The role of law in the conduct of Canada--U.S. relations.

• Author: Gotlieb, Allan

CANADA-UNITED STATES LAW INSTITUTE DISTINGUISHED LECTURE

LONDON, ON

OCTOBER 4, 2007

I am honoured to be invited to speak to you as the inaugural lecturer at the Canada-U.S. Law Institute distinguished speaker forum. The subject of my talk today is the role of law in the conduct of our relations with the United States.

Thanks to its size and intensity, no relationship between any two sovereign countries is more complex than that between Canada and the United States. For this reason, the University of Western Ontario and Case Western Reserve University showed great prescience and leadership in establishing the Canada-U.S. Law Institute. I congratulate you on your contributions, over the years, to a better understanding of so many of the difficult legal issues that continually arise between our two societies.

I have had the honour to know many of the distinguished Canadian and American scholars and statesmen who have participated in your work over several decades. The partnership and spirit of close collaboration you have created between two important North American institutions serves as an exemplar of how to address our common issues. Professionalism, scholarly discussions, joint undertakings and studies, non-partisanship, bi-national collaboration--these are the key ingredients of a model approach to dealing with our trans-national issues.

Beyond knowing many of your distinguished participants from both sides of the border over the years, I have another personal connection to your institute. I note from your recent annual report that the William H. Donner Foundation was an early financial supporter of your conferences. (1) I have the honour to serve as chairman of the Donner Canadian Foundation, (2) a sister institution of the U.S. body, both of which were established over a half-century ago by the U.S. steel magnate William H. Donner. (3) I am delighted that the U.S. foundation has supported your endeavours.

I myself have been associated with Canadian-U.S. issues for many years--to be exact, for a half-century. It was fifty years ago precisely that I joined the Department of External Affairs (4)--as it was then known--and shortly thereafter, I was assigned to the legal division, a tiny band consisting of a handful of warm bodies, which, however, was twice the size of the U.S. division, consisting of only two warm bodies. (5) Those were the days.

I subsequently moved in and out of the legal stream, serving later as the head of the Legal Bureau, legal adviser, Undersecretary, and finally Ambassador to Washington. (6) In all these tasks, Canada-U.S. relations remained at the forehand of my responsibilities.

Early on, I formed some very distinct views on how best to conduct our relations with the United States. For a quarter of a century, I was very sceptical about the utility of law and bilateral institutions and mechanisms in conducting relations between us.

But as you will note, I came to a very different view after having served in Washington. The sceptic about the role of law turned into a convert. And the reason why is the theme of my lecture today.

To understand my personal odyssey, I want to take you back to the early years of the post-war era. These critical decades were, of course, the years of explosive growth in the relationship and its expansion into the largest two-way economic relationship in the world. (7)

In the fledging Department of External Affairs, during the years of the Second World War and thereafter, there was no great love of international law and international lawyers. (8) One might speculate about the reasons but I believe they were the legacy of the failure of the League of Nations and international law in the interwar era. (9)

The Covenant of the League was rightly seen as a document dominated by legalistic norms and prescriptions. (10) Peace was to be achieved, according to the Covenant, "by the firm establishment of the understandings of international law." (11) Even more dramatically, great powers, through the instrument of the Kellogg-Briand peace pacts, abolished war forever. (12)

It soon became evident that this reliance on law created complacency and cloaked the reality that war was becoming inevitable. It came to be seen that the international rules, indiscriminately violated, were futile--at best pious norms and at worst deceptions passed off on a pacifist public unwilling to arm in their own defence.

At the heart of the Covenant was the famous Article 10, which guaranteed the territorial integrity of all its members against "external aggression." (13) But the drafters of the U.N. Charter deliberately avoided making U.N. enforcement action conditional on any violation of international law. In a historic shift, mandatory enforcement action required only the determination by the Security Council of the existence of a "threat to the peace" or "breach of the peace." (14)

The practitioners of diplomacy in the Canadian Foreign Service were well attuned to the political approach enshrined in the Charter.

As a participant in the Department's puny legal division, a decade after the Charter took effect, I can testify to how marginal legal considerations were in the Canadian approach to maintaining peace and security. The practitioners of diplomacy in Canada's golden age were skilled conciliators and architects of compromises and brokered solutions. They were not writers of new rules for the very good reason that they had lived through that era during which more rules were proclaimed and broken than perhaps at any other time in history.

The culture of favouring diplomacy, not law, was nowhere better reflected in how we collectively dealt with problems arising out of our sharing a continent with the United States.

With the exception of the International Joint Commission, (15) International Joint Commission, the P.J.B.D. (16) and NORAD, (17) and a short-lived attempt at establishing joint cabinet committees between our two governments, (18) the world's closest and deepest two-way relationship was governed by ad hoc methods. "Ad hocery" was the hallmark of the era.

The merits of this approach had no more committed advocate than myself.

The attitude in favour of pragmatism and diplomacy was articulated in the first address I gave in the United States just before I took up duties as ambassador in the fall of 1981. Talking to the biennial meeting of The Association of Canadian Studies in the United States ("ACSUS") in East Lansing Michigan, I devoted the whole of my remarks to explaining how this massive relationship of ours was managed--and indeed was best managed--without the support of bilateral institutions, bilateral machinery, and a grander legal framework.

I speculated that Canadians were somewhat "suspicious of bilateral institutions because of the different weights and sizes of the two countries." But, I pointed out the U.S. itself has never been a "demander" of Canada in terms of creating new bilateral institutions. Both sides would, I said, find unhelpful a "creeping institutionalization" whose net effect would be to encumber the process of conducting bilateral relations."

In conclusion, I called for a premium to be continued to be placed on flexibility, a pragmatic approach to the use (or non-use) of institutions, and a heavy reliance on traditional diplomatic, and conciliatory methods.

If a defining characteristic of our relationship during the decades after World War II was the absence of dispute mechanisms and special machinery, how does one account for the remarkably smooth functioning of the relationship in those years?

The answer, I think, is that this was the era of the special relationship between our two countries.

Because of closely shared values, both of us looked at the world in a very similar fashion and worked together to resist threats to peace, security and freedom. Canada made enormously heavy defence expenditures in those days--as high as 40% of the federal budget in the mid 1950s (19)--and was an architect of NATO, (20) and close western collaborator in the fight against Soviet expansion. (21)

In the Cold War, Canada's northern 'real estate' was seen as especially significant from a geopolitical standpoint, (22) given our ownership of the landmass separating the two super powers.

Hence, U.S. strategic interests could be understood as virtually dictating special consideration for Canada. Even more significantly, there was a sense of trust and friendship. For example, when the U.S. considered nominees for the post of first Secretary General of the U.N., two Canadian civil servants topped the list: Lester Pearson and Norman Robertson. (23)

The record shows that the U.S., on a number of occasions, was willing to subordinate its economic interests (as they perceived them) to the larger purpose of maintaining good relations with Canada. It seems at times that it was the policy of the United States not "to treat Canada like any other foreign government."

For example, Canadian oil imports into the U.S. were granted an overland exemption from restrictions on foreign imports of oil into the United States. (24) In this same period, when President Kennedy imposed an interest equalization tax on investment abroad, the special relationship meant that when Canada protested...