Leaked EU-Canada joint declaration has legal weight of a holiday brochure
Brussels – Greenpeace has slammed a joint EU-Canadian declaration meant to reassure critics of a controversial trade deal between the two blocs. Greenpeace described the document as a PR exercise devoid of any legal content.
After analysing a leak of the declaration (pdf), Greenpeace EU legal strategist Andrea Carta said: “As it stands, this declaration has the legal weight of a holiday brochure. There is nothing in it that would guard against the threat of CETA to nature, our health and labour standards. Regrettably, this is a PR exercise, not a serious attempt to address the problems of CETA.”
“The declaration is a sloppy afterthought that can’t fix CETA and ignores the concerns of the public, trade unions and civil society organisations. The leaked declaration does nothing to bind or even guide arbitrators ruling over any future trade disputes between multinationals and states.”
“The mere fact that the EU and Canada have felt the need to cobble together a last-minute declaration is a recognition that the trade deal is defective. All it does is put the finger on a number of risky and sensitive areas, which should be read as a warning against the ratification of this trade deal. Actually improving CETA would have meant real renegotiations and changes in the treaty text itself. ”
Greenpeace analysis of the leaked joint declaration:
- Overall assessment: The draft declaration uses non-binding, non-enforceable descriptive text, which paints an unreasonably optimistic picture about CETA and fails to address the shortcomings of the agreement. There is no new commitment or clarification in the text.
- Right to regulate: The leak makes the general statement that “CETA preserves the ability of the European Union and its Member States and Canada to apply their own laws and regulations that regulate economic activity in the public interest”, but fails to address the fact that the right to regulate in CETA’s chapters on investment, labour and the environment is not clearly defined and subject to limitations.
- Regulatory cooperation: The leak says that regulatory cooperation “will be voluntary”, but does not exclude that the European Commission and the Canadian government may engage in deregulation for the benefit of corporations and against the interest of EU and Canadian citizens – with no scrutiny from elected parliaments.
- Public services: The leak says that “CETA will not require governments to privatise any service nor prevent governments from expanding the range of services they supply to the public”. But while there is no explicit requirement to privatise public services, this will not prevent them from being privatised. In fact, CETA increases the pressure on governments to privatise. It grants access to public procurement for all public services, including water, to Canadian companies. The leak of the joint declaration also fails to address the fact that CETA exposes local authorities to compensation claims from Canadian investors, if public authorities decide to bring local public services under their control.
- Investment protection: The leaked text claims that, under CETA, “governments may change their laws, regardless of whether this may negatively affect an investment or investor’s expectations of profits”. However, the statement does not change the fact that multinationals will still be entitled to sue governments and claim compensation before a special arbitration panel, circumventing the jurisdiction and scrutiny of national courts. The text is also meant to reassure citizens that shell or mailbox companies cannot take advantage of CETA to sue EU countries, saying that “CETA requires a real economic link with the economies of Canada or the European Union”. The declaration does not exclude genuine subsidiaries of non-Canadian companies from suing states under CETA. This includes most Canadian subsidiaries of US companies.
- Precautionary principle: The leak does not mention the precautionary principle, which protects Europeans from health risks and dangers to the environment. The text says that “CETA commits the European Union and its member states and Canada to provide for and encourage high levels of environmental protection”, when, in reality, CETA contains a watered down version of the precautionary principle that threatens to weaken European environmental standards and pave the way for a race to the bottom. The leaked text also makes claims on “commitments to cooperate on trade-related environmental issues of common interest such as climate change”, which are not backed up by the CETA text. The agreement does not contain, in this field, anything more than vague declarations and aspirational statements, devoid of any binding legal value. The text in the leak of the joint declaration does not change this.
- Sustainable development: The leak claims that “CETA reconfirms the longstanding commitment of Canada and the European Union and its Member States to sustainable development”, but ignores the fact that CETA’s sustainable development chapter does not contain any binding rule and is, at best, aspirational.
Greenpeace trade campaigner Susan Cohen Jehoram said: “A genuinely progressive trade agreement would require a radical shift in mindset among policymakers. Trade agreements should benefit people first and foremost, not only corporations. Our governments and the European Parliament must reject CETA – it can’t be fixed with this declaration.”
EU trade ministers will meet in Luxembourg on 18 October to decide whether to support CETA, in view of the joint declaration. If they do, the deal will be signed symbolically at an EU-Canada summit in Brussels on 27 and 28 October. The European Parliament is then expected to vote on ratification in late 2016 or early 2017. After that, CETA will need to be ratified by the national parliaments of all EU countries.
If the European Parliament ratifies CETA, large parts of the agreement will ‘provisionally’ come into force, even before the national parliaments have had their say. The investment court system (ICS), a controversial arbitration system for investment disputes between multinationals and states, could largely be excluded from provisional application. This means that ICS may still be rejected by national parliaments.
Contact: Greenpeace EU press desk: +32 (0)2 274 1911, firstname.lastname@example.org
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