CETA’s “interpretive declaration” promises ring hollow: legal opinion

Media Release
October 5, 2016

OTTAWA – While the EU Council Trade Committee is scheduled to meet tomorrow to discuss changes to the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) by way of an “interpretative declaration,” one of Canada’s foremost trade lawyers issued a legal opinion stating that the Commission’s proposed declaration will not change the agreement substantially. The analysis also found the declaration is highly unlikely to meet the demands of the deal’s prominent critics.

The EU Commission (EC) and Canada, under pressure from German social democrats and trade unions, have agreed to provide “clarification” on the deal in four key areas: procurement, public services, the investor court system and the precautionary principle. They argued this could be accomplished in an additional declaration.

Lawyer Steven Shrybman, partner in the law firm of Goldblatt Partners LLP, said that a declaratory statement could provide context, but cannot significantly modify the deal. Shrybman asserts that calling this “legally binding” is a false understanding of international law.

“There is little here to encourage the hope that a declaration by Canada and the EC will rise above simple rhetoric,” he writes. “A declaratory statement by Canada and the EC would not, and could not, amend the substantive provisions of the CETA text, or otherwise exclude or modify the legal effect of the Agreement, and it is highly misleading of the Ministers to state or imply otherwise. Using terms such as 'legally binding', or suggesting that it is possible to make the investor-state regime 'absolutely watertight' does nothing to further inform public debate – quite the opposite, because it conveys a false understanding of the effect of an interpretative declaration on the settled text of an international treaty.”

He explains that only formal amendments or reservations can alter the meaning of provisions.

He continues: “A declaratory statement, if properly adopted and approved, could provide more context for a tribunal to consider when seeking to interpret and apply CETA rules… What it cannot do is alter the plain meaning of CETA provisions – for that, formal amendment to, or reservation from CETA is required.”

The legal opinion was commissioned by the Council of Canadians, Canada’s leading social action group. 

Maude Barlow, chairperson of the Council of Canadians, commented on the findings: “To assure the ability to regulate, protect public services and ensure worker rights, negotiations on CETA must be reopened. Clauses on investor-state dispute settlement (ISDS), regulatory cooperation, and ratchet and standstill have to go. Anything less will not assuage the legitimate concerns of millions of people.”

Steven Shrybman has practiced public interest and international trade law for thirty years. He has written extensively on the subject, and represented interveners in investor-state and World Trade Organization (WTO) disputes.

Addendum: After the declaration was leaked, Shrybman said it was worse than he feared. In fact, the declaration does not meet the requirements to be considered as an “interpretative declaration” under international law. In a statement dated October 7, he writes: “In our opinion, no party could credibly present such a document as an 'interpretative declaration' to a Tribunal called upon to determine an investor rights dispute. Moreover, in the unlikely event that should occur, a Tribunal that gave it any consideration would risk its own credibility.”

Adding the Vienna Declaration on treaties does nothing to change the validity of the document.  Steven Shrybman says, “While the European Commission and Canada are free to describe their document as a “joint interpretative declaration” if they choose, absent any effort to actually interpret CETA provisions, it would represent an interpretative declaration in name alone and have no utility whatsoever as a means for interpreting CETA provisions.  They could do the same for a menu from McDonalds.” October 17 update

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CETA: The Effect of an Interpretative Declaration by Canada and EU Commission