Barlow calls for protection from ISDS challenges in Paris climate agreement

ISDS Report

Council of Canadians chairperson Maude Barlow wants to see a provision included in the agreement expected to be reached at the United Nations COP 21 climate summit in Paris this December that would protect governmental measures that would reduce greenhouse gas emissions from investor-state dispute settlement (ISDS) challenges.

Barlow writes, "There is a problem that needs to be addressed if any agreement or treaty reached at the Paris summit is to be realized in the home countries of the parties. The central problem is that many of the same countries pledging to take serious action on climate change are also party to, or are aggressively negotiating, trade and investment deals that contain a mechanism that gives large corporations the right to challenge any changes to the current rules under which they operate."

She then highlights, "Corporations have used ISDS to challenge governments over 600 times, and in numerous cases these challenges are clearly related to health or environmental decisions by governments." ISDS provisions exist in the North American Free Trade Agreement and within the proposed Canada-European Union Comprehensive Economic and Trade Agreement (CETA), Trans Pacific Partnership (TPP) and numerous other so-called ‘free trade’ agreements.

Toronto-based Osgoode Hall Law School professor Gus Van Harten is proposing the specific language that should be included in the Paris climate agreement to safeguard measures from investor-state challenges:

“This Article applies to any measure adopted by a Party to this Agreement and relating to the objective of stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system or relating to any of the principles or commitments contained in Articles 3 and 4 of the United Nations Framework Convention on Climate Change of 1992.

Such a measure shall not be subject to any existing or future treaty of a Party to the extent that it allows for investor-state dispute settlement unless the treaty states specifically and precisely, with express reference to this Article and this Agreement, that this Article is overridden. For greater certainty, in the absence of such a reference in a future treaty between two or more Parties, the future treaty is presumed to include in full and without qualification the first three paragraphs of this Article.

Any dispute over the scope or application of this Article shall be referred to, and fall within, the sole and exclusive jurisdiction of [specific body and process pursuant to the multilateral climate change agreement]. For greater certainty, no investor-state dispute settlement tribunal, arbitrator, body, or process has jurisdiction over any dispute related to the scope or application of this Article.

The Parties shall not agree to any future treaty that allows for investor-state dispute settlement unless the future treaty incorporates in full and without qualification the language of the first three paragraphs of this Article. The Parties shall make best efforts to renegotiate any existing treaty with a non-Party that allows for investor-state dispute settlement in order to ensure that the existing treaty incorporates in full and without qualification the language of the first three paragraphs of this Article.”

Barlow and the Council of Canadians will be in Paris for the climate summit (which starts Nov. 30) to advocate for this provision. Barlow adds, "It is our hope that this report [An ISDS Carve-Out to Support Action on Climate Change by Van Harten] will get widely published and impact the negotiations in Paris. We also hope that the climate and trade justice communities will adopt the demand that the threat of ISDS must be part of any meaningful discussions in Paris."

You can assist in this by helping to spread word of this report via e-mail, Facebook, Twitter and conversation.

For more on our campaign to stop ISDS and derail the ratification of the Canada-EU CETA, please click here.