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April 2016

April 2016

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Letter from the Editor

Chief Publisher Eugène Matos De Lara

Dear Readers, Chief Editor Benjamin Miller

Director

Jillian Fernandez

Editor

Eric Wilkinson

This month Border Crossing is proud to present an eclectic collection of essays unified in how they examine the frontiers and limitations of diplomacy. On the frontiers our authors examine the role of diplomacy in global health, environmental protection, and international finance. Conversely, other authors explore the limitations of diplomacy when challenged to counter strategy, or tasked with addressing the Israeli/Palestinian conflict. Illan Peleg and Paul Scham offer a sobering account of how the United States could approach Israel and the greater Israeli/Palestinian conflict. Notable for its uncompromising analysis of the changes necessary in domestic Israeli politics to promote peace, the article offers a concise account of what the conditions of resolving the conflict are and what third-parties can do to help meet them.

Academic Advisors

Applying his expertise on strategic thought to the study of diplomacy, Lukas Milevski asks “Can Diplomacy Counter the Weight of Strategy?” In elucidating the nature of strategy as the threat of force, Milevski examines the limitations of diplomacy when faced with the threat of violence. Milevski's analysis helps outline when and how diplomacy is best employed while providing the means to understand where it will prove insufficient.

Associate Publisher

Christopher Simms shifts us away from the limitations of diplomacy towards new possibilities. Simms explains how pursuing a globalized healthcare strategy would benefit Canada, building new relationships with international partners and helping restore Canada's standing in the world.

Arne Ruckert Dave Van Ginhoven Jennifer Haire Joseph Roman

Amelia Baxter

Associate Editors

Mete Edurcan Guillaume Lacombe-Kishibe Kristina R. Proulx

Contact us By email:

bordercrossing.info@gmail.com (submissions)

In person:

19 rue le Gallois, Gatineau, Quebec, J8V 2H3 Canada

www.diplomatmagazine.nl

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Lawrence Susskind and Saleem Ali examine the challenges of environmental diplomacy. Despite the best of intentions expressed by states pursuing environmental accords and agreements there has always been difficulty getting international actors to live up to commitments. There authors take up these difficulties, assessing the possibilities for environmental diplomacy going forward. Last but not least, Michelle Fischer and W. Travis Selmier II examine the role of multinational banks in promoting EU privacy law. With concerns regarding government surveillance and personal privacy abounding around the world this analysis is as timely as it is cogent. A diverse selection of lessons and arguments may be drawn from this issue, which we hope encourages readers to consider and reconsider the capabilities and limitations of diplomacy. Enjoy!

Eric Wilkinson


Contents OPPORTUNITIES AND THREATS FOR ISRAEL/PALESTINE IN THE LATE OBAMA ERA

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Illan Peleg & Paul Scham

CAN DIPLOMACY COUNTER THE WEIGHT OF STRATEGY? 8

Lukas Milevski

CANADA NEEDS A GLOBAL HEALTH STRATEGY

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Christopher Simms

THE END OF ENVIRONMENTAL DIPLOMAY

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Lawrence Susskind and Saleem Ali

INFORMATION STATECRAFT: MULTINATIONAL BANKS CARRIERS FOR US AND EU LAW

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Michelle Frasher and W. Travis Selmier II

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Opportunities and Threats for Israel/ Palestine in the Late Obama Era Dr. Ilan Peleg, the Charles A. Dana Professor of Government and Law at Lafayette College and an adjunct scholar at The Middle East Institute in Washington, D.C., is the author or editor of ten books, including Democratizing the Hegemonic State (2007) and, with Dov Waxman, Israel’s Palestinians: The Conflict Within (2011), both published by Cambridge University Press. Paul Scham (JD, University of California Berkeley) has worked on issues relating to Israel and the Israeli-Palestinian conflict for more than twenty years at non-governmental organizations, in think tanks, and at universities. He is currently the Managing Editor of the Israel Studies Review, and addition to being the editor of both Shared Histories: A Palestinian-Israeli Dialogue (Left Coast Press, 2005), and Shared Narratives, published as a special issue of Israel Studies (Vol. 18, No. 2: Summer 2013). Shared Narratives is co-edited with As'ad Ghanem and Benjamin Pogrund and is available from Indiana University Press.

Ilan Peleg & Paul Scham In March 2010, we published an academic article in the Middle East Journal in which we created a typology of conditions conducive to Israeli/Palestinian peace, and speculated how President Obama, then completing his second year in office, might use them to advance the peace process. We leaned towards hopefulness, and, unfortunately, that optimism was almost completely misplaced. However, the editors of the Diplomat thought it might be useful, as President Obama nears his last year in office, to resurrect the typology and see how the current situation stacks up against our 2010 analysis. These are ten conditions that we identified as either crucial (the first six) or secondary (the last four) to producing a diplomatic breakthrough (considerably abridged from the original): • The parties to the conflict must feel strongly that the status quo is seriously objectionable and that a new situation is demonstrably preferable. • There must be strong, authoritative leadership on both sides (Arab and

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Israeli), i.e., the type of leadership that can not only negotiate with its adversaries but that can “sell” an agreement to its own population and then implement it. • The “international community” needs to be generally sympathetic toward whatever deal is reached by the regional powers, although an international consensus is not entirely necessary. • Since the 1967 war, American involvement has usually been considered as a sine qua non for the successful negotiations of any Arab-Israeli agreement. The relationship has deteriorated in recent years, but we believe this conditions still obtains. • Arab-Israeli agreements usually have involved energetic, focused, and personal US presidential leadership; the absence of such leadership might well be considered fatal. • The Trauma Factor: Most of the peace process breakthroughs in the past took place immediately following some kind of momentous political or military event or development that significantly affected the status quo.

In addition to those six “crucial factors,” there are four “secondary factors:” • Domestic American considerations, including stakeholders such as Congress, the media, and the mainstream of the Jewish community. Now, more than formerly, evangelical Christians, the Republican party, and non-mainstream Jewish groups such as J-Street must also be considered. • Adequate pre-negotiation preparation is essential, the lack of which was a significant cause for the failure of the 2000 Camp David negotiations. • Timing: If timing is, in general, important in life and essential in politics, then it is an absolute must in Middle East diplomacy. Good ideas fail if their timing is off. • A credible willingness to apply meaningful pressure to either or both sides is essential to such negotiations. In our 2010 article, we analyzed each of these factors and concluded that success was possible, but largely dependent on Obama’s willingness to apply them. Now, from the perspective of almost six tumultuous


years later, we believe that domestic constraints proved much more effective than we had estimated, Obama’s caution was a more limiting factor that we had expected, and, of course, the ‘Arab Spring’ and its violent aftermath were factors we did not in any way predict. The Current Situation In general, two diametrically opposed approaches are available to the world’s diplomatic community in regard to the Middle East and Israel/Palestine in particular. The first approach is for the outside world to resign itself to the reality, even the inevitability, of large-scale and relentless violence, inherent instability and increasing bloodshed in the region, including the deterioration of Israeli-Palestinian relationships. This approach is based on the assumption, recognition, or conclusion that nothing or very little can be done to deal effectively with the major Middle East conflicts, including the Israeli-Palestinian one, and that the outside world is largely irrelevant. The second approach, by contrast, is to actively and energetically leverage the overall crisis in the region, and in Israel/Palestine in particular, in order to improve the situation through outside diplomatic intervention. This article will advocate the pursuit of the second approach while still recognizing that the realistic options of dramatic improvement in the region are limited, especially in the immediate future. In other words, we argue (as we have done in a recent article) that the current crisis in the Middle East should not be “wasted.” Analytically, it might be useful to categorize conditions for significant improvement in Israel/Palestine as “positive”, “negative” and “unknown”. This combination of different results renders the overall situation as fundamentally mixed.

Three conditions seem to be at least mildly positive in the sense that they may push the warring parties, Israelis and Palestinians, toward a serious effort to improve their relations: The Status Quo is Objectionable. The current relationships between Israelis and Palestinians are more politically dysfunctional than they have been since the Oslo Process began in 1993, and the level of actual violence is high. In fact, the overall situation seems diplomatically unresolvable to many on either or neither side. On the other hand, majorities within both parties seem to reject the status quo, albeit not to the same degree or intensity. This position is positive as a precondition for change. The deadliest danger is the shared belief of both parties that “There is currently no partner for peace.” Involvement of the International Community. For a significant improvement to occur, the international community must be actively interested and energetically involved in the region. This condition has evolved in the last year through several UN and other initiatives, but currently seems on the back burner, only partly as a result of the recent ISIS attacks. Willingness and Ability to Apply Pressure. Outside forces have usually been reluctant to apply decisive pressure on Israel and the Palestinians. At this or some other point, however, the situation in Israel/Palestine could well develop into not merely another Intifada but even into a semi-civil war and large-scale violence. That could force the United States, perhaps in concert with other actors, to apply the kind of pressure that could lead to concrete results such as opening of serious negotiations between the parties. While certain conditions might be

positive, others are clearly negative; they are unpromising in terms of producing results that spell improvement in the current situation: Strong and Authoritative Leadership on Both Sides. In order to move toward better relationships with the other side, each party to the conflict must have leaders willing and able to negotiate with the adversary, sell an agreement to its own population, and proceed to implement any agreement decisively and in good faith. In contrast, there is general agreement today that a catastrophic leadership vacuum exists among both parties, especially in each side’s moderate camp. Domestic American Support. In the past, it has been found that in order to promote progress toward better Israeli-Palestinian relationships, “the domestic support for American policy in the region must be constantly developed”. Unfortunately, the Israeli-Palestinian conflict has in the last few years become an unprecedentedly partisan political issue in the US, with unconditional support for the most rightwing forces in Israel seemingly a sine qua none for Republicans. On the Democratic side, despite the efforts of J-Street and allied groups, Hilary Clinton is generally adjudged less likely to pressure the Israeli government than President Obama has been. Timing. The last year of a presidential term is generally problematic, and the dysfunctional relationships between President Obama and the Republicans (particularly in Congress) look unpromising from the perspective of possible breakthroughs toward stability, given as well as the international consternation due to ISIS attacks Several factors look to us right now as “unknown”: these are important

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and even crucial elements that could evolve in either positive or negative directions: Energetic US Presidential Involvement. While the commitment of President Obama to a less violent Israel/Palestine cannot be questioned, it is doubtful that the President has sufficient resources—time, political capital, even energy—in his last year in office to make a worthwhile effort in this regard. Obviously, the possibilities after January of 2017 are unknown, given the wide disparity of views among current presidential contenders. The Trauma Factor. Trauma certainly exists in sufficient measure in Israel/Palestine, in the region, and in the world in general. It is currently completely up in the air as to whether it may be harnessed to achieve positive results (and if so, in which crisis) or misemployed for ends which turn even more catastrophic, as in the aftermath of the 9/11 attacks. While the stars are clearly not aligned to allow any confidence in a prediction of positive evolution toward a settlement, there are a few factors that might push this conflict-ridden land in a positive direction. One is the almost universal conviction outside of Israel and among many (although admittedly a minority) of Israelis, a conviction we share, that the Israeli occupation of the Palestinian territories necessarily breeds violence, instability, and large-scale bloodshed. We believe there is no question that the perpetuation of the 48-year occupation creates increasing, relentless resistance, and obviously such resistance is not limited to peaceful protests. The current Israeli government, a government that promotes the status quo (at best) and an eventual annexation of the West Bank by Israel (at worst), does not have an effective political response to the current escalating violence in Israel/Palestine. In fact it consistently denies any connection between violence and the occupation, a contention not accepted by any other government

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in the world, including the US. Its position could be characterized as one of horrific international isolation, unprecedented split with and antagonism toward its major supporters (including the United States), and reliance on brute force as an exclusive mechanism for dealing with its opponents, especially Palestinians.

current climate, however, we think that one does. For many reasons, however, that solution cannot be a one-state solution, whether imposed, de facto, or even agreed-upon. That leaves us with either the status quo, unsustainable & increasingly violent, or an agreed-upon, carefully negotiated separation into two sovereign states.

What could be done? In order to move forward and improve the situation, several ideas ought to be considered:

Footnotes 1 Ilan Peleg & Paul Scham, “Historical Breakthroughs in Arab-Israeli Negotiations: Lessons for the Future”, Middle East Journal, Vol. 64, No. 2, Spring 2010, pp. 215-233.

Reshuffling the Israeli government in order to establish a more reliable and possibly more active actor that enjoys the support of the international community. The current government is narrow and unstable (supported by only 61 out of 120 Knesset members), so it will likely have to be reconfigured, though not necessarily in a positive direction. International diplomatic initiatives that would revive the peace process in some effective form, including enforceable conditions, deadlines, and possible sanctions. More intrusive international involvement in the Israeli/Palestinian situation, such as by guaranteeing the status quo on Temple Mount, reiterating the international consensus in regard to a final settlement, the recent EU labelling of goods from the West Bank, etc. The current situation in Israel/Palestine demonstrates once again that the two-state solution—by default, by design, or by rational reason—is the only practical and justifiable way out of this escalating conflict. For all intents and purposes, Israel has implemented, particularly since the premature death (or murder) of the Oslo Process, a de facto one-state solution through occupation, settlements, and military coercion. This “hegemonic” one-statism has failed miserably; despite that, many Israelis now do not believe an alternative exists. However, unpromising the

The distinction between the two approaches is introduced for analytical purposes; we recognize that in reality, a combination of intervention and passivity might be useful. 2

Menachem Begin and Anwar Sadat provided such leadership at Camp David in 1978 and subsequently. Yitzhak Rabin provided it during the Oslo period until his assassination, and Yasir Arafat provided it intermittently, but was either unable or unwilling to after about 1996. 3

William Quandt, Peace Process: American Diplomacy & the Arab-Israeli Conflict since 1967, Berkeley: University of California Press, 2001, p. 417 4


CAN DIPLOMACY COUNTER THE WEIGHT OF STRATEGY? Lukas Milevski is researching and writing a book manuscript on US and NATO policy-relevant contemporary Baltic defense and security from historical and strategic perspectives as a Fellow of the University of Oxford’s Changing Character of War Programme, where he had previously been researching grand strategy in practice using definitions contemporary to the time. A 2014 PhD from the University of Reading under Colin S. Gray, he is the author of numerous articles on the historical and contemporary practice and theory of strategy. He received the 2010 RUSI Trench Gascoigne Essay Competition first prize as one of the youngest winners in its 136 year history. His first book, The Evolution of Modern Grand Strategic Thought, is in press with a publication date in 2016 at Oxford University Press.

Lukas Milevski Western powers generally prefer to eschew military force in favor of finding peaceful solutions to international political questions through persuasion and compromise. This proclivity does not necessarily change, even when faced with a diplomatic opposite who not only holds different views on the utility of force, but is actively employing force to gain desired political ends—such as Russia since March 2014. The West, led in the recent past by the United States, France, and Germany, nonetheless attempts to answer force with words, thereby raising the question: can diplomacy counter the weight of strategy? Ultimately the answer is almost universally “no”. What is strategy, and why does it carry extraordinary weight compared to diplomacy? Strategy is the threat of or actual use of force for political ends. Its core is violence, inflicted with a greater political purpose in mind. Recourse to strategy carries unequaled weight for two intimately interrelated reasons. First, inherent in strategy is the recognition and acceptance of danger and

of the potential for reciprocal use of force. Second, the introduction of military force into an international crisis or diplomatic dispute utterly changes the political equation due solely to the nature of the newly employed instrument. The Danger of Response Danger and reciprocal violence comprise a large part of the core of strategy. Violence, or its threat, tends to beget more violence as those being endangered resort to force as well, in an attempt to safeguard themselves from the aggressors. The first priority of any polity is its own physical security, for without that it cannot enact any other policies. The danger of an act of force being reciprocated is impossible for the forceful aggressor to ignore in a diplomatic engagement turned to armed conflict, although many might still hope to avoid any resistance at all as Hitler in Austria in 1938 or Putin in Crimea in 2014. During the occupation and annexation of Crimea in 2014, the Russians besieged Ukrainian military outposts, but they did not attack them. The tactical onus of raising each siege was thus placed on the Ukrainians, thereby shackling them with the

political burden of actually instigating bloodshed. Despite aggressors’ hopes for nonviolent, one-sided use of force, which are sometimes fulfilled, any decision to resort to strategy to achieve political goals carries significant weight specifically because of the danger of reciprocation. Due to such risks, inviting the possibility of armed conflict by using military force to achieve a desired political objective is a weighty decision, from which, once taken, the instigator rarely backs down. If it is not an easy decision to make, it is similarly not easily reversible. Not only is the political objective at stake and the lives of soldiers and civilians at risk, but a polity’s credibility and honor are similarly invested in an act as important as unleashing military force. This is not the same as signaling resolve, which to those thinking with a strategic mindset is frequently nothing more than a meaningless activity. Those with resolve simply act; those without it posture for the sake of implying the threat of action. Those who seek only to demonstrate resolve against a polity practicing strategy typically lack it. This differentiated

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between the Americans, invested in the ‘diplomacy of violence’ through Operation Rolling Thunder during the Vietnam War (1954-1975), the North Vietnamese, who instead practiced strategy. The Americans postured without real will to take actual definitive steps to address the geopolitical challenge they faced, whereas their enemy acted forthrightly with force and violence in pursuit of its political objectives. Because of the weightiness of the decision to employ force, the gulf between a merely signaled diplomatic resolve and actual strategic action is huge. While annexing Crimea, the Russians too felt the effect of the unequalled weight of strategy, as opposed to diplomacy. Neither Western diplomacy nor sanctions could shake their resolve to take what they desired, but the West was not willing to contest Russia’s actions with force. Yet the Russians themselves did not seem to understand their advantage, as during the summer and early autumn of 2014 they sought a diplomatic solution—in their favor— to counter the Ukrainian recourse to strategy against the breakaway territories in the Donbas. The Russians failed, of course, for the same reasons that the West failed against the Russians in Crimea. The Russians barely saved the situation and prevented a Ukrainian victory by ultimately providing real armed support to their proxies and existing agents in eastern Ukraine. A Tool Reflecting Priorities The recourse to force over diplomacy to achieve a political end loudly and clearly signals that all other instruments are considered inutile for achieving that desired goal. In part the choice of force could be due to the nature of the desired end, or to its prestige for the parties vying for it. If

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a polity cannot see a peaceful path to its goal, and either cannot or will not compromise on it, then it will blaze a trail with sword in hand. The collapse of diplomacy and diplomatic effectiveness in such cases is not the cause of the recourse to strategy. Instead, both diplomatic failure and the recourse to strategy are symptoms of a deteriorating political situation, at least concerning the main issue of contention. It is merely in the nature of politics that not everything can be split, or otherwise be settled amicably between independent parties. Simply put, interests do not always coincide, nor can they always be split down the middle. The political calculus through which competitive decision-making occurs is transformed when strategy is chosen over diplomacy. Not only is it a weighty choice to make, but the effects of force are at least equally weighty as well. Diplomacy, being ultimately a persuasive and consensual activity, cannot compel the unwilling, especially if those in the other camp are resorting to forceful means. Diplomacy can only be effective if conditions enable it. As a rule conditions do enable diplomacy, as the use of force becomes a factor in international relationships only rarely. In international relations, successful diplomacy and obeisance to international law are not extraordinary, whereas any use of force is. Yet when the extraordinary comes to define a situation—when a polity employs force to achieve its goals— ordinary measures no longer proffer their typical level of effectiveness. Diplomacy cannot function normally in the face of strategy. Context Matters The import of this basic truth is highly sensitive to context. Ultimately, it must depend upon the various foreign policy goals of a polity, and

their priority relative to one another. If remaining at peace is the primary objective, then diplomacy remains of some use against strategy to convey the willingness to give up the interests in question to the other party. Further, through diplomacy one may register disagreement or punish the offending polity through sanctions, perhaps weakening it to inhibit it from choosing strategy over diplomacy during a later international dispute. Conversely, if the political goal at stake is more important than the maintenance of peace, then the clear choice is to resort to strategy and force over diplomatic means. Nothing else can directly counter a polity employing strategy and force, save strategy and force. It is common wisdom, stemming from just war theory and international law, to assert that the use of force is the last resort in foreign relations, but this does not mean that force is the final choice. The last resort merely requires that the statesman ascertain that nothing short of force will be effective. If an opponent is already employing force to achieve his will, it is entirely appropriate to answer him with force—but only if the risks inherent in the anticipated war are considered proportional to the expected successful outcome. Such a judgment is ultimately political, although it should be informed by an appropriate understanding of strategy and of war. Conclusion Diplomacy cannot counter the weight of strategy. The inherent political significance of recourse to strategy is unmatchable by any other instrument in international politics. It is unfortunate that Western diplomats have in recent years been repeatedly asked to attempt this nearly impossible task— such as with regards to Russia in 2008 and again from 2014, to Libya in 2011,


and Syria from 2011. Yet it is not the diplomats who have failed, nor ultimately in the case of Libya the strategists, but the politicians whom both diplomats and strategists serve. Not all events are controllable with only a single instrument of statecraft, whether diplomacy, sanction, strategy, or any other, and some events simply may not be controllable at all, no matter the instrument employed.

Consider us for the publication or peer review of your academic work. Contact us at: bordercrossing.info@gmail.com

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Mastermind China’sHEALTH CANADA NEEDS A GLOBAL Merging STRATEGY Energy Diplomacy Dr. Simms has spent many years living and working in Africa and Asia including the Philippines, Indonesia, Sri Lanka, Senegal, Tanzania, Zambia, Kenya, South Africa, and Madagascar. He has worked for the European Union, the Dfid and NHS (UK), CIDA, and temporary advisor to the WHO. His research has been funded by Rockefeller Foundation, the World Bank and many NGOs.

Christopher Simms Several pieces of evidence suggest that rich countries that are generous towards poor countries - as measured by overseas development assistance (ODA) – also tend to be responsive to the needs of vulnerable populations at home (as measured by social and family transfers). Those less generous with ODA than their peers typically have weaker social safety nets, greater inequalities, and less social trust at home. (1) Rich countries that endeavour to be “good global citizens” by investing in global health can benefit from developing and implementing a global health strategy. Such a strategy is widely seen as one of the most effective and efficient means of investing in global health while simultaneously protecting and improving the health and safety of its own citizens. (2) The following paragraphs briefly trace Canada’s record as global citizen and consider how it might benefit from developing a strategy – especially now that its newly-elected government promises a fresh start on the world stage. Canada has traditionally been generous domestically and internationally. For example, with a robust social

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safety net in place at home (exemplified by Medicare), it has previously taken the lead on a host of global issues that seemed to show Canadians’ concern for the health and well-being of the world’s citizenry - including the Convention of Child Rights, freedom of information, acid rain, world peacekeeping, sanctions against South Africa's apartheid regime, welcoming refugees from Vietnam and Kosovo, as a well as humanitarian and development assistance. Yet in recent years, counter-trends have emerged. The Canadian Government has taken on the view that multilateralism is a “weak nation strategy,” (2) and has instead embraced the principle of “enlightened sovereignty, the natural extension of enlightened self-interest.” (3) Between 2006 and 2014, Canada’s ODA budget fell from 0.33 to 0.24 (as a % of gross national income, 0.7% being the internationally recognized target); the Organisation for Economic Co-operation and Development (OECD) states in its 2015 report that this is “far below [the] average DAC [Development Assistance Committee] country effort of 0.39%”. (4) The adoption of a foreign policy known as “economic diplomacy” has raised concerns about the skewing of resources toward trade and com-

merce and away from development and human rights, and thus away from Africa and towards Latin America where among the most obvious beneficiaries are Canadian business such as mining and energy interests. (5) On the domestic front, Canada’s social safety net has weakened in recent years and familiar programs such as unemployment benefits and social housing have become less accessible. Pro-poor programs have been cut, cancelled, or redirected; among the most conspicuous losers have been outgroups such as drug-users, refugees, the homeless, and the newly impoverished. As to Canada’s lauded Medicare system, cross-countries of 11 prosperous nations show that between 2004 and 2014, Canada fell in rank from 4th to 10th place - based on the criteria of efficiency, effectiveness, effectiveness, access and quality. (6) Indeed, outcome data collected by a 2014 UNICEF study (7) show that out of 29 rich countriessampled, Canada now ranks 28th for childhood immunization, 22nd for its infant mortality rate, and 29th for early childhood education. In this era of globalization, Canada’s international reputation has been diminished by a range of policies that


would have benefited from a more nuanced global perspective (or indeed, a global health strategy). For example, the Climate Change Performance Index 2015 ranks Canada 58 of 61 in tackling greenhouse-gas emissions; once a leader in freedom of information Canada now ranks 59 out of 102 countries (7) and is described as “hopelessly out of touch with international standards”; a new report (8) by the United Nations Committee on Human Rights (UNCOHR), the first in 10 years is sharply critical of Canada’s worsening record especially as they relate to freedom of expression. The widely-criticized muzzling of government scientists and cancellation of the Statistics Canada long-form census has led influential journals such as Nature and Science to ask whether the government is anti-science and lacks the essential openness needed in a modern democratic society. One UNCOHR member went so far as to state that “this is not the Canada that I know”. As to recent international crises, Canada has done little to redeem its reputation. For example, the Ebola pandemic prompted the government to issue visa bans for people from three Western Africa countries, contrary to scientific evidence showing that this would make it more difficult to identify and track individuals and dissuades countries from being forthcoming. These actions run contrary to International Health Regulations (IHR) the very laws that Canada helped draft in the wake of the SARS outbreak which cost Toronto 2 billion dollars. When the World Health Organization asked for an explanation for these actions none was given. Similarly, Canada’s response to the Syrian refugee crisis stands in sharp contrast to how it welcomed refugees from Vietnam and Kosovo; in the latter, immigration teams were sent overseas to facilitate mass sponsorships. The former chair of the Immigration and Refugee Board of Canada says we

The way forward Whether its “self-interest” (5) that is motivating government actions or altruism (as suggested recently by the newly elected government’s positive response to Syrian refugee crisis), due consideration ought to be given to designing and implementing a global health strategy - as many of its closest partners have done. The rationale for this undertaking is generally selfevident and tends to mirror the evolution of events that led to the displacement of ‘international health’ by ‘global health’. Among the most obvious reasons for adopting a strategy is globalisation itself, terrorism and bioterrorism, the fear of newly emerging infectious disease (EIDs) – that may occur naturally, accidently or deliberately (including HIV, West Nile virus, SARS, BSE and H1N1), greater mobility of individuals from one country to another as well as concerns about food and product safety standards. Past failures in dealing with priority diseases in poor countries provides another set of reasons for a global strategy. In the post 9-11 era, the global community has taken the view that a less unequal world will be safer (13) and more prosperous (14) – ideas that have been incorporated into the Sustainable Development Goals (SDGs) which replace the Millennium Development Goals (MDGs). Indeed, at the core of the modern definition of global health is the objective of health equity within nations and among nations. (15) A global strategy is seen as an efficient, effective and transparent means of setting priorities, mobilizing resources, and improving collaboration and coordination among global partners to meet the challenges of a complex and sometimes dangerous world. (2) Review of the evidence global health field over the last 10-15 years indeed reveals an impressive record of success notably in the areas of HIV, malaria, child and maternal mortality. A global strategy provides the framework that

supports national partnerships that can focus on populations, interdisciplinary approaches, systems and structures and on the scope of problems not their location. The global health strategy is premised in the notion that more can be achieved by working together than “going it alone” and that bilateral relationships will no longer suffice. (16) Reductionist and linear thinking which have typified relationships between rich and poor countries, donors and recipients, policy-makers and policy-takers have faltered and given way to the realisation that health is global and that we are part of a whole. As the MDGs are replaced by SDGs, we are now turning our attention to how and why the parts fit together and to the rules that govern interconnections and coherence. Canada could benefit from the very process of developing a global health strategy. It typically helps clarify mandates, sectors of comparative advantage and particular competencies (as well as short-comings) and relate these to global threats and opportunities. The process helps identify local partners (including the academic and research communities, civil society groups, philanthropic organizations and the private sector) as well as their counterparts in the global health and donor communities. Above all, it would help Canada “to know” our global partners and how they measure success. Many stakeholders across Canada are ready to contribute to building a global health strategy; whether it’s embraced now or later, the need for a strategy will only increase over time as will the cost of ignoring it. Perhaps what is particularly interesting is that countries that have implemented a global health strategy are also taking the opportunity to exam their own health outcomes indicators and systems performance in light of the new SDGs. A global health strategy will not only help protect Canadians from global threats but may reprioritize equal access to effective health care and the

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relevance of the social determinants of health – perhaps reversing current trends and bringing Canada back from whence it came – a country attentive to the needs of the vulnerable at home and abroad. Footnotes 1 Social trust is a belief in the honesty, integrity and reliability of others – a “faith in people” especially those who are different from ourselves. http://www.pewsocialtrends.org/2007/02/22/ americans-and-social-trust-who-where-and-why/

J Ibbitson, Tories’ new foreign-affairs vision shifts focus to ‘economic diplomacy’, Globe and Mail, Nov. 27, 2013 http:// www.theglobeandmail.com/news/politics/tories-new-foreign-affairs-vision-shifts-focus-to-economic-diplomacy/ article15624653 5

UNICEF 2014 Innocenti Report Card 11 “Child Well-being in Rich Countries” http://www.unicef-irc.org/publications/pdf/ rc11_eng.pdf 6

Access Info and Center for Law and Democracy 2015 Right to Information Rating http://www.rti-rating.org/country-data 7

C. Simms and D. Persaud (2009) “Global health and local poverty: rich countries' responses to vulnerable populations” Can J Public Health 2009 May-Jun;100(3) .http://www.cpha.ca/uploads/history/achievements/09-lirs-rpt_e.pdf 1

J. Kirten, J. Orbinsky and J. Guebert, “The case for a global health strategy for Canada” Strategic Policy Branch in the International Affairs Directorate of Health Canada, Ottawa 2010 2

The Economist (2010) “Snubbed” October 14, 2010, http://www. economist.com/node/17254504 3

The Prime Minister of Canada Statement by the Prime Minister at the World Economic Forum in Davos Switzerland, January 28, 2010. http://www.pm.gc.ca/eng/news/2010/01/28/statement-prime-minister-canada-world-economic-forum-davos-switzerland 4

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Kreiger T and Meierrieks D “Does income inequality lead to terrorism?” Social Science Research Network 2010 http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1647178 15 JP Koplan and TC Bond (2009) “Towards a definition of global health”, Lancet Volume 373, Issue 9679 June 6 2009, pages 199395 http://www.thelancet.com/pdfs/journals/lancet/PIIS01406736(09)60332-9.pdf 14

Canadian International Development Platform, Canada’s Foreign Aid 2015 http://cidpnsi.ca/canadas-foreign-aid-2012-2/ 5

UNCOHR Human Rights Committee (2015) Concluding observations on the sixth periodic report of Canada http://nupge. ca/sites/nupge.ca/files/documents/ccpr_c_can 8

M. Gollom 2015 “Canada’s refugee policy questioned after Syrian boy’s drowning” CBC September 4, 2015 http://www.cbc. ca/news/politics/syria-refugees-canada-immigration-alan-kurdi-1.3214850 9

Pickett, K Wilkinson R Di Vogli R 5 “Reasons we need to reduce global inequality”, World Economic Forum, September 15, 2015 https://agenda.weforum.org/2015/09/5-reasons-whywe-need-to-reduce-global-inequality/ 13

N. Szlezak, B. Bloom, B Jamison, D Keusch, G Michaud C Moon S and Clark, W “The global health system: actors, norms and expectations in transition”, PloS Medicine, January 2010, Volume 7 Issue 1. http://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.1000183 16


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THE END OF ENVIRONMENTAL DIPLOMACY? Professor Susskind's research interests focus on the theory and practice of negotiation and dispute resolution, the practice of public engagement in local decision-making, global environmental treaty-making, the resolution of science-intensive policy disputes, renewable energy policy, climate change adaptation and the land claims of Indigenous Peoples. Professor Susskind is the author or co-author of twenty books. Professor Susskind is currently Director of the MIT Science Impact Collaborative, the Director of the MIT-UTM Malaysia Sustainable Cities Program (MSCP) and co-director of the Water Diplomacy Workshop. He also was one of the co-founders of the interuniversity Program on Negotiation at Harvard Law School, where he now directs the MIT-Harvard Public Negotiations Program, serves as Vice Chair for Education, and co-directs the Negotiation Pedagogy Initiative. Saleem H. Ali holds the Chair in Sustainable Resource Development at the University of Queensland Australia where he is also a Professor of International Studies. Previously, he was Professor of Environmental Planning at the University of Vermont’s Rubenstein School of Natural Resources where he was founding director of the Institute for Environmental Diplomacy and Security. He can be followed on Twitter @saleem_ali

Lawrence Susskind and Saleem Ali Over the past 50 years, numerous countries have signed a variety of international agreements aimed at protecting fisheries, rivers, deserts, Antarctica, whales, migrating birds, elephants, Great Apes, as well as restricting hazardous pollutants of various kinds. More than 160 countries signed the original UN Framework Convention on Climate Change in Rio in 1992. Almost all the countries that signed the 1987 treaty that protects the ozone layer (The Montreal Protocol) have met their obligations, and this treaty remains one of the few international legal instruments ratified by every single member state of the UN system. Indeed, there have been many instances in which it has been possible to generate collective action to protect environmental resources, especially when the threats seem serious and there is agreement on a clear course of action. Why, then, was it so difficult for the countries present at the recent Paris Climate negotiations to reach a meaningful and enforceable agreement? Certainly, the fact that they reached any agreement at all is an important ac-

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complishment. But, everything that the individual countries promised to do is voluntary, and not enforceable. And, all the promises added together do not represent a sufficient commitment to keep CO2 emissions at levels necessary to keep global warming under the 2 degrees Centigrade goal that almost everyone agrees is an absolute necessity. The parties to the Paris convention disagreed on the scope of the problem, the accuracy of the available scientific assessments, the efficacy of various strategies for combatting the impacts of climate change, and which countries (i.e. the Global North, the Global South or both) should have what financial responsibilities in both the short term and the long term. A number of past treaties like the Biodiversity Convention have been criticized for doing too little too late. Once a fishery is lost, or an endangered species goes extinct, there’s no way to repair the damage. Some countries, like the United States, have refused to sign certain agreements like the Law of the Sea, for fear that their national sovereignty is being infringed. It may be that too few countries were willing to make sufficiently ambitious CO2 reduction commitments to reverse

the effects of global warming. In some instances, countries do not have the technical expertise they need or adequate financial resources to meet more ambitious treaty obligations. A treaty that countries sign but do not have the capacity to implement is useless. Some treaties call for actions that may have made sense at an earlier time, but haven’t been updated to take into account new scientific findings or shifting economic and ecological conditions. We do not just need a statement of goals, we need to put in place an international regime with the authority to monitor what’s happening, make ongoing adjustments, and ensure that all signatories comply. Under international law, nations have to voluntarily agree to abide by new global agreements. There has never been a completely effective means of enforcing global environmental treaties. We need treaties that can achieve “compliance without enforcement.” For that to happen, every country needs to feel that whatever is proposed, and whatever constraints are implied, are in their long-term interest. Problems arise when elected officials care more about getting re-elected in the short-term than


meeting the long-term interests of their citizens. They make short-term promises that they have no intention of implementing; or, they makes promises that they know will not be sufficient to solve the problem. In our book, Environmental Diplomacy: Negotiating More Effective Global Agreements, 2nd edition, (Oxford, 2014) we review the 18 most important global environmental agreements implemented over the past 25 years. We identify the key obstacles that have diminished their effectiveness and suggest several ways more effective agreements -- including a replacement for the Kyoto Protocol on Greenhouse Gases and, now, the recent Paris Agreement -- might best be achieved. To the extent that there is something that can be considered a global treaty-making “system,” it needs to be modified. Of course, when we say system, we are not talking about institutional arrangements that were carefully designed to handle increasingly complex environmental problems. Rather, we are talking about the haphazard accumulation of international legal practices over hundreds of years. Unfortunately, these were not formulated with the unique attributes of environmental problems in mind. Environmental, or common pool resource management problems, are long-term in nature, the product of highly complex and interdependent socio-ecological interactions. Such “wicked problems” present a challenge to our limited scientific understanding and are likely to affect different nations in very different ways. Other problems, for which it is easier (but still difficult politically) to generate agreements, are immediate, do not affect all the countries of the world at the same time and do not depend on their

collective commitments for resolution. They are not so dependent on accurate scientific interpretation, and they can produce visible results in the near term. To respond to the unique features of transboundary environmental problems and overcome the accumulated weaknesses of the environmental treaty-making “system,” we suggest the following: 1. Build decentralized alliances: Right now, each country makes an independent judgment about whether and how it will participate in ongoing global efforts to address a particular problem. From start to finish, most global treaty-making efforts take at least a decade. Thus, we suggest that countries band together, perhaps regionally, to gather information, formulate solutions, and build their capacity. Instead of starting with a single treaty draft generated by a small group of experts and, then, waiting for every country in the world to respond, it would make more sense to start with a half dozen (or more) regional treaty drafts generated by clusters of countries experiencing a problem in the same way. This way, very different ideas and approaches will get a fair hearing. Based on these regional inputs, a consolidate draft could be developed for collective review. 2. Provide technical assistance to countries that need it: When groups of countries do not have sufficient technical capacity to sort through alternative policy options, they should be able to draw on technical assistance from a centralized source. While we do have the Intergovernmental Panel on Climate Change (IPCC) that seeks to engage scientists in producing global assessments of the changing climate, this is not the same thing. At present, there is no easy-to-access source

of technical assistance that is not lobbying for a particular outcome. Many countries need independent assistance and advice to formulate their own stand on an important international issue. 3. Expand the role of Non-governmental Interests (NGIs) in environmental treaty-making: Rather than limiting non-governmental interests (e.g., civil society organizations, professional associations, academic institutions, business groups, and others) to lobbying officials in their own country -- to ensure that their views (and knowledge) are shared -- these groups need to be directly involved as responsible parties in drafting potential treaties, debating their relative merits and even sitting at the high-level political discussions when decisions are made about which version of a treaty will go forward. 4. Recategorize countries for purposes of assigning responsibilities (differentiated responsibilities): Some of the most successful global environmental treaties, like the Montreal Protocol, gave developing countries an extra decade to come into compliance. The idea of “differentiated responsibilities” was at the heart of environmental treaty-making in the 1990s. It is not helpful to divide the world up into two simple categories: developed and developing countries. Rather, countries should be categorized differently depending on the issue, especially when assigning timetables and targets for coming into compliance. We suggest that it will be much easier to get countries to sign new treaties if they feel they are being treated fairly. 5. Reinforce better balance between science and politics: Scientists should not be asked to decide the goals of global environmental trea-

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-ties or make the political trade-offs required to build support for action of various kinds. Science can tell us what has been and what is, but science can not tell us what ought to be. We need to ensure that global environmental treaty-making takes scientific input seriously and strives to balance science and political considerations in drafting and enforcing treaties. 6. Encourage issue linkage: The only way to achieve voluntary compliance with global agreements is to ensure that every country feels that it is coming out ahead when it joins a treaty regime. For this to happen, it may be necessary to link commitments to act on one issue with promises of assistance or changes in policy on other issues. Issue linkage is tricky because the participants working on one issue might not be the right stakeholders to handle a second issue. But, a willingness to consider more explicit issue linkage may be the key to implementing a new round of global environmental agreements. 7. Revise Penalties for Constructive action: It is a mistake, in our view, to penalize countries that take the actions a treaty seeks to encourage. That is what happens when new treaties set start dates that fail to take account of constructive efforts that countries make right before that kick-off point.. An alternative would be to allow countries to petition for an exemption from a mandated timetable or target so they will be encouraged to take constructive action. 8. Encourage the media and academic institutions to play a greater public educational role: Press coverage of global environmental treaty-making, in almost every part of the world, rarely aims to educate citizens on the underlying science of the problem being addressed. Too few media outlets have environmental reporters who can explain, in non-partisan

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terms, what the problems are and what the range of possible treaty requirements might be. Instead, much of the media settles for political report cards highlighting who is winning and who is losing. The public needs a better understanding of what is at stake. Otherwise they will not press their elected officials to take appropriate action. We also need academic institutions to make public education (rather than partisan lobbying) their primary responsibility. We have not seen much new international action on global resource management problems. The 2013 Minimata Convention on Mercury is an important exception, although it has only been ratified by 15 countries so far. There appears to be growing cynicism about treaty-based environmental diplomacy. This is unfortunate. Global environmental problems can provide a “superordinate goal” for states that otherwise have few interests in common. However, until the treaty-making “system” is reformed, and countries see that they have a lot to gain by working together, they are not likely to adopt a meaningful global climate change agreement. We think the Paris Agreement, laudable though it may be, proves that the incentives for realizing mutual gains remain elusive within the current system of environmental diplomacy.


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INFORMATION STATECRAFT: MULTINATIONAL BANKS AS CARRIERS FOR US & EU LAW

Michelle Frasher and W. Travis Selmier II In 1936, American political scientist Harold Lasswell presented a typology of the military, economic, diplomatic, and informational tools of statecraft that governments utilized to advance their interests. At that time Lasswell could not imagine how information communications technologies (ICTs) would present opportunities and challenges for states to “get what they want” in international relations. But Information Statecraft – the attempt to influence through the acquisition, control, or presentation of data, information, or knowledge—is now a common tool of statecraft. This tool explains how states use law and technology to govern and acquire data to influence the actions and policies of foreign governments. Governments cannot pursue information statecraft alone because private corporations possess the data that states need and they are the main drivers, and owners, of ICTs. This is especially true in the case of financial data, where the US and EU are engaged in a transatlantic battle over data governance that af-

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fects their efforts to use the financial system as a source of intelligence for anti-money laundering/counter-terrorism finance (AML/CTF) operations. Data from the View of Finance Banks and other financial services firms are political institutions because they deal with that good by which all other goods are priced— money. They provide the highways of global trade and investment. For these purposes they make immense investments in ICT to build global data networks, and accumulate vast, proprietary stores of client and transactional data. These networks carry capital and information across political borders which have become more open, sparking debates among diplomats, policymakers, scholars, financial firms and other stakeholders. While some argue that money and financial capital has become stateless, financial data is neither stateless nor faceless. Even as financial information flows across borders, it remains personal and proprietary to an individual or a business entity and it is protected under the laws of their home location. As banks and financial firms store and use public

and proprietary information, they are monitored and regulated by governmental agencies through financial information disclosure requirements. Financial institutions developed their businesses into international networks, purposefully engineering their organizational structures in order to make capital and informational flows as seamless, fast, and costless as possible. Banks drive global ICT innovation as any modern business strategy must concern itself with cross-border information flows. The primary business aim of ICT systems is to produce wealth on a global scale. In pursuing this aim, banks employ data to maintain and create new financial products, measure internal productivity, predict the capital needs of both bank and clients, prognosticate trends, and transmit data to other financial intermediaries through interbank transfer. In the post-2008 regulatory atmosphere, banks have tried to expand data networks with uninterrupted, secure access while also promoting standardization and accountability to comply with regulatory demands. It has not been easy. Banks still deal with


technical obstructions to interoperability from mergers and acquisitions, different accounting and reporting standards, and diverse markets that are shaped by local needs and cultural views. This is also true for AML and privacy compliance.

“Stuck in the Middle with You”: The EU’s 4th Money Laundering Directive & Safe Harbor Multinational banks are one of the main actors of information statecraft, but the dual nature of financial data - commercial and potentially criminal at the same time - means it is simultaneously governed by AML/CTF and data privacy laws. AML/CTF laws seek to protect the financial system from crime and political violence; data privacy laws seek to protect an individual's identity and choices from government and private abuse. While Transatlantic AML/CTF law is comparable, approaches to privacy, or data ownership, are quite different. In Europe, an individual controls personal data as a human right, while the US treats data as property and regulates only certain sectors regarding personal data. Banks working in both jurisdictions must navigate often contradictory US and EU reporting requirements without running afoul of either. In effect, these conflicts may put multinational banks at risk for fines and litigation, while their transnational reach enables the EU and US to extend their privacy and AML/CTF views to each other’s jurisdictions. The EU’s 4th Money Laundering Directive (2015/849/EU, known as 4MLD) and the 2000 US-EU Safe Harbor data transfer framework illustrate how states use privacy law as a tool of information statecraft in AML/CTF. This

year, 4MLD legalized enterprise-wide data and Suspicious Activity Reports sharing to strengthen financial institutions’ abilities to provide useful information to authorities. 4MLD mandated that banks in the EU, or those that handle EU citizen data, implement privacy safeguards in their AML compliance programs. Since US privacy law is considered inadequate by EU standards, EU multinationals must establish policies and procedures in US branches that adhere to European standards. For US firms, this means adopting EU protections to conduct business in European markets. But these measures do not knock the US out of the data control game quite so easily. The US exercises its own data control by through a kind of omission policy- by forbidding US banks to share Suspicious Activity Reports with their foreign branches and affiliates making it impossible for US firms to implement their own enterprise-wide compliance programs. In yet another twist, the European Union Court of Justice invalidated Safe Harbor data transfers in response to concerns over “unfettered” US government surveillance. While Safe Harbor did not apply to financial institutions, it does affect over 200 service providers that process customer data for AML identity verification, payments, and human resources. Does AML mean “All my Lawyers” to a Global Bank? Using transnational banks as vehicles to distribute national law and sovereign interests beyond their home country’s borders places much of the accountability, and costs, on private data carriers.

For AML/CTF, officials understand that banks “know their business best” to recognize suspicious behaviors and the risk-based approach gives private institutions control over reporting. However, the subjectivity inherent in risk-based approaches also invites uneven implementation, patchy regulatory scrutiny, and penalties. For privacy, 4MLD does not help financial institutions identify their data protection duties in the context of AML/ CTF activities, while the US guidelines omit privacy in AML/CTF completely. Without guidance of how to handle data sharing conflicts, multinational banks are forced into piecemeal AML and privacy procedures that inhibit business and reduce compliance effectives. Furthermore, the invalidation of Safe Harbor threatens contractual vendor relationships upon which they depend for human resources, payments processing, and AML compliance, and even cooperative KnowYour-Customer registries where banks share data to verify client identities for AML/CTF. Anti-fraud, security, and AML constitute a multibillion dollar industry that dominates banks’ tech and personnel budgets. AML fines have already cost billions to banks, but fines from privacy violations may soon catch up. As the EU replaces its data protection Directive with a Regulation, authorities will soon have the right to impose 2-5% global annual fines on privacy violations. As a business that exists to generate wealth and commerce, the financial services rightly ask, 1) where’s the Return on Investment for AML/CTF and privacy? and; 2) are US and EU officials addressing national differences that put businesses at risk?

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While the banking industry knows that curbing the illicit economy and countering terrorism is in its interest, officials have neither presented privacy in a way which appeals to bankers’ business acumen nor provided practical guidance on implementation. Multinationals are hesitant to tackle these issues cooperatively as they fear that their efforts, however well-intentioned, will open them to criticism. Instead, they develop AML/privacy programs internally with the goal of shielding them from liabilities.

data; US and EU citizens consistently cite the security of their financial data as their highest concern and the market for privacy-based finance is large. Officials should appeal to the business community not only in terms of privacy rights, but privacy profits. This can only be accomplished when officials understand how finance manages and uses data, which requires communication and consultation between public and private actors without fear of repercussion.

A Way Forward Financial data’s duality, the legal dichotomies among AML/CTF and privacy law, and the lack of implementable privacy guidance for business impede the data flows that banks, and states, rely upon. The Transatlantic tug-of-war over data governance enables states to utilize information statecraft, but using multinational banks as transnational vehicles to extraterritorially control data does so at the expense of these private actors. AML/CTF data-sharing helps multinationals identify and map illicit activity across their markets and it improves the quality of data governments receive. Adding privacy protection forces financial firms to review their data management, never a bad idea, but it also incurs costs above the AML price tag since it requires hiring and training qualified staff and significant ICT investments to accommodate national differences. Without Safe Harbor, the companies that serve finance expose their corporate clients to even greater risks. Banks and other financial services firms need to embrace privacy as part of their service because it enhances their reputations, and because their customers demand it. In fact, this challenge will affect other multinationals dealing with private financial

The authors wish to thank members of the financial services and US and EU officials for their input and insights into this research.

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References European Data Protection Supervisor (2013), “Opinion on the Prevention of Money Laundering and Terrorist Financing.” https://secure.edps.europa.eu/EDPSWEB/ webdav/site/mySite/shared/Documents/Consultation/Opinions/2013/13-07-04_Money_laundering_EN.pdf Michelle Frasher, “Data Privacy and AML Rules on a Transatlantic Collision Course.” American Banker. 27 August 2015. http://www.americanbanker.com/bankthink/ data-privacy-and-aml-rules-on-a-transatlantic-collision-course-1076361-1.html Laura Noonan, “Banks Face Pushback Over Surging Compliance and Regulatory Costs.” The Financial Times 28 May 2015. Mark Scott, “Data Transfer Pact Between US and Europe is Ruled Invalid.” The New York Times 6 October 2015. W. Travis Selmier II and Michelle Frasher (2013) “The cross-Atlantic tussle over financial data and privacy rights. Business Horizons 56/6, pp. 767-778. http://dx.doi. org/10.1016/j.bushor.2013.08.002


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