in respect of any vessels fishing in the NAFO regulatory area and that actions such as boarding, inspection, arrest, and minimum use of force, as authorized by the Canadian legislation and regulations, fell within the ambit of what is commonly understood as enforcement and management measures and, thus, within the Canadian reservation to the Court’s compulsory jurisdiction.Footnote 116
iii. Legality of Use of Force (Serbia and Montenegro v Canada)
The third case involving Canada was yet another matter in which Canada appeared as a respondent, this time alongside parallel cases involving other NATO member states, in connection with the military intervention in Kosovo between 24 March 1999 and 10 June 1999.Footnote 117 The Federal Republic of Yugoslavia (FRY) (renamed Serbia and Montenegro as of 2003) brought the case under the parties’ optional clause declarations and the compromissory clause in Article IX of the Genocide Convention. At the stage of provisional measures, the Court found that it had no prima facie jurisdiction to entertain the case, neither under the relevant optional clause declarations nor the Genocide Convention. Footnote 118 The Court dismissed both grounds of jurisdiction, holding that the dispute arose before 25 April 1999, while the applicant’s own optional clause declaration only recognized the Court’s jurisdiction over disputes arising after that date. Further, the Court decided that the acts that the applicant complained of were not capable of falling within the provisions of the Genocide Convention. Footnote 119 However, in its judgment on preliminary objections, the Court went even further in rejecting its jurisdiction, holding that Serbia and Montenegro was not a UN member and, thus, not a party to the ICJ Statute at the time it filed its application instituting proceedings on 29 April 1999. As a result, it did not have the right to appear before the Court under Article 35 of the Statute.Footnote 120
The latter finding and the Court’s reasoning on this point, when juxtaposed with what followed in the parallel case between Bosnia and Herzegovina and Serbia and Montenegro (Bosnian Genocide case), are widely considered a rare, if not the sole, example of a clear incoherence in the ICJ’s jurisprudence.Footnote 121 Whereas the Court rejected its jurisdiction in Legality of Use of Force because Serbia and Montenegro lacked UN membership in April 1999 when filing its application (that is, prior to its admission to the UN on 1 November 2000), the Court affirmed its jurisdiction in the Bosnian Genocide case, filed in 1993 against Serbia and Montenegro, thereby effectively treating Serbia and Montenegro’s status differently during the same, contested period.Footnote 122
The second aspect of interest in Legality of Use of Force, from a jurisprudential perspective, is the ICJ’s interpretation of the terms of Article 35, paragraph 2, of the ICJ Statute, limiting it to “treaties in force at the date of the entry into force of the [ICJ] Statute, and providing for the jurisdiction of the [ICJ].”Footnote 123 The Court held that, “even assuming Serbia and Montenegro was a party to the Genocide Convention at the relevant date, Article 35, paragraph 2, of the ICJ Statute does not provide it with a basis to have access to the Court, under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.”Footnote 124 It is puzzling as to why the Court did not opt to dispose of the case on arguably “far simpler and more persuasive grounds” by elaborating on and endorsing its own reasons to decline jurisdiction in the provisional measures order.Footnote 125
iv. Canada’s involvement in pending cases
In terms of the current docket, Canada is particularly active. It is an applicant in Aerial Incident of 8 January 2020 and in Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and a respondent in Alleged Violations of State Immunities and Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation. Footnote 126 The four cases concern some of the most complex and challenging legal claims, including those relating to a state’s sovereign immunity from jurisdiction and enforcement and the validity of a terrorist financing exception.Footnote 127
Canada has also intervened in two cases under Article 63 of the ICJ Statute. Both cases were brought under the Genocide Convention and are currently pending. One could argue that Canada launched the modern trend of Article 63 interventions when, along with the Netherlands, it first announced its intention to intervene in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar); the oral hearings on the merits of this case concluded in January 2026.Footnote 128 This early announcement of the intention to intervene by Canada and the Netherlands ushered in a new era of Article 63 interventions, and we have since seen many states intervene in various cases brought before the Court on the basis of the Genocide Convention, including, most prominently, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation). Footnote 129 In the past, Canada seriously considered intervening in certain contentious cases but ultimately decided against it. For example, in the Bosnian Genocide case, it would seem that Canada considered intervening under either Article 62 or Article 63 of the ICJ Statute. Footnote 130
C. Advisory proceedings
Canada has formally participated in eight out of the thirty advisory proceedings before the ICJ since 1946. In addition, on a few occasions, Canada has signalled to the Court’s Registrar its interest in the proceedings but informed that it would not submit a written or oral statement.Footnote 131 An overview of the arguments that Canada made in these different advisory proceedings can be grouped into two key categories. First, Canada has often presented its views in pleadings concerning specific “internal” or “constitutional” aspects of the functioning of the UN. For instance, in the very first advisory proceedings concerning the Admission of a State to the United Nations, Canada argued that the conditions for admission to membership in the UN were exhaustively set out in Articles 4 and 18 of the UN Charter, a position that the Court unsurprisingly upheld.Footnote 132
Likewise, in Certain Expenses of the United Nations, Canada was exhaustive in covering different roles of the UN organs in matters of international peace and security and took the view that the UN General Assembly, as the sole organ of the UN entitled to approve expenses, no matter their nature, had the power to approve the expenses related to peacekeeping operations — namely, the UN Operation in the Congo and the UN Emergency Force.Footnote 133 This was again a view upheld by the Court.Footnote 134 Other advisory proceedings in which Canada participated and effectively assisted the Court in reaching its findings on some of the fundamental matters relating to the functioning of the UN included cases concerning the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the UN Footnote 135 and Application for Review of Judgment No. 333 of the UN Administrative Tribunal. Footnote 136
Second, Canada’s participation in advisory proceedings on broader issues of international law has been selective. Indeed, there are several instances in which Canada’s absence from advisory proceedings seems hard to justify, particularly given the significant Canadian practice regarding questions put to the Court (see section 4.B). Canada made written statements in Legal Consequences of the Construction of a Wall Footnote 137 and, more recently, in Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem,Footnote 138 but did not participate in the oral proceedings. On both occasions, Canada unsuccessfully argued that the Court should exercise its discretion and decline to give an advisory opinion since the questions pertained to a bilateral dispute and the Security Council had established a framework for the parties to resolve it through negotiations.Footnote 139 Finally, Canada participated in both the written and oral stages of the proceedings in Obligations of States in Respect of Climate Change Footnote 140 and Right to Strike under ILO Convention No. 87,Footnote 141 the latter currently being under deliberation.
The advisory proceedings in Climate Change, in particular, warrant closer examination as an example of Canada’s contribution to clarifying the legal issues involved in this important domain. Canada’s observations were somewhere in the middle of the spectrum of views presented by the over one hundred states and intergovernmental organizations taking part in the proceedings on two questions that were put to the ICJ by the UN General Assembly concerning: (1) the primary obligations of states in respect of climate change and (2) the legal consequences in the case of breach of those obligations.
On the first question, Canada argued that “[w]hile the UNFCCC and the Paris Agreement are two preeminent treaties negotiated to address climate change, … climate change is relevant to a variety of international legal obligations.”Footnote 142 Canada did not expressly argue that the climate change regime obligations constituted lex specialis vis-à-vis other relevant obligations in this context. Yet it highlighted that,
[w]hile it is reasonable for the Court to assess the obligations of States regarding climate change in light of other international agreements, those other international agreements should not be interpreted as imposing contradictory obligations on States with respect to climate change. It is imperative to protect the UN Climate Change process, as it is within this process that States have created the specific framework and institutions to tackle the global problem of climate change. The Conference of the Parties to the Convention and the Conference of the Parties serving as the meeting of the States Parties to the Paris Agreement are best placed to assess how to use the evolving science to inform global actions and establish new standards.Footnote 143
Similarly, while acknowledging the links between the legal instruments on climate change and human rights obligations, Canada took a rather cautious approach and emphasized important differences between the two regimes, including the lack of “common or internationally agreed upon understanding of the content and scope of a right to a clean, healthy and sustainable environment.”Footnote 144
As for the second question on the legal consequences, Canada again took a conservative position on the controversial issue of responsibility for historical emissions, arguing that “[g]iven the relative newness of climate change as a subject at international law, it would be difficult to conclude that there yet exists a norm protecting against the effects of climate change that carries sufficient practice and opinio juris to be considered a part of customary international law.”Footnote 145 It added that, “[i]n the context of climate change, the earliest international obligations that directly arise are those found in the [UNFCCC] and the Paris Agreement.”Footnote 146
While Canada’s views on some issues were shared by other participants in the advisory proceedings, the ICJ ultimately took a more progressive stance in its advisory opinion, particularly on the first question concerning the primary obligations of states in respect of climate change. For instance, the Court ruled out the possibility of construing the obligations under the climate change regime treaties as lex specialis vis-à-vis other relevant obligations binding states, whether under treaty or customary international law, including in the context of transboundary harm.Footnote 147 Moreover, the Court specifically acknowledged the right to a healthy and clean environment and emphasized that it was essential to the enjoyment of human rights, including under many multilateral human rights treaties.Footnote 148 Finally, in response to the second question concerning the legal consequences, the Court confirmed that general rules on state responsibility apply to breaches of obligations in the field of climate change; yet, it left a detailed discussion of various technical aspects of any such determination (for example, specifics on causation or the apportionment of reparation among multiple actors) to contentious cases that may arise in the future.Footnote 149
In conclusion, Canada’s involvement in advisory proceedings concerning some of the more constitutional or internal aspects of the UN’s functioning has been steady and is reflected in the ICJ’s reasoning in the relevant advisory opinions. The record is more mixed regarding Canada’s participation in advisory proceedings on broader issues of international law. While Canada did not participate in some important advisory proceedings over the course of the Court’s history, other participants in such proceedings drew — often heavily — on Canada’s practice in their own submissions to the Court. The following section provides some examples of this reliance on Canadian practice.
4. Canada’s indirect influence on the case law and practice of the ICJ
This section shifts the focus to Canada’s indirect influence on the ICJ’s case law. We define “indirect” influence as any notable references to Canada in the ICJ’s proceedings, contentious or advisory, in which Canada neither participated as a party or an intervening state nor submitted a written statement. As of 21 December 2025, Canada was mentioned 1,584 times across all documents on the ICJ’s website.Footnote 150 Excluding those instances that directly involved Canada as a party or intervener in contentious cases or as a participant in advisory proceedings, the remaining references pertain to what we call Canada’s “indirect” influence on the Court’s case law.
These references can be broadly grouped into three categories. First, there are numerous instances of disputing parties relying on international case law involving Canada to support their arguments.Footnote 151 Second, there are multiple references in pleadings and the Court’s decisions to the executive, legislative, or judicial practice of Canada, which are used as evidence of the existence or content of specific rules of international law.Footnote 152 A third type of Canadian influence can be seen in the various roles that Canadians have played in the ICJ’s proceedings, including as persons relevant to the facts or legal precedent cited in ICJ cases,Footnote 153 as experts or witnesses,Footnote 154 as agents and counsel,Footnote 155 or as judges and judges ad hoc.Footnote 156 Given the limited scope of this article, we will only sketch out two examples for Canada’s indirect influence on the Court’s case law. The following sections first illustrate how Canada has indirectly contributed to the evolution of the ICJ’s case law on international environmental law without being actively involved and, second, how its absence as a party or an intervening state has been noteworthy and relevant in two specific cases.
A. Canada’s mark on international environmental law
The discussion of the Trail Smelter and the Bering Sea arbitrations earlier in this article highlighted Canada’s role in some of the foundational cases of international environmental law that predated the establishment of the ICJ. In addition to these arbitral awards, Canada’s state practice has been featured in multiple ICJ pleadings as evidence for primary rules on transboundary harm and environmental protection as well as for corresponding secondary rules on state responsibility. Evidently, the Trail Smelter award is the most influential Canadian precedent in this regard, with more than 140 references in ICJ documents.Footnote 157 For instance, in the recent advisory proceedings on Obligations of States in Respect of Climate Change, the Trail Smelter case was an important reference point — cited in 107 ICJ documents on the matter — as the international decision that first recognized the duty to prevent transboundary environmental harm to constitute a principle of international law. The advisory opinion itself and three individual opinions of judges refer to the Trail Smelter case, and virtually every participating state or international organization has relied on the case in its written and oral statements.Footnote 158 The ICJ has also expressly referred to the Trail Smelter award in its judgment on compensation in Certain Activities Carried Out by Nicaragua. Footnote 159 In addition, there are twenty individual opinions and declarations of judges that rely on the Trail Smelter case, including it as authority for other principles, such as res judicata Footnote 160 and recourse to equitable considerations in determining the amount of compensation due.Footnote 161
However, Trail Smelter is certainly not the only significant Canadian influence on the ICJ’s case law. For example, Nicaragua specifically cited Canadian state practice in its memorial in the compensation phase of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). Footnote 162 To substantiate its compensation claims for the security and defence costs resulting from the unlawful military and paramilitary operations that the Court considered attributable to the United States, Nicaragua argued that these compensation claims were “analogous to the claims relating to harm caused by pollution for which a State is responsible [and] [s]uch claims naturally extend to the costs entailed in removing the source of harm.”Footnote 163 As an international precedent, it cited Canada’s claims presented to the Soviet Union for damage caused by the disintegration of the Soviet Cosmos 954 satellite over Canada in 1978, particularly the deposit of hazardous radioactive debris on Canadian territory. Canada claimed over six million Canadian dollars in compensation for the recovery costs, mainly based on the 1972 Convention on International Liability for Damage Caused by Space Objects,Footnote 164 and ultimately accepted three million Canadian dollars in settlement with the Soviet Union.Footnote 165 The Court never rendered a judgment on compensation in Military and Paramilitary Activities because Nicaragua asked for the case to be discontinued in 1991, and, therefore, the ICJ never formally engaged with this Canadian practice.
Aside from invoking the Trail Smelter award,Footnote 166 both Hungary and Slovakia relied on Canadian precedent and practice in the Gabčíkovo-Nagymaros case.Footnote 167 In their oral pleadings, they cited two reports of the US-Canadian International Joint Commission (IJC), established by the bilateral 1909 Boundary Waters Treaty, the same Commission that had also considered the Trail Smelter case before the United States and Canada referred the dispute to arbitration under a special agreement.Footnote 168 The Garrison Diversion dispute was a transboundary water conflict between Canada and the United States in the 1970s and 1980s. It concerned a US project that planned to divert water from the Missouri River into North Dakota for irrigation, thereby moving water towards or into the Hudson Bay and Red River watershed. Canada feared ecosystem disruption in Manitoba and referred the matter to the IJC. In 1977, the IJC recommended that “the portion of the Garrison Diversion Unit which affects waters flowing into Canada not be built at this time”Footnote 169 as the Garrison Diversion Unit “present[ed] an unacceptable risk … to the detriment of the people of Canada and to the general ecology of the region and beyond.”Footnote 170 As a result, the diversion unit was never built as originally planned and authorized, especially those parts that would affect water flows into Canada.
The High Ross Dam dispute concerned the city of Seattle’s long-planned project to raise the dam’s height, thereby flooding the Skagit Valley across the border in British Columbia. Under the 1909 Boundary Waters Treaty, such projects required the IJC’s prior approval, which it had previously granted, subject to the condition that an agreement be negotiated with Canada. In a “Supplementary Order” of 1982, the IJC reopened the matter and directed Seattle not to flood the valley above its current level for one year; at the same time, it ordered British Columbia to compensate Seattle for the forgone electricity.Footnote 171 The IJC further compelled the parties to resolve the dispute through negotiations. In 1984, the United States and Canada reached a bilateral agreement that gave Seattle access to power from British Columbia at costs comparable to raising the height of the High Ross Dam.Footnote 172
Hungary cited these two IJC decisions to argue that there was nothing novel about the Gabčíkovo-Nagymaros dispute since similar international projects — such as the Garrison Diversion and the High Ross Dam — had been altered, suspended, or even terminated in the past as new environmental or economic information became available.Footnote 173 Further, Hungary sought to corroborate its argument that the doctrine of necessity was not limited to situations in which harm or damage had already occurred but must also extend to situations of a reasonable apprehension of future peril.Footnote 174 Conversely, Slovakia distinguished these cases by arguing that, unlike the Gabčíkovo-Nagymaros dispute, the resolution of the Garrison Diversion and the High Ross Dam disputes did not entail the unilateral alteration or abandonment of existing treaty obligations on grounds of economic or environmental necessity. Further, Slovakia noted that neither the United States nor Canada had invoked a state of necessity.Footnote 175 The ICJ did not expressly engage with the two IJC cases but evidently did not consider them to corroborate Hungary’s understanding of necessity: the Court found that “the mere apprehension of a possible ‘peril’ could not suffice” to establish a state of necessity.Footnote 176
Another example of Canadian practice “passively” seeping into the ICJ’s proceedings can be seen in the Pulp Mills case. Uruguay maintained that the Botnia pulp and paper mill and its environmental standards had been benchmarked against the “Canadian experience,” as developed by Environment Canada for the Canadian paper industry. Comparable plants in Canada had not led to the environmental impact that Argentina feared from the Botnia plant, and, since the Botnia plant was more modern than these Canadian plants, Uruguay deemed it established that the plant would not deteriorate the ecological balance of the River Uruguay either.Footnote 177 Argentina retorted that it was inappropriate to benchmark the Botnia plant’s impact assessment against the environmental and monitoring standards of Environment Canada.Footnote 178 According to Argentina, the results were unreliable, and the environmental impact assessment was unsatisfactory.
The Court did not comment on the appropriateness of the Canadian environmental standards in this context, or, rather, it saw “no need to go into a detailed examination of the scientific and technical validity of the different kinds of modelling, calibration and validation” entailed in the environmental impact assessment.Footnote 179 In the Court’s view, neither the applicable treaty law nor general international law specified the scope and content of the environmental impact assessment that Uruguay had to undertake for the plant. The Court thus decided that it was for Uruguay to determine the content of the impact assessment in its domestic legislation or in the authorization process for the project.Footnote 180 In effect, the reliance on Canadian practice in assessing the environmental impact and potential transboundary harm of the pulp mill thus met the requisite degree of due diligence under international law.
The preceding cases exemplify how Canada’s practice has featured in the ICJ’s proceedings. They allow for the following conclusions and observations. First and foremost, Canada has not only preached but also practised its belief in peaceful dispute resolution and international cooperation. Whether in compensation claims against the Soviet Union or in transboundary pollution from or towards the United States, Canada has consistently demonstrated its diplomatic savvy and commitment to resolving disputes peacefully. As a result, these examples of successful engagement with other states are often reflected in arguments made before the Court.
On a substantive level, the ICJ records display Canada’s experience with water resource management, both domestically and in cooperation with the United States. Disputing states before the ICJ have repeatedly drawn on Canada’s precedents in resolving typical disputes bound to arise between two neighbours connected by a long border and a precious resource such as water. Canada’s influence on the Pulp Mills case has revealed another area of Canadian expertise, evident in numerous investment law disputes involving Canada: the pulp and paper industry and efforts to mitigate its environmental impact.Footnote 181 Of course, the widespread recognition and citation of these precedents are also partly due to Canada’s proximity to the United States and to the fact that Canadian practice is recorded in both English and French. But this should not minimize Canada’s efforts and success in pursuing negotiated settlements and adjudication to stand up for itself and work through its differences, including with more powerful opponents.
B. Canada’s notable absences in the ICJ’s proceedings
Despite this laudable track record of engaging in dispute resolution and the advancement of international law, there are a few instances where Canada seems to have opted for the exact opposite: to remain absent from ICJ proceedings where Canada’s involvement may have been particularly beneficial to the resolution of the case. Two ICJ cases would have been predestined for Canada’s participation: the Barcelona Traction dispute between Belgium and Spain involving a Canadian-incorporated company and, given Canada’s experience with questions of secession, the advisory proceedings in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. Footnote 182
In Barcelona Traction, Belgium sought compensation for damage caused by Spain to its nationals, who were shareholders in the “Barcelona Traction, Light and Power Company, Ltd.” Although most of the shareholders of the Barcelona Traction company were Belgian, the company was incorporated in Canada. The ICJ rejected Belgium’s claim for lack of legal standing to exercise diplomatic protection on behalf of a Canadian company, thereby reinforcing the doctrine of the corporate veil.Footnote 183 Since Belgium had brought the case under a compromissory clause in a bilateral treaty with Spain,Footnote 184 Canada could not have simply joined as a co-applicant. However, Canada would have had a strong case to intervene under Article 62 of the ICJ Statute. It is possible that Canada did not seek to intervene because it was not convinced by Belgium’s claim for diplomatic protection by the home state of a company’s shareholders. Indeed, Canada has since aligned itself with the finding in Barcelona Traction that customary international law does not extend diplomatic protection to shareholders.Footnote 185 It is also noteworthy that Canada made a series of diplomatic representations to Spain regarding the dispute between 1948 and 1952, seeking Spain’s agreement to refer it to arbitration.Footnote 186
The advisory proceedings in Kosovo are the second conspicuous absence of Canada before the ICJ.Footnote 187 Canada was among the first states to recognize Kosovo as an independent state after its unilateral declaration of independence. It was evidently not for lack of interest in the situation that Canada decided to refrain from participating in the advisory proceedings on the lawfulness of this declaration of independence.Footnote 188 Canada’s participation in the proceedings would have contributed an important perspective given Canada’s past experience with independence referenda and the secession movement in the province of Quebec — the most famous Canadian practice in this regard is, without a doubt, the Supreme Court of Canada’s (SCC) 1998 decision in Reference re Secession of Quebec. Footnote 189 In brief, the SCC stated that “it remains unclear whether this … proposition [of a right to remedial secession] actually reflects an established international law standard,” and, therefore, it refrained from expressing an opinion on the issue of remedial secession under international law.Footnote 190 This important element of state practice is echoed by no fewer than 22 of the 36 states participating in the advisory proceedings.Footnote 191 The Court itself also addressed the SCC’s decision in its 2010 Kosovo advisory opinion,Footnote 192 holding that the question before the SCC — whether there was a positive entitlement to unilateral remedial secession — was distinct from the question before the ICJ (that is, whether Kosovo’s declaration of independence was “in accordance with” international law).Footnote 193
5. Conclusion
This article has analyzed Canada’s contribution to the World Court’s case law. While this contribution precedes the establishment of the World Court through its involvement in important arbitral awards, it is particularly pronounced from the 1980s onwards, when Canada appeared in several contentious disputes before the ICJ. On the one hand, through its arguments in contentious and advisory proceedings, Canada has directly contributed to the Court’s case law and, at times, significantly — for instance, in the development of specific areas of international law, such as maritime delimitation or international environmental law. On the other hand, Canada has also exerted indirect influence on the Court’s case law across various areas of international law. While the Court has had only one elected judge of Canadian nationality on its bench, many Canadians have served as ad hoc judges, and many more have appeared as counsel or advocates representing different states in proceedings before the Court. Likewise, Canada’s practice in international law has often been relied upon by the parties in their pleadings and, most significantly, by the Court itself on several occasions. Today, Canada is among the most active users of the Court, and the influence it has had on the Court’s case law to date is likely to grow in the years to come.
Writing for the first volume of the Canadian Yearbook of International Law in 1963, Maxwell Cohen, who was later appointed judge ad hoc in the Gulf of Maine case, described the Canadian perspective on the main directions of international law at the time:
Canadian membership on the International Court of Justice until 1958, and a Canadian member presently on the International Law Commission link the community of Canadian international lawyers with the more universal cares of lawyership in the general relations of states. Here the dominant themes of the day are the development of new conceptions of “reciprocity” as the central, dynamic force behind a modernized customary law; the deep interweaving of the United Nations Charter with the classical position of states, notably in the matter of security, police actions, economic assistance and human rights; the frustrating but vital efforts at increasing the scope of “justiciability” in dispute settlements over an ever-increasing range of politically sensitive questions; a new view of resource-sharing among states, accelerated by the heightened expectations of peoples and the extent to which, for example, the high seas with their food and mineral riches, can help to satisfy some of these needs; and, finally, the search for effective institutional arrangements to deal with the present tendencies toward increasing economic and political regionalism and the balancing of those tendencies and institutions with the more universal classical and Charter systems, within which the new systems must be fitted.Footnote 194
With the benefit of hindsight, Canada appears to have not only delivered upon but exceeded Cohen’s expectations. It has done so through its active diplomatic and treaty-negotiating posture; its multiple contributions to the design of new institutions; and its continued trust in, and commitment to, multilateralism, the rule of law, and the peaceful settlement of disputes — notably, before the World Court. Although its commitment to the peaceful settlement of disputes has been steady, Canada has not shied away from safeguarding its strategic interests, for example, by incrementally limiting the scope of its consent in the optional clause declaration over the years.
Canada’s unprecedented level of involvement in proceedings before the ICJ today presents both challenges and opportunities, including in the long term. Many of its cases involve direct collaboration with other states as co-applicants or co-respondents, which requires significant effort to design a coherent litigation strategy. It would be fair to say that Canada’s cases raise some of the most complex legal issues of the day, including those concerning states’ sovereign immunity from jurisdiction and enforcement. This increased level of activity could have long-term implications for Canada’s role in international law. Canada and Canadian scholars will be developing their expertise in the Court and its case law and practice, which are significantly different from those in other areas of international dispute settlement in which Canada has been most active for decades — notably, trade and investment disputes. It may also serve as a platform from which Canada may be able to secure the election of Canadian jurists to bodies such as the ICJ, as well as others, including the International Law Commission, the Inter-American Commission of Human Rights, the International Tribunal for the Law of the Sea, the International Criminal Court, and different committees under multilateral human rights treaties.Footnote 195 The preceding survey shows that Canada and Canadians have much to contribute to the important role these institutions play in promoting and upholding respect for the rule of law.
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