Ted McWhinney

[Kosovo, April 12th, 1999]

Mr. Speaker, this debate is a reprise of two earlier debates on October 7, 1998 and February 17, 1999.

I had posed some questions to opposition parties during the first debate. In a very real sense we can see law emerging from this process of discussion and give and take. We do not actually need a vote. Sometimes we get more consensus the other way.

It is elementary that the United Nations charter outlawed the recourse to armed force and military action except in the two extraordinary situations sanctioned by the charter; that is individual or collective self-defence or action under Chapter VII of the charter, the peacemaking sections. I temporarily overlooked Articles 53 and 107, the enemy states sections which authorize actions without any limits. They are still there against Germany and Japan but they are anachronisms.

It is also true that regional security organizations, being legal creatures of the charter and subject to the charter, cannot partake of any legal powers higher than or in conflict with the powers of the security council. That is explicit in Chapter VIII of the charter. In other words, a regional security organization cannot hoist itself by its own bootstraps into a legal power to use armed force that it does not have under the charter.

These were rules which, after the one exception of the Korean War in 1950, the world community was able to live under during the cold war because, in spite of some perhaps contemporary views, the cold war system of public order maintained a strong regulation of the political-territorial status quo of Yalta and the other wartime agreements.

What we have seen though at the end of the cold war is the breakdown of this post-war system of order and the breakdown in consequence of some of those artificial multinational states that were created by the Versaille treaty and maintained by Yalta and other instruments thereafter. The new century, contrary to the general view of a century of progress and enlightenment, may well turn out to be the century of inter-ethnic conflict. We are rediscovering in a very horrifying way the pre-1914 conflicts in which the Balkans, of course, were the cockpits of Europe as Bismarck said.

To go back to this general issue, what are we to do in a present situation where a crisis faces the world community, but where, in the view of many governments, action under Chapter VII of the charter is inhibited by the fear—which may or may not be unfounded until it is tested—of the exercise of a veto by a permanent member of the security council? Russia or China are the ones that have been fingered.

We should not forget that in the Korean War of 1950, President Truman and his secretary of state, Dean Acheson, developed in a very imaginative way the recourse to the UN general assembly, the Uniting for Peace Resolution. It was adopted by 52 to 5, with 2 abstentions. It basically stated that although the security council has primary responsibility for the maintenance of international peace and security, if it is blocked by wilful obstruction in the use of the veto then the general assembly has plenary powers to act.

I think that is a useful precedent. I wonder if it could not be used in the present situation if we are unable to take further action compatibly with the charter.

We must remember that there is no veto in the general assembly. An ordinary two-thirds majority applies and the general assembly can be called into being with a 24 hour notice in an emergency situation.

In the debates in the House, those two debates I referred to, I raised this new concept of humanitarian intervention. Admittedly it has some difficult antecedents. One was what might be called the colonialist power of intervention asserted in the 19th century by Britain, France, Germany and other countries, sometimes cloaked as reprisals. That is generally considered anachronistic. Some of us would also remember that during the cold war it was asserted by the bloc leaders on both sides. Everyone will remember the situation of the intervention in Hungary in 1956 and Prague in 1968, the so-called hegemonial intervention, that you can intervene to enforce solidarity within your own bloc.

However, there are other antecedents to this which should not be confused with those past interventions. One of the more interesting developments is the attempt to flesh out, to give new parameters defining modalities for this concept of humanitarian intervention which is likely to be the weapon we need to cope with this inter-ethnic conflict that is going to be with us.

I do regret that it has not been felt possible to involve the United Nations more firmly in the process to date. However, there is nothing to prevent the United Nations from being accommodated to the crisis problem solving as it develops.

The Minister for International Cooperation has already recognized the primacy of the United Nations in the general policy aspects of humanitarian care and control of refugees. One had hints which come close to some suggestions on the opposition side that it might be possible to accommodate, within a framework of an international military force now limited to NATO, non-NATO members. There is nothing to prevent the United Nations from authorizing an international force in which NATO might be the prime element but which could include Russian troops or other troops. It could even be put under U.S. command. If this sounds rather strange, it was in fact the solution found in the Korean War of 1950 with an American commander-in-chief but under the political control of the United Nations. When he exceeded his powers, and he was a very strong personality, he was fired by his president after consultation with the secretary general of the United Nations.

The possibility is there and it is possible in a phase 2 of the operations to control the crisis in Yugoslavia. That would be the best and most productive way to proceed.

I would also suggest the use of the world court. I listened carefully to the member for Beauharnois—Salaberry. He touched on this but I would like to suggest that the court is available and it can give decisions on very short notice, the reasons sometimes come later. Fleshing out the limitations to this concept of humanitarian intervention, it cannot solely be limited to one country's own conception of what is right and wrong. We get into the Latin legal phrase, quod licet Jovi, licet bovi. What is allowed to Jupiter on high must be allowed also to the humble ox. There are other countries around the world whose jurists have been in touch with me over the last few weeks saying, “Why can't we do this?” It suggests that we should put this as far as possible in the next phase into United Nations' hands.

I would also like to get a ruling on the limitations as to aerial bombardment. It is often forgotten that the rules of aerial bombardment are not what they were in World War II where members will notice it was not a count in the Nuremberg indictments. The additional protocols in 1977 in a very real sense limit the capacity to conduct aerial bombardment. I think it would help to have a world court ruling on this.

Why do I speak of law? It is simply because I am reminded of another American president, President Kennedy, who had advice from his security advisers, among others, to bomb those missile bases in Cuba. President Kennedy's answer was essentially that a great state is not armed solely with the law, it has its armed power, but the essence of wise decision making is to choose those modalities that solve the problem that are compatible with international law.

President Kennedy's peaceful solution to the Cuban missile crisis is a textbook case in all our university courses on United Nations law and it is a model to follow. I welcome the suggestions that I discern in the opposition and I discern in some of the government answers that there will be an increasing attempt to phase in the operations with the United Nations. That is the more traditional Canadian way, that we operate through the international authority, through the United Nations. In the particular circumstances, it may not have been possible to be so at the beginning, but it is possible to be so at the end.

[Foreign Affairs, March 25th, 1999]

Mr. Speaker, the arrest and forcible transfer to jurisdiction of a national criminal court of the Kurdish leader, Abdullah Ocalan, raises the possibility for the Canadian government to make use of our excellent diplomatic relations abroad to offer our good offices in having Canadian observers present at any future trial processes and to offer to provide additional legal counsel from Canada, if that would be relevant.

[Coastal Fisheries Protection Act, March 25th, 1999]

Mr. Speaker, first I would like to thank the hon. member for Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok for his helpful contribution to the Standing Committee on Fisheries and Oceans.

At the time, I was the Parliamentary Secretary to the Minister of Fisheries and Oceans. The hon. member is an intelligent man and an unfailingly co-operative committee member.

To return to the subject specifically, the kernel of our discussion is of course the 1982 United Nations convention on the law of the sea.

It is worthwhile reminding the House that Canada, with Singapore and Venezuela, in effect was the conscience of this great international law making project. It lasted for 12 years. Alan Beesley who was legal adviser to our foreign ministry, Tommy Koh of Singapore, and Aguilar Mawdsley who later became a judge at the World Court, provided the modernizing ideas on the law of the sea. It is a great credit to their initiatives that this became a convention after 12 long years of negotiation.

We still have not ratified the convention which recently became law with the 60th instrument of ratification and there were reasons for that. It was thought that there were gaps in the treaty which became apparent in the light of subsequent developments.

Those hon. members who were in the previous parliament will remember the problems the minister of fisheries of that period had with flagrant overfishing as we saw it by certain long range European fishing countries just outside Canadian territorial waters. This overfishing contributed to the degradation and ultimately the threat of disappearance of scarce fisheries stocks.

The minister, on excellent and imaginative advice, decided to go ahead anyway. He was right that there was a legal base for the control action we took. It was necessary to go back to the 1958 and 1960 conventions, the first and second United Nations conventions, to get the main philosophical support for what we did.

It will be remembered that Canada was taken to the World Court over this by Spain. In a ruling in December, the World Court upheld Canada's position but on a technical adjectival law issue, not the main substantive issue, of the ability to conserve endangered or diminishing stocks.

In the meantime, to make assurance doubly sure we went ahead with negotiation of supplementary international agreements that would fill the gaps as they had now become apparent in the 1982 convention. These were the 1994 and 1995 UN agreements on straddling and highly migratory fish stocks which are the substance of the United Nations agreements on straddling and highly migratory fish stocks, UNFA as it is referred to. For these treaties to be able to go ahead, in our view we need to supplement what the then minister of fisheries did by divine inspiration and the power of the apple. This is not an instrument of discord, an apple of discord. It is a friendly object in international negotiations.

The minister went ahead and took the action but it would be very important to cross all the t's and dot all the i's and make sure that Canadian internal legislation provides the enforcement powers for the purposes of Canadian internal law that the minister found, correctly, in international law as it then existed before 1982 and as imaginatively reinterpreted to meet new conditions.

That essentially is what this bill is all about. It will tidy up our national law. It will then put us in a position to do what I have asked for at least five or six times in the House over the last several years, to go ahead and finally ratify the 1982 convention on the law of the sea.

This is a convention that Canadians inspired, in very large measure. We gave it the interesting dynamic elements. We did not have the problems that our American friends had. They worried about damage to their internal mining and other interests by the convention's very imaginative provisions on sharing some of the to be expected wealth from ocean depth mining with underdeveloped countries and others under a special United Nations fund and a special United Nations administration. We did not have these fears.

We did have this feeling and commitment to environmental protection, the special concern that Canadians have had for protecting endangered species and species in danger of extinction as we have seen both on the east coast and the west coast. On the east coast it is Europeans and on the west coast we feel it is sometimes internal states within the American system that do not respect the United States treaty obligations under international law and on the west coast, the 1985 Canada-U.S. Pacific salmon treaty.

This is a measure to tidy up our law. It will remove the objections that some have made to our ratifying the 1982 convention. Immediately after the adoption of this law, it will enable us to do everything to present a 200% perfect legal case on which the then minister of fisheries in 1994-95, with great imagination and that special gift of poetry that Newfoundlanders and I suppose people from all of Canada's maritime regions have, decided to go ahead. He cited the duty of protecting endangered species, the notion that it is one world of scarce resources. One country diminished by unnecessary illegal acts in terms of general international law damages all the world community.

It is a very constructive piece of legislation. We welcome the contributions that have been made from all parts of the House in support of the measures conveyed in this. It is my great pleasure to endorse the legislation, to urge its support and to thank members from all parties in the fisheries committee and in other arenas for the support they have given these general principles.

We are a law-abiding country. We support international law, not international law narrowly construed, but international law captured in its full spirit and with an eye to emerging needs. It is not simply a static re-statement of the old in relation to old problems. It is capturing the new problems and finding creative solutions for them.

I am assured by the former minister of fisheries and the fisheries minister that this will enable us to proceed to ratification of the 1982 convention.

[Government Services Act, 1999, March 23rd, 1999]

We would say to all those who are here that we are celebrating this House, its august traditions. One's understanding is there is an arrangement on both sides of the House. We have exercised it to the full. We are voting according to our conscience. We respect the opposition. We would all like to get home early of course, but nevertheless we play our part. All of us may qualify for an academy award next year.

[Government Services Act, 1999, March 23rd, 1999]

Laurier said that the 20th century belongs to Canada. The 21st century belongs to the member for Elk Island and people with old-fashioned values. We will join him in preserving them. We will join him in reviving the dungeons, cleaning the Augean stables, throwing in those who would stand in the way of parliamentary privilege, throwing in those who would serve a writ on a Senator in this parliament building; intolerable, sir, and a taint to our privileges and immunities.

I take the opportunity to have a discussion on Senate reform. We respect our co-ordinate institution. We love the Senate and the senators. We are waiting only for the rebuilding of this House to occupy those offices in that end of the building, to remove the red carpets, to introduce—

[Government Services Act, 1999, March 23rd, 1999]

Mr. Speaker, when I heard him utter those forbidden words I remembered “Nyet. Sdez on ne govorut po russki”, but you allowed him the indulgence because oratory is so rare in this Chamber. We mumble our words and we perhaps are lulled to sleep by a monotonous cacophony of sounds, usually from the opposition, but sometimes even from this side.

The reminder of the 19th century drew me back to Mr. Justice Oliver Wendell Holmes, a household word for many people. Mr. Justice Holmes uttered the well known words upon businesses affected with the public interest.

I think we should perhaps examine the concept of rights of society, rights of individuals, rights of associations in a contemporary context.

What were the businesses affected with the public interest? Mr. Justice Holmes referred to people by these honourable professions: lock keepers; innkeepers. There is a distinction: people who conducted ferries; people who conducted rooming houses, not gaming houses; all of these objects. But the kernel of all this was that this was an area where state and the individual in society were in collision and rules and regulations were required. So I suppose one of the larger areas in which we could have benefited from northern Alberta's or northern Saskatchewan's learning was where to draw the line in these particular cases.

Businesses affected with the public interest have their own regime, their own regulations and certain privileges and immunities that the general public do not have. I suppose that is one of the issues for our society today, the growing public domain. Some would say it is too large. We think on this side of the House that we have the right balance. But nevertheless, are there privileges, are there immunities that ordinary citizens do not have? Is there, in that sense, an implied social contract to accept the continuance in work, even under conditions which would not be tolerated in a purely private domain?

It is a resolution that modern jurists, trained in the concept of balancing interests, balancing community interests, balancing individual interests, know that decisions can only be rendered in the context of specific cases. I think in this sense I would have preferred more argument on the other side of the House addressed to this issue.

I am getting this in letters and communications to me, and I have asked myself professionally, for example: Should teachers be allowed to strike? Should university professors be allowed to strike? Should nurses? Should doctors? Should people who perform essential services? I think we do need, in terms of defining a new social contract for the new millennium, to have an extended debate on issues such as this in the give and take to which this House is accustomed. I do not believe we have heard it tonight. I think that is a pity because an opportunity, at some length, has been lost.

I am reminded again of a point that was discussed with—can I say some heat—by the member for Elk Island and by members on his side of the House. It seems to me that some of the hon. members opposite were saying that they were barred from access to this House. None of us would attempt to bar the member for Elk Island from access to this House. That would be a formidable confrontation and we would certainly want to avoid it.

Nevertheless, in the 16th century the great preoccupation of parliamentarians was resisting people who tried to bar their access to parliament. It was the king and the king's courtiers and others, the commoner, rushing to the House who might never arrive.

In the Polish parliament it was said, because they had the strange concept of the liberum veto, that a single negative vote was enough to prevent any decision being made. The only thing to do was to apply the word that the member for Elk Island uttered so eloquently, nyet. However, before he could utter nyet and veto, they would lop off his head. The liberum veto, as late as the 18th century and the third partition of Poland, had its necessary corrective, the right to cut off heads. It is an old Polish custom, but I was reminded of it when I heard the eloquent speeches opposite of how members were barred from coming to parliament.

I once gave an opinion, free of charge I must say, to a member of the other house. Why do so many of us cast stones against that other house? I once visited the chambers, the rooms, the offices of members of the Senate and I saw those red carpets. Ours are green. The grass is green. When we visit the offices of the Senate we see that beautiful red plush velvet. I was overcome by a senator who embraced me and said “Somebody has committed a crime worse than death in relation to me”. I asked “What have they done?” The senator said “They tried to serve a process on a senator in the house”. Serving a process in the House, is that an impediment to the efficient conduct of a parliamentarian's work? Speakers of the House have been known to scribble notes during the hearings of the House. It has been observed. Is it an impediment to a member's or a senator's function to be served with a traffic ticket violation by a police officer?

I was appalled when I heard this. I empathized with the senator concerned, one of our most attractive senators. We discussed alternative, more moderate controls, to take a further step beyond Mr. Justice Holmes.

We do agree that senators are not above the law, that senators are subject to the principle of equality before the law. Senators should pay their traffic violation tickets too. But are they effectively to be immunized from this equality before the law because they cannot be served?

I think looking for a pragmatic resolution to this problem, Mr. Speaker, you would examine the issue: Are there alternative methods of service of summons?

The suggestion I made to the hon. senator was that she make herself available to be served in her residence or in her taxi coming to the Senate, but not in the Senate itself. The principle was an inviolate one. The House cannot be used for service of ordinary legal processes. A member cannot be arrested in the House. That is why I come back to the 16th century.

I sympathize with those who felt on a picket line that they were polite and maybe a member was not polite. Nevertheless, the inviolability established against an arbitrary king, a sovereign king who said “I am king and I am above the law”, was that he could not bar members from coming to parliament. When King James I said to Sir Edward Cook “You say I am subject to the law. Mr. Chief Justice, I am above the law. I am the source of sovereignty”, Chief Justice Cook replied in the eloquent phrase “Non sub homine sed sub Deo et lege”; not subject to God but subject to the law of the land. That is a very eloquent principle.

The member for Elk Island could well counsel his colleagues with the wisdom that comes from the accumulated experience in northern Saskatchewan. In those long winter nights he could say they are also subject to the law. The more moderate control in this case would be to advise the member for Elk Island's colleagues to step nimbly around those obstructing their passage. The alternative, more moderate control is that you can waltz around them. That is the way. The member for Elk Island would agree with me. He could exercise a skater's waltz around the obstruction.

If we have solved this problem of sanctity of parliament that members cannot be barred from coming to the Hill, it is worse now than the offences of the 16th century committed against parliament because then parliament had the remedy. It had its dungeons and it cast the miscreants into the dungeons. There is a case to be made for cleaning the dungeons, cleaning the Augean Stables. Let us have access to those dungeons. We can protect the member for Elk Island. We can protect his colleagues and his cohorts from arbitrary arrest and imprisonment on the way to the House. Bring back the dungeons.

It occurs to me that in considering this matter at this stage of the evening we have to study the old precedents. We have to reject, as the member for Elk Island would in his Ciceronian tones, the notion that all of the past is bad. We can learn from the past.

Mr. Speaker, you and I watched the Academy Awards two nights ago. We saw the resurrection of Queen Elizabeth in two personalities. We saw the past as beautiful. Life is beautiful. We do not expect the member for Elk Island to imitate La Vita é Bella and to dance on the backs of chairs. But we do expect from all members of the House respect for the past, respect for precedents, but in a very dynamic sense the interpretation of precedents in a creative way that responds to our expanding destiny for the new millennium. The time is with us. The new millennium is arriving.

To examine the dilemma of how to balance the conflicting interests in this period of rapid change, the societal interest, the individual interest, is the question. What is the answer? It calls for Solomonic judgment and the answers are to be found in those hidden valleys in northern Saskatchewan.

I ask the hon. member from the Trent University area, are there not hidden valleys in his original native land? There are parts of Wales that have not been visited since the Romans were there. People in these lost valleys have the virtues of yesterday. They have the old values. They have all the things that we depend on to build and maintain—

[Government Services Act, 1999, March 23rd, 1999]

Mr. Speaker, I had not intended to enter this august Chamber tonight to speak, but I was moved to tears by the splendid orations, Ciceronian in style, and I think we are all indebted to the member for Elk Island for that moving account of life on the prairies in an earlier age. His eloquence swept across the House. I can assure him that outside the Chamber grown men and women deputies were in tears. It was a moving and eloquent address. We are all indebted to him and we can assure him that the northern provinces of Canada, the northern regions of our western provinces, did him right when they gave him this hand-carved statement, the constitution of his association, which he founded and upon which he left his imprint, his style, his personality. It stands on his coffee table, as he said, as a constant reminder of what it is to be a Canadian.

One reads the rules, one studies what is carved, if not in stone, carved in wood, and one provides inspiration for generations of children.

This may not be mathematics in the new style, but it is certainly mathematics in the old style, back to the 19th century. We are indebted to the member for Elk Island.

Mr. Speaker, you were very indulgent to him because you were also I think moved by his oratory. I distinctly heard him utter words—

[Tax On Financial Transactions, March 23rd, 1999]

Madam Speaker, it is a pleasure to return the debate to the subject of the hon. member for Regina—Qu'Appelle's resolution.

We had only one reservation about the resolution and he has very gracefully accepted our suggestion for a change. I would like to enter into the record that the finance minister has been concerned with this issue for at least four years. He did raise it at the Halifax reunion referred to in 1995. It has recurred in discussions at the World Bank and the IMF in Washington and again at the Kuala Lumpur informal meeting of the APEC leaders.

It is a subject we are very concerned with. The economist who gives his name to the tax proposed is not some obscure ivory tower economist. He has been working in the practical world of economics. Apart from his Yale professorship, he was an adviser to President Kennedy on the crucial financial banking policy making that President Kennedy's administration was engaged in.

Returning to this subject, it directs attention to the problem of our times of the breakdown, as in other areas of the world community, of international institutions that were conceived for other purposes and have to be readjusted and remade to accord to new conditions. I am referring of course to the breakdown of the Bretton Woods system which in essence over the last half century has governed world banking and monetary policies.

The Bretton Woods system was set in place in 1944 in anticipation of the victory of the Allies in World War II and it was based on the evident economic financial facts of that period: the war about to end, the dominance of the United States and the dominance of the U.S. dollar system which was the pivotal international currency linked to gold by a fixed exchange rate with other currencies with fixed par value rates too.

What was linked to Bretton Woods was an international regulatory system for capital demand and supply and two very key institutions, the World Bank for long term capital assistance mostly to developing nations suffering from chronic capital shortages, and the International Monetary Fund, the IMF, for regulating money supplies to alleviate the crises in international payments. There was a multifunctional, global monetary banking framework established under Bretton Woods.

The special societal and economic facts on which that was posited have changed. One of course is the emergence of other banking systems not in opposition but parallel to the American system. We would take note obviously most recently of the emergence of the European banking group, the emergence of the new European currency unit and also of course of the Japanese construction of their own financial banking system.

More important, however, is the challenge to the institutions themselves. All of us have had reservations about the response of the International Monetary Fund to the Asian crisis. Others would take objection, as I have in other places, to the response to the change from the Soviet Union to a number of independent states and Russia itself.

The careful line between financial policy and political policy in the strict sense which figures largely in the IMF's decisions has sometimes led to results that one would question. Again there have been serious complaints made by third world countries.

What we are really directing attention to is that the member for Regina—Qu'Apelle's motion, the concept of curbing wild currency fluctuations due to manipulation of the international financial markets, this sort of thing has to be viewed in the larger context of the international financial regulatory framework.

I think we have to consider it together with the World Bank and the IMF. It will make a fruitful subject for study by the House committee on foreign affairs which had a very able group working on international trade policy. It is a subject that it could attend to.

More than ever the motion which we accept in its amended form asks us to effectuate this tax in concert with the international community. It is the green light. It reinforces our attempts to get this on the agenda of the G-7 and to re-examine the issue of fundamental reforms in international financial and banking institutions.

Sometimes we get interesting new policies. The post-Thatcher policies in Great Britain, which British Chancellor of the Exchequer Gordon Brown is calling for, look for some new global overarching international financial regulatory machinery. It will inevitably reform the IMF, the World Bank and the Tobin tax taken in juxtaposition.

We welcome the motion by the member for Regina—Qu'Appelle. It accords with our government policy if we take it in the larger context in terms of fundamental reform and modernization of international financial institutions.

I invite the hon. member and all members of the House to join in the committee studies of this aspect preparatory to raising it with renewed force and supporting empirical data before the G-7 and other arenas so that the efforts the finance minister has taken in previous years will have that extra strength behind them.

[Government Services Act, 1999, March 23rd, 1999]

Madam Speaker, I rise on a point of order. I would take it that it is a contempt of this House for a member to make colourable quorum calls. I take note that the previous call was made by a member who immediately quit the Chamber. I therefore call upon you, Madam Speaker, to exercise your discretion and to refuse frivolous quorum calls.

[Canadian Francophone Community, March 18th, 1999]

Mr. Speaker, on March 16, as part of the celebrations marking the importance of the Canadian francophone community, the Government of Alberta announced the creation of a secretariat of francophone affairs, which will put it in touch with its 60,000 francophones and promote their interests.

Eight provinces and the two territories today recognize the contribution of their francophone population and are making it one of their priorities.

We may be confident that the example of Alberta will inspire British Columbia to do the same and to take a more active part in the development of the Canadian francophone community.