Institutions

• Author: Craig Forcese/Leah West
• Pages: 62-114

62

CHA PTER 3

INSTITUTIONS

Preserv ing the security of the state and the safety of its inhabitants

is the classic function of government, and we organize governments

to perform this role. In Can ada, both provincial and federal levels of

government have important public safety responsibilities, but the prin-

cipal national secur ity function falls to the federal level. National sec-

urity is mostly a federal e xecutive branch function, with legi slative and

judicial branches playing distinctly secondar y roles.

That said, national executives do not act exclusively at the domestic

level. Rather, they interact with their counter parts from other coun-

tries either bilater ally or through international institutions, such as t he

United Nations.

This chapter introduces the “character s” comprising the national

security system. Spe cif‌ically, we summarize the in stitutional framework

for national security law in Canada, describing both the international

and Canadian govern mental institutions ta sked with preserv ing

national securit y. What follows is a cursory description — detailed

analyses of the specif‌ic role and functions of these agencies follow in

later chapter s.

Institutions 63

PART I: UNITED NATIONS FR AMEWORK

A. UNITED NATIONS SYSTEM

The world’s most important international organization is the United

Nations. Created in 1945 by the United Nations Charter1 — an inter-

national treaty concluded by the va st bulk of the planet’s then-existing

states — the United Nations has near-universal state membership: 193

states by 2020.

The United Nations (UN) is not a world government capable of legis-

lating per se. Instead, it is a venue for resolving international disputes

and proposing common policies on matters of internat ional signif‌i-

cance. The United Nations comprises six m ain “organs” and an array of

subsidiary and specialized agencies and organizations. The most signif‌i-

cant of these bodies for this book is the UN Security Council, with the

General Assembly and the International Court of Justice occasionally

discussed i n chapters to come.

1) UN General Assembly

Brief‌ly, the General Assembly is a plenar y body of UN member states,

meeting annually in reg ular sessions in New York. The General Assem-

bly makes decisions according to a one state –one vote formula,2 an

approach consistent with the principle that in international law al l

states are equally sovereig n regardless of their real power and inf‌luence.

On its face, the General As sembly resembles a legislature and is some-

times called a “parliament of nations.”3 Yet, despite its universal mem-

bership, the General Assembly h as no autonomous law-making powers

in the areas relevant to this book, being competent only to recommend

course s of action.4 That said, the General Assembly someti mes proposes

principles that are subsequently adopted by states through a process of

negotiation and ratif‌ication of internat ional treaties. Alternatively, its

resolutions codify standards that ref‌lect exi sting — or eventually crys-

tallize into new — customary international law.

Notably, the General Assembly’s consideration of matters relating

to peace and security can be superseded by the UN Sec urity Council,

1 Charter of th e United Nations, Can TS No 7 (1945).

2 Ibid, Art 18.

3 “Fact Sheet: This Is t he United Nations,” online (pdf): United Natio ns https://

visit.un.org /sites/v isit.un.org/f‌i les/FS _This_is _the_UN_ 2013.pdf.

4 UN Charter, above note 1, Art 10.

NATIONAL SECUR ITY LAW64

when the latter chooses to seize itself of the question.5 The Security

Council’s power to usurp General Ass embly consideration of peace and

security matters is not as robust as the literal language of the UN Char-

ter sugge sts.6 It does, however, dierentiate the UN system from the

standard democratic model in which a legislative body exerts sign if‌i-

cant autonomy.

2) International Court of Justice

While the General Assembly resembles but does not act, as a global

legislature, the Intern ational Court of Justice (ICJ) approximates a

world court. “The Court’s role is to settle, in accordance with inter-

national law, legal disputes submitted to it by States and to g ive advis-

ory opinions on legal questions referred to it by authori zed United

Nations organs and special ized agencies.”7

While “advisory” deci sions of the Court are non-binding advice, t he

ICJ’s rulings in cases conte sted between states are bindi ng on the states

party to the di spute. In practice, however, states often resist bring-

ing disputes before the ICJ, challenging it s limited jurisdict ion vigor-

ously and leaving the ICJ with a limited court docket. Nevertheless, in

performing its roles, the ICJ often pronounces on questions of inter-

national law in an in f‌luential manner, guiding subsequent inter preta-

tion of these principles.8

B. SECUR ITY COUNCIL POWERS A ND

AUT HOR IT Y

Despite the role played by the ICJ and the General Assembly, the UN

Security Council dwa rfs their powers and inf‌luence in matters of peace

5 Ibid, Art 12.

6 The International C ourt of Justice has given a nar row read to the Securit y

Council’s power to usur p consideration of peace and sec urity matters by the

General As sembly. Legal Consequences of the Construct ion of a Wall in the Occu-

pied Palestinian Territory, Adv isory Opinion [2004], ICJ Rep 136 at 149, para 27

(“the Court notes that t here has been an increa sing tendency over time for the

General As sembly and the Security Cou ncil to deal in parallel w ith the same

matter concern ing the maintenance of int ernational peace and s ecurity”).

7 “The Court” onli ne: International Court of Just ice www.icj-cij.org/en/court.

8 It is true there is no form al concept of stare decisis in internation al law. Never-

theless, the ICJ (and othe r international juri sts) and states often point to past

decisions in ju stifying curr ent positions.