Foreign Affairs Committee on Nov. 7th, 2024

[The Chair, Liberal, Ali Ehsassi]

I call this meeting to order.

Welcome to meeting number 126 of the House of Commons Standing Committee on Foreign Affairs and International Development.

Today's meeting is taking place in a hybrid format.

I would like to remind all members, and the witnesses as well, to wait until I recognize you by name.

We will be resuming our study on Canada's advancement of a two-state solution. Pursuant to Standing Order 108(2) and the motion adopted by the committee on Thursday, September 19, we are going to continue on with that study.

Without much further ado, I'd like to welcome our two witnesses today. From the Department of Foreign Affairs, Trade and Development, we are grateful to have with us Mr. Louis-Martin Aumais, legal adviser and director general of the international law bureau, as well as Ms. Rebecca Netley, executive director, accountability, human rights and United Nations law division.

Welcome to you both. I understand that you have one opening statement.

Mr. Aumais, you have five minutes for your opening remarks.

[Louis-Martin Aumais, Legal Adviser and Director General, International Law Bureau, Department of Foreign Affairs, Trade and Development]

Thank you very much, Mr. Chair.

Ladies and gentlemen, as legal adviser for Global Affairs Canada, thank you for the invitation to appear before the Standing Committee on Foreign Affairs and International Development to discuss Canada's contribution to the advancement of a two-state solution.

Let me begin by stating a few points of international law dealing with the recognition of a state. In customary international law, the constituent elements of a state include a permanent population, a defined or relatively defined territory, a sovereign government and independence from other states.

That said, the application of these elements can pose challenges in specific factual situations. Existing states may have differing opinions as to whether the elements listed above are present in a particular case. It is up to each state to make its own assessment and decision on the matter. Moreover, even if these elements are present, there is no obligation for another state to recognize an entity as a state, as legal considerations are only part of the elements that influence this decision.

In the end, the decision on whether to recognize a state is a deliberate political act on the part of another state.

Mr. Chair, in Canada the authority to recognize new states is exercised by the federal executive under its prerogative over the conduct of Canada's foreign relations. I would note that the approach to recognition is generally characterized by caution. Indeed, states extend recognition in order to remove uncertainty, not to create it.

When Canada decides to recognize a new state, it does so clearly and expressly. The manner of the recognition is also a political decision and can take a variety of forms, such as the exchange of diplomatic communication, an official statement by the government and other forms.

Moreover, the level of political, diplomatic, trade, economic or other engagement that Canada may decide to have with the state that it recognizes is also a political decision.

My colleague Ms. Netley and I thank you for your attention. We look forward to hearing from you.

Thank you, Chair.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Mr. Aumais.

We start off with Mr. Chong. You have four minutes, please.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Mr. Chair.

Thank you, Mr. Aumais, for your testimony and statements.

You said something that I think is very important for the committee. You answered a question that I was going to ask, which is whether or not, from the Government of Canada's perspective, the recognition of statehood is a political or a legally determined decision. You've clearly answered in the former rather than the latter.

Clearly, as you said, the recognition of statehood is something that should be approached with caution and should be done clearly and deliberately, but ultimately it is a deliberate political decision, and the manner of recognition is also a deliberate political decision. I appreciate your clarity on that point in your opening remarks.

I was going to ask what criteria would be in place and would have to be met in order for the recognition of statehood to be obtained. I think you'll probably answer by saying that it is a deliberate political decision of the political executive, so I won't ask that question.

Maybe I'll ask a different question.

Broadly speaking, is it the department's view that the Oslo accords are the path for a two-state solution?

[Louis-Martin Aumais]

The Oslo accords were very much a political arrangement reached by the State of Israel and the PLO in order to create a Palestinian authority. Given the very political nature of the arrangement, I wouldn't be able, as the legal adviser of the department, to express a view about whether that is “the” path or whether it is “a” path.

Clearly, at the time of its conclusion, it appeared to be a reasonable path that the parties had agreed upon and were entering into. Obviously, history shows us that it has not led to what the parties had contemplated in the first place.

It's a complex agreement. It's about setting a number of preliminary steps and interim steps over a period of time. It was over five years with the view, ultimately, to agreeing to a more permanent arrangement.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Can I ask you a quick, unrelated question?

There was discussion two meetings ago about the Montevideo convention.

Canada is not a signatory to that convention, is it?

[Louis-Martin Aumais]

No, we're—

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Does Canada consider that to be...? You elucidated four criteria as to what constituted statehood.

Is that something you've taken from the Montevideo convention, or is this—

[Louis-Martin Aumais]

That's correct. We are not a party to the convention itself, and many countries are not parties to that convention.

Basically, the criteria it lists also form part of international customary law, so we see ourselves as looking at those criteria for the recognition, but obviously it's not as though you meet the juridical or the legal tests and therefore you have a state. There is an eminently sovereign decision by other states, obviously taking into consideration those elements. It's been a well-established practice over time.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Chong.

We now go to Mr. Alghabra for four minutes.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Thank you, Mr. Chair.

Mr. Aumais and Ms. Netley, thank you very much for being here this afternoon.

I also want to echo what my colleague Mr. Chong has said. Thank you for your clarity with your statement. I promise to try to stay away from asking you any questions that might delve into the political realm.

I know the answer, but I want to ask the question in a different way.

Are there any legal impediments to the Government of Canada recognizing the State of Palestine?

[Louis-Martin Aumais]

Based on practice and customary international law, the criteria are there. It is totally available for the government to make an assessment based on those criteria.

It could also look into other elements that it wants to take into consideration. It's not an exhaustive list. As I mentioned in my preliminary statement, there could be factual situations that warrant additional elements being added into the mix, such as political considerations or an analysis of where the entity that seeks to become a state, under those criteria, is in relations with its neighbours and the region.

These are additional elements, but I wouldn't see them qualifying as impediments.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Do you know of any of our allies that are either considering the recognition, or have recognized, the State of Palestine?

[Louis-Martin Aumais]

Chair, there are a number of countries that have already made that recognition public. I am not tracking precisely, from a legal adviser's perspective, the number of countries. There are on public record a number of countries that have made that recognition—actually, there are above 100.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

I don't expect you to know by heart, but if you're able to send back to the committee the list of countries that have either officially recognized the State of Palestine or are currently contemplating or considering it, I would appreciate that.

I have another question for you. We know that Norway, Ireland and Spain recently announced it. Can you tell the committee how they manifested that recognition? What steps did they take after making that political decision?

[Louis-Martin Aumais]

Chair, that is a very interesting question, and it illustrates what I mentioned in my statement.

There are different ways of doing that. There isn't an instruction booklet that indicates how a state can declare its recognition of a new state. What's sought by international law is clarity and absence of ambiguity on the matter.

For those countries, as far as I could see, they made very official public and outward statements to the international community to indicate that they were taking that step.

In terms of their internal communication, I would not be familiar with what they did. By “internal”, I mean how the recognizing state and the State of Palestine transacted between themselves. Normally there's an exchange of diplomatic communication, diplomatic notes, an exchange of communications between foreign ministers or heads of government and heads of state. Again, that's how it's done. It's normally an agreed arrangement between the two entities, but I am not privy to the detail of how it was done, precisely, by Norway, Spain, Ireland or Slovenia.

I would anticipate that's how they did it, Chair.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Thank you.

Thank you, Mr. Chair.

[The Chair, Liberal, Ali Ehsassi]

Now we go to Mr. Bergeron. You have four minutes, sir.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you very much, Mr. Chair.

I'd like to thank our two witnesses for being here.

I also thank you, Mr. Aumais, for your extremely clear introductory comments.

In an advisory opinion issued in July 2024, the International Court of Justice stated that Israel's occupation of the Palestinian territories was unlawful. It added that states had an obligation not to render aid or assistance in maintaining the situation created by Israel's unlawful presence in the occupied Palestinian territories.

In your opinion, under the Canada-Israel Free Trade Agreement, which considers products manufactured in Jewish settlements in the occupied territories, is Canada aiding or assisting in the maintenance of the situation created by Israel's illegal presence in the occupied Palestinian territories?

[Louis-Martin Aumais]

I thank the member for his question.

It's a very pertinent question in the context of the court's advisory opinion.

I'll give a little preamble on the advisory opinion. It is an opinion of the court that is not binding on the parties. These are questions that the UN General Assembly put to the court about Israel's practices and policies in the occupied Palestinian territories.

As you correctly pointed out, the court issued an opinion in July, and it rightly talked about the lawfulness of Israel's practices and policies in these territories. It also included a portion on the obligations of third-party states in relation to the obligations that the court believes Israel has breached through its policies and practices.

Some of the elements on which the court ruled are peremptory obligations under international law, the jus cogens. These obligations require obedience from all states, not just Israel. In this case, this means that countries like Canada must make an assessment of their implementation of these obligations.

You mentioned the Canada-Israel Free Trade Agreement. I'm not an expert in international trade law, but I know enough to be able to say that this treaty is designed to have a particular definition of its application over treaties. As far as Israel is concerned, it states that the treaty applies where Israel's customs laws apply. It does not refer to any particular territory. Under the Oslo Accords, this allows customs laws to be applied in the occupied territories, for example. This allows products from the occupied territories to benefit under the treaty. As you mentioned, this is a precaution taken precisely to avoid ambiguities. Is this something that is studied and reviewed by my colleagues in international trade law? Yes, it absolutely is. We have to be satisfied. The nuance in the definition of treaty application takes this into account. We felt that Canada's obligation did not begin in July, when the court issued its advisory opinion. Although it's not binding on Canada, obviously Canada has to study it. It was a measure, an approach that had already been taken by Canada in its negotiations for the Canada-Israel Free Trade Agreement to take into account this difficulty that is raised by the court itself.

Have I answered the question?

If not, I hope the member will ask me a supplementary question.

[Stéphane Bergeron, Bloc, Montarville, QC]

I don't think I'll have the opportunity to do so.

[The Chair, Liberal, Ali Ehsassi]

I'm afraid you're out of time.

Madam McPherson, you have four minutes.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here today and sharing their expertise. I will also try to ask you questions you can answer, but forgive me if I stray.

I want to be very clear. The first question I want to ask is on something that you spoke about at the very beginning.

The decision to recognize the state of Palestine is a political choice. This is something that could be done by the minister without delay. It's possible legally.

[Louis-Martin Aumais]

As to the time it takes to make the decision, I wouldn't be—

[Heather McPherson, NDP, Edmonton Strathcona, AB]

The decision to do it requires just that, political will.