international law

Killing Canadians: Targeted Killing is No Longer Theoretical for Canada

Over at Global, Stewart Bell has a series of excellent stories on the “targeting” of Canadians in the armed conflict in Syria and Iraq. For the context, I recommend readers first review those stories here and here.

A few years back, Leah West and I memorialized our understanding the laws governing the overseas killing of Canadians. Much of this focus was on armed conflict situations, where killing of combatants is, for the most part, lawful. In Stewart’s most recent article, he cites me proposing the new National Security and Intelligence Committee of Parliamentarians (NSICoP) take up this issue, as its UK counterpart did in 2015. In our article, Leah and I urge:

Transparency on the legal basis of targeted killings by those states that engage in it has been modest, giving rise to the fear that such killings amount simply to expedient assassinations. Should the Canadian government embark on the path of targeted killings of Canadian nationals abroad (and, indeed, the extraterritorial use of force at all outside conventional “hot” armed conflicts), it should aim to meet a higher standard of accountability. The UK parliamentary committee studying the United Kingdom’s 2015 targeted killings made repeated observations about the indefiniteness of the UK government’s legal positions on key issues, a sobering assessment. It also observed, correctly, that

for the Government’s policy to command public confidence, and to make it more likely that decisions pursuant to it do not lead to breaches of the right to life, the decision-making process must be robust, with sufficient challenge built into the process, rigorous testing of intelligence to minimise the risk of mistakes, and access to the requisite advice including legal advice at the appropriate stages in the process.[1]

After all, targeted killing both presumes guilt and applies the sternest sanction any state could impose. It follows that for the sake of its credibility — and to preserve its personnel from legal exposure — the Canadian government should make its choices on the difficult legal conundrums raised in this article now rather than in the midst of a crisis. What is more, the government should articulate and debate those positions openly since these questions demand difficult policy choices that are not, in many instances, preordained by clear, existing law.

The bottom line is that we know next to nothing about the Canadian government’s legal thinking on targeted killing. The basic international humanitarian law issues are plain. But within those issues are a series of decisions on matters of legal interpretation that, to the best of my knowledge, have never been articulated by the government.  And so if I were the NSICoP, I would want answers to these questions:

International Law

  1. As a “jus ad bellum” matter, the government’s theory for lawful use of force in Syria is predicated on an “unwilling or unable” theory of self-defence, which it argues brings it into compliance with the UN Charter’s framework. What is the outer limit of that theory?  Now that Syria has demonstrated a greater willingness and ableness, does the self-defence justification abate?  This is the major problem with “unwilling or unable”: is it a one-way ratchet?
  2. The government clearly believes there is an armed conflict in Syria/Iraq, which triggers the “jus in bello” of international humanitarian law (or the law of armed conflict, LOAC). At what point does the degree of violence with the remnants of ISIS fall below the threshold for a non-international armed conflict, requiring thereafter full application of human rights law rather than LOAC?  Put another way, once an armed conflict is triggered, does it ever turn off? (This is a real issue since 9/11).
  3. Where LOAC applies, combatants may be targeted. And “civilians” who directly participate in hostilities (DPH) lose protected status and may be targeted. What does the government see as the threshold for DPH? Is it the International Committee of the Red Cross (ICRC) standard, which permits targeting only while the civilian is en route, partaking and returning from hostilities, or is does it follow the US view: once a civilian DPHs, they remain targetable until they permanently abandon participation in hostilities. Alternatively, would Canada consider that anyone who journeyed to join ISIS was in a continuous combat function and targetable, and therefore take a position that would surely exceed how the ICRC defines this concept?  I suspect that Canada simply follows the US on this, since we are simply participating in US target packaging. Would we continue to follow them if the US takes the view that the “armed conflict” against ISIS extends beyond the hot theatre of Iraq and Syria and extends to wherever ISIS affiliates may be found? That would be very controversial, as it means the places where you can lawfully kill becomes, potentially, the whole world.

Constitutional Law

  1. Does the government agree that the Charter applies to its extraterritorial targeting of Canadians, to the extent that Canada’s international obligations apply to the extraterritorial targeting of Canadians? I do not see how they could contest this point, given the Hape and Khadr line of cases.
  2. Does the government agree that Canada’s international obligations (under LOAC) do extend to the extraterritorial targeting of Canadians? Again, I cannot see how the government could argue that LOAC does not apply to Canada in Syria and Iraq.
  3. Does the government take the view that compliance with LOAC complies with the Charter? But if so, then it becomes even more important to resolve the LOAC issues raised in points 2 and 3 above.
  4. Does the government believe that the “international obligations” that serve at the litmus test for the extraterritorial application of the Charter are confined to those international law principles that protect the person (such as LOAC and human rights law)? What would the government say about the possibility that the Charter may also be engaged where other international law issues are in play, such as the jus ad bellum issues in point 1 above? Personally, I think it fair to conclude that the Charter is only engaged by person-protecting rules in international law and not state sovereignty-protecting rules, but the issue is undecided.

Other countries have pronounced on these issues (or at least some of the international ones). I think it is dangerous that Canada is clearly prepared to kill Canadians without explaining in any real way how it does so lawfully.  For one, that creates confusion even at the political level, with debates over “extrajudicial executions”. For another, when Canada applies a principled legal approach to the use of hard power, actually spelling out those principles distinguishes us from countries (say Russia) who are less fastidious. But the public might be forgiven for failing to see the difference between Russian bombing and Canadian bombing if Canada doesn’t bother with the explanations.

 

 


[1] Joint Committee on Human Rights, supra note 1 at para 4.24. See also ISC, supra note 11 at para 72, expressing related process concerns.

 

My New Project: Commander Andrew Drew RN

 

As my forthcoming book, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War, goes to layout and printing at Irwin Law Books, the events that led to the destruction of the Caroline 180 years ago are upon us!  I have created a new Twitter feed, Cdr_Drew_RN, in the person of the Royal Navy Commander who led the raid. Tonight, he starts live-tweeting the 1837 rebellion in Upper Canada. I am hoping this will be a mildly entertaining way of introducing interested followers to the Caroline and its impact on international law and relations. This summer, I will be expanding my "Commander Drew" project into an online database on self-defence and use of force in international law.

In the interim, here is the abstract to my new book:

In the middle of night on December 29, 1837, Canadian militia commanded by a Royal Navy officer crossed the Niagara River to the United States and sank the Caroline, a steamboat being used by insurgents tied to the 1837 rebellion in Upper Canada. That incident, and the diplomatic understanding that settled it, have become the short-hand in international law for the “inherent right to self-defence” exercised by states in far-off places and different sorts of war. The Caroline is remembered today when drones kill terrorists and state leaders contemplate responses to militarily-threatening adversaries. But it is remembered by chance and not design, and often imperfectly. This book tells the story of the Caroline affair and the colourful characters who populated it. Along the way, it highlights the various ways in which the Caroline and self-defence have been used – and misused – in response to modern challenges in international relations. It is the history of how a forgotten conflict on an unruly frontier has redefined the right to war.

The Unraveling of Canada's Legal Justification for Force in Syria? The Trouble with "Unwilling and Unable"

Events yesterday in Iraq seem likely to complicate the legal basis for Canada’s participation in the anti-Daesh coalition. As summarized by Jennifer Daskal over at Just Security:

U.S.-led forces hit a convoy carrying pro-Syrian government forces advancing inside a deconfliction zone inside Syria. The convoy was reportedly traveling toward the al-Tanf military base used by U.S. coalition forces to train anti-ISIS fighters. U.S. and coalition officials assert that the Russians “apparently” attempted to dissuade the convoy from entering the area, that they first fired warning shots and deployed two US aircraft as a show of force, and only struck the convoy after it failed to heed the warning, as a means of protecting U.S. and coalition forces.

Jennifer Daskal also reports US official statements that the “strike was a proportionate response done for purposes of force protection—an act of self-defense in an effort to protect U.S. forces.” She observes: “This is, on its face, quite plausible. And, if accurate, lawful as a matter of both international and domestic law.”

The facts remain uncertain. But I shall assume for the sake of this analysis that the convoy comprised Syrian government controlled militia or military.  And I shall assume that Syria is now actually interested in fighting Daesh (whether or not this particular convoy was tied to that effort).

If so, I am less persuaded that the strike was lawful as a matter of international law. Or more accurately, I think it undercuts that entire legal basis for the presence of Coalition forces in Syria.

The Basics

Leah Sherriff and I examine the international law of using force against a non-state actor in the territory of another state in our article on targeted killing. Interested readers will find there the detailed footnotes for the sources and principles I cite below.

To summarize, a state may not use force against another state, or on that other state’s territory without the territorial state’s consent. There are two exceptional circumstances.

The first is UN Security Council authorization. That does not truly exist for the conflict against Daesh, notwithstanding the S/Res/2249 (2015). I agree with those analyses that see this resolution as an intentionally ambiguous resolution that falls short of the language associated with Security Council authorizations on use of force.

The second exception is self-defence against an armed attack, including collective self-defence done in conjunction with a state that has suffered this attack. Self-defence against Daesh is, in fact, the legal basis for Canada’s use of force in Syria. In late October 2014, when Canada joined the American-led coalition against Daesh in Iraq, it reported to the UN Security Council that Canada was invoking individual and collective self defence under article 51 of the UN Charter, explaining “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory”.[1]  On the specifics on the Daesh case, Canada is asserting collective self-defence with Iraq against Daesh, with self-defence extended to Syria (where Daesh also operates).

But Syria itself has not consented to the use of force on its territory (and even if it had, tacitly or otherwise, it could revoke that consent). And it itself is not the originator of the armed attack. Hence we face the common post-9/11 conundrum:  Directing military force against a non-state actor almost always requires use of force on the territory of another state, including some that do not consent.

There is serious incongruity in the idea that a non-state actor may use violence whose scope and effect rises to the level of armed attack, and then hide behind the territorial sovereignty of a state that, however unwillingly or unwittingly, serves as host. And as a practical matter, some states – including, especially, the United States – have rejected a formalistic approach that would allow this shelter. These states have instead pursued a doctrine of “unwilling or unable”. In Ashley Deeks’s words:

The “unwilling or unable” test requires a victim state to ascertain whether the territorial state is willing and able to address the threat posed by the nonstate group before using force in the territorial state’s territory without consent. If the territorial state is willing and able, the victim state may not use force in the territorial state, and the territorial state is expected to take the appropriate steps against the nonstate group. If the territorial state is unwilling or unable to take those steps, however, it is lawful for the victim state to use that level of force that is necessary (and proportional) to suppress the threat that the nonstate group poses.[2]

Whether “unwilling or unable” is truly part of customary international law is hotly debated. However, the international community has demonstrated more receptivity – although certainly not enthusiasm – for the doctrine since 9/11 and especially since 2014. The United States and Turkey have reaffirmed the existence of an unwilling or unable doctrine to justify self-defence against Daesh in Syria, and they are not alone. They have been joined by Australia, Belgium, Canada, Germany, and, implicitly at least, Denmark, Norway and the United Kingdom. In response to the US notification to the United Nations, then Secretary General Ban Ki-Moon reportedly stated: “I also note that the strikes took place in areas no longer under the effective control of that [the Syrian] government.” Other states, such as Jordan, Bahrain, Qatar and the United Arab Emirates have participated in air strikes in Syria without articulating legal justifications, leading at least one commentator to posit that they are “relying on the same legal theory as the United States and UK.”

Still other states, such as France, have embarked on a similar course under the shelter of a UN Security Council resolution 2249 (2015) that is (as suggested) creatively ambiguous about the legal authority for directing force at Daesh in Syria.

Collectively, this constitutes considerable state practice and – in the case of the United States, Turkey, Canada, Australia, Belgium and Germany – emphatic opinio juris supportive of the “unable or unwilling” doctrine as a basis for invoking UN Charter Article 51 self-defence.

 

Yesterday’s Events

State practice of what is less clear. It is one thing to intrude on a state’s territory to exercise self-defence strictly limited to the attacking non-state actor. It is quite another to stray beyond this terrorist-specific targeting and direct force against the territorial state’s own assets or infrastructure.  That is why the US missile strike against the Syrian airbase after the chemical weapons attacks in April cannot be justified on the same self-defence theory supporting use of force against Daesh. (See my own views on that incident here and here.)

Yesterday’s clash with Syrian forces raises new legal doubts. They boil down to this: how can the “unwilling and unable” justification for force in Syria be maintained once the Syrian government asserts itself on its own territory against Daesh? “Unwilling and unable” begins to look like transparent pretext. Moreover, it beggars imagination that it could be used as legal justification for a Coalition forces strike staving off the very government said to be unwilling and unable in the first place.

To conclude that Coalition use of force is lawful in these circumstances you would need to accept the following:

1. Coalition forces have been lawfully employing force against Daesh because Syria was unwilling and unable.

2. The unwilling and unable justification persists even after the territorial state demonstrates it is no longer unwilling and unable.

3. And more than that, the Coalition forces may lawfully use military force to suppress efforts by the once unwilling and unable state aimed at reasserting control over its territory.

The “force protection” argument for yesterday’s Coalition strike only gets you so far. “Force protection” is not lawful self-defence if the presence of the Coalition now itself constitutes an armed attack against Syria, because the original “unwilling and unable” basis for the Coalition presence has evaporated. (Imagine this outside of the Syria context: If one state invades another, and parks itself on the second state’s territory, an effort by the invaded state to resist the invasion is not an attack against which the invading state may claim self-defence.)

Conclusion

I acknowledge that these legal niceties will determine little of what happens in Syria. And I imagine others will counter with their own legal reasoning. That might be something like this: once lawfully engaged in self-defence under an unwilling and unable doctrine, the Coalition may use such proportionate force as is necessary to end the armed attack by Daesh, including against the Syrian government if it gets in the way. Put another way, the unwilling and unable justification is a one-way-ratchet that cannot be notched back because the delinquent territorial state has a change of heart or capacity.

If that is the legal argument, it amounts to: once a failed state whose sovereignty has been suspended, always a failed state with a suspended sovereignty. That does not seem the sort of position likely to increase international stability or avoid capricious misuse in the future.

At the very least, events on the ground in Syria demonstrate clearly the risk of predicating use of armed force on a fuzzy doctrine like “unwilling and unable”.  States do not always remain unwilling.  And to use force to ensure they remain unable would be the height of absurdity.

In sum: since Canada is participating in the Coalition, it will be drawn along into a difficult legal quagmire if the anti-Daesh campaign now bleeds into an armed conflict with the Syrian government.

 


[1] Letter dated 31 March 2015 from the Deputy Permanent Representative of Canada to the United Nations addressed to the President of the Security Council, UN Doc S/2015/221 (31 March 2015)

[2] Ashley S. Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense,” (2012) 52(3) Virginia Journal of International Law 483 at 487-88.

Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

Use of Force against Syria: The law is an ass so what to do about Pandora's Box?

In this entry, I follow the thread on some points made in my oped in the Globe this morning.  Readers may wish to consult that first.

The Hard Facts of this Case

The United States has bombed Syria. In it itself, there is nothing remarkable about this statement. After all, the United States and its allies have been using force in Syria against Daesh for years. The difference last night was, however, one of target and also, therefore, one of law. The sum consequence is: one more explosion for a smart bomb, and potentially one giant leap into the unknown for international law and relations.

The missile strikes last night targeted the Syrian military, not non-state insurgencies or terror groups in Syria. The use of armed force against Daesh is (controversially) justified as an exercise of collective self-defence, undertaken on the territory of a state (Syria) unwilling or unable to suppress armed attacks done by Daesh.

Whatever the disputed status of this “unwilling and unable” concept, self-defence is a legitimate exception to the legally-robust prohibition on one state’s use of force against the “territorial integrity or political independence” of another state (codified as Art. 2(4) of the UN Charter).  The other exception is authorization on use of force from the UN Security Council.

Largely because of Russian obstruction, there is no Security Council resolution authorizing force against the Syrian state or military.  Nor is there any plausible self-defence argument for use of force against the Syrian state itself (as opposed to against non-state actors mounting threats from its territories).  Syria has not attacked the US, or its allies. 

But Syria is massacring its own people, horrifically, in violation of most international law of any relevance.  Most recently, it is alleged to have (again) used chemical weapons.  (An obvious fear is that the US missile attack was provoked by bad intelligence – and the attribution of chemical weapon use to Assad’s government will prove incorrect.  Then we have an Iraq War redux. But Assad has used chemical weapons in the past.)

 

The Law is an Ass

Still, even with these Syrian atrocities: there just is no persuasive legal argument that these Syrian breaches justify use of force in response.  There is no other exception to the prohibition on use of force adding to those discussed above.  This is true whether one wants to call any additional exceptions “humanitarian intervention” or the “responsibility to protect”.  See also other discussions: here and here

People do, of course, urge the existence of these other carve-outs.  See most notably Harold Koh, here.  But unpack those discussions, and they turn on normative justifications – the should of international law, not the is. The is comes from basically two things: treaties and customary international law.  There is no treaty basis for either humanitarian intervention or R2P.  All that is left, then, is customary international law. And one would need to give supreme primacy to the state conduct (with opinio juris) of a handful of the world’s states to conclude an R2P or humanitarian exception exists.  And along the way, you’d need to ignore a lot of state expressions of dissent, not least dissent generated by the justifications offered by the United States in the 2003 Iraq War (where at least one line of justification focused on humanitarian impulses).

Nor is there any international law norm that permits use of force by one state against another to punish use of weapons of mass destruction.

And so we are left with a “wicked problem”: surely, we could prosecute the Syrian leadership for war crimes and crimes against humanity, if we had them.  But we don’t.  And so Syria acts with impunity, shielded by the well-meaning, international strictures on use of force.  And these well-meaning limitations on the use of force were intended by the framers of the UN Charter to operate in a world in which the Security Council worked – and where it would exercise collective defence.

Those framers were not pacifists.  But having lived through the Second World War, they wished to shackle as much as possible aggressive war – war undertaken for reasons other than self-defence.  The Security Council was supposed to deal with the circumstances (other than a state’s own immediate right to collective or individual self-defence) where threats to international peace and security obliged a forcible response.  And it was supposed balance great power rivalry.  But balance has meant, for most of its history, Security Council gridlock.

And so we are still left with the impasse: the law appears to be an ass, confronted with Assad’s atrocities.  And so perhaps the law should not speak in times of humanitarian crisis.

 

Pandora’s Box

The risk of that, of course, is both immediate and long-term.  The immediate risk is that a recycling of the “illegal but legitimate” claim from the Kosovo conflict in the Syrian context brings us a lot closer to a large inter-state war between the US and Russia than it ever did in Kosovo.

And the bigger problem: what is good for today’s hegemonic great power will be equally good for tomorrow’s, or indeed for today’s aspirants to great power status.  Whatever else can be said about the Article 2(4) framework: it has stabilized international relations between states.  Not perfectly, but nevertheless, to the point where use of force between states without lawful justification is anathema.  That is the explanation for the international community’s response to Iraq’s conduct in the Gulf War 1990.  And it is the reason why much of the world has sanctioned Russia for its Ukraine adventure.  (Both of those two instances involved a use of force culminating in de facto conquest.  But the illegality of the conquest is a by-product of the underlying prohibition on use of force.)

All of this is to say: Unravelling limitations on use of force in today’s uncertain political environment opens Pandora’s Box.

 

Making the Best of an Impossible Impasse

And so the question is: can we net whatever comes out of that box?

Or more concretely, if we are now committed to a path where force can be used for a noble cause outside traditional rules, can we confine it to those noble causes? Harold Koh proposes a list of sensible indicators designed to do just that.  And although I quibble with the any claim that they are currently part of international law, they certainly could be.  Better they than the alternative: expedient uses of force ungoverned by classic rules, used as much by the goose as the gander and for the wrong reasons.

So what policy prescription does this present. Many.  But one that comes immediately to mind this morning: No state should blankly endorse the US action. That is too much indefinite state practice that opens the door to competing and overboard narratives about “emerging customary international law”. 

Rather, any support should confine claims of legitimacy to the narrowest of facts: here, the need to act in the face of war crimes involving, not just the targeting of civilians, but the (so far, unfortunately, only alleged) use of an inherently illegal weapon of mass destruction by a state.  And we should borrow from self-defence rules and graft in some very strict proportionality rules. But stricter. (Many uses of force seem now to gravitate to regime change, which is the kind of thing that precipitates bigger wars and violations of the "Pottery Barn" credo: you break a country, you pay for it. Usually, we just walk away.)

In sum: if the use of force rules are to be sliced and diced, then the slices should be most minute and thinnest possible. Because a thick slice of baloney today is the kind of thing that can be used to justify the crassest form of aggression tomorrow.

Killing Citizens: Core Legal Dilemmas in Targeted Killing of Cdn Foreign Terrorist Fighters

My article with Capt. (Ret.) Leah West Sherriff on Canadian and international law and targeted killing is now accepted and forthcoming, Canadian Yearbook of International Law. We have posted the current version here. The abstract is as follows:

For the first time since the introduction of the Canadian Charter of Rights and Freedoms, Canada is an armed conflict with an insurgency that has actively recruited Canadians and directed them to use or promote violence against Canada. In the result, the Canadian government may ask its soldiers to target and kill fellow Canadians, or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing” confronted by the United Kingdom in 2015 when it directed military force against several Britons believed to plotting a terrorist attack. That incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen. It examines how a Canadian policy of targeted killing would oblige Canada to make choices on many weighty legal matters. First, it discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes the international laws governing military force, scrutinized from the perspective of use of force (jus ad bellum) and the law of armed conflict (jus in bello). It also examines an alternative body of international law: that governing peacetime uses of lethal force. The article concludes by weaving together these areas of law into a single set of legal questions that would necessarily need to be addressed prior to a targeted killing of a Canadian.

Pragmatism & Principle: Intelligence Agencies & International Law

I have just post my most recent article on the topic of international law and extraterritorial intelligence agency activities on SSRN here (alternative download: here).  This article focuses on (to borrow the US parlance) "covert action", and was a reponse piece to an excellent, lengthier article by University of Virginia law school Professor Ashley Deeks, found here.

Despite this US context, I hope my essay is useful to Canadian circumstances as well.  Given changes to CSIS's mandate in C-51, the observations in the article are relevant to CSIS's new overseas "threat reduction" powers.  As I have argued before, the customary international law principles discussed in this article are deemed part of the common law of Canada through the Canadian rules of reception of international law.  Trangressing these standards would, in this manner, violate a "Canadian law".  This would trigger the requirement to obtain a Federal Court warrant prior to engaging in this activity, per the (C-51 amended) language in the CSIS Act.  Under those same amendments, the Federal Court could issue a warrant, even in violation of this international law.  But I suspect based on past practice, it would scrutinize carefully the international law principles at issue, and would be anxious about the implications of blessing conduct that may prove controversial. 

The abstract of my article is as follows:

This essay dissects the concept of “intelligence activities” and distinguishes international law as applicable to spying versus that relevant to convert actions. It urges that while international law is mostly silent on peacetime spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and which transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may be readily violated by at least some sorts of covert actions, above and beyond human rights principles protecting the individual. Ambiguity exists, but should not be over claimed. The article then contemplates the virtues of tempering this legal formalism to permit less than full legal compliance in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, the article warns that a sliding compliance scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.