4. Freedoms of the Skies (2000 – 2006)
The male voice on the long-distance line was anxious, incredulous. “Is it true that we cannot fly tonight? Our flights are banned from Canadian airspace?” He was a representative of a Russian air freight service that had carved itself a niche offering commercial flights of the world’s largest cargo planes, Russian-designed and -built Antonovs. It was a Friday night in late-October 2002. Indeed, the Russian government had been advised, by official diplomatic note, that all Russian commercial services were banned from Canadian airspace. The airline representative was concerned about a cargo flight scheduled that evening between a Russian city and Chicago.
My duty: to communicate without qualification that all Russian flights over Canada must stop, regardless of the millions of dollars of business at risk and regardless of the number of passengers who would be inconvenienced. I was frightened of what could happen if the Russian didn’t take me seriously. My only instrument was a flimsy piece of paper, a diplomatic note. A copy was in the hands of the Russian government, and another in the hands of Canada’s air traffic controllers responsible for monitoring traffic through Canadian airspace. The Russian and I didn’t talk of what would happen if the commercial flight went ahead. But the prospect of a couple of Canadian CF-18 fighter-bombers sent aloft to intercept the plane filled me with dread. My Russian interlocutor should feel the same. I hoped so, but I didn’t know for sure.
I joined the department’s trade policy services bureau in late 1999 after nearly a decade in strategic communications. Through my work on NAFTA and other trade files, I had developed a strong rapport with managers in the trade policy bureau, and they asked if I might want to switch to a “policy operations” role. After years of polishing communications lines and offering advice to ministers’ offices that was embraced at times but frequently ignored, I was up for a new challenge. What was available was a position in air transport policy that involved negotiations at the World Trade Organization and at the Montreal-based International Civil Aviation Organization (ICAO), but more tangibly, negotiations to secure air traffic rights between Canada and other countries. Opening to me was a whole new world of agreements, disputes, conventions and rules governing the operations of the world’s international aviation services.
It is indeed a specialized world, which falls outside the mainstream of trade negotiations at both the multilateral (WTO) and bilateral (country-to-country) levels. Separate treatment of air services dates to the end of the Second World War, when the allies who were designing the new international institutional architecture agreed that air transport services had a special place that derived from sovereignty over a country’s own airspace. Occupying an enormous territory that carriers need access to for efficient polar routes between the United States, Europe and Asia, Canada enjoys out-size leverage in this realm. Under bilateral agreements for commercial flights, countries agree to let flights go to, from, through and beyond their skies, but Canada never agreed, as most other countries have – to cede the right to transit, or fly over, national territory without stopping. We reserved this geographic advantage, and in the case of the Russian flights, we had decided to put that advantage to use.
We’d been brought to this juncture by Russia’s decision to deny Air Canada rights Canadian officials believed it had. Moscow would not let the airline offer direct passenger flights through Russian airspace from Toronto to Delhi, India. Of course, Russia’s skies are even more extensive than Canada’s. But the bilateral air transport agreement that Canada had signed years ago with Russia, did, in Canada’s view, provide specific overflight rights. Russia was contravening the agreement by denying them. The motive was obvious to all. The Russian Airline Aeroflot was doing a brisk business flying passengers from Toronto to Delhi via a stop in Moscow. Russia did not want this lucrative business undermined by Air Canada offering non-stop flights directly between Toronto and the Indian capital. To be economical, these flights would have to go through Russian polar airspace
I was surprised at how aggressive Foreign Affairs’ senior management was prepared to be in recommending a response to the Russian position. My initial consultation with John Gero, assistant deputy minister of trade policy, took place in passing in the hallway. He said with no hesitation we should be prepared to block all Russian overflights. Gero, always plainspoken, said “shut ‘em down,” or words to that effect. I advised my colleagues at Transport Canada how far Foreign Affairs officials were prepared to go, and we duly drafted a recommendation to then-Foreign Affairs Minister Bill Graham to threaten the closure of Canadian airspace to Russian commercial services. When he saw the memo, Graham immediately grasped that closure would be an extraordinary measure sure to offend the Russians with whom in those days we had relatively good relations. Although Vladimir Putin had recently become the Russian president, there was still hope at the time of Russia becoming more integrated in the western economic and political system. Canadian perception of Putin’s government was not that of the reactionary and authoritarian power that would later provoke civil war in eastern Ukraine, invade Crimea and kill opposition leaders, ex-spies and journalists at home and abroad. At the end of a meeting with Foreign Affairs’ chief air negotiator John McNab, Graham expressed trepidation about what we were about to do, but he took the leap. Russia would be told that Canadian airspace was closed to its commercial aviation as of midnight Universal Time on Friday, October 21, 2003.
That evening I was with McNab in our tower C sixth floor offices. I advised him of my call with the Russian airline rep, and we went on-line to a flight-tracking application to monitor the cargo flight, as well as a scheduled Moscow-Toronto Aeroflot passenger flight. The cargo flight did not appear on the screen, but the Aeroflot flight did. About midway across the Atlantic approaching Canadian airspace, the flight detoured to the south, then made an unusual right angle turn parallel with New York City. Aeroflot had apparently decided to land in New York, then put Canadian-destined passengers on other airlines’ flights into Toronto. We breathed a sigh of relief. The Russians had complied with the ban.
We had given the Russian authorities fair warning. They were notified weeks in advance of our plan to suspend their services. Our embassy in Moscow had been in contact with the Russian foreign ministry to advise them. A stern protest came from Sergei Kislyak, deputy minister of foreign affairs (who would much later become notorious as the Russian ambassador to Washington with whom Jared Kushner sought the contentious back channel to Vladimir Putin for his father-in-law Donald Trump in the lead-up to Trump’s inauguration as president). Thus, our initial advisories led to the convening of a negotiating session in Montreal to try to resolve the matter. We found ourselves across the table from Alexander Neradko, Russia’s first deputy minister of transport, who had an uncanny resemblance to Omar Sharif in the 1967 film Doctor Zhivago. Neradko inveighed against “the surprising, strange and unCanadian approach of deadlines and ultimatums.” But he offered no concrete suggestions to resolve the issue. Perhaps he thought that we would be shamed into changing our minds by his assessment of our “harsh measures.” What he did point out was that Canada was routinely using 63 weekly commercial overflights of Russia, while Russia used only 18 over Canada, in addition to its four weekly passenger flights between Moscow and Toronto. The clear implication was that Russia was prepared to retaliate.
The Montreal talks went nowhere, and we implemented the ban. Startled by our determination, the Russians asked us to meet them on “neutral ground” in Paris where we faced off against the particularly intractable Sergei Vasiliev, the deputy director of international affairs of the Russian state civil aviation authority. We advised that the proscription of overflights would remain in place until Air Canada was granted the rights that we believed the existing bilateral treaty gave them. Aeroflot’s loss of the Toronto-Moscow-Delhi service was starting to take its toll and, in exchange for an agreement to resume negotiations in Moscow, the Russians agreed temporarily to grant (in our view, restore) overflight rights to Air Canada until February 29, 2004. In turn we would lift the overflights ban.
I was frankly looking forward to visiting Moscow for the talks scheduled for December 9 to 11, 2003. Russia occupied a large space in my imagination. Not unusual or surprising for so many of us who grew up in Cold War in the shadow of “mutually assured destruction,” the always imminent horror that was supposed to deter the West and the Soviet Union from launching a nuclear war against each other. As part of civil defence, air raid sirens were erected throughout the city of Calgary where I grew up. I would gasp at the alarms of ambulances and fire trucks thinking that missiles were in mid-flight. So naturally one wanted to know “the enemy”: the history of the October 1917 revolution; the inevitable descent into authoritarianism of the Leninist project; Stalin’s years of terror; the Soviet Union’s indomitable stance against the Nazi invaders; the lowering of the Iron Curtain and the origins of the east-west nuclear standoff. As I pursued my research, I was introduced to the great literary of works Dostoevsky, Pasternak and Solzhenitsyn. I loved the musical works of Tchaikovsky, Prokofiev and Shostakovich. I had even studied Russian for a couple of years in high school. Ultimately, the emergence of Mikhail Gorbachev and his policies of glasnost (openness) and perestroika (restructuring) that led to the end of the Cold War seemed an historic miracle. As a journalist in the late ‘80s, I was introduced during a reception in Ottawa to Gorbachev’s remarkable foreign minister, Eduard Shevardnadze, who forsook the ideological bounds of Cold War diplomacy to seek a new framework based on the “principles of good, justice, humanism and spirituality.” The promise of Gorbachev’s policies faded quickly in the wake of the hardships wrought by the collapse of central planning and its replacement by the buccaneer capitalism of the oligarchs. Yet in visiting Moscow, I would be going to a place that filled a large part of my imagination. Partly because of this, I wanted my soon-to-be fiancée to join me on this journey.
It is not common for officials to take their companions with them during negotiations, but it was acceptable from time to time provided one paid personally for their travel. I asked Suzanne, who I had been seeing for more than a year, to accompany me and she agreed. While I was attending negotiation sessions, she would have the opportunity to see some of Moscow’s sights. I had also arranged a day of leave on either end of the talks so that we could tour some of the city together. Since she would be traveling with the Canadian delegation, she was listed on the diplomatic note to the Russian embassy seeking the necessary visas. Soon we became aware that Putin’s Russia had not abandoned some of the Soviet Union’s Cold War behaviours.
At a downtown currency exchange to swap dollars for rubles, a gentleman stepped into line behind Suzanne and started quizzing her about her travel plans. Outgoing and sociable by nature, Suzanne engaged in a conversation and spoke plainly of her planned visit to Moscow. After she obtained her rubles from the cashier, her acquaintance disappeared. When she told me about the encounter, I suspected that the man in line was an officer of the Russian embassy gathering intelligence, seeking to find out what covert role Suzanne might be playing on the delegation. To have known when she was to visit the foreign exchange office, the officer would have had to have access to our phone and email correspondence, or have physically spied on her movements around Ottawa, or both. I assumed from then on that after our arrival in Moscow, it would be very likely that we would be watched, and our accommodation bugged.
We landed in Moscow in winter weather very similar to what we had left behind in Ottawa: -15 degrees and light snow. After enduring a long line at customs and immigration, presided over by a grim and uncommunicative border agent, we took a cab to the Aerostar Hotel in a northern suburb of Moscow, adjacent to the offices of the Russian civil aviation authority and one of Moscow’s metro lines. The Aerostar had once been owned by the Canadian I.M.P group in a partnership with Aeroflot that had not run smoothly. At one point, I.M.P. had seized, by Canadian court order, an Aeroflot aircraft’s fuel at a Canadian airport to press its partner to pay money it owed. Later (but after our stay in Moscow), the hotel was physically commandeered by an armed “business organization” and forcibly put under new ownership.
There was nothing physically exceptional about the Aerostar. It could have taken the place of a Holiday Inn near any North American airport. However, we discovered it had an exceptional restaurant with one of the most elaborate buffets, including ample fresh seafood and caviar, that I had ever seen. Guests on the day of our arrival were serenaded by a live musical ensemble offering traditional balalaika music. Tackling Moscow’s exceptional metro system, relying on my dim memory of the Cyrillic alphabet, Suzanne and I made our way to Red Square where we were kept away from Lenin’s tomb by armed guards. The embalmed body of the Soviet Union’s founder was under repair – again. But we spent part of the afternoon in the GUM, the legendary shopping centre across from the Kremlin, and later walked by St Basil’s across the Moscow River and found the marvellous Tretyakov Museum of Russian art.
The negotiations began the following day and our delegation, including representatives of Transport Canada, the Canadian Transportation Agency and observers from Air Canada, trudged across the snowy parking lot of the civil aviation authority. There was an immediate change in the tenor of the talks compared to earlier rounds. Neradko was nowhere to be seen, and although the “nyet”-wielding Vasiliev was present, the Russian delegation was led by Vitaly Pavliuk, the head of the civil aviation authority, who was from the outset civil and gentlemanly. Pavliuk had risen to his position not the through the old Soviet bureaucracy but through his lifelong profession as an aircraft pilot who’d acquired hours of flying time in the Russian far north. At least the atmospherics would be more pleasant as our negotiator, McNab, always distinguished by his impeccable manners, seemed to hit it off with Pavliuk.
Still, the stuff of talks continued to be difficult. What had only been mentioned peripherally in earlier encounters – the technical capacity of Russia to monitor and direct high-altitude traffic through its airspace – became suddenly a high priority issue. We were dubious about Russians claims their navigation systems could be overwhelmed by too frequent passage of aircraft on high Arctic routes. Air Canada was accompanied by an expert in technical navigation issues, but he wasn’t able to verify, or refute, the Russian claims on the spot.
At the same time, it became increasingly apparent that Pavliuk had a mandate to offer a partial deal that would provisionally authorize Air Canada to fly its Toronto-Delhi route without conceding that the airline already had this right within the Canada-Russia agreement. As much as the offer might settle the immediate issue at hand, it would not allow other Canada-Russia flights by Air Canada and other airlines, which would be of value in the future.
In every instance in which a Canadian delegation negotiates air traffic rights, it does so in accordance with a cabinet-approved mandate. No deal can be reached without its falling into the parameters set out. While our mandate would not permit us to accept the Russians’ offer authorizing the single Air Canada route, it was a significant enough development that we needed to bring it to our masters in Ottawa. Under the direction of the foreign affairs and transport ministers, the mandate could be modified in consultation with other members of cabinet. Wary that our communications on open lines would be monitored, we asked our embassy for access to its secure room to make the call.
Canada’s embassy in Moscow is in an early nineteenth century art nouveau building on Starkonynushenny Lane in one of the city’s central historical districts. In 2003, the embassy maintained a certain outward dignity, but behind the outer walls, it consisted of an improvised rabbit warren of offices supplemented by a modular building in an old courtyard. The site was too small to accommodate all the embassy staff comfortably, yet after years of negotiations, a series of Canadian ambassadors had been unable to win from the Russians a new site on which to build a more modern chancery. What the embassy did have was a deep basement which I recall being at least two storeys underground where there was a secure conference room through which secret communications could be conducted with Ottawa. Physically sealed with an airlock entrance, the tiny room was remarkably stuffy, but we were able to make phone contact with secure phones in the ministers’ offices in Ottawa. Adding to the oppressive atmosphere that day was news earlier in the day of a terrorist incident near Red Square where a suicide bomber had blown herself up “killing at least five others and seriously wounding 13” outside the National Hotel. Suzanne was supposed to have met a guide arranged for her by the Aerostar Hotel to visit public spaces in the Kremlin. Mercifully, the incident occurred before her scheduled rendezvous, but the planned tour was called off or the day.
Our interlocutors on the other end of the line included a senior staffer from Minister Graham’s office and the Transport Canada’s director-general of international air relations, and they were supportive of McNab’s assessment that the Russian partial offer was not enough. Rather than obtain only the immediate objective of approval of Air Canada’s India flight, we wanted to ensure existing rights in the agreement would be honoured in other instances, and we wanted to permanently expand Canadian access to other countries through Russian air space. We needed to consult our airline stakeholders as well. Air Canada’s observer on the delegation was Yves Dufresne, the airline’s head of international agreements. Although the Russian offer would have met the airline’s short-term objective, he agreed with the delegation’s determination to obtain a comprehensive solution. The decision was to adhere to the existing mandate, and we returned to the table to tell Pavliuk that his offer was far from enough.
I don’t believe Pavliuk was surprised with our rejection of the temporary fix. Both sides had agreed on a February 29 date to settle the dispute, and at this stage, two and a half months remained. We left Moscow emptyhanded but were confident in the Russians’ willingness to convene other rounds. In fact, we met the Russians again in early January in Ottawa for what seemed to be an effort by them to apply further pressure to settle for a temporary deal. The Russian delegation remained intransigent, not willing to give any ground toward recognition of a Canadian right to over-fly Russian airspace.
When we met in Moscow again toward the end of February, both sides remained fixed on their positions until the end of the second day of the scheduled three-day round. Before we were to wrap up for the evening, Pavliuk invited McNab to a tête-à-tête in which, after some social back and forth, the Russian negotiator conceded Russia’s willingness to craft a comprehensive deal.
I do not know definitively to this day what brought about the Russians’ change of heart. Certainly, McNab had evinced the Canadian determination to obtain a comprehensive solution and had done so throughout with has characteristic courtesy, not once resorting to the expressions of frustration and anger that some negotiators think – usually incorrectly – will knock their adversaries off their game. The fact remained lurking in the background was that the dispute had begun with Canada blocking lucrative Russian commercial operations to Canada and through our airspace. The Russians were appalled that we had done this in the first place. There was the fear that we would do so again. In fact, it would have been the logical outcome of failed negotiations,
But there was also negotiations fatigue. A revised agreement always has the advantage that no one will be compelled to return to the negotiating table in short order; there are always other bilateral agreements waiting in the wings that need attention. In any event, Canada’s ambassador Chris Westdal, who had several years of experience trying to win Moscow’s approval for a new Canadian embassy site as well Russian obduracy on other issues, was impressed. When we arrived in his office the following day to provide a full briefing on the successful talks, Westdal greeted McNab with jocular extravagance: “See, the conquering hero comes!” Air Canada was grateful for the agreement achieved. I was happy that we wouldn’t have to return to banning Russian overflights, armed only with the wording of a one-page diplomatic note.
Every bilateral air negotiation has a limited menu. Which airlines will be designated to use the routes? Which cities will be served? How many flights will be authorized? What size aircraft, carrying how many passengers, will be approved? Will there be any limits on the fares to be charged? And what “freedoms” will be permitted from the official “freedoms” roster. The first freedom is to fly over; the second is to stop for technical reasons; the third is to fly to, and the fourth is to fly back. The fifth freedom allows an airline to pick up another country’s passengers en route to somewhere else. And the sixth freedom allows an airline to bring passengers to its own country and then carry them on to another.
Many trade theorists find bilateral agreements archaic. In keeping with the then prevailing wisdom that world markets should allow free and open competition, theorists would advocate an international convention to permit any airline to serve any route any time, subject to the rules and regulations for safe air travel devised by the International Civil Aviation Organization (ICAO). Such an approach has met strong resistance from most countries jealous of their ability to direct traffic through their sovereign air spaces. A handful of countries, subscribing to a principled free market approach, are prepared unilaterally to open their skies, although in practice such access is often withheld pending offsetting concessions. Canada under the Harper Conservatives flirted with such an approach. But its “blue sky” policy declared, as had other countries who had theoretically declared open skies, that this was in fact conditional on satisfactory reciprocal concessions. The limits of the Conservatives’ aspirational policy were made obvious when the government refused Persian Gulf carriers from United Arab Emirates and Qatar unrestricted flights into Toronto, which would have flooded the Canadian market with Asian-origin traffic. It is difficult to compete with airlines that have access to unlimited source of interest-free petrodollars, even if the airlines insist that they are not subsidized by their home governments.
Notwithstanding the general tendency to open markets up, the mercantilist bilateral approach promoting the interests of national carriers still prevails in many markets. In a sense, the interest of the carriers embodies the national interest. Having greater access to and from all destinations at economical prices, and in so doing strengthening the economy, is a high priority. But preserving a strong, domestically based airline industry is for most countries a caveat attached to that aspiration. Negotiations are usually set according to commercial priorities, meaning that large markets which offered the most potential to Canadian airlines would receive the most attention. But there are exceptions.
In the fall of 2000, we received an offer from the Caribbean island of Aruba to negotiate an agreement. Aruba is part of the Kingdom of the Netherlands but granted status aparte, making it “a country of its own,” within the kingdom. This means that Aruba is sovereign in all things except foreign affairs and defence. Serge April, who was the chief negotiator at the time, wasted little time in declining this invitation. We simply had other priorities. Yet within in days of his reply, the Arubans came back saying that, without an agreement, they would have no choice but to cancel the only passenger service currently flying between Aruba and Canada – Air Transat’s thrice weekly seasonal charter between Toronto and Reina Beatrix Airport in Oranjestad, the Aruban capital. The revenue generated by three weekly flights of Boeing 737s carrying roughly 150 passengers each, operating from October to May, was significant. This was business Air Transat was loath to lose. Therefore, the company urged us to accept the Aruban invitation. But given that the island’s foreign relations were reserved to the Netherlands, could we legally accept the offer? Copious messages were exchanged with our embassies in Venezuela, officially accredited to Aruba, and in the Netherlands. Although there was some ambiguity, our colleagues determined that Aruba had the right to negotiate treaties in the commercial realm, although they ultimately must be formally approved by the Dutch foreign ministry.
After these dilatory discussions over jurisdiction, the Arubans were starting to lose patience. They threatened again to cancel Air Transat’s rights. We swiftly saw the light of reason. A week spent in Aruba at the beginning of February, with Ottawa almost certainly in a deep freeze, was enticing. The island is tucked into the far southwestern corner of the Caribbean, a few degrees north of the equator. With average temperatures of air and water in the high 20s, little rainfall and the constant moderating effects of the warm trade winds, it is a tourist mecca. It’s a prosperous and safe island, with a population of slightly more than 100,000 people and a GDP per capita of more than $25,000 annually, placing it in the upper tier of world economies. The people constitute a blend of indigenous Caribbean, Portuguese, Spanish, English and Dutch who have developed their own distinct language, Papamiento. There were no hindrances to flying there for a week of talks.
After taking Air Transat’s regular flight to Aruba, we found the negotiations were amiable and easy. By late in the week, we had drafted a text that contained a remarkably open set of traffic rights. Frequently, agreements will be wholly symmetrical with the rights for one party being equal to those of the other. In this case all the airlines of each country could access all destinations in the other. But since Aruba had no airlines and only one destination, this meant that Canadian airlines were able to offer as many flights as they wished from any Canadian city, without competition. Of course, this all made sense because Aruba’s interest, in addition to the theoretical one of exercising its sovereign authority, was to encourage as much tourism as possible to their island “paradise.” The results of this agreement are plain today. A quick survey of the web shows that airlines offer two flights daily from Toronto and one each from Montreal, Vancouver, Calgary and Ottawa. Such outcomes underline that although air transport agreements are rooted in archaic mercantilism they can certainly be spurs to market-driven tourism, investment and trade.
The terrorist attack on New York’s World Trade Centre on September 11, 2001 bore heavily on our work. I was reviewing overnight email correspondence in my office when I heard the director of the trade services policy division shout as he ran through the halls that an aircraft had struck one of the towers. A little mystified at first, thinking of a small aircraft in an unfortunate aviation accident, I was soon disabused of that notion as I watched news come in on the TV in the chief negotiator’s office. Our office’s role was but an afterthought that day as the locus of the federal government’s attention was concentrated in the air traffic control system managed by Transport Canada and NavCanada, whose air traffic controllers were shutting the country’s airspace down. It was many weeks before we resumed negotiations of bilateral air agreements after a lengthy hiatus in which even the future of a robust international aviation industry was being questioned. The extraordinary security measures implemented following the attacks still cast a shadow.
Most prominently for us in those days were considerations related to the agreement to operate flights between Canada and Lebanon. Air Canada had long wanted to take advantage of the pent-up demand for flights between the two countries, especially among Canada’s large Lebanese population, centred in Montreal and Ottawa. The standing agreement predicated the opening of flights on a review of security issues which, for the most part, involved providing assurances that flights into and out of Beirut’s international airport were not vulnerable to hijackings, hostage takings or terrorist attacks. Air Canada pointed out repeatedly that European carriers were operating regularly in and out of Beirut. In fact, Canadian Lebanese-bound passengers were being carried to European airline hubs to be transferred to European airlines flying from Frankfurt, Amsterdam or Paris. Air Canada considered this situation a significant lost opportunity. Sympathetic to the airline’s position, we trade negotiators at Foreign Affairs and the international relations group at Transport Canada pushed for a security audit of Beirut airport, which Transport Canada, in collaboration with the Canada Border Services Agency, agreed to do. Twice Canadian teams visited the airport to conduct their reviews and twice concluded that the airport’s security measures met the highest international standards. They offered no objection to the implementation of regular passenger service between Montreal and Beirut.
Plans were well underway for the service to begin in June 2003 when I received a phone call from the director of the department’s international security division, Ruth Archibald (soon to become high commissioner to South Africa). She advised me that she had received a message from US officials in Washington expressing grave concerns over the pending Canada-Lebanon flights. Among their worries was that the Beirut airport was located in the Hezbollah-controlled section of the Lebanese capital and, irrespective of tight security procedures, the airport was vulnerable to workforce infiltration and pressures from Hezbollah-linked militant groups. Moreover, the Beirut-Montreal route would be the only air service directly linking Lebanon to North America. Within days the Americans’ concerns rose to the highest levels in both Foreign Affairs and Transport. It was agreed that Canadian ministers do a special review of the matter.
The discussion that took place at the cabinet meeting at the end of May turned out to be deeply contentious. According to sources, ministers were divided, some, especially those with large numbers of Lebanese Canadians in their ridings, being strongly in favour of the new service, others being opposed. However, the primary opposition did not relate to the question of security itself but to the risk of offending the US administration. Deputy Prime Minister John Manley was chairing the meeting since Prime Minister Chrétien was attending a Canada-European Union summit in Athens. Manley underlined that proceeding with the flights would be construed, in his estimation, as open defiance of the US, which would certainly damage Canada-US relations. But given that there was no consensus in cabinet, he said he would contact Chrétien for his views. The prime minister’s response was said to be quick and definitive. Air Canada’s licence to operate the controversial flights was to be revoked.
The decision was not cost-free. Having already sold thousands of fares to eager customers, the airline had to compensate them. The advance costs in marketing the flights and establishing the flight infrastructure had been considerable. Several months later, in a move that was never made public, the federal government provided the airline with a multimillion-dollar settlement.
The atmosphere in the wake of the World Trade Centre attack was grim and oppressive. The strict security procedures that all of us must endure at airports today are the legacy of that time. But they are as nothing compared to the violations of personal liberties inflicted on several Canadian Muslims as part of a poorly targeted crackdown. Actions taken then represent a terrible stain on Canada’s application of the rule of law.
The news that Canadian Maher Arar was detained on a return journey to Canada at an airport in New York quickly became public. His being spirited away by US authorities first to Jordan and then to Syria leaked out shortly thereafter. To me and many others, this move was strikingly arbitrary. It appeared to be a shocking violation of Arar’s freedom. How could he have been detained without charge? By what legal authority was he transported to a third country? If he was suspected of something, why was he still not allowed to continue his journey home, under surveillance, where his suspect activities – if any – could have been appropriately investigated by police?
I had a good colleague and long-time friend who worked in the Department on international security issues. When I raised these questions with him, his response was telling, and I think reflected the attitude of many working in Canada’s security network at the time. “I understand your concern, but we don’t know the evidence that the Americans have on him. And the Syrians are well placed to learn the truth.” Such was the post-9/11 climate that even someone, who I thought would stand by due process and the rule of law, was acceding to assumptions about US investigatory prowess and condoning the use of torture. The injustice suffered by Arar was later well documented and the government awarded him $10 million in compensation due to the complicity of the RCMP and other Canadian authorities in his mistreatment.
His case was very much in my mind when I received on January 5, 2006 an urgent call from the international relations manager of Air Transat, George Petsikas. Shortly after taking off from Montreal and entering US airspace on a flight to the resort city Zihuatanejo, Mexico, US fighter aircraft had been scrambled to accompany the Boeing 737 passenger jet in US airspace. Reviewing the passenger manifest which was automatically transmitted upon take-off, US authorities spotted a name on the American “no-fly” list. When I received Petsikas’s call, the aircraft was over US territory, and Petsikas feared that it would be forced to land at a US airport. Instead, the US patrol accompanied the flight through US airspace and allowed it to continue into Mexican skies. But on landing in Acapulco, the suspect passenger, Sami Kalil, and his family were detained by Mexican police.
With the flight still in mid-air over the US and immediately before alerting my chain of command in Foreign Affairs, I called a former colleague and friend from the parliamentary press gallery. A journalist for many years before joining the department, I was always circumspect in discussing my work with my former colleagues. If I spoke to reporters to provide background about departmental business, it would characteristically be with the knowledge of the department’s media relations and relevant geographic or policy divisions.
But this time was different. My objective was to draw immediate public attention to the incident out of fear that without publicity, Kahil could be targeted and, through “extraordinary rendition,” be taken to one of many US-sponsored black sites. My journalist colleague passed on what I told him, and shortly afterwards the story went public, through the news cooperative Canadian Press. It was reported that Kahil was being detained at the Acapulco airport, and his family was being returned to Canada via the same Air Transat aircraft they had arrived on. I contacted both the Mexico geographic desk and our embassy in Mexico directly to ensure that they were aware of Kahil’s plight and that he would receive the consular assistance provided Canadians in difficulty abroad. My objective was to ensure that what had happened to Arar not happen to Kahil. As his wife Rima was quoted as saying she was “terrified that the US air marshals would take him somewhere and he would disappear.”
Was there a reason Kahil was on the US no-fly list? Kahil had been denied refugee status in Canada in 1993 based on the immigration and refugee board’s finding that he was connected to Hezbollah in Lebanon. Kahil denied being a Hezbollah member, pleading that he had always resisted efforts by Hezbollah to recruit him and had even been tortured for his refusal to cooperate. He was eventually accepted as a Canadian resident under the legal sponsorship of his Kuwaiti-born wife. He was a legitimate resident of Canada with no criminal record. My aim was that he not become a victim of the dark machine of extraordinary rendition that operated as part of the post-9/11 hysteria.
Fortunately, Kahil was returned to Canada on January 7 in a Canadian government plane, escorted by RCMP officers. The plane flew a circuitous flight path avoiding US airspace. As it turned out, Kahil later appealed to US authorities to have his name removed from the no-fly list, which he succeeded in doing by September 2006. They had accepted his innocence. When I spoke to Petsikas for this book, he remembers the incident clearly. He resents to this day that Air Transat was forced to hire a private plane to carry Kahil back to Canada at a cost of $30,000.
During my seven years in the trade services policy branch, we negotiated many agreements, winning significant new access to numerous markets: France, Brazil, the United Kingdom and the United States among them. But the negotiation that turned out to be most pertinent for my own career was the one with South Africa.
I was pleased in spring 2003 that we received an invitation from South Africa to negotiate a new bilateral air agreement. I had followed closely for years the events in that country that for so long had maintained the formal policy of racial separation and discrimination known as apartheid, and I had exulted with so many when African National Congress (ANC) leader Nelson Mandela was able to lead the negotiations to end the white supremacist regime and establish a new democratic polity. I was eager to see South Africa some 13 years into its democratic transition. Landing in Johannesburg and travelling by van to Pretoria only 50 kilometres to the north, I was immediately impressed by both the modernity of the country and its wonderfully open landscapes. Still, it was a revelation that the South Africa of townships, and the poverty associated with many of them, can be virtually invisible to a casual traveller moving within the highly developed islands of South African wealth.
The negotiations turned out to be difficult to the point of stalemate. There was a clear interest on both sides in establishing direct air links between Toronto and Johannesburg, but the route posed technical difficulties both in terms of distance and in the altitude of the Johannesburg airport. Eager to develop the market, Air Canada sought the operation of routes through intermediate points with the ability to pick up new passengers (fifth freedoms). This the South Africans would not agree to, in the belief that this would divert traffic from South African Airways already serving these intermediate points. In the face of this resistance, we rolled back the Canadian request to “code-sharing”, a system whereby an airline will sell seats on an allied airline already operating in the market. What was regrettable was that the South African lead negotiator was apparently perplexed by this offer and also appeared to have no flexibility other than to agree to direct flights.
We learned something of his background during a lunch we hosted at Canada’s official residence in Pretoria. He told us he had spent many of the apartheid years in exile in Zambia, working for the ANC’s underground military wing, Umkhonto we Sizwe, or Spear of the Nation. The organization was charged with infiltrating saboteurs into South Africa and assisting in fomenting militant resistance in the townships. We were unsure whether he felt uncomfortable in his now more conventional role, or whether he was being restrained by unseen and obstinate superiors. Regardless, this round of negotiations failed, without even a hint of a possible way forward.
Little did I know that some five years later I would be given the opportunity to serve in the Canadian high commission in Pretoria. My visit there in 2003 allowed me to be more informed about the country than I would have been otherwise. When the assignment was offered, I was eager to take it on. In the meantime, however, my career was about to take a new turn, into the perennially tortuous biways of trade policy’s beleaguered outpost: softwood lumber.
In the years since, the adoption of Canada’s “blue sky policy” in 2006, Canada has negotiated 22 agreements that offer unrestricted access to bilateral air traffic markets. Flights of any size can be operated to all destinations without any limit on frequency. Many of these have been reached with smaller countries, including many Caribbean states, and also include larger markets such as Brazil, South Korea and the European Union. Will this trend continue in the more contentious atmosphere of international trade relations that have followed the steady discrediting of globalization as exemplified by the Trump presidency and Brexit? Could air transport agreements become greater hostage to broader political and economic interests?
Aviation has operated to the side of the multilateral trading system yet provided customers and markets with services they need in the global economy. Perhaps it will continue to succeed on its own track. But the major challenge, which was only beginning to be addressed when I worked in the field, is how a still-expanding airline industry can survive in the future, in an economy striving to reduce greenhouse gas emissions and arrive at a carbon-neutral future. Preserving air traffic rights as an element of the rules-based international system is not the only challenge negotiators of today and tomorrow face. Addressing the environmental impact of the aviation industry will be as great, or greater challenge.
Interview with Edward Shevardnadze in Pravda, June 26, 1990, http//www.evce.eu/obj/interview_with_edward_shevardnadze_on_the_soviet_union_s_foreign_policy_26_june_1990-en-680cef2s-e267-420a-9bce-432704074e20.html ↑
“Suicide Bomber Kills 5 in Moscow Near Red Square”, New York Times, December 10, 2003 ↑
Hartog, Dr, J., Aruba: Short History, Van Dorp, 1988, p. 74. ↑
Accorded the principal responsibility to conduct Canada’s bilateral relations with a country without an embassy being on site. ↑
Several government officials, including in ministerial offices, familiar with the meeting. ↑