Thank you very much, Mr. Chairman.
My name is Ojars Eriks Kalninš. I am a member of the Latvian parliament and chairman of the foreign affairs committee of the Latvian parliament. I also head our delegation to the NATO Parliamentary Assembly, where I am chairman of the political committee.
It is a great honour to be back in Canada. I had the pleasure of being here a year ago with our Speaker. In particular, it's a pleasure—perhaps almost a belated one—for me to be able to congratulate Canada on its 150th anniversary.
As you may know, Latvia will celebrate the 100th anniversary of our republic next year. It's a very big event, although when we look back at our history, unfortunately, for 50 of those 100 years, we were under foreign occupation. Yet, if we look back, I think we'll see that the last 27 years, since we restored independence in 1991, have been remarkably successful. People within the country are always unhappy. They always think things should be better, but I think that if we look at what we've achieved in the last 27 years since rejoining the world community, there's a great deal that we can be pleased with and proud of. It's very good to be back.
When I look at the last 27 years, I divide it into three periods. I served as ambassador in Washington, D.C. for Latvia, and during the 1990s, our basic preoccupation was returning to the world community, re-establishing our diplomatic ties, joining organizations like the United Nations, and basically making our presence known.
By the late 1990s and early 2000s, we became actively a candidate country, and our two priorities were to join NATO and to join the European Union. Everything we did in terms of foreign policy and even domestic policy was geared towards fulfilling all the requirements to be part of those two organizations. In 2004, we achieved that, to the surprise of many, including Moscow and others who doubted our ability to move that quickly to join both organizations.
Basically, after 2004, our third phase was being an active member of both of those organizations, understanding what it required, how this would affect our policies, and how we could be a contributing, loyal member of both groups.
For the most part, it has been very successful, except that 10 years later—in 2014, I guess—there came the first big shock to our sense of security. That was the Russian illegal annexation of Ukraine and basically the Russian-supported invasion of eastern Ukraine in Donbass. I think it was the first time since the restoration of independence that people actually feared for their safety. Our older generation had lived through World War II. Many had lived to see the first Soviet occupation, then the Nazi German occupation, followed by another Soviet occupation. Many of us had hoped that would never return again after this restoration.
In 2014, there were many questions about how far Moscow would go, whether they would move into Ukraine, and whether they would go further, to Odessa. There was talk of Moldova, and to our consternation, for the media and for the analysts, the most popular thing to talk about was the Baltic states being next on the hit list.
We went through that year with a great deal of consternation, and for me, as a politician, the one question I got most often from voters was “Are we safe?” It was not “Will we be invaded?” but “Are we safe?” and “Will NATO come through? Will they really come to defend us?”
I would say that since 2014, that answer has been received loud and clear. Both the Wales and the Warsaw summits gave us exactly what we had anticipated, and perhaps even more, because what we needed was reassurance and deterrence, and both have been achieved by concrete actions that NATO took.
The reassurance was important for our population because I would say within a year or two after they saw what NATO was doing, people started to believe that perhaps article 5 was actually sacrosanct and that the rest of Europe and our NATO allies also here in North America would come through. The Warsaw summit accelerated that and brought us the enhanced forward presence, which brought Canada's presence into Latvia, which for us means a great deal. It goes way beyond just security, and that I'd like to talk about.
For us, both NATO and the EU symbolize what I'd say our national strategy is all about, and that is, we believe in multilateralism. We learned, prior to World War II, that small countries cannot survive alone or in isolation. You have to be part of larger groups, but also it's larger groups, organizations that can solve global problems. What we've learned more and more is that many of the problems our countries face today are global, and while we have to deal with them locally, we can deal with them much better if we work together as groups.
I'd say that if we feel fairly secure about NATO today, that NATO has delivered, then our greater concern is the European Union.
I have just one more word on NATO. I was there at a military base, Adazi, in the springtime when we formally opened this enhanced forward presence battalion under Canada's leadership. I remember standing there, and I had three reactions, looking at soldiers from six other countries—Spain, Bulgaria, Slovenia, Canada, Italy.... I saw them marching and my first reaction was a great sense of pride that people from all over Europe and North America were in Latvia to help us, to protect us. It was a great feeling, knowing our history and what we went through.
My second reaction, when I looked at these soldiers, was that I hoped they would never have to fire a bullet. I hoped that their presence alone would be enough to deter any future conflict. I'm pretty confident that's working. I think the signal has been very clear.
If, in 2014, anyone doubted whether NATO would come to the defence of a few Latvians in case there was some kind of a cross-border incursion, I think now, knowing that there are several thousand troops from six countries—and I think next year two more countries will join. Between the three Baltic states and Poland, there are 22 NATO countries that have either sent troops or provided their planes for Baltic air policing. I think the signal is clear that any attempt to attack a Baltic state is an attack on NATO and all the NATO countries. I think this is what has worked as a deterrent. That was my third feeling, that this was a case where an organization like NATO has come through and our friends and allies have come through.
We do have greater concerns about Europe. Latvia is very committed to the European Union. Again, if NATO provides the hard security, then it's the EU that provides the soft security, the diplomacy. We look at the combination of the two as complementary. Where NATO can do one job, the EU has to do another.
I think a clear example of that is the reaction to the Russian incursion in Ukraine, because while NATO is protecting our countries from that spreading any further, it's the European Union, together with other countries, that enacted the sanctions. That would be much more difficult, to have sanctions and try to prevent Russia from going further, if these 27 or so additional countries, such as Canada, had to each negotiate separately. But through the EU we were able to have a joint voice, and this continues. It's not always easy to get 28 EU countries to agree on something, and that's the long-term challenge, but I believe it's possible on big issues, and we face a lot of bigger issues that are collective issues.
We face internal challenges. Radicalism and extremism have risen within many of the EU countries, separatism or at least anti-EU feelings. While some of these tendencies are genuine, there are always voices in a country that see things differently.
I think the evidence is fairly clear that one country that's very interested in seeing a weakening, if not a collapse, of the European Union is Russia. If Russia is not a direct military threat at the moment to our countries for the reasons I mentioned such as NATO, I think they are using a large number of other methods to try to undermine democracy because, if you look at Mr. Putin and his motivation, I think the greatest thing that he fears is not a military invasion, but an invasion of democratic spirit in Russia. If Russia ever witnessed true democracy, clearly Mr. Putin would no longer be where he is today. So it's the spread of democracy and this unity of the European Union that they see as a threat, and now they've used all the weapons that are available. Today we talk about hybrid warfare, cyberwarfare. It's not new. In Latvia, we've experienced this hybrid warfare for the last 27 years.
If I were a strategist in Moscow, my goal, let's say, in the Baltic states, would not be to invade and occupy these three countries. My goal would be to have them as members of NATO and the EU but have their governments totally under the control of Moscow. Then you have countries within this alliance. I think that's been their goal all along, but it hasn't succeeded in taking over the governments from the inside.
We see information warfare, cyberwarfare. This continues, and that's why I'm very proud of Latvia and very thankful to Canada for being a strong supporter of the NATO StratCom Centre of Excellence in Riga. I think that's been one of our biggest success stories. It's drawing experts from around the world, and not always NATO countries. This is the leading edge, along with cybersecurity, of what we all have to deal with. It's something we're very pleased about. I know that Canada was one of our early supporters. You provided, a few years ago, I think it was a $1 million, to each of the centres of excellence in the Baltic states, and that meant a great deal to us.
As I mentioned, Latvia is very grateful to have Canadian troops there, if for no other reason than it will improve our hockey skills. I think the ice-skating rink is being completed at the military base, although I recall when, I think it was the World Hockey Championships were in Riga, and Canada beat us 11-1. However, at the last Olympics, I think we frightened Canada for two periods because we were leading 1-0 going into the third. That may have put Latvia on the map even before you sent the troops there.
The troops have been very welcome. They've been greeted by the people. They're very well received, and we appreciate their presence, but for me as a diplomat and a politician, I see beyond just the military presence.
We're very happy that we were able to be the first EU country to ratify CETA. We want to see Canada even more engaged in Europe, because we look at history, and you're a European country. The Americans were once, too. I think sometimes they tend to forget that. Also, in terms of NATO, in the past when they talked about the transatlantic alliance, all the focus was on the U.S. I think now Canada has again demonstrated that it has a strong interest in Europe. When I gave a speech in our parliament for the ratification of CETA, one of the things I pointed out was that Canada has defended Europe in two world wars. You've been there for over 100 years, so what you're doing now is nothing new.
We want to see other ties grow, trade ties between Latvia, between Europe and Canada. We want to buy more Bombardier planes. We want more investment. We want to invest here, and I think there's a growing interest, I hope in Canada about Latvia, but in Latvia definitely about Canada. I think in the long term this is a win-win situation for us.
Just to finish, because I'm very eager to answer your questions, when I look back at the whole idea of multilateralism, I'm reminded that we in a small country like Latvia have our domestic regional issues. This month we're debating our budget for next year, a budget in which we will formally achieve 2% of GDP for defence, but we are faced with the same global problems that everyone else is: terrorism, uncontrolled migration, extremism. While we can deal with these as a country, we realize that the real solutions can only come collectively, if the EU, NATO, even the UN, can work together. That's why it's a pleasure to have deepened our relationship with Canada and to work with you.
Again, thank you for the invitation and the opportunity to be here, and thank you for your great interest in and support for our country.
In Latvia, we've never had ethnic tensions because, at least since the Soviet rule, we've always had a sizeable Russian population. I always say that there's not a problem between the Latvian people and the Russian people. The problem is between politicians in Moscow. It's policy that threatens us.
If you look at the population of Russians in Latvia today, those who were born in the last 27 years are European Russians. They were born in an EU country, at least since 2004, and they know full well what the advantages are of being in the EU. Those who have become citizens can travel; they gain all the benefits.
Even since 2014, with what happened in Donbass, in eastern Ukraine, we have always had questions from our western allies about whether there could be an uprising amongst Russians. We have no indications of that.
Yes, there are a few extreme voices, but they have no popular support. Yes, many of the Russians in Latvia watch Russian television and follow Russian news, but they also know what living conditions were like in eastern Ukraine, even before Russia came in. There's no comparison to Latvia. Even the poorest sections of Latvia are still vastly different.
We don't feel any threat there. We know that there's always the Russian pretense that could be used to say, “Well, we have to defend our countrymen,” but it's not plausible to anyone who knows the situation there.
Our parliament has 100 members. The largest party is a so-called pro-Russia party. These are Russian citizens from Latvia. There are many Latvians. It's a social democratic party. They're the furthest left party in Latvia. They're in parliament. They haven't been in government. The mayor of Riga is a Latvian-born Russian. He's very popular. Even Latvians vote for him. So they're part of the political process.
Probably the only reason that the pro-Russia party has never gotten into government is that there are two positions that they refuse to change. One is that they have never recognized officially that the Soviet Union occupied Latvia, because Moscow doesn't recognize that. The other is that they have always tried to insist that Russian should be made the second state language of Latvia. For us that's a sacred issue. We're a small country, with a population of under two million. The Latvian language is one of the reasons we wanted an independent country, to preserve that. We don't discriminate against other languages. You could speak Russian, English, whatever you want in Latvia, but as a state language, it has to remain.
If they were ever to change these two policies, there could be a switch in attitude. They haven't been openly aggressive, but even in cases like Ukraine, they will not condemn Russia. What they will say is that Ukraine is a very corrupt country and that it caused these problems, or they'll say that NATO or the U.S. forced Russia to intervene. Otherwise, no, we don't see tensions.
I'm a Latvian who was born in Europe after the war. I was a refugee. I was born in a refugee camp in Munich, but I grew up in the United States. I learned that in Latvia, even under Soviet rule, we never had ethnic gangs. We never had Russian and Latvian gangs. It just never divided up that way. Finally, one-third of all marriages in Latvia are mixed marriages, Russians and Latvians, so love conquers all.
Voices: Oh, oh!
Thank you. In our region, from the people who are familiar with dealing with Russia the usual response is that you have to have a firm hand. You have to show that you believe in your convictions and will stand up for them, because history has shown in recent years that Russia will back off.
I recall that when we were candidates for NATO in the 1990s, the biggest objection we got, even from well-meaning people in the U.S. and elsewhere, was that Russia would object, that they couldn't tolerate it. Our response was that the reason they were objecting was that they were hoping they could stop you from letting us join. Some people thought that if the Baltics joined, it would launch World War III. It's just the opposite; that's what prevents it.
We saw in that case that Russia did back off. I think you have to be firm on principles here.
As to sanctions, nobody likes to use sanctions, because they're not intended to punish but are intended to coerce the other side to change their policies. I think even though it hasn't totally worked with Ukraine, it's the only weapon we have: nobody is going to actually invade to try to solve this militarily.
Concerning the Magnitsky Act, I'm meeting with Bill Browder later today. This issue has come up in Latvia before. Part of the reason it wasn't addressed a few years ago is that we have a large Russian community. While we take a strong stand on Ukraine and Crimea, there's always the problem of trying to find a balance. We have trade with Russia—80% of our rail and port business comes through Russia. We want normal relations, but we will take a stand on principle when they're violating somebody's territorial integrity.
I think after this visit, now that Canada has passed this law, some of my colleagues in parliament may want to raise this again. I'm therefore going to talk to Bill Browder today. We'll look at the details, and I suspect I will raise this issue in my committee in the coming month to see whether we could address it again and see that this is useful.
Will Russia react to it? Probably it will, but it was interesting, with the sanctions on Ukraine, that there were reverse sanctions in the case of Latvia, but we noticed that they were very selective. Two Latvian exports to Russia that were not touched were alcohol and sardines, or what we call šprotes—our Latvian sardines—because they're too popular in Russia, so they weren't sanctioned. Also, most of the rail traffic wasn't sanctioned.
Russia, then, can be selective. It may be a symbolic response, but I think you have to stand firm on it, because again, it's not to punish and not because people hate Russia, but because they're behaving badly. If they want to rejoin the world community, there are certain civilized rules that we all need to abide by, and we need to remind them of that.
Thank you so much, Mr. Chair.
Good afternoon, members of the committee.
Two years ago I was on the ground in the isolated Sudanese state of South Kordofan, where civilians have been cut off from the world since 2011 while the Sudanese Armed Forces carry out an unrelenting campaign of aerial bombardment, rolling unguided barrel bombs indiscriminately out of the backs of Antonov aircraft, killing and maiming thousands of civilians, forcing hundreds of thousands to flee their homes, and provoking a terrible food crisis, as farmers have been too terrified to plant or harvest their crops.
One elderly woman, describing to me a terrible attack that had killed several members of her family, asked me a simple, heartbreaking, glaringly obvious question, to which, sadly, there was absolutely no reassuring, obvious answer: “Who keeps giving them the bombs, and why?”
That is why we are here today, of course. Amnesty International welcomes this opportunity to appear as part of your deliberations regarding Bill , intended to lay the ground for Canadian accession to the UN Arms Trade Treaty.
Let me state at the outset—I'm sure it's obvious, but it's worth repeating—that Amnesty International is a strong proponent and supporter of Canadian accession to the Arms Trade Treaty, a welcome promise, we note, that Canada repeated before the UN General Assembly's first committee just 10 days ago.
For decades Amnesty International has been documenting massive human rights violations around the world associated with the arms trade, which we have often called the world's most deadly commerce. That is why we and countless other organizations campaigned for years for the adoption of the Arms Trade Treaty: to establish a vital global principle that no state can be permitted to transfer to another state arms that will be used to commit genocide, crimes against humanity, or war crimes.
We enthusiastically welcomed the adoption of the Arms Trade Treaty in 2013 and have pressed governments since then to ratify and accede to this important new international human rights treaty and to adopt laws to fully implement its terms. In four and a half years, 92 states, nearly one-half of the world's nations—and that's pretty fast in UN speed—have become parties to the treaty, including many of our closest allies. Canada's accession matters very much for two key reasons.
First, we have a significant arms industry. I don't think many Canadians realize this. Recent high-profile cases have demonstrated, however, that it includes deals with countries in which concerns about serious human rights violations are very real. Witness the General Dynamics deal to sell 15 billion dollars' worth of light armoured vehicles to Saudi Arabia, and the Streit Group's sales of armoured cars to South Sudan, Libya, and Sudan through its operation offshore in the United Arab Emirates.
Second, Canada's accession is crucial in generally shoring up respect for this important treaty. In situations of armed conflict and mass human rights violations around the world, we continue to document a virtual flood of arms from outside the country concerned, Myanmar's Rohingya crisis, Yemen, South Sudan, Iraq, Syria being some of the most obvious contemporary examples. There is no global arms embargo in place for any of those countries, which is absurd and outrageous. It would require a UN Security Council resolution, and we of course all understand the politics of the Security Council in action.
A well-supported ATT with global reach, therefore, is what we truly need. That is why Canada needs to be on board.
Being on board, however, means enacting legislation that fully complies with the ATT's obligations, and we are concerned that Bill fails to meet the requirements of the ATT in several crucial respects. We have joined with nine other organizations, including the Rideau Institute, in highlighting 10 areas that urgently need to be addressed before Bill C-47 is adopted and Canada moves to accession. I know that either earlier or soon you will have received copies of this joint brief. I would like to highlight two of the areas of concern in the paper.
First, Canadian arms controls do not apply to transfers to the United States. Second, provisions governing the possibility that arms transfers to any country will be diverted to a third country are weak. In many respects, the two points are interrelated, as Canadian transfers to the United States frequently involve parts, which may be incorporated into weapons that are then fully assembled and transferred to another country.
The fact that the United States is exempted is not of passing concern. The U.S. exemption effectively guts Canadian compliance with the ATT. Consider the following: one, over one half of Canadian arms sales are to the United States; two, while the U.S. has signed the ATT under the previous administration, there is no realistic prospect that the U.S. will take the further step of ratifying the treaty at any foreseeable point, and therefore one half of Canadian arms sales go to a country that is not bound by the treaty; and, three, there are very real concerns about U.S. arms transfers.
Here are just two examples from our work. In May, the United States announced 110 billion dollars' worth of arms sales to Saudi Arabia, including $4.6 billion's worth of guided air-to-ground munitions. In the war in Yemen, where we have documented extensive war crimes, 104,000 of those types of bombs have been used routinely by Saudi forces.
Also in May, we released a report highlighting a U.S. Department of Defense audit which revealed that the United States was not able to account for $1 billion's worth of weapons that had been transferred to Iraq and Kuwait, including tens of thousands of assault rifles, hundreds of mortar rounds, and hundreds of Humvee armoured vehicles. We have documented how, in the face of these lax controls and deficient record-keeping, arms manufactured in the United States regularly wind up in the hands of armed groups, paramilitary militias, and even the Islamic State, throughout Iraq.
The fourth reason we need to be concerned about the United States is in simply considering the numbers. In 2015 Canada exported just over $51 million U.S. in parts and components for small arms and light weapons to the United States This is not pocket change. We have no way of knowing what happened to those parts. Did they remain in U.S. hands or were they re-exported in fully assembled weapons to some other country?
This is a very real concern with arms transfers anywhere in the world, and it's why there's a specific provision in the ATT—article 11—requiring states to take measures to prevent what's known as diversion. Canadian law requires that the possibility of unauthorized transfer or diversion to another country be considered, but does not contain any clear prohibitions, and Bill does not remedy that shortcoming.
In short, Amnesty International urges this committee to propose amendments that will ensure Canadian arms controls do apply to sales and transfers to the United States, and that Bill incorporate measures that will fully comply with ATT article 10 dealing with diversion. We also urge amendments to address other concerns highlighted in our joint briefing paper, including the need to ensure Bill C-47 will apply to the Department of National Defence and to the Canadian Commercial Corporation, and that existing provisions giving cabinet broad powers to authorize any arms transfer, regardless of human rights concerns, be strictly limited.
Finally, you will note that many of our concerns relate to vital matters going to the heart of our ability to meet ATT obligations, but which are not addressed in the terms of Bill and are left for regulations to be adopted at a later stage. That includes the absolutely central matter of what factors will be taken into account when assessing the risk that a particular arms transfer may violate the ATT. Those factors, we would suggest to you, are too important to be left to regulation. They require and deserve your attention and scrutiny as parliamentarians and should be part of the act itself.
Who keeps giving them the bombs?
Canadian accession to the ATT is a step we look forward to celebrating at an early date. It will be welcomed around the world. It must, however, be on the basis of a legal framework that demonstrates full compliance with ATT obligations. We are certainly ready to work with you and with government officials to make the changes that will ensure that is the case.
Thank you very much.
Thank you for giving me this opportunity to address the committee on this most important legislation.
I fully support the comments just made by Alex Neve and will pick up from where he left off.
My work toward achieving robust Canadian and international standards for the export of military equipment started with my time as an international security policy adviser on the staff of then foreign affairs minister Joe Clark when he was shepherding through cabinet new guidelines for Canada's military exports, which became known as the “1986 policy guidelines”. They are still in effect today and can be found in the regulations to the Export and Import Permits Act—which I'll call EIPA from now on to save time—conveniently collated in the “Export Controls Handbook”.
Let me quote the human rights criteria in those guidelines:
Under present policy guidelines set out by Cabinet in 1986, Canada closely controls the export of military items to:
...countries whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.
We had high hopes when the 1986 guidelines were established that Canada would set a global standard for responsible arms exports. Beginning in the 1990s, however, the human rights guideline became more honoured in the breach than in its observation, with more and more military equipment going to Saudi Arabia, precisely the destination the 1986 guidelines were meant to avoid. So what went wrong?
The answer is very simple and equally easy to fix. The 1986 guidelines, like other criteria in the EIPA itself, are not mandatory, but are, as the name implies, guidelines. This became painfully clear when the Federal Court considered a challenge to the $15-billion Saudi arms deal launched by McGill law professor and former MP Daniel Turp.
Before turning to that court decision, we need to consider, in addition to the policy guidelines—because they're of course not the only criteria, and they're contained in the regulations—the relevant section of EIPA itself, since Bill leaves this section almost entirely unchanged. Subsection 7(1.01) of the EIPA identifies the factors to be taken into account by the minister in deciding to issue an export permit, in addition to the guidelines I mentioned. I quote:
In deciding whether to issue a permit under subsection (1), the Minister may, in addition to any other matter that the Minister may consider,
—like the policy guidelines—
have regard to whether the goods or technology...may be used for a purpose prejudicial to...the safety or interests of the State...or...peace, security or stability in any region of the world or within any country.
The relevant language there is “may have regard to”. The language used in subsection 7(1.01) is extremely permissive, and there are no legal limits placed on the foreign minister's discretion to approve arms exports.
Now, turning to the Federal Court decision on the legality of the Saudi arms deal, in approving the six export permits in April 2016, Minister Dion, then the foreign affairs minister, relied on a memorandum prepared by officials in Global Affairs.
The memorandum acknowledged serious concerns about Saudi Arabia's human rights record; however, the memorandum affirmed that Global Affairs Canada was “not aware of any reports linking violations of civil or political rights in the kingdom with the proposed military exports.” I hasten to add that, since that statement and that ruling, which is now being appealed, ample evidence of such misuse with Canadian equipment has come forward.
The government argued that the EIPA includes guidelines and policies that “provide for strict controls over the export of goods such as [light armoured vehicles], but contain no prohibitions.” The minister's “sole obligation” is “to take into account all the relevant factors having regard to the existing legislative framework...”.
The court ruled in favour of the government—as I noted, it's under appeal now—declaring:
These factors guide the Minister. It is for him to decide how to assess them and how much weight to give to each, as long as he exercises his power in accordance with the object and in the spirit of the EIPA....
The court observed that even a “plain reading of the language chosen in the EIPA”—language not being changed by Bill —“indicates that the Minister has broad discretion in issuing permits for controlled goods.”
The ruling of the court concluded:
The role of the Court is not to pass moral judgment on the Minister's decision to issue the export permits but only to make sure of the legality of such a decision. Of course, his broad discretion would have allowed him to deny the permits.
The Federal Court's judgment that the minister acted within his discretion demonstrates that the discretionary power under the EIPA is too broad and that there is a need for hard legal limits on that power. This conclusion is highly relevant in the context of Canada's planned accession to the ATT, since both the EIPA, as it now stands, and the Saudi arms deal are inconsistent with that treaty.
Let me now turn to article 7 of the Arms Trade Treaty, which reads:
If the export is not prohibited under Article 6,
—and Alex Neve has already referenced that provision that prohibits exports if you have knowledge that they're going to be used to commit genocide or other war crimes—
each exporting State Party, prior to authorization of the export of conventional arms
...shall, in an objective and non-discriminatory manner, taking into account relative factors...assess the potential that the conventional arms...would contribute to or undermine peace and security...[or] could be used to...commit or facilitate a serious violation of international humanitarian...[or] human rights law....
Here's the relevant part of the Arms Trade Treaty:
If, after conducting this assessment and considering available mitigating measures, the exporting...Party determines that there is an overriding risk of any of the negative consequences
—undermining peace and security or committing or facilitating serious violations of human rights—
the exporting...Party shall not authorize the export.
The words “shall not authorize the export” in article 7(3) of the Arms Trade Treaty must therefore be given their full and intended effect. This requires hard legal limits on the discretion of the minister of foreign affairs, limits that we left out of the original policy guidelines and limits that are absent from Bill .
Again, with the Federal Court having ruled that it is currently within the discretionary power of the minister of foreign affairs to approve arms exports to countries that are undermining international peace and security or engaging in serious violations of international human rights or international or international humanitarian law, a key step in bringing Canada into line with the ATT involves placing hard limits on this discretion. If Canada is to comply with this treaty fully and truly set a global standard, the minister must be legally obligated under Canada's implementing legislation to deny exports that carry an “overriding risk” of contributing to undermining international peace and security or committing or facilitating serious violations of international human rights or international humanitarian law.
Bill contains no new provisions in the EIPA proper, the actual legislation, to limit ministerial discretion; however, as Alex Neve also alluded to, Bill C-47 proposes to amend the EIPA to “authorize the making of regulations that set out mandatory considerations that the Minister is required to take into account before issuing an export permit...”. Note that the bill does not establish any mandatory considerations; it only authorizes the making of regulations that will include them.
Even the idea of mandatory considerations at the regulatory stage, however, is misleading, since the considerations will not actually be mandatory or prohibitive, but only “mandatory...to take into account”, which is what we have right now in the EIPA and which the Federal Court has ruled does not fetter the minister's discretion in any way. This amendment does not result, therefore, in any change in the scope of the minister's discretion.
The absence of any real substance to these mandatory considerations “to take into account” renders Bill incompatible with the Arms Trade Treaty. Under article 7 of the treaty, Canada will be obligated to “assess the potential that the conventional arms...could be used to...commit...a serious violation of international human rights” and if there is an “overriding risk of any of the negative consequences”, it “shall not authorize the export”. That's the requirement under the ATT.
The legal obligation under the ATT goes far beyond the consideration of certain factors. It is an obligation to refuse permits in certain high-risk circumstances.
By leaving the decision to approve or disapprove a permit to the minister's discretion as opposed to creating hard legal limits on that discretion, Bill is, in terms of ATT implementation, a failure.
I end with a point of comparison with respect to a model law which the Government of New Zealand developed and enacted. I end with this one section, subsection 5(3) of the model ATT implementation law. It reads in part:
If on the basis of the assessment conducted under subsection (2) the Authority
—because it need not be the minister in some cases—
determines that there is a substantial risk that the conventional arms, ammunition, or parts and components:
(a) would undermine peace and security; or
(b) could be used to commit or facilitate:
i. a serious violation of international humanitarian law;
ii. a serious violation of international human rights law;...
and the risk cannot be mitigated, the Authority shall refuse the application for an export licence.
The key language here is “shall refuse”, firm and binding language of the kind that is strikingly and fatally missing from Bill . I associate myself with the comments that Alex Neve made about how anything to do with mandatory consideration of factors should not be in the regulations because it deprives you, the committee and other parliamentarians, from knowing and impacting on the content of those regulations.
Accordingly, the Rideau Institute recommends that hard legal limits, based on the risk assessment criteria set out in article 7 of the ATT, be imposed on the foreign affairs minister's discretionary power to approve arms exports, and that these hard legal limits be set out in a statute and not in regulations.
Thank you very much.