The Role of International Law in Canada-United States Relations

This paper explores the role of international law in Canada-US relations. It concludes that, while international legal considerations are only one among many types of factors that influence Canadian or US government policies and decisions, their relations must necessarily be carried out in the context of a broad network of essentially legal arrangements, institutions and procedures. Consequently, any student of Canada-US relations who seeks a comprehensive and realistic understanding of how the two countries deal with each other cannot afford to ignore the role played by international law. More specifically the paper discusses a number of significant ways in which international law helps to shape and order the two countries' mutual relations. These include: (1) the core of basic legal principles, such as the inviolability of borders and sanctity of treaty that form the infrastructure of their relations; (2) the network of more than 200 treaties and agreements as well as many more informal arrangements and understandings which structure and facilitate the millions of transactions that occur and each year between the two countries and their citizens and businesses; (3) the important joint commissions, such as the historically innovative Canada-US International Joint Commission which play a major role in dealing with shared water, boundary, pollution and other problems; and (4) the NAFTA and other trade agreements between the two countries which structure for their trade and investment relations. The paper also suggests that international law may have a special relevance for Canada-US relations and ways of dealing with each other due to such factors as: (1) their common legal culture and close relations between their legal communities; (2) their shared practical "common law" approach to problem-solving; and (3) the two countries' innovative development of a variety of "dispute-avoidance" mechanisms, principally through commitments to advance notification and consultation regarding emerging problems - commitments that are now pervasive in Canada-US agreements and understandings. Indeed, the paper suggests that this principle of advance notification and consultation may be on its way to becoming an expected and relied upon type of behavior - effectively a rule of local customary law - in the way the two countries deal with each other. This paper was delivered at the Inaugural Conference of the Arthur Caplan Research Group in Canada - U.S. Studies at University College, University of Toronto