The Nature of International Law

As explained earlier, a sovereign state is a political entity that governs the affairs of its own territory without being subjected to an outside authority. Nations are sovereign states. Sovereign states have sovereign immunity, which is the principle that courts of one nation lack the jurisdiction to hear cases against foreign governments.

In domestic law, or law that is applicable within the nation where it is created, some authority has the power to create, apply, and enforce a rule of law system. There is a legitimate law-creating authority at the “top,” and the people to be governed at the “bottom.” This is a vertical structure of law, because there is some “higher” authority that imposes a rule of law on the people.

It’s important to note, however, that not all law can be conceived as a vertical structure. Some, such as international laws, are best thought of as a horizontal structure. Treaties have a horizontal structure because sovereign nations are parties to international treaties. Since each nation is sovereign, that means that one nation is not legally dominant over another.

If a party to a treaty has breached the agreement, enforcement can be difficult because there is no external centralized enforcement mechanism to compel parties to comply. For this reason, many horizontal laws, like treaties, contain provisions that require the parties to submit to a treaty-created dispute resolution panel or other neutral tribunal, such as the International Court of Justice (ICJ) or the World Trade Organization (WTO).

Another common challenge in international law is that the laws are applicable only to parties who voluntarily choose to participate in them. This means that a sovereign nation cannot generally be compelled to submit to the authority of the international law if it chooses not to participate. Compare this with domestic law. Everyone within Canada is subject to the jurisdiction of certain provincial and federal courts, whether they voluntarily choose to submit to the jurisdiction or not.

Corruption of Foreign Public Officials Act (CFPOA)

The Corruption of Foreign Public Officials Act entered into force on February 14, 1999 (amended by Bill S-14) and mandates that it is a criminal offence for companies or individuals to bribe foreign public officials to secure or maintain a business advantage. In the United States the Foreign Corrupt Practices Act (FCPA) is an anti-corruption law that prohibits the payment of bribes by US companies and their employees to foreign officials. Violation of this law is a criminal offense.

Canadian citizens are prohibited from conducting transactions with terrorists or terrorist organizations under both the Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTA). Conducting transactions with prohibited persons, entities or businesses can result in serious criminal violations, which carry significant financial penalties and long prison sentences.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

On June 21, 2021 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) received Royal Assent by the Government of Canada and entered into force. UNDRIP was adopted by the United Nations General Assembly on September 13, 2007 (https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html). Canada initially voted against the Declaration (along with the United States, Australia, and New Zealand) but later changed its position leading to the introduction of Bill C-15 (UNDRIP Act) in 2020 and official acceptance in 2021.

UNDRIP: “…emphasizes the rights of indigenous peoples to live in dignity, to maintain and strengthen their own institutions, cultures and traditions and to pursue their self-determined development, in keeping with their own needs and aspirations.” – https://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf

United Nations declarations are not typically legally binding, but the formal presentation and adoption of this statement generates momentum, guides, and influences the development of international legal propositions and principles to recognize, promote, and respect the rights of indigenous peoples.

UNDRIP, through the approval of Bill C-15, does not immediately change existing Canadian laws but provides a framework and process to align laws in Canada with the Declaration as explained in the following statement: “The purpose of this Act is to affirm the Declaration as an international human rights instrument that can help interpret and apply Canadian law. It also provides a framework to advance implementation of the Declaration at the federal level.” (https://www.justice.gc.ca/eng/declaration/about-apropos.html)

It is too early in the process to know how the alignment of Canadian laws with UNDRIP will be expressed and experienced in international trade circumstances but is important to be aware of and consider these fundamentally important principles and perspectives in all business practices.