How to protect Canadian judges from sanctions

In a nutshell

The CBA’s International Law Section is urging the federal government to consider adopting the use of anti-blocking measures under the Foreign Extraterritorial Measures Act to protect Canadian sovereignty -- and the functioning of international judicial institutions -- from extraterritorial application of recent United States sanctions against judges of the International Criminal Court.

This is in response to sanctions issued by President Donald Trump targeting Canadian ICC Judge Kimberly Prost and other judges. While framed as a matter of U.S. foreign policy, the U.S. ICC sanctions are designed and enforced in a manner that gives them significant extraterritorial reach. Financial institutions, subsidiaries and foreign branches of U.S. corporations, and any persons with a sufficient nexus to the U.S. (including the U.S. dollar system) are obligated to comply with U.S. sanctions in their international dealings to minimize compliance risk. 

Key recommendations

The section is concerned that the extraterritorial application of U.S. sanctions against ICC judges represents an infringement of Canadian sovereignty, international law and international comity, and the independence of the ICC. It recommends that the federal government adopt anti-blocking measures, legal measures which restrict or prohibit compliance with the extraterritorial application of a foreign state’s laws within Canada:

• Imposing anti-blocking measures: FEMA allows the attorney general of Canada, with the concurrence of the minister of foreign affairs, to impose anti-blocking orders against foreign measures which are contrary to international law and international comity, interfere with Canadian sovereignty or adversely affect significant Canadian international trade. This enables the attorney general to issue blocking or reporting orders under FEMA that can make compliance with that foreign law illegal in Canada.
   
• Effects of anti-blocking measures: Canadian companies, directors, managers, and employees in positions of authority can be forbidden from adhering to the U.S. sanctions or assisting in their enforcement. These measures do not invalidate the foreign law; rather, they make compliance with the law’s extraterritorial foreign measures unlawful in Canada. This approach preserves Canadian legal autonomy while reinforcing the country’s commitment to international law and judicial independence.

Why this matters

Canada, as a founding member of the ICC and an advocate for judicial independence, has an interest in ensuring that its nationals serving on international courts can to perform their functions without external interference within Canadian territory. Anti-blocking measures can help preserve ICC judges' ability, including Judge Prost's, to access services and perform their official functions in Canada without foreign interference, even where sanctions remain in effect outside Canada.

Read the full submission.