Who needs international law?

It’s neither here nor there.

That’s Gib van Ert’s take on President Donald Trump’s recent declaration to the New York Times that he doesn’t “need international law.”

Not only is it not true, but he also benefits from systems of international law.

“We all need international law,” van Ert tells the Verdicts & Voices podcast. 

“Legal systems aren't something we opt into, because we need them. We all need an international legal order.”

Even states that tend to flout major parts of international law depend on its basic principles. The whole notion of being a state at all, having territory and jurisdiction within it, is an international law idea, says van Ert, an authority on international law who practices at Olthius van Ert in Ottawa and Vancouver.

Joanna Harrington, a University of Alberta professor and vice dean of the law school, says international rules offer predictability and help avoid conflict. Every state needs this, as ultimately, conflicts cost money and resources to address. 

“It’s in our self-interest as a community, whether that's a domestic community or an international community, to have some agreed rules that are going to apply.” 

In Prime Minister Mark Carney’s headline-making speech at the World Economic Forum in Davos last month, he told the world to stop invoking the rules-based international order as though it still functions as advertised.

Some have viewed that as a requiem for international law and rules-based orders, says van Ert, who interprets it differently. 

“We need to be a little careful that we don't misunderstand the prime minister's remarks as saying that there's no such thing as international law anymore. That's what Mr. Trump would like to say."

When Carney said the old order isn’t coming back and that no one should mourn it, as nostalgia isn't a strategy, he was talking about the rules-based international order we’ve all grown up with.

“I don't think he was refuting the notion that there should be order or that there should be rules,” van Ert says.

“I think what Mr. Carney is saying instead is we have to be realistic about where our allies truly are and how to reorient our own external relations in the light of this, as he famously said, rupture in the international order.” 

The speech also affirmed basic principles of sovereignty, territorial integrity, the prohibition on the use of force except in cases consistent with the UN Charter, and respect for human rights.

The rupture is part of a trend of distrust of multilateral institutions. From an academic perspective, Harrington says there’s nothing new about a rules-based international order being subject to critique.

“I'm thinking in particular, critique from academics in the Global South would say, ‘Hey, this wasn't ever designed as a system for all of us to start with."

She has advised the federal government on international criminal and human rights law, and points to the International Criminal Court, which was formed without the participation of some major world powers, including the United States, China, Russia and India. The Court’s creation demonstrates international law can still hold parties to account, even without the major players. 

“Doesn't that show that the shifting alliances actually do lead to international institutions that do try to secure accountability?” she says. 

Further, the real power of international law lies not in what's out there, but in domestic enforcement. 

“Sometimes we forget to look at ourselves to say how are we enforcing the rules of the international legal system within our domestic legal order,” Harrington says. 

“That to me is where the real power is, within domestic enforcement.” 

However, ICC judges have on numerous occasions been targets of certain powers trying to undermine their independence. Just this past summer, Kimberly Prost, a Canadian jurist on the Court, was sanctioned by the United States for recommending that the ICC pursue an investigation into what happened in Afghanistan. 

The sanctions mean she can no longer get a credit card, which is a challenging situation for someone living and working outside their home country.  

“It's a basic fundamental principle of any system committed to the rule of law to respect the independence of judges. Debanking sanctions against judges are an intimidation move,” Harrington says.

The fact that the U.S. dollar is used for various international transactions and thus passes through U.S. clearinghouses is an extension of U.S. jurisdiction that must also be addressed, she adds. 

van Ert says there’s no legal theory for why the sanctions against Prost are permissible.

“The illegality is the point. Trump wants people to see that he is doing things, whether it's this, the bribes, the selling of pardons for cash, or the personal enrichment of him and his family through the office of the presidency. He doesn't hide these things. He does them in public so that people walk away saying, ‘there is no such thing as law.’”

He says that’s precisely why Trump can’t be allowed to get away with it.

“The rampant illegality of the Trump government, the proper response to that is to say that Trump and his allies are lawless criminals. It's not to say, well, he's proving that there's no such thing as law. No, he's proving that he himself is a criminal.”

The Canadian Bar Association recently sent a letter to Justice Minister Sean Fraser and Foreign Affairs Minister Anita Anand detailing how Canada can counter the sanctions.

It proposes using anti-blocking measures under the Foreign Extraterritorial Measures Act as a potential response to protect Canadian sovereignty and to block or neutralize the effects of foreign measures here.

An anti-blocking measure restricts or prohibits compliance with a foreign state’s laws when those laws are extraterritorially applied within Canada. Invoking it would prohibit Canadian companies, directors, managers, and employees in positions of authority from adhering to the sanctions or assisting in their enforcement.

The CBA’s international law section says the sanctions are contrary to principles of international comity, non-interference in international institutions, judicial independence and the rule of law. They represent an infringement of Canadian sovereignty, international law and comity, and the independence of the Court.

“Canada, as a founding member of the ICC and an advocate for international justice, has both a legal and institutional interest in ensuring that its nationals serving on international courts are able to perform their functions without external interference inside Canadian territory,” section chair Liljana Stanic wrote in the letter.

Tune into the full episode to hear what Harrington and van Ert think of Trump’s repeated threats to take control of Greenland, the U.S.’s extrajudicial killings of people on boats in the Caribbean, and who exactly needs to step up to uphold the tenets of international law.