The Attaché 2012 (Volume 2) by The Attaché University of Toronto

The Attaché Vol. 2 (2012)

Editors-In-Chief Salahuddin Rafiquddin Salvator Cusimano

Managing Editor and Staff Photographer Sam Khanlari

Editors Daniel Adler Tanzeel Hakak Samantha Lee James Li Mimi Lui Michael Scott Sarah Wang Adrian Zita-Bennett

Director of Advertising Joselyne Chia

Layout Editor Diana Berbece

Web Master Salahuddin Rafiquddin

Munk School of Global Affairs, 1 Devonshire Place, Room 004, Toronto, Ontario, Canada, M5S2K7 ISSN 1481-7756 www.theattache.ca theattache@gmail.com

Cover and Table of Contents: Rémi Carreiro

From the Editor’s Desk: Thank you for picking up a copy of this year’s Attache Journal of International Affairs. This year’s edition features the finest work of fourteen excellent students, and edited by their peers at the University of Toronto. The Attache also showcases the artistic talents of many students who have submitted their original photography capturing dramatic scenes from various sites around the world. We are happy to announce that, once again, we are publishing two volumes in order to reflect the great volume of high quality work that we received this year. In this Volume on Global Challenges to Sovereignty, the papers confront historical and current challenges to national sovereignty. They demonstrate that central governments’ control over the use of force, the rule of law, the economy, and national secrets has been contested by a variety of actors, from within and without. The clearest challenge to sovereignty in today’s world is humanitarian intervention, for better or for worse. In her opinion piece, Alexandra Sewell argues that the ‘humanitarian intervention’ in Libya does not set a precedent for future military challenges to traditional sovereignty, because it occurred more due to favourable conditions and less because of a belief in the ‘Responsibility to Protect’. Another important contemporary challenge to sovereignty that posed by international economic institutions and agreements. In NAFTA: Domestic Environmental Policies, Scott Moore argues that legislators can still exercise their rightful jurisdiction over areas such as environmental regulations which may in practice violate NAFTA’s Chapter 11 on the protection of free transnational investment. In Regulated Sovereignty, Janis Robins argues that the World Trade Organization’s dispute settlement mechanism harms Canada’s political economy by negatively affecting the nation’s service industry; fortunately, he offers mechanisms by which these problems may be solved. Since September 11, 2001, national security considerations have raised important questions about national sovereignty. Dale Payne’s paper, The 45th Parallel, continues this volume’s exploration of international economics, but from the perspective of Canada-US trade and how 9/11 affected the relative concern of security versus trade, analyzing the tradeoff between the two. Chelsea Bin Han turns to the question of national jurisdiction over detention and deportation of nonnationals. Other papers discuss challenges to sovereignty that emerge from within. Javariyya Ahmad’s review of Charles Kurzman’s, The Unthinkable Revolution in Iran, sheds light onto a novel way to understand the motivations of the individuals who challenged the Shah’s government and carried out the Iranian revolution of 1979. Jim Robson’s piece on Soviet espionage during the Manhattan Project demonstrates the ways that ideology can penetrate national borders and motivate citizens to subvert their government’s authority. These papers are critical, engaging and enlightening. They testify to the high quality of academic work produced at the University of Toronto. We hope that these papers will broaden your perspective as much as they have ours.

The Attaché Vol. 2 (2012)

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LIBYA WAS A ONE-OFF: An Op-Ed on intervention By Alexandra Sewell

IRAN: A Book Review on The Unthinkable Revolution By Javariyya Ahmad

IMMIGRATION: Rethinking the Non-Citizen By Chelsea Bin Han

NAFTA: Domestic Environmental Policies By Scott Moore

THE 45TH PARALLEL: After 9/11 By Dale Payne

REGULATED SOVEREIGNTY: Canada and the W.T.O By Janis Robins

COLD WAR SECRETS: The Success of Soviet 50 Espionage into the Manhattan Project By Jim Robson

Libya: A One-Off

The Attaché Vol. 2 (2012)

Op-Ed

Libya: A One-Off This past October, international observers watched as Operation Unified Protector came to a close, having exemplified a bold display of force in the name of democracy and human rights. As declared by the rebel leaders themselves, the United States, France, and the United Kingdom had successfully liberated Libya. Yet amidst Tripoli’s euphoric celebrations lies the question of whether or not a precedent has been set for future interventions against murderous, authoritarian rulers resembling the likes of Muammar el-Qaddafi. Using the cases of Syria and Darfur, where calls for intervention have proven futile, I examine this question of precedent. I argue that international action in Libya reflected a combination of uniquely favorable conditions for collective action, and the contrasting failure to respond with force to similarly violent regimes in Darfur and Syria can be linked to the rising influence of an “Iraq Syndrome,” constraining military intervention to cases where the West is likely to have multilateral backing and clear-cut conditions for quick, uncompromising success. Consequently, I suspect those heralding Libya as a precedent for future Responsibility to Protect (R2P) obligations are likely to be disappointed.

By Alexandra Sewell

The conditions in Libya were nearly unprecedented in terms of making the political and military risk of intervention relatively low.

fter six months of anticipation, the world breaths a sigh of relief as Operation Unified Protector comes to a close in Libya. The United States and the West exemplified a bold display of force in the name of democracy and human rights, and fortunately, they won. Yet amidst Tripoli’s euphoric celebrations lies the question of whether or not a precedent has been set for future interventions against murderous, authoritarian rulers. Within the context of both the Arab Spring and an imperfect, often brutal world at large, it is unlikely. Rather, international action in Libya reflected a combination of uniquely favorable conditions for collective action, and the contrasting failure to respond with force to similarly violent regimes in Darfur and Syria can be linked to the rising influence of an “Iraq Syndrome,” constraining military intervention to cases where the West is likely to have multilateral backing and clear-cut conditions for quick, uncompromising success. The conditions in Libya were nearly unprecedented in terms of making the political and military risk of intervention relatively low. Regional leaders openly despised Qaddafi and consequently, the Arab League offered full support for a no-fly zone, preventing Russia and China from using their vetoes and thereby facilitating the passage of Security Council Resolution 1973. Perhaps most significantly, for once this was not a U.S. “go-it-alone approach,”1 and much of the air campaign burden was shifted to an enthusiastic Britain and France accordingly.2 This rare circumstance of robust support from NATO’s allies, the

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Security Council, and Libya’s Arab neighbors cannot be underestimated in a post-Iraq world where increasingly confident skeptics of the Responsibility to Protect (R2P) criticize the doctrine as an imperialistic “warrant for war.”3 Similarly accommodating were conditions directly on the ground where Libyan rebels were concentrated in the east, and a flat desert terrain made targeting Qaddafi’s weak, poorly trained forces relatively simple by air.4 Finally, Tripoli’s regional isolation eliminated the risk of regional powers complicating a Western intervention. Australia’s former foreign minister, Gareth Evans, describes the events: “The stars were well and truly aligned in the Libya case. All the criteria were satisfied.”5 Libya’s exports of 1.3 million barrels of oil per day and position on the doorstep of mainland Europe surely put the icing on the cake.6 Thus, the Libya operation represented a clear-cut military operation, with little-to-no risk of the West losing allies, acquiring enemies, or tainting its reputation with accusations of engaging in another imperialistic intervention. Libya was an unquestionably enticing candidate.

Libya’s exports of 1.3 million barrels of oil per day and position on the doorstep of mainland Europe surely put the icing on the cake.

Despite exhibiting equally bad behavior, Syria and Darfur have failed to receive the same international blow that toppled Qaddafi’s regime. Upon closer examination one can see why. Politically, Syria has strong support from Iran and a close, albeit wavering, relationship with Turkey. Russia, China, India and Brazil have opposed a UN Security Council Resolution that merely condemns the regime, and regionally, a close proximity to Israel risks entanglements in the Arab-Israeli struggle.7 Militarily, Syria is the reverse of Libya, with forces that are strong and closely intertwined with the ruling elite, dominating protestors that are weak, hold no territory, and inhabit a densely populated landscape that would provide for a risky military venture.8 A military venture against Bashar al-Asaad’s regime is too likely to fail. A similar story is told in Darfur, but one of much greater complexity. Indeed, it is the complex nature of the disaster in Darfur that has made it an unlikely candidate for military intervention, prompting Alex de Waal to describe it as a “problem from hell.”9 The conflict in Darfur is part of a wider, frustrating and inconclusive civil war that complicates any prospective intervention.10 Militarily, the main fighting factions are the Sudan Liberation Army (SLA), the Justice and Equality Movement (JEM) and the government-sponsored Janjaweed militia, but a plethora of rebel groups have splintered off on both ends, and Waal points out that “it is hard to make a moral distinction between the sides.”11 Politically, China and Russia further complicated matters by violating the arms embargo on Sudan, and hindering stronger action by the Security Council beyond limited sanctions and humanitarian aid. Like Syria, the odds are unquestionably against a win in Darfur. As such, President Omar al-Bashir still stands. The international response, or lack thereof, to Syria and Darfur despite their blatant violations of human rights is connected to the bitter experience 5

Libya: A One-Off

Despite NATO’s relative success in Libya the international community has appeared to limit congratulatory remarks to little more than a cautious, quiet salute. More resounding is the collective “phew.”

The Attaché Vol. 2 (2012) surrounding the “war on terror” and exudes symptoms of the “Iraq Syndrome.” Following Afghanistan and Iraq, both President Obama and Britain’s David Cameron made promises to uphold a more cautious approach to foreign military adventures, haunted by Colin Powell’s famous China shop rule: “You break it, you own it.”12 Powerful thrusts of military intervention in the name of right and wrong are increasingly contrasted with the cold reality that entanglements can last for many years, the notion of which is at stark odds with budgetary constraints in Europe and the United States. One only has to look at Kosovo, Bosnia, or Afghanistan as a reminder of the timely complexities and obligations of state-building, even where the military got it more-or-less right. In the words of Robert Cohen, “The West must at times be prepared to fight for its values against barbarism in the best hope for a 21st century less cruel than the 20th.” 13 But in a world where good intentions do not necessarily produce good outcomes, picking the right fight becomes all the more critical, and the battle likely to make the least mess is most likely to be chosen. The West’s reputation cannot afford another Iraq. Consequently, I suspect those heralding Libya as a precedent for future Responsibility to Protect obligations are likely to be disappointed. Rather, an impossibly high standard for intervention has been set that cites multilateral backing and clear-cut conditions for quick, uncompromising success as its criteria. Syria and Darfur’s prospects were deducted fatal points for lacking international consensuses on intervention itself and both failed to offer conditions for uncompromising, successful interventions. Colonel Muammar Qaddafi’s gruesome death offered a symbolic finale to the Libya mission, a testament to the triumph of good over evil. Still, despite NATO’s relative success in Libya the international community has appeared to limit congratulatory remarks to little more than a cautious, quiet salute. More resounding is the collective “phew.”

The Attaché Vol. 2 (2012)

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Door to Nowhere - Photography by Rémi Carreiro

The Unthinkable Revolution in Iran

The Attaché Vol. 2 (2012)

Book Review

The Unthinkable Revolution in Iran The following paper reviews Charles Kurzman’s book, The Unthinkable Revolution in Iran. The essay aims to offer a critique of Kurzman’s central theory: the “anti-explanation,” which is a unique attempt to abandon traditional retrospective explanations for the advent of the 1979 Iranian revolution in favour of a new framework that emphasizes revolutionaries’ perceptions of the viability of the Iranian revolutionary movement as a key factor for understanding the developments that unfolded on Iranian streets in 1979. The paper argues that Kurzman’s anti-explanation proves to be exceptionally strong, especially when applied to the deviant actions of Iran’s military officers in 1979 and when used to understand revolutions other than that in Iran, such as the 2011 Egyptian uprising. The essay then presents a major way in which Kurzman’s theory could have been enhanced. For example, instead of refuting traditional political, organizational, cultural, economic and military explanations individually, Kurzman’s argument about the inadequacies of these explanations would have been more convincing if he had provided a refutation for a combinatorial explanation which used any two or more of the above as complementary parts of a single explanation. Overall, despite being a strong contribution to the literature on revolutions, The Unthinkable Revolution in Iran is not void of some definite shortcomings.

By Javariyya Ahmad

He proposes that the perception of viability among actors in the protest movements was the surest factor that enabled the uprising to reach a critical mass.

harles Kurzman, in his book, The Unthinkable Revolution in Iran, undertakes a comprehensive analysis of the various existing explanations for the 1979 Islamic Revolution in Iran, critiquing each claim as he goes along. Subsequently, Kurzman puts forth his own framework, suitably called the “anti-explanation,” for understanding the development of the Iranian revolution. Overall, Kurzman offers a convincing account of the 1979 Iranian revolution. He proposes that the perception of viability among actors in the protest movements was the surest factor that enabled the uprising to reach a critical mass. The strength of this argument is best exemplified by the experience of defecting military officers. Moreover, the fact that Kurzman’s anti-explanation can effectively be applied to cases other than the Iranian revolution, such as the 2011 Egyptian uprising, points to the strength of Kurzman’s theory as a method for understanding “deviant” social behaviour such as protests. However, despite putting forth a solid and unique sociological approach for understanding the Islamic revolution, Kurzman’s work could have been enhanced by providing a refutation for a combinatorial explanation which would have used two or more of the political, organizational, cultural, economic and/or military explanations already mentioned in the book as complementary parts of a single explanation. This would have helped to further remove doubt about the true ineffectiveness of retrospective explanations for obtaining an understanding of the Iranian

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revolution in real time, and further convinced readers about the true need to refer to anti-explanation instead. The strength of Kurzman’s anti-explanation is highlighted by the experience of members of the Iranian armed forces who decided to forgo their loyalty to Shah Pahlavi in favour of joining the anti-Shah protest movement. Kurzman points out that citizens’ perceptions of the revolution’s viability played a significant role in generating a critical mass of oppositional protest. Although he mainly uses the general public to illustrate his point, testing Kurzman’s theory on military defectors during the revolution allows one to see that the viability thesis is so concrete that it can be applied to a group of individuals for whom, unlike ordinary civilians, joining anti-regime protests carries the almost certain risk of brutal punishment. None of the political, organizational, cultural, economic or military explanations individually offer a convincing “mechanism” that would motivate “whole units of troops...to demonstrate, in uniform, for Khomeini,” to the point that the “disintegration [of the armed forces] would be imminent.”1 Generally, the idea of deserting the armed forces to join an anti-regime movement is inconceivable, given the severe risks associated with such an action. Thus, it is hard to believe that, like civilians, thousands of officials from the Iranian armed forces would be willing to join the revolutionary movement. However, Kurzman’s viability thesis makes the likelihood of military defection seem more conceivable.

It was precisely because defecting members of the armed forces saw the anti-Pahlavi movement as viable that they were able to think the unthinkable and defect, uniform intact.

It was precisely because defecting members of the armed forces saw the antiPahlavi movement as viable that they were able to think the unthinkable and defect, uniform intact. Kurzman states that in the fall of 1978, “even military leaders planning a crackdown worried that perceptions of the movement’s popularity would undermine soldiers’ discipline.”2 The psycho-social dimension of collective action allowed large numbers of military defectors to feel relatively safe when joining anti-Shah protests. The phenomena of collective action helped to fuel the perception of the positive viability of revolutionary demonstrations and vice versa. Defecting officers recognized the safety in numbers, which would help shield them from assaults from both their own military and other protestors who looked negatively towards the pro-Shah stance of the military. Kurzman states that his anti-explanation theory attempts to “explore the unforeseen moments when patterns are twisted or broken off ” rather than “seeking recurrent patterns in social life.”3 His approach focuses on non-routine behaviour. Such behaviour was evident not only when the Iranian population rose up against the Shah, but it was especially highlighted when members of the country’s armed forces did the same; it was a much more “deviant” case for military men who had committed themselves to the service of the regime to defy the regime than it was for ordinary civilians.4 It is relatively simple for an ordinary citizen to join an anti-regime movement as a result of their perception of the positive viability of the movement, but for numerous military officers to risk their lives by joining the movement for the same reason, shows the power 9

The Unthinkable Revolution in Iran

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that the perception of viability really had in instigating a revolution that led to the fall of the Shah. Thus, although Kurzman’s theory about the significant role played by the perception of the viability of the Iranian protest movement as it applied to the general populace is convincing, the success of applying the theory to defecting members of the Iranian armed forces proves the sheer strength of Kurzman’s theory.

... one major shortcoming of his work is that it does not present, for refutation, a holistic approach that takes some or all of the political, organizational, cultural, economic and military explanations mentioned in the book and combines them as complementary parts of a single explanation.

The strength of Kurzman’s thesis is further highlighted by the fact that the anti-explanation can be used to understand revolutions other than the one in Iran. For example, Kurzman’s approach can be used to explain some of the recent uprisings that have taken place in the Middle East, namely the Egyptian revolution. Although the political, organizational, cultural, economic and military explanations presented in Kurzman’s book would offer some insight into the reasons for why the Egyptian citizenry was upset at their regime and why revolutionary protest was possible in that country, it is only the argument about the viability of the protest movement that allows one to understand how regime-toppling protests actually came about in real time. Egypt had witnessed numerous demonstrations before 2011, most of which created little change. However, what was different in late January 2011 was that Egyptians actually believed in the viability of their revolutionary movement. Having seen demonstrators in Tunisia peacefully topple their dictator, Egyptians at the end of January could at least conceive that such a thing was actually possible. Individuals in Egypt communicated their willingness to protest not only through one-on-one or small group conversations, but the mass media also played a key role in promoting the viability of the movement. For example, media sources such as Al Jazeera presented images of mass demonstrators in Tahrir Square successfully carrying out their objective of peaceful protest while the military stood idly on the side (at least initially). As Kurzman states about Iran, the threat of a repressive military crackdown was constantly in the air during the days of protest. However, it was the safety provided to demonstrators by the psycho-social dimension of collective action, combined with the display of fervour and the largesse of collective action portrayed on TV, discussed on Facebook and talked about on the streets that encouraged individuals to continue to join the anti-Mubarak protests. Although Kurzman offers an overall convincing account of the advent of the Iranian revolution, one major shortcoming of his work is that it does not present, for refutation, a holistic approach that takes some or all of the political, organizational, cultural, economic and military explanations mentioned in the book and combines them as complementary parts of a single explanation. In his conclusion to the book, Kurzman acknowledges that one solution to the problem of anomalies and inversion of cause and effect that characterize each of the political, organization, cultural, economic and military explanations mentioned in this book would be to,

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The Unthinkable Revolution in Iran

combine several or all of the explanations in a holistic analysis, like the “combinatorial,” “conjunctural,” and “contextual approaches that are becoming common in the study of revolutions and other social movements.5 However, Kurzman opts to choose a different solution, stating that “any new explanation that I might devise would also, I imagine, face significant anomalies.”6 So, Kurzman abandons explanations altogether in favour of his “anti-explanation” which “puts anomaly in the foreground.”7 Nevertheless, presenting a “combinatorial” approach and then offering an effective criticism of that approach would have added to the strength of Kurzman’s argument about the inability of retrospective explanations to effectively explain the advent of the Islamic revolution in Iran. Not presenting a combinatorial approach only helps to create doubt about the true ineffectiveness of retrospective explanations and, in turn, about the true need to refer to antiexplanation for gaining an understanding of how the revolution came about. To illustrate, one can refer to Kurzman’s economic explanation for the 1979 Iranian revolution in chapter five. In this chapter, Kurzman offers a largely unconvincing account for why the Iranian revolution of 1979 could not be attributed to economic factors. One of his main arguments is that if the condition of the Iranian economy had indeed been the main cause of the revolution, then countries similar to Iran in their economic characteristics, such as their socioeconomic position, oil exports, and with similar populations should also have experienced revolution. Kurzman attempts to show that because his comparison countries, which included Algeria, Indonesia, Iraq, Nigeria and Venezuela, did not experience a revolution, then neither economic conditions themselves nor the state’s response to economic conditions could have been the instigator of the Islamic revolution. This refutation is not entirely convincing on its own.

It is quite obvious to most individuals that in order for two countries similar in their economic standing to face the same type of mass uprising, factors other than just the economy have to play a part. This is an instance of where a combinatorial explanation could have benefited Kurzman’s assessment. For example, he could have combined his economic explanation with a political and/or cultural explanation. Thus, the countries that Kurzman used for contrast against Iran would not only have had similar economic conditions but also similar political and/or cultural conditions, making the comparison countries much more similar to Iran overall. Then, if Kurzman decided to contrast Iran with these comparison countries, his refutation about the weakness of the economic explanation in explaining the advent of the Iranian revolution would have been much more convincing. Overall, Kurzman offers a convincing account of the 1979 Iranian revolution. 11

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The Attaché Vol. 2 (2012) The strength of his proposition that the perception of viability among actors in the protest movements was the surest factor that enabled the uprising to reach a critical mass is best highlighted by the experience of defecting military officers. In addition, the fact that Kurzman’s anti-explanation can effectively be applied to cases other than the Iranian revolution, such as the 2011 Egyptian uprising, points to the strength of Kurzman’s theory as a method for understanding “deviant” social behaviour such as protests. However, despite putting forth a solid and unique sociological approach for understanding the Islamic revolution, Kurzman’s work could have been enhanced by providing a refutation for a combinatorial explanation which would have used two or more of the political, organizational, cultural, economic and/or military explanations already mentioned in the book as complementary parts of a single explanation. This would have helped to further remove doubt about the true ineffectiveness of retrospective explanations for obtaining an understanding of the advent of the Iranian revolution in real time, and further convinced readers about the true need to refer to anti-explanation instead.

The AttachĂŠ Vol. 2 (2012)

Immigration: Re-thinking the Non-Citizen

Immigration:

Re-thinking the Non-Citizen This essay examines how the use of immigration law as a counter-terrorism strategy widens the normative void of human rights of migrants. The migration-security nexus presents a theoretical crisis of reconciling human rights of non-citizens with the state prerogative to safeguard national security. The essay analyses the legal basis of preventive detention programs based on procedural inequality that arises from the categorical distinction of immigration law. The study of Charkaoui v Canada (2007) and A (FC) and Others v Secretary of State for the Home Department (2004) reveals pure and moderate dualist characters of Canadian and British jurisprudence on (in)compatibility between security-motivated deportations and the nonrefoulement principle. The comparison of security certificate schemes in Canada and the United Kingdom exposes the analytical shortcomings of dualism, monism and pluralism in conceptualizing a human rights regime for non-nationals. The justifiability of derogation claims and the divergent interpretations of the proportionality rule in Canada and the United Kingdom demonstrate the conceptual uncertainty of international human rights law. The predominance of sovereignty in immigration control creates a protection gap, in which immigration law presents a lacuna of human rights for non-nationals. This essay advocates an enhanced applicability of the nondiscrimination rule and decoupling of human rights from citizenship rights.

By Chelsea Bin Han

n the aftermath of 9/11, the vulnerability of democracies to international terrorism creates a security climate which tips the scale of civil liberty and security towards state power. Counter-terrorism policies situate the human rights of non-citizens in legal hinterlands, where sovereignty prevails.1 The migration-security nexus presents a theoretical crisis of reconciling human rights of non-citizens with the state prerogative to safeguard national security.2 The inefficacy of international human rights law on migration and citizenship attests to the under-theorization on the human rights regime for non-nationals.3 Using the analytical tools of dualism, monism and pluralism, the comparison of security certificate schemes in the United Kingdom and Canada illustrates the indeterminacy of human rights law.

The inefficacy of international human rights law on migration and citizenship attests to the undertheorization on the human rights regime for non-nationals.

This essay adopts a multi-dimensional analysis on the conceptual uncertainty of international human rights law. The parameters of this essay maximize the comparability of case studies by studying British and Canadian security certificate schemes. While the United Kingdom practiced de jure indefinite detention of alien terror suspects, as authorized by part four of the Anti-Terrorism, Crime and Security Act (2001), Canadaâ&#x20AC;&#x2122;s certificates of inadmissibility under Section 77 of the Immigration and Refugee Protection Act (2001) amounted to de facto indefinite detention.4 This essay explores the conceptual incoherence of human 13

Immigration: Re-thinking the Non-Citizen

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rights through the perspective of non-citizens whose human rights are rarely recognized. The normative void of human rights for non-nationals is filled by the sovereign discretion in immigration law. “Non-citizens” and “non-nationals” refer to a heterogeneous group of asylum seekers, refugee claimants, permanent residents, stateless persons, and migrants who lack the nationality of their current place of residence.5 Non-citizens are conceptualized as “non-persons” who lack human rights despite their entitlements by virtue of being humans.6 Although the “right to have rights” arises from the individual’s intrinsic human value, the “status of alienage” deprives their human rights.7 The conditionality of human rights on citizenship creates the paradox of international law between the progressive human rights regime for non-citizens and the sovereigntybound subjects of international law.8

The conditionality of human rights on citizenship creates the paradox of international law between the progressive human rights regime for non-citizens and the sovereigntybound subjects of international law.

The conceptual uncertainty of human rights which is confounded by the silenced rights of non-citizens and territorially-based human rights is demonstrated by the comparison between British and Canadian jurisprudence. In A (FC) and Others v Secretary of State for the Home Department (2004),9 the House of Lords ruled that the indefinite detention of alien terror suspects is incompatible with Article 14 of the non-discrimination rule of the European Convention on Human Rights and Fundamental Freedoms.10 The detainees were non-nationals who were not charged and could not be deported due to the possibility of torture or threat to life, due to the non-refoulement principle.11 In 2001, the British government issued the Human Rights Act 1998 (Designated Derogation) Order which held that the indefinite detention of non-citizens does not constitute the breach of Article 5(1) the right to liberty and security of the European Convention.12 The House of Lords annulled the derogation order by a majority of 8 to 1, upholding the principle of equal treatment of citizens and non-citizens.13 This principle was recapitulated in Canada three years later. The Charkaoui v Canada (2007)14 was a unanimous ruling by the Supreme Court of Canada which declared the unconstitutionality of security certificates. The denial of the right to a fair hearing for non-nationals violated Section 7, the right of life, liberty and security of person, in the Canadian Charter of Rights and Freedoms.15 The appellants were refugee claimants or permanent residents who were deemed to be “inadmissible” due to their suspected involvement in terrorism.16 The Court ruled that the inability of alien detainees to challenge the validity of security certificates impinged on the right to be secure from arbitrary detention and the right to be tried within a reasonable time.17 The Court’s reference to the British practice of de jure indefinite detention of non-citizens suspected of terrorism bolsters the similarity of preventive detention regimes, but their rationales for upholding the human rights of non-nationals diverge. British and Canadian courts follow different logic to arrive at the same

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Immigration: Re-thinking the Non-Citizen

conclusion on security certificate schemes. The House of Lords warns against using immigration law’s categorical distinction between citizens and noncitizens as a justification for treating foreign terror suspects differently from British nationals alleged of similar threat. On the contrary, the Charkaoui decision justifies discrimination of non-citizens based on the different treatment accorded to citizens and non-citizens in immigration law.18 The Supreme Court of Canada focuses on the rule of law and the right to a fair hearing for non-nationals, while British jurisprudence values a “human-rightsbased” perspective which emphasizes the “equality of treatment.”19 Despite the divergent legal orientations of British and Canadian jurisprudence, each of these landmark cases led to better considerations of the human rights for nonnationals. Although British and Canadian courts have reached the same conclusion of striking down preventive detention of foreign terror suspects, they have advanced divergent interpretations of the non-discrimination rule.20 The non-discrimination principle is the equal protection of human rights, without discrimination based on personal characteristics such as “national or social origin.”21 The principle has a universal application to “everyone,” regardless of the citizenship status of individuals.22 The aspiration for universality is selfdestructive without effective enforcement mechanisms. The practicality of the principle has been undermined by the inconsistency of state practice which justifies differentiated treatment of citizens and foreigners alleged of having committed terrorism.23 In British approach, the House of Lords determined that the detention of non-citizens without the possibility of release is discriminatory, considering that British nationals who pose an equivalent terrorist threat are not subjected to the same measure.24 There is “a two-track justice, whereby different human rights standards apply to foreigners and nationals.”25 The Lords equates nationals and non-nationals as “relevant comparators,” because both groups present an equal degree of danger to national security.26 British jurisprudence decoupled human rights from citizenship rights by affirming the universal applicability of the right to liberty on non-discrimination basis.

British jurisprudence decoupled human rights from citizenship rights by affirming the universal applicability of the right to liberty on non-discrimination basis.

While the United Kingdom has criticized discrimination between citizens and non-citizens in counter-terrorism policies, the Supreme Court of Canada has legitimized immigration control to address potential threats to national security from non-nationals. The Charkaoui decision justified the differentiated access to the procedural right to a fair hearing between citizens and non-citizens. The Court found that distinction does not breach Section 15 on equality rights and the non-discrimination rule of the Canadian Charter.27 The appellants challenged procedural unfairness based on nationality. Non-citizens could not appeal the judicial review of detention for 120 days, while Canadians were entitled to a review within 24 hours.28 Non-citizens could not claim equal protection before law due to the denial of the right to refute the suspicion of terrorism.29 The security certificate proceedings determine the terrorist risks 15

Immigration: Re-thinking the Non-Citizen

Unlike the minimal deference shown by the House of Lords towards the nondiscrimination norm, Canadian jurisprudence has assumed the supremacy of domestic legislation which is “omnipotent” over international human rights law.

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of detainees on a speculative basis, without the participation of the concerned non-nationals.30 The detainee’s inability to question the factual basis of the government’s allegation incurs the risk that a judge may conclude the security certificate to be reasonable based on the internal coherence of unsubstantiated evidence.31 Thus, security certificate proceedings do not provide adequate procedural safeguards for alien terror suspects who are denied of the right to a fair hearing.32 Although the denial of procedural rights to non-citizens constitutes a breach of international obligations, the Supreme Court of Canada is silent on the inconsistency between domestic law and international human rights law.33 Unlike the British judiciary’s support for the non-discrimination rule, Canada justifies procedural inequality based on the distinction between citizen and non-citizen of immigration law. These insights provide a foundation to examine the dynamics between domestic immigration law and international human rights law. The analysis of British and Canadian jurisprudence on the detention of non-nationals based on the suspicion of terrorism concerns the relationship between domestic law and international human rights. Therefore, dualism, which asserts the existence of parallel legal systems and the independence of legal authority in the domestic and international legal spheres offers a better explanation than monism.34 In the dualist framework, international human rights norms have domestic relevance through the process of “transformation,” in which international treaties come into effect after being incorporated into the domestic legislation.35 On the other hand, monism advocates an overarching legal system through the universalization of international human rights law;36 human rights are inherent and universally applicable regardless of their codification in positive law.37 The uniform legal structure presupposes a harmonized human rights regime for non-nationals.38 British and Canadian decisions on the detention of non-nationals reflect the prevailing trend of dualism. British and Canadian courts display varying degrees of dualism in their judgements on the preventive detention of non-citizens. British jurisprudence subscribes to moderate dualism in preserving the autonomy of domestic law within the parameters of the European Convention. The House of Commons may enact subsequent domestic law which may be incompatible with the Convention. Such inconsistent domestic law is constitutionally valid, although it may be a breach of international legal obligation.39 This dualist view acknowledges the separateness of the domestic legal system and international human rights law. Unlike the minimal deference shown by the House of Lords towards the non-discrimination norm, Canadian jurisprudence has assumed the supremacy of domestic legislation which is “omnipotent” over international human rights law.40 International human rights have no binding force in domestic jurisdiction before incorporation. The Charkaoui decision attests to Canada’s inclination towards pure dualism by rejecting any international

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Immigration: Re-thinking the Non-Citizen

human rights norms in balancing the value conflict between human rights of non-citizens and national security. Instead, the Court looked inward to evaluate the compatibility between the security certificate scheme and the Canadian Charter. The Court neglects the possible breach of a right to “a fair and public hearing” of article 14(1) of the ICCPR, although it recognized the violation of that same right under section 11 of the Charter. The Charkaoui decision and A case reveal the state-centric assumption of dualism which undermines the conceptual coherence of international human rights law. Dualism contains conceptual weaknesses in advancing the human rights regime for non-nationals. The artificial division between the international and domestic legal spheres implies the disposability of international human rights norms if it conflicts with domestic law. The assertion of self-contained domestic law may license the evasion of state responsibility for the breach of international human rights law. The dualist character of British and Canadian courts weakens the conceptual integrity of international human rights law. British and Canadian courts identify the purpose of balancing individual human rights with national security in accordance with the principle of proportionality.41 The proportionality rule concerns the reasonableness of means used to achieve an end, in the trade-off between public safety and rights of alien terror suspects.42 The House of Lords required “proportionate justification”43 for the differentiated treatment of human rights, while the Supreme Court of Canada reiterated the criteria of proportionality “between the effects of the infringement and the importance of the objective.”44 While the Lords specified that the derogation from the right to liberty and security of Article 5(1) of the European Convention be proportional to the pursuit of national security, the Supreme Court emphasized that the infringement of the procedural right to a fair hearing be proportional to the end of achieving public safety. Judiciaries in Britain and Canada advanced different means to proportionality in ensuring the common goal of national security.

The dualist character of British and Canadian courts weakens the conceptual integrity of international human rights law.

Pluralism can explain the divergence between British and Canadian jurisprudence in balancing the human rights of individuals and national security. Pluralism questions the hierarchy of “incommensurable” values due to the incomparability of human goods.45 Pluralism supposes “indeterminacy in human rights adjudication,” because the bargaining act between the human rights of non-nationals and national security is a political consideration that challenges the notion of judicial impartiality.46 As Lord Scott claims in Re A, this balance is “political,” because the judiciary has exercised discretion in making a “political” judgement of balancing between procedural rights for noncitizens and the security imperative of a state.47 The pluralist approach clarifies the “interpretive conflicts” which arise from the dissonant conceptualizations of international human rights norms.48 Contrary to the monist aspiration for universality, differing interpretations of the proportionality rule in Canada and the United Kingdom reveal the fragmented nature of international human 17

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rights law.

The detention of non-nationals in the pursuit of national security presents a theoretical challenge to immigration law as a last stronghold of sovereignty.

The Lords’ consideration of the proportionality principle regarding derogation undermines the monist claim of universally “absolute” human rights.49 Derogation absolves state responsibility for the breach of its legal obligations. The temporary release from legal obligations allows states to exercise “extralegal measures” such as the indefinite detention of non-nationals without the conclusive determination of their terrorist activity. Soft law promotes the universality of human rights while preserving the contradiction in the hierarchy of rights and the justifiability of derogation. This underscores the indeterminacy of the law which fails to bridge the normative gap between the self-referential nature of international human rights and state practice. The parallel look at Canadian and British jurisprudence about the infinite detention of alien suspected terrorists exposes the theoretical shortcomings of dualism, monism and pluralism in conceptualizing a human rights regime for non-nationals. The timeliness of the Charkaoui decision (2007) and A (FC) and Others v Secretary of State for the Home Department (2004) signifies common security challenges that confront states in the post-9/11 security climate. The shift of referential object of human rights from the state to the individual advances “radical individualization,” which seeks to sever human rights from citizenship rights.50 The detention of non-nationals in the pursuit of national security presents a theoretical challenge to immigration law as a last stronghold of sovereignty.

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NAFTA: Domestic Environmental Policies

NAFTA:

Domestic Environmental Policies In North America as in Europe, free trade agreements have been shown challenging to operate and maintain. The North American Free Trade Agreement, or NAFTA, is one such agreement with a long history of controversies and confrontations. As such, and in light of recent events around the world, including in the European Union, it is worth looking at some of these confrontations more closely. The following chooses what is perhaps the most controversial chapter of NAFTA (Chapter 11) to showcase a splinter of the sorts of conflicts that can emerge when countries fail to realize the ramifications of an arranged international agreement. While the outrage generated by such agreements is often justified this is not the case here regarding the investor rights contained within Chapter 11 vis-à-vis domestic environmental policy. In fact, despite disputes both domestically and internationally the following contends that even controversial agreements such as Chapter 11 can act to inhibit policymakers from surreptitiously passing off, in this instance, nationalistic economic policies under the pretense of environmental policy. This challenges domestic policymakers to be clearer in their intentions and more secure in their choices should they wish to support environmental policy. As such, conflict between international and domestic policies need not be a zero-sum game.

By Scott Moore

n January 1st, 1994 the North American Free Trade Agreement (NAFTA) came into effect. With it came a controversial set of investor rights provisions referred to chiefly by the chapter of the agreement in which they occurred: Chapter 11. Of the many debates this chapter has sparked one of the most inciting is with respect to the rights Chapter 11 affords foreign investors. Often, it is contended by environmentalists that Chapter 11 was, and still is, particularly dangerous to the environment since it provides foreign firms with new avenues to dispute domestic environmental policy. With particular attention to the kinds of environmental policies that have gone through the investor-dispute system, the following seeks to show that this enmity is largely unsubstantiated. 1 That is, Chapter 11 of NAFTA – rather than harm environmental policymaking domestically – challenges domestic policymakers in North America to be clear in their intentions and more secure in their choice should they choose to support environmental policy.2

Often, it is contended by environmentalists that Chapter 11 was, and still is, particularly dangerous to the environment since it provides foreign firms with new avenues to dispute domestic environmental policy.

To properly examine the harm caused by Chapter 11 vis-à-vis the environment one must first understand what the chapter is about. Chapter 11 aims to secure the rights of investors in a NAFTA signatory country – referred to as a party – when they make an investment with another party. Here, investment refers to Foreign Direct Investment (FDI) and myriad other international investment strategies. For example, an exchange of the physical property of an enterprise 19

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between two parties would be arbitrated via NAFTA.3 In order to protect such a deal, Chapter 11 provides an adjudicative arm through which investors can make claims against a party they believe has violated their rights. Of the rights parties have, a few are of specific importance here: To properly examine the harm caused by Chapter 11 vis-à-vis the environment one must first understand what the chapter is about.

Article 1102: National Treatment National treatment requires that the party receiving investment gives that investment, and the investor, treatment “no less favorable than it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.”4 Article 1105: Minimum Standard of Treatment The ‘minimum standard’ of treatment is designed to prevent “unjust treatment that is non-discriminatory,” essentially requiring that a party provide the ‘better’ of the treatment options available in relation to Article 1102, and refers to the minimum customary standards of international law regarding “fair and equitable treatment.”5 Article 1106: Performance Requirements Performance requirements are those requirements that can and cannot be placed on an investment. This includes export requirements, levels of domestic content, restricting sales, and demanding transfers of technology. This does not restrict parties from demanding that investor use a certain technology (e.g. a technology to reduce steel plant emissions) so long as the demand is consistent with 1102 (i.e. it is a standard practice in the signatory country receiving investment). Similar considerations apply for measures necessary to “protect human, animal, or plant, life or health” or “conserv[e]…living or nonliving exhaustible natural resources.”6 Article 1110: Expropriation and Compensation Expropriation in this context means that “[n]o party may directly or indirectly nationalize or expropriate an investment of an investor of another party in its territory or take a measure tantamount to nationalization or expropriation of such an investment.”7 If expropriation occurs, compensation should be awarded to the expropriated party. Exceptions to this article exist if it can be shown that the expropriation was: “for a public purpose; on a non-discriminatory basis; in accordance with due process of law and Article 1105(1); and on payment of compensation in accordance with paragraphs 2 through 6.”8

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NAFTA: Domestic Environmental Policies

Purported Harm to Environmental Policymaking By analyzing past cases under Chapter 11 it should become clear what kind of policies have been at stake and what kind of policies may be at stake in the future. From this vantage point, environmental harm can be assessed. The four cases herein have been selected for their relevance. Three have been selected to show a policy’s primary goal was not environmental, and consequently it was not upheld under NAFTA. The fourth shows, in contrast, that an environmental policy will be upheld by NAFTA. The list of cases is as follows: Metalclad, Corp. v. United Mexican States, Ethyl Corp. v. Government of Canada, S.D. Myers v. Government of Canada, and Methanex v. United States of America.

Metalclad Corporation v. United Mexican States In 1996, the US Corporation Metalclad filed a notice of intent to arbitrate against Mexico for complications that resulted in a refusal to allow Metalclad to build a hazardous waste landfill in an area of limited population (70 kilometres away from the municipality of Guadalacalzar in the state of San Luis Potosi.)9 In brief, Metalclad claimed that it bought Corterin – a company using the desired space as a hazardous waste transfer facility – after Corterin was assured by the federal government that they would be able to build a landfill for said waste on the same site. Metalclad bought the company, and the municipality informed Metalclad shortly thereafter that they would require a municipal permit. Having petitioned for the permit, the federal government assured Metalclad that it was just a formality, and as such Metalclad continued building the site. Concurrently, Metalclad drafted an agreement with the Mexican Federal Attorney’s Office for the Protection of the Environment (PROFEPA) and Mexico’s National Ecological Institute (INE) that informed Metalclad of changes that would allow them to meet environmental standards. Despite this understanding between Metalclad and the federal government, Metalclad was denied its municipal permit and, soon after the area surrounding the site was declared by the governor of San Luis Potosi to be a Natural Area for rare cacti. This effectively prevented Metalclad from running the facility regardless of whether the changes called for were made. As such, Metalclad argued Mexico violated investor rights under Articles 1102, 1105, 1106, and 1110. Occasionally scholars bring up the Metalclad case as a testimony to the dangerous determinations Tribunals can come to under Chapter 11, pointing to the decision to qualify the Ecological Decree as a measure tantamount to expropriation.10 These accounts fail, among other things, to assess the disparity between the actions of the Mexican federal government as compared to the municipal and state levels of government. It is clear from the facts of the case that PROFEPA and INE supported Metalclad enough to determine what would allow the site to operate, and even before that Metalclad was assured it would have the permits it needed by the federal government. On the grounds of these

Occasionally scholars bring up the Metalclad case as a testimony to the dangerous determinations Tribunals can come to under Chapter 11, pointing to the decision to qualify the Ecological Decree as a measure tantamount to expropriation. These accounts fail, among other things, to assess the disparity between the actions of the Mexican federal government as compared to the municipal and state levels of government.

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clearances it seems reasonable to conclude that Metalclad was in good faith expecting to be able to operate in Mexico.

It was only in 2004 that “The Waste Law” was drafted in order to better regulate the treatment and disposal of hazardous waste. That the decree was environmental rather than, perhaps, political, is at the very least unclear.

Certainly then Metalclad had a case, but what of the Ecological Decree as policy? First, as noted above two prominent environmental organizations, PROFEPA and INE supported Metalclad under certain conditions. If there truly was an environmental problem it was not clearly communicated prior to this incident between the Mexican federal government and governments at the state and municipal levels. Had it been an urgent issue, there is no apparent reason that of all times the decree would have been contemporaneous to Metalclad’s dispute. Secondly, Metalclad’s facility is still not running, and Mexico still has a massive waste problem to solve. In 1996, Frieda Diaz Barriga noted that “in Mexico about 90% of the hazardous waste is not treated adequately.” In fact, it was only in 2004 that “The Waste Law” was drafted in order to better regulate the treatment and disposal of hazardous waste.11 That the decree was environmental rather than, perhaps, political, is at the very least unclear.

Ethyl Corporation v. Government of Canada In the same year as Metalclad, Ethyl Corporation filed its notice of intent to arbitrate against the Canadian government. As the sole Canadian producer and distributor of ‘methylcyclopentadienyl manganese tricarbonyl’ (MMT) – a fuel additive used to increase the octane levels in unleaded gasoline – Ethyl took issue with Canada’s Bill C-29. Bill C-29 banned the “importation of, and inter-provincial trade in” MMT, aside from those cases where it [was] not used for gasoline.”12 Since Ethyl produced MMT in Virginia, the ban “ensured the removal of MMT from all Canadian gasoline.” Ethyl Corporation cited Articles 1102, 1106 and 1110 as having been violated. It should be noted that scientific evidence on MMT was rejected on the understanding that “while high doses of airborne reparable manganese are known to be toxic, the environmental and health impacts of low-dose, longterm exposure are unknown.”13 Two other points should be made: First, as Kyla Tiahaara notes, citing David A. Gantz, “MMT did not meet the requirements for prohibition under the Canadian Environmental Protection Act (CEPA);”14 and second, a 2003 study suggests that well after the case the effects of chronic exposure to MMT from gasoline were uncertain, while acute exposure is of course known to be dangerous.15 Of course, banning a chemical that could potentially be found harmful seems fair, but prima facie it is strange that CEPA had no restriction on it. Further, a domestic objection to the ban was brought by Canada’s Agreement on Internal Trade (AIT). After the settlement that was eventually agreed to by Ethyl, with agreement from the AIT, that the MMT ban was unnecessary.16 More importantly (in fact central to the whole case), is that Canada banned the trade of MMT.17 This qualified as a violation of Article 1102 for good reason:

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NAFTA: Domestic Environmental Policies

Canada had the option to ban MMT outright and instead chose for a method that would allow for intra-provincial use. Why this option would not be the first on the table seems in principle more economic than environmental. The eventual settlement was for USD 13 million, and a public announcement that there was no basis for stating MMT was harmful to the environment.

S.D. Myers, Inc. v. Government of Canada Two years later, S.D. Myers Incorporated (SDMI), a waste treatment and disposal company, filed its notice of intent to arbitrate under Chapter 11 in response to Canada’s 1995 requirement that Polychlorinated biphenyl (PCB) be treated and disposed of in Canada.18 The requirement occurred at the same time as a decision by the United States Environmental Protection Agency (EPA) allowed the border to open for PCB imports. 16 months later, a US federal court ruled that the allowance of imports violated the “Toxic Substance Control Act” and closed the border once again.19 SDMI claimed that during this period where Canada’s export ban coincided with US allowance of imports, there was a violation of 1102, 1105, 1106, and 1110. Under Article 1102, by having Canadian market share, SDMI was an investor in ‘like circumstances’ with Chem-Security – an Alberta based waste treatment and disposal company – being unfairly discriminated against. Canada argued against this determination on the grounds that it had to evaluate whether or not it could export PCBs for treatment and disposal without coming into conflict with its obligations under the Basel Convention, which regulates the trans-boundary movement of hazardous wastes.20 The Basel Convention would not have to be considered for Chem-Security, creating an apparent ‘unalike circumstance’. The above reasoning fails to account for the fact that the government, in taking 16 months to decide whether or not the border opening would be consistent with the Basel Convention, was negligent in its reading of the convention. The convention only requires that a party “ensure the availability of adequate disposal facilities, to the extent possible, within its own boundaries.”21 With this in mind, Chapter 11 had clear legal priority. The dubious reasoning given by one Canadian environmental official is also worth noting: that “the handling of PCBs should be done in Canada by Canadians,” an idea which to Sanford E. Gaines is strongly suggestive of a national bias.22 Further, as Gaines notes, Chem-Security had in fact written a letter to the minister of the environment “urging a quick Canadian response to the US opening of the border.”23

What is perhaps most curious about the situation is that Canada’s environmental policy in this case was (as in the case of Metalclad) contrary to environmental interests.

What is perhaps most curious about the situation is that Canada’s environmental policy in this case was (as in the case of Metalclad) contrary to environmental interests. SDMI’s Ohio site was closer to waste locations by the Great Lakes than was Chem-Security. In fact some academics, such as shipping law expert Professor Simon Baughen, suggest that “Canadian PCB owners,” unable to use 23

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SDMI, would “have chosen to hang onto the waste” instead.24

What distinguishes the Methanex case from the others is that it won by demonstrating that the eventual goal of the legislation was to prohibit the use of all gasoline oxygenates instead of just MTBE (whereas Canada was unable to prove that the ban was on all producers of MMT).

Finally, the border opened in 1997 after it had been determined that the Basel Convention – at the end of the 16-month period SDMI disputed – could be consistent with Canada’s export of PCBs.25 It was shortly after this that the US border was closed due to inconsistencies with domestic disposal laws, with a final cost of CDN 6.9 million to Canada.26

Methanex Corporation v. United States of America In 1999, the Canadian company Methanex – a methanol producer – filed its notice of intent to arbitrate after California governor Gray Davis issued an executive order to phase out methyl tertiary butyl ether (MTBE) – an oxygenate using methanol that was originally used to reduce carbon monoxide emission, but whose usefulness had diminished as emission control technology improved.27 The reason for the phase-out was largely due to the fact that MTBE was still soluble in groundwater and could be expected to seep in, contaminating local water supplies and by consequence harming local populations. In addition, the California Environmental Policy Commission concluded that the environmental impacts associated with ethanol as an oxygenate would be much less than those paired with the use of MTBE as they worked to phase out oxygenates all together.28 The banning of MTBE in California was said to violate Articles 1102, 1105, and 1110. The US opposition told a cautionary tale, echoing literature on Chapter 11 and the dangers of regulatory chill. As quoted by Tiahaara, “Methanex’s case is founded on the proposition that, whenever a State takes action to protect the public health or environment, the State is responsible for damages to every business enterprise claiming a resultant setback in its fortunes if the enterprise can persuade an arbitral tribunal that the action could have been handled differently. Plainly put, this proposition is absurd. If accepted by this Tribunal, no NAFTA party could carry out its most fundamental governmental functions unless it were prepared to pay for each and every economic impact occasioned by doing so.” Some claim this is exactly what has happened as evinced by some of the other cases herein.29 However, there are distinctions to be made: The Methanex case suggests that, analogously, had Canada been able to ban MMT outright in the case of Ethyl Corp. v. Canada it might well have won the support of the Tribunal. What distinguishes the Methanex case from the others is that it won by demonstrating that the eventual goal of the legislation was to prohibit the use of all gasoline oxygenates instead of just MTBE (whereas Canada was unable to prove that the ban was on all producers of MMT).30

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Finally, with respect to Article 1110 the tribunal in this case noted that, “nondiscriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alia, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.”31 This interpretation is crucial considering that so long as the regulatory measure is consistent with the first three exceptions under Article 1110 it is not subject to the fourth (compensation). One can see how this relates back to Metalclad – no part of the Californian government had suggested Methanex would be able to sell MTBE in California when it began doing so.32 There was no good faith. In fact, Methanex even failed to show it was in competition with ethanol producers, which it would need to be since methanol – in and of itself – is an illegal oxygenate under California law.33 And so, Methanex was required to pay USD 3 million.34

Putting It All Together In three of the four above cases, governments were force to remove environmental policies that were found to be in violation of NAFTA’s Chapter 11. Let’s review: In the case of Metalclad, there seemed no reason to believe the Ecological Decree was in any way better than allowing conditional operation as outlined by PROFEPA and INE. This is especially true in light of the fact that there was need for hazardous waste disposal. In addition, the conflict between federal, state, and municipal governments suggests that the federal government was not committed to the decree. Similarly in the Ethyl case, conflict between Alberta and the federal government, and moreover that the ban was on trade alone, suggest perfectly viable –and perhaps more agreeable – environmentally oriented policies were available. In the case of SDMI the environmental policy in light of statements made, and considering the relative leniency of the Basel Convention, was the more nationalistic, and perhaps also the less environmentally friendly policy option considering the potential for PCB holding mentioned by Baughen. Finally, in the case of Methanex, the US government’s environmental policy was maintained, principally because unlike the other three policies it was on all levels consistent.

In the case of Methanex, the US government’s environmental policy was maintained, principally because unlike the other three policies it was on all levels consistent.

All of this is not to say that there has been no damage done but that the costbenefit here is positive. The inter-provincial ban on MMT, for example, is likely better for the environment than no ban at all considering its potential dangers. The key here is that the environment is often being used as a tool to promote other agendas. The main restriction Chapter 11 seeks, in light of the cases above, is to stop these other agendas from piggybacking on ostensibly environmental policies. Of course, since Chapter 11 creates obligations for 25

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both signatories and investors, there is necessarily a different division of rights than existed previously. Foremost, Chapter 11 necessarily limits domestic policy options – chiefly when those options have a protectionist quality. The question is then whether governments will be willing to make more ‘airtight’ environmental policies in order to overcome these limitations. In order for environmental policy to have any meaningful impact in the long run these are precisely the policies that need to be promoted. Otherwise, environmental policies, and any other policies that require tough choices, will only be made when it is convenient.

Cases like Methanex suggest that if regulatory chill does exist it reflects unsubstantiated fear from policymakers more than a Chapter 11 ice age. This is good news considering that greater commitment from policymakers, and greater transparency in policymaking, environmental or otherwise, is then a real possibility.

Regulatory Chill Alternatively, some in and outside of government suggest that Chapter 11 imposes limitations because governments cannot know what kind of environmental policies are ‘airtight’. Consequently, governments refrain from making such policies altogether.35 Thus, abstention from environmental policymaking is said to be because of the governmental inefficiency that would occur from driving forward doomed policies. On this account it is not convenience, but calculated pragmatism that drives what is referred to as regulatory chill. This account of regulatory chill is not without criticism. Julie Soloway notes, “the literature supporting the contention that regulatory chill does exist is largely anecdotal and has not been adequately substantiated.”36 Tienhaara also advises that it should not be suggested “regulatory chill occurs in all cases,” positing that even where it does occur it is often entangled with the idea of ‘political cover’, where governments excuse themselves from making environmental policy, claiming their hands are tied thanks to agreements like Chapter 11.37 It is difficult to tell whether one, both, or neither of the above motivations are in play, but based on the evidence from the cases above, ‘political cover’ at least exists, and Chapter 11 seeks to mitigate its impact. Further, cases like Methanex suggest that if regulatory chill does exist it reflects unsubstantiated fear from policymakers more than a Chapter 11 ice age. This is good news considering that greater commitment from policymakers, and greater transparency in policymaking, environmental or otherwise, is then a real possibility.38

Concluding Thoughts There are a limited number of environmental cases that have been put through the Chapter 11 arbitration process, and even these cases do not provide particularly convincing evidence that Chapter 11 is necessarily harmful to environmental policymaking. Rather, it seems that arbitrators are willing to uphold environmental policies that can be shown to be legitimate and nondiscriminatory. While this may prevent certain environmental policies that are de facto protectionist, as was perhaps most problematic in the Ethyl case, there are sometimes alternatives that should be explored which are of equal or 26

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greater positive environmental consequence, and more clear in their intent. Further, it is not clear that regulatory chill exists. If it does, there is good reason to suggest that it has more to do with the policymakers than it does with Chapter 11 in consideration of the fact that other (non-protectionist) environmental options are available. As well, the massive number of environmental policies that have been enacted that have not brought a Chapter 11 dispute (i.e. how few cases there are) are themselves a testament to the fact that the environment is not the main issue here. On the whole then, it is important to be wary of international agreements but to condemn them is not always justified. As has been argued here, international policy can work synergistically to promote commitment and transparency in domestic environmental policy. Certainly, Chapter 11 is not optimal â&#x20AC;&#x201C; no policy is. However, Chapter 11 is just one example in which conflict between international and domestic policy is not necessarily a zero-sum game.

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Rolling Mountains, Infinite Sky - The Great Wall, China - Photography by Daisy Qin

Venice of the East (Xi Tang) - China - Photography by Daisy Qin 28

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The 45th Parallel: After 9/11

The events of September 11th, 2001 prompted many changes in the international system and Canada had specific vital interests to reconsider when dealing with its southern neighbor, quite notably, with regards to the North American Free Trade Agreement. NAFTA was an arrangement that sought to increase free trade and reduce the thickness and backlogs at the respective North American borders. This paper assesses if the events of September 11th, 2001 should change our assessment of NAFTA. It considers the entirety of the agreement from January 1st, 1994 to the present and specifically reflects on merchandise trade statistics between Canada and the United States by method of transportation. The evidence shows that increased security has had no negative impact on trade between the two countries. Rather, the inconsistencies in the trade data can be attributed to external market forces. The paper adds to the overall debate in international relations between guns and butter and concludes that when push comes to shove, trade trumps security.

he security-trade dynamic has inevitably become a hot topic since September 11, 2001. As the United States has refocused its security policy concentrating on Homeland Security, the question of whether new security measures will affect trade arises. To answer the question, this paper will begin by first defining the analytical perspective that it takes. Having defined this approach, the methodology behind the general argument is discussed. A brief overview of new security measures put in place after September 11, 2001 places the argument in context and then the empirical data is analyzed.

By Dale Payne

Overall, the relationship between trade and security should not change our assessment of NAFTA after September 11, 2001.

In short, I will argue that overall, the relationship between trade and security should not change our assessment of NAFTA after September 11, 2001. The empirical evidence reveals that the major forces affecting this economic partnership can be explained outside the framework of the security-trade dynamic.

Approach to the Question To begin, I need to limit the scope of my approach and define how I will interpret this question. I will analyze the NAFTA relationship from January 1, 1994 onwards. In considering NAFTA, I am only interested between the Canada-US relationship because of the importance that each country has on the other. Both nations are respectively the other nations largest trading partner. Particularly, I am most concerned with how Canada has been able to 29

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maintain its economic presence in the United States despite tightening security measures on the US domestic front.

Assessing How to Evaluate NAFTA in the 9/11 Context It is clear that the events of September 11, 2001 changed the security dynamic in the global system and more importantly in North America. Immediately, the United States restructured its administration to deal with the possibility of future attacks on its homeland. In turn, Canada was forced to restructure its side of the border to assure the United States that Canada would not pose future security risks upon its southern neighbor. There was a clear distinction between the responses taken by both nations. For the United States, the emphasis to its response was on homeland security. For Canada, in reaction to the border blockade on September 11, future economic prosperity was the main concern. Canada needed to reassure the United States that its own security measures were up to par so that trade between the two nations would not be affected.

For Canada, in reaction to the border blockade on September 11, future economic prosperity was the main concern. Canada needed to reassure the United States that its own security measures were up to par so that trade between the two nations would not be affected.

To answer the question of whether or not the relationship between trade and security should change our assessment of NAFTA after 9/11, we must understand NAFTA based on a holistic approach – from January 1st, 1994 to the present. Therefore, to argue that the relationship between trade and security should change our assessment of NAFTA after September 11th, 2001, we must prove that the last ten years and two months of the relationship (September 2001 – November 2011) is fundamentally different than that of the first seven years and 9 months of the relationship (January 1994 – September 2001). If we are going to argue the opposite, then we must prove that there is a continuant trend in the trading relationship that is seamless from the beginning of the agreement to the present. Or, if a noticeable change in the relationship exists, we must identify if it is temporary or is it persistent. If it is persistent, then the change in the relationship must by identified as a result of something other than the security-trade dynamic. Likewise, if the change is temporary, we must assess what caused this hiccup – security or some other phenomenon.

The New Security Relationship Central to the issue is what exactly is the new relationship between trade and security that had emerged after September 11, 2001. To answer the question, the administrative and legal adjustments within the United States and Canada must be understood. Having studied the new security environment that has emerged, whether this precipitated a change in the NAFTA relationship is put into context: Did an attempt to improve security on the continent come at the expense of trade? If trade as been affected, should the security-trade dynamic be interpreted as the cause? I will review the most notable aspects of the American response to the events

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of September 11 first, and then analyze the notable Canadian response. I choose this order because it brings to light the unilateral US approach, and the reactionary Canadian response.

The American Response The most immediate US response to the 9/11 attacks was the closure of its borders and airspace within minutes after the attacks had occurred. This resulted in substantial traffic line-ups at each of the US borders and the need for Canada to accommodate air traffic and accept US bound flights within its territory.1 An administrational response precipitated soon after. The Department of Homeland Security (DHS) was officially established in 2002 by the Homeland Security Act. In essence, the main function of the DHS is to coordinate a national approach to Homeland Security that seeks to eliminate the threat of a foreign attack on US soil. Despite being heavily criticized as large and inefficient, the DHS is no doubt the largest reorganization of government agencies since the Second World War.2 A third important US response to the 9/11 attacks is the Patriot Act 2001. This legislation is specifically noteworthy because it has been strongly criticized in the United States as having eroded civil liberties and due process before the law for both US and non-US citizens.3 Considering its historical commitment to individual freedom, the Patriot Act is a prime example of how far the United States is willing to go to guarantee its own security within its national boundaries. Lastly, and of specific concern for Canada, was the media response to the 9/11 attacks. The media had been extremely critical of Canadian immigration policy portraying Canada as a haven for terrorist considering its multicultural identity and perceived lax immigration policy.4 The comments of Hilary Clinton who initially speculated that the 9/11 terrorist hijackers had entered the United States through Canada aggravated the situation. Despite excessive Canadian government efforts to eradicate this myth, even as late as 2009, Janet Napolitano the chief of US Homeland Security still suggested that the Hijackers had entered the US through Canada. Even though Napolitano corrected this assertion, the US culture concerning Canada would still perceive to indicate that Canada poses serious security risks for the United States, especially where cross border traffic is concerned.5 In 2001-2002 alone, US border agents were increased by 300 percent along its northern and southern borders.6

Considering its historical commitment to individual freedom, the Patriot Act is a prime example of how far the United States is willing to go to guarantee its own security within its national boundaries.

The Canadian Reaction From the Canadian perspective; the response was initially not very distinct from the American response. As a member of NATO, Canada immediately committed itself to a military response after NATO had initiated Article V, 31

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which stipulates that an attack against one member is an attack against all members of the organization. Canada thereby volunteered its troops to serve in Afghanistan under US command.7 Essentially, the United States has militarized its Homeland Security structure by creating a top-down chain of command and by extending to this structure increased methods of policing and enforcement.

Secondly, and similar to the Patriot Act, Canada established an anti-terrorism legislation of its own – The Anti-Terrorism Act which became law in December 2001. The Act sought to “deter, disable, identify, prosecute, convict and punish terrorist groups,” and also to provide new investigative tools in terms of law enforcement and national security agencies.8 Having established moral, political and military support, high on the agenda for Canada was to come up with a solution to cross border traffic. The Smart Border Program, a bi-national initiative, was introduced in December 2001 to increase information sharing between Canadian and US agencies and also brought about Integrated Border Enforcement Teams to police and patrol the Canada-US border. Also FAST was introduced, a program that identified frequent and low risk cross-border commercial truck transport, and NEXUS was introduced to identify frequent and low risk citizens traveling back and forth across the border.9

Assessing the New Relationship Between Trade and Security United States What the US response to 9/11 indicates is that the United States will go to far lengths in order to protect its security interests at home. Its initial response was to eliminate accessibility to the international community through land and air, before restructuring its administration in an effort to centralize domestic intelligence and enforcement under a single umbrella, and to extend to this structure increased authority to investigate, search and detain suspects that posed security risks. Criticism aside, as a byproduct of this new institutional approach, by centralizing many agencies under one department pushes power upwards. This means that information can be relayed more effectively from the executive head of government, to the Chief of Staff, and then to her subsequent departments (see figure 1 on the next page). Essentially, the United States has militarized its Homeland Security structure by creating a top-down chain of command and by extending to this structure increased methods of policing and enforcement. This increased power is not only used against US citizens, but also for foreigners. Considering immigration and border enforcement falls under this structure, Canada is directly affected.

Canada In assessing Canada’s reaction to the US approach, we can see that Canada 32

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first sought to reassure the United States that it supported its campaign against terrorism and that terrorism would not be tolerated by Canada not only towards itself, but also towards its neighbor. Canada demonstrated this through the military support to the US led force in Afghanistan and by legislating antiterror laws. Having shown support towards the United States, and through the effort to demonstrate that Canada would not pose a security risk for the United States, Canada then turned back to its major national interest that had been effected by the 9/11 attacks â&#x20AC;&#x201C; trade. Where the United States took a unilateral and militaristic approach to the terror threat, Canada sought to act in concert with its neighbor as a means of reassurance and then turned to the issue of trade. Whereas the US reaction would indicate Homeland Security as the major priority, the Canadian response indicates economic stability as the major priority.

Empirical Trends To identify whether or not the new security dynamic has affected the trading relationship between Canada and the United States, the empirical evidence must be analyzed. In analyzing the empirical evidence, the central questions of this paper must be answered. All findings are derived from Table 1, which summarizes merchandise trade (the trade in goods) between the United States and Canada by method of transportation. All values are in millions of US dollars.

Is there a seamless and continuant trend in the trading relationship that can be observed from the beginning of the NAFTA agreement until now? To answer the first question, in analyzing the merchandise trade statistics from 1995 to 2009, overall trade has significantly increased, from US$ 261 billion in 1995, to US$ 400 billion in 2009. Each year from 1995 onwards, total trade consistently increases until 2001 where it drops by about seven percent from the year before. In studying between the columns of 2001 and 2002, total trade decreases again by approximately two and a half percent in 2002. Thereafter, overall trade increases each year until 2008 where there is a sharp decline in 2009. Also noteworthy is that exports to the United States, and imports from the United States follow this general pattern as well.

Primarily, trade has increased overall from 1995 to 2009. However, it has not done so fluidly. Three noticeable reductions in trade emerge in the years from 2000 to 2001, 2001 to 2002 and, 2008 to 2009.

The data exposes several trends in the relationship. Primarily, trade has increased overall from 1995 to 2009. However, it has not done so fluidly. Three noticeable reductions in trade emerge in the years from 2000 to 2001, 2001 to 2002 and, 2008 to 2009. In assessing the first question, we can conclude that there has not been a seamless trading relationship that is consistent from 1995 to 2009.

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Figure 1: Department of Homeland Security Organizational Chart

SECRETARY DEPUTY SECRETARY

SCIENCE & MANAGEMENT TECHNOLOGY

NATIONAL PROTECTION & PROGRAMS

POLICY

Chief Financial Officer HEALTH AFFAIRS

TRANSPORTATION SECURITY ADMINISTRATION

OPERATIONS

INTELLIGENCE COORDINATION & ANALYSIS & PLANNING

EXECUTIVE SECRETARIAT

GENERAL COUNSEL

LEGISLATIVE AFFAIRS

PUBLIC AFFAIRS

INSPECTOR GENERAL

CITIZENSHIP& IMMIGRATION SERVICES OMBUDSMAN

CIVIL RIGHTS & CIVIL LIBERTIES

CHIEF PRIVACY OFFICER

COUNTERNARCOTICS ENFORCEMENT

U.S. SECRET SERVICE

FEDERAL EMERGENCY MANAGEMENT AGENCY

U.S. COAST GUARD

INTERGOVERNMENTAL AFFAIRS

FEDERAL LAW ENFORCEMENT TRAINING CENTER

DOMESTIC NUCLEAR DETECTION OFFICE

U.S. CUSTOMS & BORDER PROTECTION

U.S. CITIZENSHIP & IMMIGRATION SERVICES

U.S. IMMIGRATION & CUSTOMS ENFORCEMENT

Source: www.dhs.gov/xabout/structure/index/shtm

Chief of Staff

MILITARY ADVISOR

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Did the new security dynamic create a change in the trading relationship between Canada and the United States after September 11, 2001 and if so, is it persistent? In assessing the second question, clearly the new security measures post-9/11 could not have affected the reduction in trade from 2000 to 2001, but could it have affected the reduction in trade from 2001 to 2002? To answer this question, analyzing the aggregate sum of trade by method of transportation will shed light on how new security measures affected the overall trading relationship. In looking at rail, road, water, and air transport, for the first three categories mentioned, when comparing the year 2000 to 20001, overall trade stays about the same by rail, and actually increases (although slightly) for road and water transport. Air transport is most affected, overall trade decreasing by a significant amount, about twenty percent. To reevaluate the trading relationship between Canada and the United States as perceived through a security lens that the post-9/11 world has created, the evidence indicates that overall, the two countries did quite well in maximizing the flow of goods between one another in the face of new security threats. Overall reduction in trade, when comparing the year 2001 to 2002, is significantly less then than the reduction in trade from 2000 to 2001 when security was not a major issue of concern. Specifically, in rail, road and water transport, overall trade by these methods either stayed the same or increased despite a net reduction in overall trade. This indicates that enhanced border security had little influence to impede traffic flow for these methods. Also to evaluate Canadaâ&#x20AC;&#x2122;s performance against the United States when facing tightening security measures in the US domestic front, Canada did well. Net exports to the United States only decreased by a factor of about three percent from 2001 to 2002. Compared to 2000 to 2001 where Canadian exports decreased by a factor of about six and a half percent, this is not substantial. Canada was able to maintain or increase exports to the United States by means of rail, road and water transit indicating that tighter US security measures were overcome within these transportation methods.

To reevaluate the trading relationship between Canada and the United States as perceived through a security lens that the post-9/11 world has created, the evidence indicates that overall, the two countries did quite well in maximizing the flow of goods between one another in the face of new security threats.

The data would indicate that there was no fundamental change in the trading relationship between Canada and the United States despite new security measures put in place after September 11, 2001. The overall trend of the relationship reasserts itself from 2002 to 2008 â&#x20AC;&#x201C; that of increasing aggregate trade. Therefore where we may conclude that enhanced security measures may have affected the trading relationship between Canada and the United States in 2002, we cannot conclude that it was very significant or that enhanced security was a persistent force in reducing total trade in the context of the overall relationship form 1995 to 2009. Further, enhanced US domestic security did not impede Canadian exports to penetrate the market; net exports steadily rose from 2002 until 2008. 35

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Table 1: Canadian Merchandise Trade With the United States 1995-2009 (Millions of US Dollars)10

Sources: Transport Canada. Economic Analysis Directorate, adapted from Statistics Canada International Trade Data (Ottawa, Ont.: 2010). US/Canada Exchange Rates (Yearly average) 1990, 1995-96: International Monetary Fund. International Financial Statistics Yearbook, 2001. US/Canada Exchange Rates (Yearly average) 1997-2009: Bank of Canada Website on Exchange rates (Ottawa, Ont.: 2010). Accessed through: The North American Transportation Statistics Database (http://nats.sct.gob.mx/nats/sys/tables.jsp?i= 3&id=27)

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Moving to the next section, to reevaluate the trading relationship between Canada and the United States, two inconsistencies in the relationship must be assessed: the reduction of trade from 2000 to 2001 and from 2008 to 2009 must be evaluated.

If there are inconsistencies in the empirical evidence of the trading relationship, what was the cause, and did it continue to affect the overall relationship? The reduction in trade in 2001 and 2009 can be explained by market factors that lie outside the security-trade dynamic. Although the empirical evidence may suggest that the decrease in trade from 2001 to 2002 may have been a result of tighter security measures, understanding the total reduction in trade that had occurred from 2000 to 2001 and 2008 to 2009 (where total trade decreased at a much steeper pace) will bring about a deeper understanding in what actually influences market forces that can be explained outside the context of the security-trade dynamic. The first contraction in trade that emerged in 2001 can be understood as the bust in the information technology (IT) sector. Investment in IT boomed in the 1990s and plunged in 2001. This was partly the result of a perceived shift in the global economy. The way in which people understood business had changed, businesses sought growth by investing in computers, communications equipment and software. Therefore an emphasis had been placed on the IT sector. This resulted in businesses heavily investing in IT, increasingly so until late 2000. However, expectations on the rates of return began to decrease and business shied away from investment in the sector11. As investment decreased, much of the economy that had been centered on this industry was affected, bringing down the entire economy as a result.

The reduction in trade in 2001 and 2009 can be explained by market factors that lie outside the security-trade dynamic.

The second contraction in trade that emerged in 2009 can be explained in the form of the global financial crisis which stemmed from the US subprime mortgage fiasco. In short, as interests rates had become increasingly reduced, and government put pressure on institutions to extend loans to individuals with low credit ratings in the form of mortgages, a global financial crisis was created. This happened as individuals were granted mortgages from banks who in turn packaged the debt along with other types of debt (government, consumer, and corporate debt) and sold it in financial markets. It was considered safe because of false assumptions made on the real-estate market that home prices would always rise. As home prices began to decline across the United States in dramatic fashion, and as individuals defaulted on their mortgages, the consolidated debt that had been traded in financial markets was no longer safe as the insurance policy which had made the purchase of debt appealing â&#x20AC;&#x201C; that home prices always increased â&#x20AC;&#x201C; was no longer true. The mortgaged debt was worth less than it was at the purchased price, which lowered the price of consolidated debt purchases creating turmoil in international financial institutions because 37

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banks across the world had participated in what was essentially this “subprime” mortgage market.12

Conclusion

What the two major recessions in 2001 and 2009 expose is that the trading relationship between Canada and the United States is most responsive to market forces rather than security factors that are interpreted as barriers to trade.

After evaluating Canada-US economic relations within the context of the greater NAFTA agreement, the empirical evidence indicates that the new security relationship that had emerged after September 11, 2001 should not change the way in which we assess NAFTA in terms of Canada-US economic relations. Clearly the terrorist attacks on the United States had a profound impact. The United States tightened domestic security whereby Canada was forced to respond by reassuring the United States that it had Canada’s military and political support. As a result of the restructuring of domestic security, Canada and the United States implemented joint policing agencies and programs at the border to improve security while trying to impede trade as little as possible. Analyzing the empirical data reveals that the two nations were largely successful. Although net trade reduced from 2001 to 2002, it did so to a far lesser extent then trade reduction between 2000 and 2001, and between 2008 and 2009. Further, Canadian exports to the United States were negatively affected but again, to a small extent. Notably, trade between Canada and the United States with respect to rail, road and water transport actually increased between 2001 and 2002, and similarly, Canadian exports to the United States followed the same trend indicating that these transport methods were not negatively affected in light of a tightened security environment. What the two major recessions in 2001 and 2009 expose is that the trading relationship between Canada and the United States is most responsive to market forces rather than security factors that are interpreted as barriers to trade. Finally, in consideration of future research on the topic, an interesting statistic that stands out in the empirical data is the phenomenon of the decreased reliance on air transport as a proportion of total trade, and a decreased reliance on air transport as a proportion of Canadian exports to the United States. A study in airport security may reveal some interesting findings that may help to explain this trend and its effects on the overall trading relationship.13

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Regulated Sovereignty: Canada and the W.T.O.

Regulated Sovereignty: Canada and the W.T.O

This paper discusses how Canada’s political economy is negatively affected by the creation and implementation of the World Trade Organization’s (WTO) dispute mechanism. It deals with (1) what the WTO dispute settlement mechanism does, (2) how the General Agreement on Trade in Services (GATS) relates to the WTO dispute settlement mechanism, (3) issues on service policy creation for the Canadian federal government, (4) issues on service policy creation for the Canadian provincial governments, and (5) possible solutions for the protection of service policies and promoting trade liberalization. It also includes a case study which explains how service policy can be disciplined by trade commitments. Canada’s healthcare services could face such discipline. The final section deals with a possible solution which will help states to protect their service industry while continuing to promote trade liberalization.

oth levels of Canadian government face a new challenge in their policymaking abilities. As globalization grows, Canada, like most states, has become more integrated with the international trade system. In terms of economics, this means that Canada has adopted and internalized the norms contained within the World Trade Organization (WTO). The General Agreement on Trade and Tariffs (GATT) of 1947 acted as the first agreement, which created norms for international trade. It helped to create a more advantageous trade environment for the United States by “universalizing American norms… so that all member countries would deregulate their publicsector service industries and open them up to foreign competition.”1 As Canada’s economy has evolved, we find ourselves no longer reliant on industrialization as a major source of growth. Canada is beginning to deindustrialize, a process in which a state begins to move away from the manufacturing sector and shifts towards the tertiary sector, the provision of goods and services. The General Agreement on Trade in Services (GATS) acted to expand the norms of GATT and the WTO into the policy area of services. The World Trade Organization’s dispute settlement mechanism is the instrument in which the obligations contained in GATS can be enforced by its member states.

By Janis Robins

The World Trade Organization’s dispute settlement mechanism is the instrument in which the obligations contained in GATS can be enforced by its member states.

In this essay, I will demonstrate how the dispute settlement mechanism prevents both the federal and provincial governments from making effective policy in the service sector. First, I will examine what the WTO dispute mechanism is, including its creation and implementation. Second, I will explain how the WTO in combination with the General Agreement on Trade in Services (GATS) has affected policy making at both the federal and provincial levels of government. I will use healthcare as an example of the challenge states face in 39

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terms of the WTO and GATS. I will conclude by explaining how the WTOâ&#x20AC;&#x2122;s dispute settlement mechanism could be tailored in order to protect sectors of national interest while promoting trade liberalization.

World Trade Organizationâ&#x20AC;&#x2122;s Dispute Settlement Mechanism

If a state is found to be in violation of the GATS agreement, it must change its policies in order to accommodate other states even though their policy may have had a national goal.

The World Trade Organization Dispute Settlement Mechanism was created to be the judicial arm of the WTO. The Dispute Settlement Understanding (DSU) gives this body the power to decide on legal disputes, which pertain to trade. The General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS) are the documents, which use the dispute settlement mechanism to resolve member state disputes.2 This mechanism has two steps, which states must follow in order to receive binding resolution. States must first go to a panel to have their claim heard; these proceedings have strict time limits and allow the participation of NonGovernmental Organizations (NGOs).3 If either member state is dissatisfied with the ruling, the case goes to an Appellate Body, which has the ability to overturn rulings, rather often opting to amend the first panel decisions.4 This judicial action allows the efficient solution of trade disputes and it also supervises the enforcement of resolutions. Article 22 of the DSU gives the WTO Dispute Settlement Mechanism the power to authorize actions against a member state if they fail to make concessions.5 This mechanism seems to be an efficient tool for international trade regulation; it had 300 cases brought to it from 1995 to 2003, all of which have been resolved .6 It is also seen as a legitimate adjudicator of trade related dispute because the states, which use this mechanism, agreed upon its creation, framework, and goals.7 The problem is that the dispute settlement panels do not take into account non-trade factors. When resolving GATS disputes, this concern is an especially relevant criticism. The major downfall of the resolution mechanism is that even though states may be making policy in good faith, the dispute settlement bodies do not take into account to differences in national system.8 If a state is found to be in violation of the GATS agreement, it must change its policies in order to accommodate other states even though their policy may have had a national goal.

The General Agreement on Trade in Services (GATS) The General Agreement on Trade in Services (GATS) is an agreement, which expanded the norms of the GATT and WTO into the sector of services. This reached beyond the traditional trade sectors covered by the GATT and beyond cross border services. There are four modes articulated in Article I of the GATS, which regulate all areas of trade. They include cross border trade in services; consumptions of services abroad; commercial presence of services; and temporary presence of natural persons.9 40

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The articles of the GATS, which are subject to the WTO dispute settlement mechanism, begin in Article II. The general commitment in Article II, the Most Favoured Nation Treatment, states that a “Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country”.10 If a state creates a policy which treats foreign service suppliers less favorably than a domestic supplier of like services, then the foreign supplier’s state may make a complaint which if found valid would result in the state in violation changing their policy. Part III of the GATS includes the specific commitments, which a member state has to the other member states. Article XVI guarantees Market Access, which states that “each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule.”11 The schedule is based upon the United Nations Central Product Classifications (CPC) and allows states to make specific commitments about trade access. This schedule also commits member states to secure national treatment. Article XVII, National Treatment, states “each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.”12 These scheduled commitments, in addition to the other commitments made in Article XVIII, have ensured that member states are committed to treating other member states fairly. If states believe that another member state has violated either the general or specific commitments, they can make a complaint to the WTO dispute settlement mechanism. If this complaint is found to be valid, the state will have to change their policy to make sure that they are following their commitment. There are two types of complaints, which can be made in the WTO dispute settlement process. Using Article XXIII of the GATS, states can claim that there has been a violation, if the state “fails to carry out its obligations or specific commitments under this Agreement…”13 States may also have nonviolation complaints, which allow a state to complain to the WTO dispute settlement mechanism. A state can bring a non-violation claim if “any benefit it could reasonably have expected to accrue to it under a specific commitment of another Member under Part III of this Agreement is being nullified or impaired as a result of the application of any measure which does not conflict with the provisions of this Agreement…”14 The non-violation complaints allow a state to make a complaint if they reasonably believe that a benefit which they could have obtained may have been prevented. These commitments ensure that member states are committed to economic integration and further openness of trade in services but are also extremely restrictive. The violation or possibility of violation of these commitments can trigger a dispute settlement in which the state, if found in the wrong, will have to change its errors or face

If a state creates a policy which treats foreign service suppliers less favorably than a domestic supplier of like services, then the foreign supplier’s state may make a complaint which if found valid would result in the state in violation changing their policy

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the punishments for not making the needed concessions. The combination of the WTO dispute settlement mechanism and the GATS regimes restrict state policy on services. The GATS and the WTO dispute settlement mechanism make it possible for other states to violate Canada’s sovereign right to make policies. The Canadian federal government has the responsibility to uphold their obligations towards the agreements.

Issues on Service Policy creation for the Canadian Federal Government The GATS and the WTO dispute settlement mechanism make it possible for other states to violate Canada’s sovereign right to make policies. The Canadian federal government has the responsibility to uphold their obligations towards the agreements. The Vienna Convention, Article 27, states that parties to the convention must not use their domestic legislation in order to ignore the requirements of an international treaty.15 Also, the federal government must abide by the “federal clause” in the GATS. Article VI, Domestic Regulation, states that “each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.”16 This means that states must implement the requirements of the agreement without taking exception to national considerations. This relates back to the dispute mechanism acting as an impartial body who do not take into account the national considerations involved in the dispute. The federal government is obligated to follow through on their treaty commitments even if doing so would mean that national policies can be disciplined. The instrument, which the federal government can use in order to shield the intrusion of these rules, is the exemption clause. GATS, Article XIV, General Exemptions, which works on the schedule principle, allows member states to exempt certain service sectors from the general and specific commitments. A state can defend its policies using this article. However, the burden of proof rests on the defendant member state to demonstrate how this exemption will omit them from the commitments they scheduled in GATS.17 Although, this article can act as a protection from WTO dispute settlement disciplines, the federal government faces another challenge in creating policy on trade in services. Since the Canadian government is not a unitary state, it must deal with the provincial governments. In the case of services, the federal government cannot ignore the input of the provincial government.

Issues on Service Policy creation for the Canadian Provincial Governments The Canadian provincial government has a large stake in trade in services. Based on the British North America Act of 1867, the provincial and federal governments share jurisdiction on some of the largest service sectors subject to GATS.18 The provinces have recognized their role in international trade as Ontario, Quebec and Alberta have international trade promotion offices and missions.19 As these service sectors become more integrated in the international 42

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economy, the provinces have taken a larger role in international trade. Even though s.91(2) of the BNA Act gives the federal government jurisdiction in regulation of trade and commerce and s.132 gives the federal government the ability to enter into international agreements however, they do not have the right to ratify agreements subject to provincial jurisdiction. The precedent for this was established in 1936. The Labour Conventions case stated that the federal government could not implement and ratify international labour commitments because the labour sectors were within provincial jurisdiction.20 As of 1990, eight of the Canadian provinces spent more money on international trade promotion than did all of the states in the U.S21. The Canadian provinces have taken an active role in international trade but do not have any power to negotiate the obligations and rights contained in international trade agreements. This dilemma creates tension between the federal and provincial government because the federal government is obligated to follow through on its commitments but cannot secure that these commitments will be ratified by the provinces. The federal and provincial governments have two choices when it comes to this dilemma. They can choose to cooperate, which would entail the federal government consulting the province before they agree and sign international agreements like GATS. The other solution is to act competitively, that is, to use the ‘peace, order and good governance’ (POGG) clause in the Constitution in order to push agreements through. The precedent for this is the Crown v. Zellerbach case. In this case, the federal government used its POGG powers in order to intervene in provincial jurisdiction for “national concern”.22 The provinces can also attempt to resist the obligations within GATS but the federal government has committed to following its’ treaties. Even though the WTO dispute settlement mechanism and the GATS have intruded into what was once sovereign choice23, Canada needs to take advantage of the liberalized trade in order to enhance its own economy. The federal and provincials governments should be cautious in giving away too much of its sovereignty or else it will lose control of their internal decisions like the features of their welfare state.

The Canadian provinces have taken an active role in international trade but do not have any power to negotiate the obligations and rights contained in international trade agreements.

Case Study: Canada and Healthcare in the WTO Canadian healthcare services fall under provincial jurisdiction. The Canadian health care system reflects a public single payer model and has become one of the most popular policies in Canada. Maioni stated “A commitment to publicly funded, universal health insurance remains a hallmark of the Canadian health care system…”24 The services provided publicly to Canadians could be subject to the GATS agreement and a complaint in the WTO. Although, Canada’s health care system has been split between public funding, in the hospital and doctor care, and private funding, in prescription medicines, there has been a 43

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If GATS increases the market access then an increased number of member state service providers who provide private health care services might be able to creep further into the public sector service. This could potentially undermine the careful balance provinces have in providing healthcare and the relationship the provinces have with the federal government.

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balance struck between these two areas. If GATS increases the market access then an increased number of member state service providers who provide private health care services might be able to creep further into the public sector service. This could potentially undermine the careful balance provinces have in providing healthcare and the relationship the provinces have with the federal government. Canada is a large importer and exporter of health care services, which means that on the supply side, Canada could increase its market share of services using the GATS and WTO dispute settlement. The issue is that Canada and its provinces and territories would be obliged to reciprocate the market access to Canada’s healthcare regime, although technically there is no rule that says you must.25 Using Article XVI of GATS, other member state service providers could gain market access, which creates more competition. The Canadian federal government would be bound to implement this market access through the domestic regulation clause, Article VI, in the GATS. If the federal government refused to change Canadian policies, then actions of retaliation could be authorized by the WTO dispute settlement mechanism. On the other hand, if the federal government does implement these reforms, it would be facing thirteen provincial and territorial governments, with different healthcare policies, telling them that they must change policies, which are outside the federal jurisdiction. The federal government could try to shield healthcare services in two different ways. First, it could list healthcare services within Article XIV, General Exemptions, which would take health care services off the table. This approach has not been accepted, as it would prevent Canada’s health service providers from exporting their services to other states. Conversely, the federal government actually has made specific commitments of market access to healthcare services such as health information, building cleaning, food services and public health insurance under GATS financial services.26 The second approach Canada, which the federal government has adopted, is to rely on the reading of particular clauses to exempt Canada’s health care services. Article I (3) of the GATS is the Exclusion Clause which states that services which are supplied by government authority which “means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.”27 are not subject to implementation. This could be applied to healthcare services as Canada has a publicity funded system however not a completely public system with a mix of public/private funding.28 Defenders of this method could also use Article XIX which states “The process of liberalization shall take place with due respect for national policy objectives…”29 Since health care is a national policy objective, it may be shielded from market access however, the Appellate Body in the WTO dispute settlement mechanism rules on disputes based on economic liberalization rather than taking into account the system of regulation of different nations.30 Although, Canada has not been subject

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Regulated Sovereignty: Canada and the W.T.O.

The issue with this solution is that it puts the WTO panel in a position in which it must consider the national circumstances of every state involved rather than focusing on creating decisions, which are consistent with liberalized trade.

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to any disputes about health care services, it provides fertile ground in which the federal government could be caught on a slippery slope with Canadian healthcare. If GATS is able to penetrate healthcare care services, other member states could interfere with the sovereign decisions made by the provincial and federal governments.

Solutions for Protecting Service Policies and Promoting Trade Liberalization While researching this topic, I discovered a couple different solutions for the problem of WTO dispute settlements in services and intergovernmental relations. The first proposal dealt with issues of disciplining sovereignty at the WTO dispute settlement level. Gaetan Verhoosel suggests that the dispute settlement panel should conduct an ‘Integrated Necessity Test’, where they would determine if the policy, which allegedly violated GATS, was a legitimate policy. If it is a legitimate policy then they could test whether it was a ‘necessity’ for the state to create this policy.31 This approach would assist in solving this dilemma as it forces the dispute settlement mechanism to shift the burden of proof off of the state in question. By shifting the burden, the dispute settlement mechanism allows the state to justify its policy decisions before finding them in violation of their GATS commitments. This would also make the dispute process more transparent. The issue with this solution is that it puts the WTO panel in a position in which it must consider the national circumstances of every state involved rather than focusing on creating decisions, which are consistent with liberalized trade. Article 3 of the Dispute Settlement Understanding (DSU) states “The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system…”32. If the dispute settlement mechanism took into account every circumstance, it would not be able to fulfill its duties in a timely and efficient manner. The second proposal for this dilemma is advanced by John Whalley. He suggests that the WTO disciplines and other agreements such as the GATS would be applied at a subnational level.33 All the norms and scheduling of commitments found in the WTO dispute settlement mechanism and the GATS would be applied to the provincial governments directly except for tariff maintenance. Whalley believes that this approach would incorporate the provinces that have jurisdiction on services, while allowing liberalized trade to continue. This approach would improve on the Agreement on Internal Trade (AIT), which failed because of its broad internal trade commitments.34 This suggestion would give provinces more say in international trade but may cause even more tensions between the levels of governments. Although, some provinces could integrate well into the market, smaller provinces would be left out due to their inequalities. This would cause tension between provinces and throw the federal government back into the middle of this issue. This proposal also gives no real power to the provinces because in exchange for

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opening up their policies to scrutiny, they could not make any international agreements as the federal government has jurisdiction over this power under s.132 of the Constitution. Whalley suggests at the end of his proposal, that this idea is “sketchy in form” but should not be taken as a specific remedy.35 This dilemma is an actual problem, which could have serious consequences for the sovereignty of the Canadian state.

Conclusion This paper has argued that Canada’s political economy is negatively affected by the creation and implementation of the World Trade Organization’s (WTO) dispute mechanism in relation to the General Agreement on Trade in Services (GATS). Focusing on the area of trade in services, I have demonstrated how the WTO and GATS has impacted Canada’s ability to make federal and provincial policy in this area. The disciplines imposed by the WTO’s dispute settlement mechanism have the ability to undermine Canada’s autonomous policy decisions. In turn, this is weakening Canada’s sovereign right to act in order to promote its own economy. I believe that there is a solution, which could work to solve this issue. I think that the WTO dispute settlement mechanism and the GATS are agreements, which do efficiently promote trade liberalization however this should not be at the expense of federal and provincial governments who may be making policy in good faith. My solution would be to amend the GATS negotiation of specific trade commitments where states can enter into negotiations at any time in order to change a commitment so that it does not act as a tariff binder on the state. If there is an issue with a service under the provincial jurisdiction, they should work with the federal government so that there is a reasonable protection. This may promote better relations among the levels of government and negotiation before litigation among the international member states. It is difficult to predict the extent to which WTO dispute settlement mechanism and GATS will continue to be the force which disciplines sovereignty as our trade and economies become more integrated internationally.

I think that the WTO dispute settlement mechanism and the GATS are agreements, which do efficiently promote trade liberalization however this should not be at the expense of federal and provincial governments who may be making policy in good faith.

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Triangle Man - Photography by Rémi Carreiro

Rails - Photography by Josh Bezemer 48

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Photo Submissions

A Night In Philly - Photography byJosh Bezemer

Cold War Secrets

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Cold War Secrets:

The Success of Soviet Espionage into the Manhattan Project Soviet espionage related to the Manhattan Project is historically misunderstood as an achievement of sophisticated infiltration techniques. In reality, Soviet nuclear spying was never the concentrated, professional effort that the West envisioned. The agents recruited by the GRU and NKVD were highly successful with regard to both the volume and sensitivity of the intelligence they collected, but this does not reflect excellence in the Soviet espionage apparatus. The success of Soviet spying in the Manhattan Project was due to the exceptional quality and ideological motivation of the agents who offered their services to Moscow.

By Jim Robson

The father of the Soviet atomic bomb, Igor Kurchatov, confessed that the intelligence gathered by ENORMOZ agents was of “tremendous, i n e s t i m a b l e importance,” and believed that the stolen information allowed the creation of the Soviet bomb “much earlier than thought possible by our scientists.”

This essay begins by describing how the established recruitment techniques of the GRU and NKVD were rendered ineffective by the changing circumstances of the late 1930s. Stalin’s purges of his own intelligence apparatus, along with wartime information controls, were among the factors that left the Soviet Union unprepared to extract nuclear intelligence from its allies. This essay then details the unconventional recruitment process of the most significant Soviet spies in the Manhattan project, and proves that these agents were Communist sympathizers who approached Soviet intelligence services of their own volition. These agents were responsible for the success of Soviet nuclear espionage, rather than any institutional excellence.

oviet infiltration of the Allied atomic bomb program during World War Two was a clear espionage victory for the USSR. Soviet intelligence officers referred to this espionage by the code name ENORMOZ, a name which accurately reflects the significance of the operation: by early 1945, Soviet spies were keeping Moscow abreast of developments in the Manhattan Project within months of their occurrence. The father of the Soviet atomic bomb, Igor Kurchatov, confessed that the intelligence gathered by ENORMOZ agents was of “tremendous, inestimable importance,” and believed that the stolen information allowed the creation of the Soviet bomb “much earlier than thought possible by our scientists.”1 A single agent, Klaus Fuchs, asserted that his own reports had accelerated the Soviet atomic test by “several years.”2 The excellence of the Soviet espionage into the Manhattan Project forces the question: which elements of this espionage led to its success?

In the past two decades, new sources of academic material have shed light on this subject. In the mid-1990s, Western researchers for the first time had access to Russian archives containing details of both the civilian (NKVD) and military (GRU) Soviet intelligence services.3 The American government also declassified the contents of the VENONA project.4 The VENONA documents are decrypts of the telegrams sent by Soviet spyhandlers in the US to their 50

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superiors in Moscow, and in combination with the Soviet archival material give new depth to research into atomic espionage. The public not only learned of spies who had never previously been exposed, but also learned the details of how the NKVD and GRU recruited their atomic agents. This essay will argue that the success of the infiltration does not lie in the structural or technical aspects of the Soviet intelligence organizations; Soviet espionage into its alliesâ&#x20AC;&#x2122; atomic program was a victory for the Soviets due to the quality of the agents who volunteered, unprompted, to provide information to their intelligence services. A look at the evolution of Soviet intelligence in the 1930s and early 1940s demonstrates the unreadiness of the Soviet intelligence agencies for major military and industrial espionage on their allies when war began in 1941. The beginnings of an intelligence gathering operation in the US began with the US Communist Party (CPUSA), which the USSR pressured in the early interwar years to begin espionage activities.5 Soviet leadership was eager for diplomatic and military secrets from the US.6 This ad hoc espionage was unprofessional and depended almost solely on personal connections; the head of the CPUSA underground faced the difficult task of gathering useful intelligence from first generation Soviet immigrants with little access to classified information.7 Three events in the 1930s changed the intelligence gathering landscape for the USSR. First, the US officially recognized the USSR in 1933, which permitted the Soviets to open an embassy in Washington and consulates in other cities.8 These outposts became intelligence hubs and were a source of order for their otherwise chaotic espionage.9 The second event to benefit the USSR was the New Deal, which took effect in 1936. The New Deal created a great number of civil service jobs over the next three years which were often filled by young, radical Americans. Many of these new employees held romantic notions of the USSR.10 The Depression had a strong influence on public opinion, and some perceived the USSR as more progressive than the US during the hard economic times of the 1930s.11 Naturally, given the access these government workers could have to sensitive information, this group was targeted for espionage recruitment by CPUSA.12 The third event to aid Soviet intelligence gathering was the rise of Hitler and the Nazis. Many potential recruits were frightened by German power and aggressiveness, and the Soviets exploited this fear by playing up the USSR as a bastion against the spread of fascism.13 By 1936 the GRU, which controlled Soviet espionage in the US, had taken advantage of these beneficial circumstances and built up an impressive network of informants.14

This ad hoc espionage was unprofessional and depended almost solely on personal connections; the head of the CPUSA underground faced the difficult task of gathering useful intelligence from first generation Soviet immigrants with little access to classified information.

By 1941, the favourable conditions of the 1930s had evaporated by a combination of strategic moves by both the USSR and the US. The first change was the devastating purge Stalin initiated in the NKVD and GRU from 1936 to 1939. Stalin, fearing that Western influences had pervaded his networks and corrupted them, called home many agents for torture and executions.15 The purpose of intelligence gathering changed from a quest for information 51

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The lack of information on the US during the early years of the war is a testament to how poorly Soviet intelligence had adapted to its new circumstances. The conventional methods of recruitment no longer worked...

The Attaché Vol. 2 (2012) to an attempt to expose and eradicate all those who were considered enemies of the people.16 By 1939, very few agents remained and the leadership of the NKVD and GRU had been decimated.17 To add to the confusion, the NKVD in 1938 wrestled the American spy networks from the GRU.18 The second change was the US government’s increased concern for domestic security. President Roosevelt had learned from the German Anschluss with Austria and the invasion of Czechoslovakia in 1938, as Hitler had softened both countries by working with their Nazi sympathizers.19 The US by the beginning of the war had established clear laws for government secrets, and designated which departments had the responsibility for counterespionage.20 International mail, the preferred method of CPUSA to communicate with Moscow, was censored.21 The final blow to Soviet intelligence was the 1939 Molotov-Ribbentrop Pact, which CPUSA was forced to support and alienated many of the Soviet sources who held anti-fascist convictions.22 Soviet intelligence in the US was in shambles when the Nazis invaded the USSR in 1941. Leadership had been turned over, communications had been cut, and recruitment was no longer possible with the relatively laissez-faire methods of the 1930s. The Manhattan Project could not have been breached with the existing US networks without the fortuitous recruitment of a few very valuable spies, and it is with these agents that credit for the success of ENORMOZ must lie. The following sections will explain the prewar recruitment techniques used by the NKVD and GRU, analyze why these techniques failed during the war, and then on a case-by-case basis examine the most significant spies of ENORMOZ and their support of this paper’s thesis. The lack of information on the US during the early years of the war is a testament to how poorly Soviet intelligence had adapted to its new circumstances. The conventional methods of recruitment no longer worked, of which two such methods are worth mentioning. The first was developed by Arnold Deutsch, a man credited with establishing the first semblance of order and professionalism in Soviet intelligence recruitment.23 Deutsch developed his method in the 1930s by what came to be the NKVD’s stock-in-trade technique: the targeting of young, high achieving students with socialist leanings.24 This style of recruitment was successful in the 1930s because there was no urgent need for information; spies could be recruited while still at university and then gradually work their way into positions of power. Any communist connections during their school days could be regarded as the passing interest of youth.25 This recruiting style was ineffectual for recruitment when the information needed was time-sensitive or specific, as most information was during the war. In addition to this first method, agents in the 1930s were also recruited by the NKVD or GRU by searching through CPUSA or other national Communist Party membership lists, identifying possible agents, and then pushing station chiefs to recruit these members.26 There were a number of reasons why this method yielded no results for atomic espionage. First of all, it was used very

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sparingly; the purge of 1936 to 1939 had been to cleanse the Party of Trotsky’s followers, and for Stalin there was no guarantee that the members of CPUSA could be trusted.27 Second, many of these spies were paid mercenaries, especially those in industrial espionage.28 As the war progressed, it became ever harder for the NKVD to find money to pay their agents.29 Third, CPUSA members did not make ideal spies because of their communist affiliation; communists fell under suspicion during the latter stages of the war and CPUSA was infiltrated by the FBI. The Soviets were aware of this, to the extent that the NKVD had a running joke that the only members of CPUSA who paid their dues on time were those on the US government payroll.30 CPUSA was largely kept separate from ENORMOZ as a result of these concerns.31 No reliable methods of recruitment meant an initial lack of intelligence on US nuclear research. No American sources were able to provide information on the bomb until 1943. In fact, the trail to the Manhattan Project began through the British, when in 1941, through a British spy, the NKVD learned of the joint US-UK Maud Report on the possibility of atomic weapons.32 Klaus Fuchs soon afterwards became the Soviets’ first atomic spy, and his recruitment is instructive in demonstrating how external factors, as opposed to any Soviet skill in recruitment, contributed to his cultivation. Fuchs was raised in Germany by staunchly communist parents.33 After Hitler’s rise to power, the family was persecuted for their Quaker religion and socialist beliefs, resulting in the suicide of Fuchs’ mother.34 After a violent confrontation with police while campaigning for a Communist candidate in 1933, Fuchs fled to England.35 Once war broke out, Fuchs was briefly interned in Canada, but once returned to England he was hired at a gaseous diffusion plant in England with access to nuclear secrets.36 Germany’s 1941 invasion of the USSR reinforced Fuchs’ anti-fascist beliefs; Fuchs was convinced of the Soviets’ victimhood and approached the Soviet embassy by his own volition to volunteer his services.37 Fuchs became a gold mine for the Soviets. One of the early obstacles to the Soviet atom bomb was the method by which weapon-grade uranium was separated from the lower quality material; Fuchs supplied the information which convinced the Soviets to abandon their centrifuges in favour of gaseous diffusion.38

No reliable methods of recruitment meant an initial lack of intelligence on US nuclear research. No American sources were able to provide information on the bomb until 1943.

Fuchs became even more valuable after the 1943 Agreement Relating to Atomic Energy between the US and the UK, in which the two countries agreed to share all atomic research.39 Fuchs was sent to America where he gained unprecedented access to the Manhattan Project. Fuchs was eventually transferred to Los Alamos, the most secretive nuclear site, and was privy to the most sensitive information; unlike American scientists, the British were allowed to view information on all divisions of the Project.40 Fuchs’ crowning espionage achievement was a February 1945 report on the plutonium bomb and the implosion detonation device pioneered at Los Alamos.41 53

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Hall was a young, radical, brilliant communist, and by his own initiative gave vital information to the Soviets.

The Attaché Vol. 2 (2012) Fuchs undoubtedly changed the course of the Soviet nuclear program by providing intelligence of greater sophistication than that provided by any other agent.42 And yet, Fuchs was not actively sought out by the Soviets and in fact fell into their laps when he volunteered himself at the Soviet embassy. Fuchs was motivated purely by his desire to help the side he felt was morally right; he refused payment when it was offered to him by the NKVD after years of spying.43 Fuchs’ transfer to the US was a stroke of good fortune that the Soviets had no part in engineering. The pipeline of information that Fuchs provided was certainly not opened nor enhanced by Soviet intelligence services. The first American atomic spy was likewise practically handed to the Soviets. Codenamed MAR, the spy made contact with a Soviet consulate in 1943 through a female liaison, providing general information on the atomic program and specifics of the plutonium bomb and the American atomic reactors.44 MAR never intended to reveal himself to the Soviets; the NKVD found him through the identification of his liaison.45 MAR professed to the NKVD that he was motivated by the desire to prevent the US from having a nuclear monopoly.46 Two facts indicate MAR’s truthfulness; first, MAR’s attempt at anonymity shows that he never sought compensation, and second, scientists in Los Alamos often condemned the consequences and the morality of keeping the USSR, an ally, in the dark about the bomb.47 MAR seems to have been genuine. The final major spy in the Manhattan Project likewise volunteered for service. Theodore Hall was a brilliant physicist, studying at Harvard and graduating at the age of 18.48 Hall was hired to work on the implosion device for the plutonium bomb at Los Alamos a year later.49 Despite not holding CPUSA membership, Hall was a fervent communist who believed in the ideal of the Soviet workerpeasant state.50 He feared the US would be an unsettling influence on the postwar world, and trusting only the USSR to be a significant counterweight, approached the NKVD through a friend who was a member of CPUSA.51 The NKVD was taken aback by the sudden appearance of such a valuable source, and ordered CPUSA to investigate.52 Once he had gained the NKVD’s trust, Hall was the first to provide information on the implosion device, and reported the success of the first atomic bomb test at Alamogordo.53 Hall was a young, radical, brilliant communist, and by his own initiative gave vital information to the Soviets. Two cases at first glance appear to be exceptions to this trend. The first was the atomic spy known as FOGEL in Soviet communications. Unlike Fuchs, Hall, and MAR, FOGEL was a long-time member of CPUSA, and during the war he spied within Kellex, a company that manufactured equipment and materials for the Manhattan Project.54 However, despite FOGEL’s CPUSA credentials and technical skill, he was not actively recruited by the NKVD. He approached the New York branch himself before joining Kellex, asking the head of the NKVD science and technology division which job would make him most useful for the Soviets.55 In 1945, FOGEL was offered a transfer to a highly secure atomic

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facility, likely Los Alamos, but declined the transfer on a variety of personal grounds, including the concern that his acceptance would arouse suspicion.56 The case of FOGEL indicates that while his recruitment had a semblance of the previous NKVD technique of recruitment from CPUSA, FOGEL was not sought out and was a less than desirable spy. As with MAR, FOGEL has never been identified. David Greenglass, the second apparent exception, was a mechanist who worked in Los Alamos and provided intelligence on the implosion device.57 Greenglass and his wife, who acted as his courier, were part of the Communist Youth League as teenagers and were therefore known to the NKVD prior to their espionage activities.58 Although Greenglass was a valuable source on a range of technical details and was actively recruited by the NKVD, his case does not conform to 1930s-style recruitment; he was pursued not by the NKVD directors in Moscow but by his own brother-in-law, Julius Rosenberg.59 Rosenberg knew of Greenglass’ communist bent through personal interaction, not Party records, and thus this exception fails to hold up under scrutiny.60 As a final demonstration of the failure of the Soviets’ previous recruitment techniques, the NKVD’s most infamous recruitment attempt using a traditional method was a failure. In 1943, with intelligence coming from the British side but not the Americans, the NKVD was determined to build up its network of atomic spies in the US.61 Their main target was J. Robert Oppenheimer, the Manhattan Project Director and a communist sympathizer; he had given money to CPUSA in the past and his wife and brother were members.62 Oppenheimer confessed to having been directly approached by the NKVD and GRU, and the evidence indicates that he refused the Soviet overture.63 Oppenheimer had access to all research conducted in the Manhattan Project and had he been a spy, the Soviets could have completed a bomb years before their eventual test in 1949.64 ENORMOZ was unquestionably an intelligence victory for the USSR. Stalin had initially believed that the bomb could never be completed in time to have any impact on the war, and Soviet research was conducted in a modest laboratory; once information began pouring in, nuclear research became a priority and its scale was increased many times over.65 Ultimately, the US Department of Energy itself states that nuclear espionage probably hastened the Soviets’ first nuclear test by 12 to 18 months.66 However, this tremendous success was not due to the outdated recruitment practices of the unprepared Soviet intelligence agencies. Instead, as demonstrated by the pattern followed by Klaus Fuchs, MAR, Theodore Hall, and FOGEL, Soviet intelligence on the Manhattan project came primarily from agents who volunteered their services to the USSR because of personal conviction. ENORMOZ succeeded not through any Soviet mastery of espionage, but because of the quality of its spies.

Stalin had initially believed that the bomb could never be completed in time to have any impact on the war, and Soviet research was conducted in a modest laboratory; once information began pouring in, nuclear research became a priority and its scale was increased many times over.

Endnotes

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ENDNOTES

IMMIGRATION: RE-THINKING THE NON-CITIZEN

OP-ED: LIBYA WAS A ONE-OFF

1 Galina Cornelisse, “Immigration Detention and the Territoriality of Universal Rights,” in The Deportation Regime : Sovereignty, Space, and the Freedom of Movement, ed. Nicholas De Genova, and Nathalie Mae Peutz (Durham: Duke University Press, 2010): 103. 2 William Walters, “Detention, Expulsion, and the International Police of Aliens,” in The Deportation Regime : Sovereignty, Space, and the Freedom of Movement, ed. Nicholas De Genova, and Nathalie Mae Peutz (Durham: Duke University Press, 2010), 84. 3 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (New York: Cambridge University Press. 2008), 46-7. 4 Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 at para. 106 [Charkaoui]; Hamish Stewart, “Is indefinite Detention of Terrorist Suspects Really Constitutional?” University of New Brunswick Law Journal 54 (2005): 237-8. 5 Office of the United Nations High Commissioner for Human Rights, The Rights of NonCitizens. (Geneva: United Nations, 2006), 5. 6 Inter-American Commission on Human Rights of the Organization of American States, Report on Terrorism and Human Rights. (Washington, D.C.: OEA, 2002), para. 44. 7 Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004), 3, 50-1, 55. 8 Gershon Shafir, “Citizenship and Human Rights in an Era of Globalization,” in People Out of Place: Globalization, Human Rights, and the Citizenship Gap, ed. Alison Brysk, and Gershon Shafir (New York: Routledge, 2004), 23. 9 Hereafter referred to as Re A 10 A v Secretary of State for the Home Department (2004), [2005] 2 A.C. 68 (H.L) at paras. 2, 3, 12 [A]; Anti-Terrorism, Crime and Security Act 2001 (U.K), 2001, c.24 at section 23. 11 Ibid., at paras. 51, 126, 235; The non-refoulement principle refers to the non-refoulement rule, which rests on the negative responsibility of states to not return individuals if they face the possibility of torture, threat to life or persecution. 12 Human Rights Act 1998 (Designated Derogation) Order 2001 (S.I. no. 2001/364) at p.2. 13 A, supra note 14 at paras. 74, 139, 147, 239. 14 Hereafter referred to as Charkaoui.

1 “U.S. Tactics in Libya May Be a Model for Other Efforts,” 28 August 2011, The New York Times. 2 Mark Landler, “For Obama, Some Vindication of Approach to War,” 20 October 2011, The New York Times. 3 “The Lessons of Libya,” 19 May 2011, The Economist. 4 Times Topics, “Muammar el-Qaddafi (19422011),” updated 25 October 2011, The New York Times. 5 “The Lessons of Libya” 6 “How Syria and Libya Compare,” 28 April 2011, The Guardian. 7 Ibid. 8 Michael Broning, “The Sturdy House that Assad Built,” 7 March 2011, Foreign Affairs. 9 Alex de Waal, “Why Darfur Intervention Is a Mistake,” 21 May 2008, BBC News. 10 Paul D Williams and Alex J. Bellamy, “The Responsibility To Protect and the Crisis in Darfur,” Security Dialogue 3, no. 1 (March 2005): 38, doi: 10.1177/0967010605051922. 11 “Why Darfur Intervention Is a Mistake.” 12 “Libya is no model for future international interventions, says FPI’s Jamie Fly and AEI’s Gary Schmitt,” 1 October 2011, The Foreign Policy Initiative. 13 Roger Cohen, “Score One for Interventionism,” 29 August 2011, The New York Times.

BOOK REVIEW: THE UNTHINKABLE REVOLUTION IN IRAN 1 Charles Kurzman, The Unthinkable Revolution in Iran (Cambridge, Massachusetts: Harvard University Press, 2004) 116. 2 Ibid., 137. 3 Ibid., 138. 4 Ibid.. 5 Ibid.,166. 6 Ibid. 7 Ibid.

15 Charkaoui, supra note 4 at paras. 10, 48, 139. 16 Immigration and Refugee Protection Act, S.C. 2001, c. 27 at section 34(1)(b)-(e). 17 Sections 9, 10 of the The Canadian Charter of Rights and Freedoms. 18 Charkaoui, supra note 4 at paras. 131-2. 19 Dauvergne, Making People Illegal, 175. 20 The non-discrimination principle as stated in article 3 of the Convention Relating to the Status of Refugees, and article 2 of the Universal Declaration of Human Rights. 21 UN Human Rights Committee, General Comment No.18, 37th session (1989) at para. 7. 22 UN Human Rights Committee, General Comment 31, 18th Session (May 26, 2004), at para. 10; article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 23 Gunnar Beck, “The Idea of Human Rights between Value Pluralism and Conceptual Vagueness,” Penn State International Law Review 25, (2006-07): 628. 24 A, supra note 14 at paras. 81, 156, 211. 25 Ibid., at para. 57. 26 Ibid., at paras. 134, 171. 27 Charkaoui, supra note 4 at para. 3. 28 Ibid., at paras. 91,141. 29 A, supra note 14 at para. 155. 30 Maureen T. Duffy and Rene Provosi, “Constitutional Canaries and the Elusive Quest to Legitimize Security Detentions in Canada Security Detention in Practice,” Case Western Reserve Journal of International Law 40, (20072009): 537-8. 31 Vasselina Vandova, “Protection of non-citizens against removal under international human rights law,” in Human Security and NonCitizens: Law, Policy, and International Affairs, ed. Alice Edwards and Carla Ferstman (New York: Cambridge University Press, 2010), 524. 32 Charkaoui, supra note 4 at para. 130. 33 UN Committee on the Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination against Non-Citizens, 65th Session (2005) at para. 25. 34 Grainne de Burca and Oliver Gerstenberg, “Denationalization of Constitutional Law, the Symposium,” Harvard International Law Journal, 245-60. 35 Jeremy D. A Telman, “Plural Vision: International Law seen through the Varied Lenses of Domestic Implementation,” Valparaiso University Law Review 44, (2009-2010): 761; Gerald P. Heckman, “Securing Procedural Safeguards for Asylum Seekers in Canadian Law:

Endnotes

The Attaché Vol. 2 (2012) An Expanding Role for International Human Rights Law,” International Journal of Refugee Law 15 (2003): 231. 36 Grainne de Burca, “The European Court of Justice and the International Legal Order After Kadi,” Harvard International Law Journal 51, no.1 (2010): 12, 29, 32, 39. 37 Beck, “The Idea of Human Rights between Value Pluralism and Conceptual Vagueness,” Penn State International Law Review, 620. 38 Peter J. Spiro, “Boundaries of Cosmopolitan Pluralism, the Symposium,” Wayne Law Review 51, (2005): 88. 39 A, supra note 14 at para. 144. 40 Gib van Ert, “Dubious Dualism: The Reception of International Law in Canada,” Valparaiso University Law Review 44 (2009-2010): 933. 41 A, supra note 14 at paras. 191-2; Charkaoui, supra note 4 at para. 21. 42 Beck, “The Idea of Human Rights between Value Pluralism and Conceptual Vagueness,” Penn State International Law Review, 650-1. 43 A, supra note 14 at para.65. 44 Charkaoui, supra note 4 at para. 67. 45 Beck, “The Idea of Human Rights between Value Pluralism and Conceptual Vagueness,” Penn State International Law Review, 620, 624. 46 Ibid., 617, 655. 47 A, supra note 14 at para. 145. 48 Grainne de Burca and Oliver Gerstenberg, “Denationalization of Constitutional Law, the Symposium,” Harvard International Law Journal, 249, 252. 49 Edwards and Ferstman, Human Security and Non-Citizens, 36. 50 Dauvergne, Making People Illegal, 36, 63.

NAFTA: DOMESTIC ENVIRONMENTAL POLICIES 1 It should be kept in mind that the effect of Chapter 11 on environmental policymaking represents only a splinter of a much broader debate on the effects of NAFTA and other globalizing initiatives on the environment, and policymaking on the whole. 2 Harm here is defined by the quality of environmental policy, rather than the quantity, for reasons that will become clear below. Quality is to be defined, specifically for the purposes of this paper, by the degree to which the policy was meant to, and did combat environmental issues. 3 “Chapter 11 – The North American Free

Trade Agreement (NAFTA).” Foreign Affairs and International Trade Canada (DFAIT). Web. 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid. Emphasis added. 8 Ibid. 9 Metalclad Corp v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, 30 August 2000. 10 See, for example, International Institute for Sustainable Development. Private Rights, Public Problems: a Guide to NAFTA’s Controversial Chapter on Investor Rights. Winnipeg: International Institute for Sustainable Development, 2001. 78. Print. 11 “Hazardous Waste in Mexico.” Environmental Intelligence Analysis. Web. <http://www.eiatrack.org/s/188>. 12 Tienhaara, Kyla Susanne. “5.1 Cases Completing Jurisdictional Phase.” The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy. Cambridge: Cambridge UP, 2009. Print. 13 Ethyl Corporation v. Government of Canada, Statement of Defence. 1997. Web. <http:// www.international.gc.ca>. 14 Tienhaara, Kyla Susanne. Ibid. Citing: Gantz, D.: 2001, Potential Conflicts Between Investor Rights and Environmental Regulation Under NAFTA’s Chapter 11, George Washington International Law Review 33(3/4), 651-752. 15 NICNAS. “Methylcyclopentadienyl Maganese Tricarbonyl (MMT) – Priority Existing Chemical ssassment Report No. 24.” NICNAS – National Industrial Chemicals Notification and Assessment Scheme. Web. <http://www. nicnas.gov.au/PUBLICATIONS/CAR/PEC/ PEC24/PEC_24_Full_Report_PDF>. 16 Gaines, Sanford E. “The Masked Ball of NAFTA Chapter 11.” Linking Trade, Environment, and Social Cohesion: NAFTA Experiences, Global Challenges. By John J. Kirton and Virginia White Maclaren. Aldershot, Hampshire, England: Ashgate, 2002. 110. Print. 17 Ethyl Corporation v. Government of Canada. Ibid. 18 S.D. Myers, Inc. v. Government of Canada, Notice of Arbitration. 1998. 4. Web. <http:// www.international.gc.ca>. 19 Baughen, Simon. International Trade and the Protection of the Environment. London: Routledge-Cavendish, 2007. 198. Print. 20 Basel Convention on the Transboundary Movement of Hazardous Wastes and their

Disposal, 22 March 1989, Basel. Web. <http:// www.basel.int>. 21 Ibid. 22 Gaines, Sanford E. Ibid. 113. 23 Ibid. 24 Baughen, Simon. Ibid. 25 Tienhaara, Kyla Susanne, Ibid. Citing: S.D. Myers v. Government of Canada, Partial Award, 13 November 2000, at para. 127, <http://www. international.gc.ca>. Reproduced in 40 ILM, at 1408. 26 Tienhaara, Kyla Susanne. Ibid. 27 Tienhaara, Kyla Susanne. Ibid. Citing: “University of California Report MTBE Fact Sheet”, UC Davis website, 12 November 1998, at 1, <http://tsrtp.ucdavis.edu/public/mtbe/ mtberpt/index.php>. 28 Tienhaara, Kyla Susanne. Ibid. Citing: Methanex Corporation v. United States of America, Final Award, 9 August 2005, at para. II.B.14, <http://www.state.gov>. 29 See, for example: Traynor, Ken. “How Canada Became a Shill for Ethyl Corp. | Canadian Environmental Law Association.” Featured Items and Collections | Canadian Environmental Law Association. Web. Thomas, J.C. “Commentary: A Practicioner’s Perspective J.C. Thomas.” Whose Rights?: the NAFTA Chapter 11 Debate. By Laura Ritchie Dawson. Ottawa, Onto: Centre for Trade Policy and Law, 2002. 99-128. Print. 30 Tienhaara, Kyla Susanne. Ibid. Citing: Methanex Corporation v. United States of America, Final Award, 9 August 2005, at para. III.B.55, <http://www.state.gov>. 31 Tienhaara, Kyla Susanne. Ibid. 32 Baughen, Simon. Ibid. 219. 33 Tienhaara, Kyla Susanne. Ibid. Citing: Methanex Corporation v. United States of America, Amended Statement of Defence, 5 December 2003, at paras. 216-280, <http:// www.state.gov>. 34 Ibid. Citing: Methanex Corporation v. United States of America, Final Award, 9 August 2005, at para. V.13. <http://www.state.gov>. 35 See for example: Pavey, Bronwyn, and Tim Williams. The North American Free Trade Agreement: Chapter 11. Rep. Parliamentary Research Branch: Library of Parliament, 2003. Web. 36 Soloway, Julie, and Chris Tollefson. “NAFTA’s Chapter 11: Investor Protection, Integration and the Public Interest.” Choices: Canada’s Options in North America 9.2 (2003). Institute for Research on Public Policy. Web. 37 Tienhaara, Kyla Susanne. “3.3 A Critical

Endnotes Asssesment of the Institution of Investment Protection.” The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy. Cambridge: Cambridge UP, 2009. 142. Print. 38 It is assumed here that commitment and transparency are positive qualities.

THE 45TH PARALLEL: AFTER 9/11 1 Clarkson, Stephan. Dependent America? How Canada and Mexico Construct U.S. Power. Toronto: University of Toronto Press, 2011, pp 134-153; Sands, Christopher, “Fading Power or Rising Power: 11 September and Lessons from the Section 110 Experience,” in Norman Hillmer and Maureen Appel Molot, eds., Canada Among Nations 2002: A Fading Power. Toronto: Oxford University Press 2002, pp. 49 – 73. 2 Hussaun, Imtiaz, Saty R. Pattnayak, and Anil Hira. North American Homeland Security – Back to Bilateralism? Westport. Connecticut: Praeger Security International, 2008, pp 30-55. 3 Hussaun et al. (2008) pp 30-55. 4 Hussaun et al. (2008) pp 30-55. 5 “U.S. Security Boss Clears Comments About Border” CTV News, April 22, 2009. Accessed November 4, 2011. http://www.ctv.ca/CTVNews/QPeriod/20090421/ USA_Border_090421/ 6 Hussaun et al. (2008) pp 30-55. 7 Clarkson, Stephan. Dependent America? How Canada and Mexico Construct U.S. Power. Toronto: University of Toronto Press, 2011, pp 113-133 8 Rostek, LCol M. A. Appraches to National Security: A Canadian-Australian Comparison Queens University press. 2006. 9 Cody, Howard, “U.S.-Canada Trade, Defense, and Border Issues Since September 11: The View From Canada,” in Canadian American Public Policy: Perspectives on U.S.-Canada Relations Since 9/11 – Four Essays. Bangor ME: Furbish-Roberts Printing, September 2003, pp. 3 – 20. 10 Note: the original dataset includes “pipeline and other” as a category, because “other” is difficult to assess, it is left out of the relationship. 11 Domns, Mark. “The Booms and Bust I information Technology Investment.” in Federal Reserve Bank of San Francisco Economic Review. 2004, pp19-34. Retrieved from http:// ezproxy.qa.proquest.com/docview/56231884?

The Attaché Vol. 2 (2012) accountid=14771 12 Comiskey, Michael and Pawan Madhogarhia. “Unraveling the Financial Crisis of 2008”, in PS: Political Science & Politics. April 2009, pp. 271-275. Dominique, C-Rene, “Behind the 2008 Capital Market Collapse” in Journal of Business & Economic Studies, Vol. 16, No.2. Fall 2010, pp 1.

REGULATED SOVEREIGNTY: CANADA AND THE W.T.O. 1 Stephen Clarkson, Uncle Sam and Us: Globalization, Neoconservatism, and the Canadian State. (Toronto: University of Toronto and Woodrow Wilson Center, 2002), 176. 2 Werner Zdouc, “WTO Dispute Settlement Practice relating to the GATS.” Journal of International Economic Law 2.2 (1999): 296. 3 Keisuke Iida. “Is WTO Dispute Settlement Effective?” Global Governance 10.2 (2004): 210. 4 Iida, 209. 5 Zdouc, 309. 6 Iida, 211. 7 Sol Picciotto, “The WTO’s Appellate Body: Legal Formalism as a Legitimation of Global Governance.” Governance: An International Journal of Policy, Administration, and Institutions 18.3 (2005): 495. 8 Iida, 218.; Mark Crawford, “Truth or consequences? The law and politics of the GATS healthcare debate.” Canadian Foreign Policy Journal 12.2 (2011): 102. Rajesh Pillai, “National Treatment and WTO Dispute Settlement.” World Trade Review 1.3 (2002): 324. 9 Crawford, 97.; Bernard M. Hoekman and Petros C. Mavroidis. The World Trade Organization: Law, Economics, and Politics. (London: Routledge, 2007), 66. 10 “WTO legal text - Marrakesh Agreement.” World Trade Organization. (Accessed October 15, 2011); available from <http://www.wto.org/ english/docs_e/legal_e/26-gats_01_e.htm>. 11 WTO legal text – Marrakesh Agreement. 12 WTO legal text – Marrakesh Agreement. 13 WTO legal text – Marrakesh Agreement. Zdouc, 298. 14 WTO legal text – Marrakesh Agreement. Zdouc, 309. 15 Christopher J. Kukucha, “Dismembering Canada? Stephen Harper and the Foreign Relations of Canadian Provinces.” Review of Con-

stitutional Studies 14.1 (2009): 26. 16 WTO legal text – Marrakesh Agreement. 17 Pillai, 323. 18 Edward T. Hayes, “A Comparative Analysis of the Regulation of State and Provincial Governments in NAFTA and the GATT/ WTO.” Chicago Journal of International Law 5.2 (2005): 607. 19 Kukucha, 31-5. 20 Kukucha, 27. 21 Hayes, 608. 22 Kukucha, 28. 23 Pillai, 321. 24 Antonia Maioni, “The United States and Canada in Comparative Context.” Parting at the Crossroads: the Emergence of Health Insurance in the United States and Canada. (Princeton, NJ: Princeton UP, 1998), 4. 25 Crawford, 100. 26 Crawford, 107. 27 WTO legal text – Marrakesh Agreement. 28 Crawford, 103-4. 29 WTO legal text – Marrakesh Agreement. 30 Crawford, 102. 31 Gaëtan Verhoosel, National Treatment and WTO Dispute Settlement: Adjudicating the Boundaries of Regulatory Autonomy. (Oxford: Hart, 2002), 71. Pillai, 324. 32 “WTO Dispute Settlement Understanding - Legal Text.” World Trade Organization. (Accessed Oct. 31 2011) available from <http:// www.wto.org/english/tratop_e/dispu_e/dsu_e. htm>. 33 John Whalley, “Disciplining Canada’s Interprovincial Barriers: The Subnational Approach as Another Option with or Beyond and Extended TILMA.” Canadian Public Policy 35.3 (2009): 316. 34 Whalley, 318. 35 Whalley, 323.

COLD WAR SECRETS: THE SUCCESS OF SOVIET ESPIONAGE INTO THE MANHATTAN PROJECT 1 Jeffrey T. Richelson, A Century of Spies: Intelligence in the 20th Century (New York: Oxford University Press, 1995), 139.

Endnotes

The Attaché Vol. 2 (2012) 2 Nigel West, Mortal Crimes: Soviet Penetration of the Manhattan Project (New York: Enigma Books, 2004), 133. 3 Allen Weinstein and Alexander Vassiliev, The Haunted Wood: Soviet Espionage in America: The Stalin Era (New York: Random House Inc., 1999), Introduction. 4 John Earl Haynes and Harvey Klehr, VENONA: Decoding Soviet Espionage in America (New Haven, Conn. Yale University Press, 1999), Introduction. 5 Haynes and Klehr, VENONA, 55-60. 6 Haynes and Klehr, VENONA, 60. 7 Weinstein and Vassiliev, The Haunted Wood, 23. Haynes and Klehr, VENONA, 287. 8 Weinstein and Vassiliev, The Haunted Wood, 23. 9 Weinstein and Vassiliev, The Haunted Wood, 23. 10 John Earl Haynes and Harvey Klehr, Early Cold War Spies: The Espionage Trials that Shaped American Politics (New York: Cambridge University Press, 2006), 1-55. 11 Haynes and Klehr, VENONA, 62. Weinstein and Vassiliev, The Haunted Wood, 23-24. 12 Haynes and Klehr, Early Cold War Spies, 1-55. 13 Weinstein and Vassiliev, The Haunted Wood, 3-4. 14 Christopher Andrew and Vasili Mitrokhin, The Mitrokhin Archives: The KGB in Europe and the West (London: The Penguin Press, 1999), 137. 15 Weinstein and Vassiliev, The Haunted Wood, 153. 16 Andrew and Mitrokhin, The Mitrokhin Archives, 115-117. 17 Weinstein and Vassiliev, The Haunted Wood, 154. 18 Andrew and Mitrokhin, The Mitrokhin Archives, 139. 19 Haynes and Klehr, VENONA, 85-6. 20 Haynes and Klehr, VENONA, 86-88. 21 Robert Chadwell, Klaus Fuchs, Atom Spy (Cambridge, Mass.: Harvard University Press, 1987), 87-88. Haynes and Klehr, VENONA, 70. 22 Andrew and Mitrokhin, The Mitrokhin Archives, 111. 23 Andrew and Mitrokhin, The Mitrokhin Archives, 55, 75. 24 David Holloway, Stalin and the Bomb (New Haven, Conn.: Yale University Press, 1994), 82. Andrew and Mitrokhin, The Mitrokhin Archives, 55-75.

25 Andrew and Mitrokhin, The Mitrokhin Archives, 75. 26 Haynes and Klehr, VENONA, 222. Weinstein and Vassiliev, The Haunted Wood, 175. 27 Andrew and Mitrokhin, he Mitrokhin Archives, 104-5. 28 Richelson, A Century of Spies, 91. 29 Weinstein and Vassiliev, The Haunted Wood, 175. 30 West, Mortal Crimes, 220. 31 West, Mortal Crimes, 220. 32 Holloway, Stalin and the Bomb, 82. Holloway, Stalin and the Bomb, 63-64. 33 Chadwell, Klaus Fuchs, 9. 34 Chadwell, Klaus Fuchs, 9, 14. 35 Chadwell, Klaus Fuchs, 16, 32-34. 36 Chadwell, Klaus Fuchs, 39. 37 Chadwell, Klaus Fuchs, 47-60. 38 Holloway, Stalin and the Bomb, 91. 39 Richelson, A Century of Spies, 137. 40 Chadwell, Klaus Fuchs, 68-76. 41 Chadwell, Klaus Fuchs, 138. 42 Andrew and Mitrokhin, he Mitrokhin Archives, 169. 43 Chadwell, Klaus Fuchs, 78. 44 Andrew and Mitrokhin, he Mitrokhin Archives, 154. 45 Andrew and Mitrokhin, he Mitrokhin Archives, 154. 46 Andrew and Mitrokhin, he Mitrokhin Archives, 154. 47 Chadwell, Klaus Fuchs, 85. 48 Haynes and Klehr, VENONA, 314. 49 Haynes and Klehr, VENONA, 314. 50 Weinstein and Vassiliev, The Haunted Wood, 169. 51 Haynes and Klehr, VENONA, 315. Joseph Albright and Marcia Kunstel, Bombshell: The Secret Story of America’s Unknown Spy Conspiracy (New York: Crown Publishing Group, 1997), 25-40. Weinstein and Vassiliev, The Haunted Wood, 190-191. 52 Haynes and Klehr, VENONA, 316. 53 Weinstein and Vassiliev, The Haunted Wood, 173. 54 Weinstein and Vassiliev, The Haunted Wood, 190-191. 55 Richelson, A Century of Spies, 139. Weinstein and Vassiliev, The Haunted Wood, 190-191. 56 Weinstein and Vassiliev, The Haunted Wood, 192. 57 Weinstein and Vassiliev, The Haunted Wood, 198.

58 Haynes and Klehr, VENONA, 295. 59 Richelson, A Century of Spies, 138-139. Haynes and Klehr, VENONA, 308. 60 Haynes and Klehr, VENONA, 309. 61 Weinstein and Vassiliev, The Haunted Wood, 184. 62 Weinstein and Vassiliev, The Haunted Wood, 184. Haynes and Klehr, VENONA, 327. 63 Haynes and Klehr, VENONA, 329. 64 Haynes and Klehr, VENONA, 330. Jeffrey Richelson, Spying on the Bomb: American Nuclear Intelligence from Nazi Germany to Iran and North Korea (New York: W. W. Norton and Company, 2006), 67. 65 Holloway, Stalin and the Bomb, 90-103., Holloway, Stalin and the Bomb, 64-65. 66 “The Manhattan Project,” US Department of Energy, Office of History and Heritage Resources, accessed January 4, 2011, http://www. cfo.doe.gov/me70/manhattan/espionage.htm.