By Maude Barlow and Brent Patterson
Canada's trade minister Ed Fast believes that the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) does not need to be renegotiated to address growing European concern about its investor-state dispute settlement (ISDS) provision.
The French-language newspaper Le Devoir reports that a spokesperson for the trade minister says that the investor-state dispute settlement provision does not need to be adjusted to facilitate the adoption of the agreement in Europe, that European authorities are not demanding such changes, and that CETA negotiations "are over." The spokesperson adds that the translation and legal review of the deal "are on track, and we are committed to working with our European Union partners to bring this agreement into force as soon as possible."
The trade minister's spokesperson is echoing past statements, including by the prime minister, that have similarly downplayed concerns about European opposition to ISDS. In September 2014, Stephen Harper stated, "In the normal process [of approving an agreement, it's normal] that somebody will say, 'Well, change this here or give me a bit more money there.' I expect this kind of thing will happen, but in the end, we have a good agreement [that has the commitment of the 28 member states of the EU]." And in January 2015, EurActiv reported in French that a Canadian government spokesperson had told them, "Canada and the EU have negotiated an ambitious, balanced and beneficial to both parties that includes the ISDS and remain mobilized to put into effect as quickly as possible CETA."
But these statements seem out of sync with opposition to ISDS in CETA among European national governments and within the European Parliament, as well as the European Commission's recent suggestions to amend the controversial provision to quell growing concerns and salvage the European "free trade" deal talks with the United States.
Just this month, the German-language newspaper Süddeutsche Zeitung reported that Austrian chancellor Werner Faymann wants CETA to be renegotiated given his concerns about the ISDS provision. Also this month, the Hungarian-language news service BruxInfo reported that the Hungarian Secretary of State for Foreign Affairs and Foreign Trade István Mikola had said there is a political consensus that the Hungarian parliament for the time being won't ratify CETA because it cannot accept the ISDS mechanism in the agreement. In September 2014, the German Economy Minister Sigmar Gabriel stated, "It is completely clear that we reject these investment protection agreements." And in February 2015, the French Senate voted in favour of a resolution calling for the abandonment of ISDS in CETA if substantial changes cannot be negotiated.
Opposition is also strong in the European Parliament. In August 2014, Reuters reported, "EU lawmakers are threatening to block a multibillion-dollar trade pact between Canada and the European Union -- a blueprint for a much bigger EU-U.S. deal -- because it would allow firms to sue governments if they breach the treaty." That article highlighted, "Together with the Socialists' 191 members, the political groups opposing the agreement could count on 341 votes, just 35 short of a majority." That article didn't, however, count the National Front which also opposes CETA. Their opposition would bring CETA within 12 votes of being defeated in the 751 member assembly.
And earlier this month, European trade commissioner Cecilia Malmström suggested ways to amend the ISDS provision in the United States-European Union Transatlantic Trade and Investment Partnership (TTIP). While it would appear that these suggestions were rejected by both national leaders and Members of the European Parliament, the reality that they are even being proposed indicates two things. First, that opposition and political pressure is strong enough that it's politically necessary to propose to at least reform the provision. And second, that if the amendments were agreed to it would either necessitate a renegotiation of CETA or that CETA and TTIP would have different ISDS provisions. If the deals had different ISDS provisions that could create a circumstance where US corporations with offices in Canada could still use the non-amended ISDS provision to sue European governments, a circumstance that would presumably be unacceptable to Europeans.
Whatever the scenario, it appears clear that the Harper government is unwilling to engage in the conversation (publicly at least) to explore ways to amend or remove the ISDS provision in CETA to address the growing and substantive concerns among Europeans. We can hope that this intransigence could be the undoing of CETA in Europe.
It is believed that European Union member states could begin voting on CETA in January 2016 and that the European Parliament could vote on it in April 2016.
For more on the Council of Canadians campaign to defeat CETA, please click here.
Maude Barlow is the National Chairperson of the Council of Canadians.
Brent Patterson is the Political Director of the Council of Canadians.
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