The Institutional Framework for National Security Law

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 55-113

CHA PTER 3

THE INSTITUTIONAL

FR A MEWORK

FOR NATIONAL

SECURITY LAW

If preserving the secur ity of the state and the safety of its inhabitants is

the clas sic function of government, t hen governments must be organ-

ized to perform this role. In Canada, both provinci al and federal levels

of government have important public safety responsibilities, but the

principal national security function falls to the federal level. National

security i s mostly a federal executive branch function, with legislative

and judicial branches play ing distinctly secondary roles.

That said, in the moder n era, national executives do not act exclu-

sively at the domestic level. They interact instead with their counter-

parts from other countrie s either bilaterally or in intern ational venues,

not least international organi zations like the United Nations.

This chapter provides a summary of the institutional framework for

national security law in Canada by describing both the inter national

and Canadian governmental institutions tasked w ith preserving na-

tional secur ity and discussi ng how they are overseen and reviewed. It

is necessar ily a constr ained descr iption — detailed analyse s of the role

and functions of these agencies follow in later chapters.

55

NATIONAL SECUR ITY LAW56

PART I: UNITED NATIONS FR AM EWORK

A. UNITED NATIONS SYSTEM

The world’s most important international organization is the United

Nations. Created in 1945 by the United Nations Char ter1 — an inter-

national treaty concluded by the vast bulk of the planet’s then exi sting

states — the United Nations ha s near-universal state membership: 192

states by 2006.

The United Nations is not a world government capable of legi slat-

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

proposing common policies on matters of inter national signif‌icance.

The U.N. comprises si x main “organs” and an arr ay of subsidiary and

specialized agencies and organizations. The most signif‌icant of these

bodies for the purposes of this book is the United Nations Security

Council, with t he General Assembly and the International Court of

Justice discussed occasionally in chapters to come.

1) General Assembly

Brief‌ly, the General Assembly is a plenar y body of U.N. member states,

meeting annually in regular sessions in New York. The General Assem-

bly makes deci sions pursuant to a one state –one vote formula,2 an ap-

proach consistent with the not ion that in international law all states are

equally sovereign regard less of their real power and inf‌luence. On its

face, the General Assembly resembles a legislature, and is sometimes

called a “parliament of nations.”3 Yet, despite its universal membership,

the Genera l As sembly has no autonomous law-making powers, being

competent only to recommend courses of action.4 That said, the Gen-

eral Assembly sometimes proposes principles that are s ubsequently

1 U.N. Charter, 26 June 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into

force 24 October 1945.

2 U.N. Charter, Art. 18.

3 United Nations, The UN i n Brief, online: www.un.org/Over view/uninbrief /

index.html.

4 U.N. Charter, Art. 10 (“The General Assembly may di scuss any questions or

any matters w ithin the scope of the prese nt Charter or relating to the power s

and function s of any organs provided for in the pres ent Charter, and, except

as provided in A rticle 12, may make recommend ations to the Members of the

United Nations or to t he Security Council or to both on a ny such questions or

ma tt e rs .”)

The Institution al Framework for National Securit y Law 57

adopted by states through a proces s of negot iation and ratif‌ication of

international tre aties.

Notably, the General Assembly’s consideration of matters relating

to peace and security can be supplanted by the Security Council, when

the latter chooses to seize itself of the question.5 The Security Council’s

power to usurp General Assembly consideration of peace and securit y

matters is not as robust as the literal lang uage of the U.N. Charter sug-

gests.6 It does, however, d ifferentiate the U.N. system from the standard

democratic model in which a legislative body exerts signif‌icant auton-

om y.

2) International Court of Justice

While the General A ssembly resembles — although does not act — as a

global legislature, the International Court of Justice (ICJ) approximates

a world court, and indeed is sometimes called such. “The Court’s role i s

to settle, in accordance with international law, legal disputes submitted

to it by States and to give advisory opinions on legal questions referred

to it by authorized United Nations organs and specialized agencies”7

While advi sory deci sions are just that — advis ory — rulings in

cases contested between states are technically binding on the states

who were parties to the dispute. In practice, however, st ates often resist

disputes being brought before the ICJ, contesting its limited jurisdic-

tion vigorously and leaving the ICJ with a ver y sparse court docket.

Nevertheless, in performing its roles, t he ICJ often pronounces on

questions of international law in an inf‌luential manner, guiding subse-

quent interpretation of these principles.8

5 U.N. Charter, Art. 12 (“While the Secur ity Council is exercisin g in respect of

any dispute or situ ation the functions ass igned to it in the present Charter, the

General As sembly shall not make any recomme ndation with regard to th at

dispute or situat ion unless the Securit y Council so requests.”)

6 The Internation al Court of Justice has given a n arrow read to the Secur ity

Council’s power to usur p consideration of peace and se curity matters by the

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

cupied Palestinian Territor y (2004), ICJ Ge neral List No. 131, 43 I.L.M. 1009 at

para. 27 (“the Court notes th at there has been an incre asing tendency over time

for the General As sembly and the Securit y Council to deal in paral lel with the

same matter conce rning the maintena nce of international pea ce and security”).

7 ICJ, online: ww w.icj- cij.org/court/index.php?p1=1.

8 It is true ther e is no formal concept of stare decisis in i nternational law. Never-

theless, th e ICJ (and other intern ational jurists) often point s to past decisions in

justify ing current positions.