The Utility of International Law

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Now, back to trade for a moment - which is something much closer to home.

I think there is some hope in actions we may take using the remedies that are available to us in both international and domestic law.

According to a Canadian International Trade Lawyer (William Pellerin, formerly of Global Affairs Canada and now a partner with McMillan LLP) there are remedies for the imposition of tariffs under the Dispute Resolution process in the CUSMA agreement or before the WTO. According to that agreement, what Trump has ordered is illegal. The CUSMA route, in front of a trade panel, would likely result in a successful challenge for Canada. However, given Trump's penchant for disobeying the law and his total disrespect for international law, he would simply not abide by the outcome.  Consequently, taking this approach would likely not yield a favourable result.

However, the more interesting challenge according to Pellerin as stated in the Globe and Mail article  (What does trade law say about Trump’s tariffs? - March 5, 2025) is as follows:

"The most important piece is exploring challenges under U.S. domestic law and challenging the constitutionality of the IEEPA, the International Emergency Economic Powers Act. It’s the statute President Trump has used to impose these tariffs. The U.S. used it to deal with Iran in 1979. It’s particularly insulting that this is used against Canada. It was never intended to use it for tariffs against a friendly nation.

There’s a real question for U.S. lawyers whether this can be halted before the U.S. courts. I know that [president of the Automotive Parts Manufacturers Association of Canada] Flavio Volpe was discussing this and looking to join whatever U.S. company that would first challenge this. There would absolutely be room for the Government of Canada in such a challenge as an amicus [intervenor], to support that litigation".

I am certain these avenues are being considered.  Wouldn't it be interesting to have Trump and his lackeys tied up in courts with this and other challenges that are emerging against some of his other Executive Orders ? It is the one aspect of the American system of government and the embedded checks and balances in the constitution, that often delay or block even beneficial decisions of the government, that could be a roadblock to Trumps agenda.

On the other hand, given the way Trump operates, and has attacked the justice system in a transparent effort to bend it to his will, the system itself could also become a target for him to completely destroy in order to get his way.

Things are very complicated with a dictator.

However, with the use of international law, there is strength in numbers. Moreover, we can use international law to employ the same tactics that Trump uses to overwhelm his targets and sow panic and confusion - litigate to retaliate and let the process run its course, even if only as an unwelcome distraction.

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