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True North strong and . . . free to give up our sovereignty?
True North strong and . . . free to give up our sovereignty?
Michael Byers
October 7, 2006
The North American continent became a lot smaller last month, when the governments of Canada, Mexico and the United States released the Security and Prosperity Partnership Report. That document details collaborative efforts to develop ”compatible“ or ”comparable“ standards on matters as diverse as railways, travel visas, air pollution and food safety.

Will these standards affect Canadian sovereignty? Not according to the report, in which the partners vow to respect ”the sovereignty and unique cultural and legal heritage of each country.“

Yet sovereignty means different things to different people. In Canada, since Sept. 11, 2001, two distinct conceptions have competed with each other. The traditional notion holds that a country must have full independence in domestic and foreign policy. The other, more European approach maintains that sovereignty can be shared or delegated to other countries or organizations.

Although the latter might sound appealing, it simply doesn’t work in a North American context, given the vast disparities in power between the U.S. and its neighbours.

Take last year’s debate on missile defence. For opponents of Canadian participation, sovereignty meant retaining independence in defence and foreign affairs. But proponents also claimed to be defending sovereignty, meaning the protection of Canadian lives and jobs. The Defence Department even argued that our sovereignty would not be diminished because any surrendering of it would, in fact, be an exercise of sovereignty.

When I told my students about this last argument, they laughed. One called it Orwellian.

”Not so fast,“ I cautioned, quoting from a 2003 speech by Bill Graham, then foreign minister: ”We know that co-operative ventures of many kinds involve giving up some degree of independence for the sake of greater benefits; that’s what happens when couples get married, when athletes join sports teams. . . . While this process is often portrayed . . . as a loss of sovereignty, in fact what we are seeking to achieve is ‘pooled sovereignty’ -- in other words, increased effectiveness for all the participants.“

”That’s what we do in Europe,“ said a German exchange student.

She was right: The concept of pooled sovereignty is imported from Western Europe, where the horrors of the Second World War persuaded politicians of the need for a new approach to preventing armed conflict. They built continent-wide institutions and delegated components of their sovereignty to them.

For decades, Canadian politicians shied away from pooled sovereignty, knowing public suspicions of closer ties with the U.S. But calculations changed after 9/11. Many of Canada’s business leaders saw the new U.S. emphasis on homeland security as a threat to cross-border trade and efforts to develop a continent-wide economy. They began pushing hard for legal and policy changes.

David O’Brien, then CEO of Canadian Pacific, argued that Canada would have to adopt U.S.-style immigration policies to keep the border open. ”We have to make North America secure from the outside,“ he said. ”We’re going to lose increasingly our sovereignty, but necessarily so.“

Within months, Ottawa signed a Safe Third Country Agreement with Washington that requires people wishing to claim asylum in Canada or the U.S. to do so in whichever country they arrive first.

Business leaders pushed for changes to criminal laws as well. The result was the 2001 Anti-Terrorism Act, which defines terrorism in broad terms and authorizes the cabinet to designate any group as a terrorist organization. Big business even took aim at Canadian foreign policy. Patrick D. Daniel, the president of Enbridge Inc., said that ”it would be realistic for the U.S. to expect us to either get on side with U.S. foreign policy or expect some change in our relationship.“

I turned again to my students: ”Does anyone see a problem with applying the concept of pooled sovereignty to Canada’s relations with the United States?“

”There are many countries in Europe,“ a woman in a head scarf said.

”Why does that matter?“

”It’s a more balanced situation. No single country can dominate the others. Here in North America, the U.S. is so much more powerful than Canada that it doesn’t need to surrender any of its sovereignty to us.“

Indeed, when Canada and the United States adopt common standards, they’re usually those already being used in the U.S. From securities regulations to drug licences to rules of military engagement, convergence is a one-way street.

Under the Security and Prosperity Partnership, that convergence is occurring through regulations rather than legislation. Transnational committees of unelected bureaucrats are making rules without direct parliamentary oversight. As a result, considerations such as human rights and national identity are less likely to be factored in.

The power imbalance also manifests itself in U.S. willingness to ignore common standards -- as with softwood lumber imports -- when they no longer serve its national interest.

”It’s not just about power,“ said a young man with a distinctly un-Canadian drawl. ”Americans think of sovereignty differently.“

Americans certainly feel more connected to their sovereignty than most contemporary Europeans do to theirs. As Alexis de Tocqueville observed: ”The people reign over the American political world as God rules over the universe.“

The U.S. Constitution is still regarded as the ultimate expression of the American people’s consent to be governed. Any exercise of authority not expressly vested in that document is considered illegitimate. Many international standards are regarded with suspicion.

Curiously, while Canadian proponents of convergence advance a European conception of sovereignty, opponents think in terms that are quite American. Although they might not like it, Americans understand the mindset of those who support a made-in-Canada approach. But what must they think, privately, about Canadians who actively seek to surrender this country’s sovereignty to the institutions and interests of a foreign state?

At root, our conception of sovereignty depends on the value we ascribe to democracy. If we believe that sovereignty resides in the people, the decisions that most affect us must be made by our own democratically elected representatives.

I surveyed my class one last time: ”Has anyone heard of taxation without representation?“

”That’s what caused the American Revolution,“ a bearded young man replied. ”King George was making rules for the colonists without giving them a say.“

”Ah . . . ” I smiled. ”Can you see any parallel today?“

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.

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