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CETA hangs in the balance over debate on side declaration

Steven Shrybman

Tuesday October 18 will be a pivotal moment in our eight-year campaign against the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). That’s when the heads of EU member state governments will be meeting to discuss a side declaration now being proposed for the deal.

Two weeks ago, Deutsche Welle reported, “European trade ministers appear set to approve [CETA] following a day-long meeting [on September 23] in the Slovakian capital Bratislava. …The ministers said the two sides would put together a declaration spelling out the limits of the pact to dispel public concerns.”

After that, Global News reported, “Reinhold Mitterlehner, Austria’s Christian Democrat vice chancellor, said a declaration making clear that standards were not under threat and that a special court would not allow big business to dictate public policy would help [to get the deal passed].”

Council of Canadians chairperson Maude Barlow responded as soon as the news about a declaration broke. She said, “The proposed declaration is smoke and mirrors. The only way anything can be legally binding is if they reopen the treaty itself and make the changes there. A declaration outside of CETA is meaningless and meant to assuage the growing concerns about this deal. While the declaration promises to protect public services, CETA itself contains standstill and ratchet clauses that clearly say once liberalized, services cannot be returned to public management. And the Investment Court System they have agreed on still gives foreign corporations the right the challenge rules and standards they don’t like.”

The Council of Canadians then commissioned a legal opinion on the proposed declaration by Steven Shrybman. That opinion, released on October 5, found that the European Commission’s proposed declaration would not change the agreement substantially and that the declaration is highly unlikely to meet the demands of the deal’s critics. Shrybman says that a declaratory statement could provide context, but cannot significantly modify the deal. He also asserts that calling the declaration “legally binding” is a false understanding of international law.

Shrybman’s legal opinion has now been widely circulated in Europe.

After the declaration was leaked by Kronen Zeitung, Austria’s largest newspaper, on October 6, Shrybman said it was worse than he feared. He commented that the declaration does not meet the requirements to be considered as an interpretative declaration under international law.

That same day, The Hill Times reported, “Canada’s chief negotiator for a trade deal with Europe [presumably feeling the push-back on the declaration] is still ‘discussing’ the contents of [it], says Canada’s trade minister [Chrystia Freeland], as critics in Europe and Canada slam a leaked draft of the document marked ‘final’. The Council of Canadians and Netherlands-based Transnational Institute were among the critics to pile onto the leaked text, saying it isn’t doesn’t answer their concerns and isn’t strong enough to prevent businesses from exploiting the CETA to the detriment of the public.”

The issue is still very much in play.

CBC reports, “[While] Austrian Chancellor Christian Kern signalled earlier this week that his opposition to the deal may be abating, particularly if the new investor court system is not provisionally applied, [other] members of his [Social Democratic] party who sit in the European Parliament issued a statement Thursday [October 6] that any declaration would need to have equivalent legal status to the rest of the CETA text.”

Furthermore, L’Echo reports (in French), “The [Belgian] government will not give mandate to [its] Minister of Foreign Affairs to sign [CETA] by October 12 because it still does not have the final text of the interpretative declaration…” And EU Trade Insights reports, “Bernd Lange (Socialists and Democrats, Germany), Chairman of the European Parliament’s International Trade Committee, made clear to the Commission that the leaked draft does not meet expectations of the [German Social Democratic Party] and demanded more specific commitments.”

The next ten days will be crucial.

If CETA is agreed upon at the Council of the European Union meeting on October 18, European officials and Prime Minister Justin Trudeau are scheduled formally sign CETA on October 27 in Brussels. From there it would move to a ratification vote in the European Parliament in December or early 2017, followed by a provisional application of a substantial portion of the deal.