CETA's "interpretive declaration" promises ring hollow: legal opinion

Media Release
October 6, 2016

OTTAWA – A joint declaration on the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) has been leaked.

“This declaration will not assuage the legitimate concerns of millions of people,” says Maude Barlow, National Chairperson of the Council of Canadians. “It doesn’t get rid of the investor courts that allow corporations to sue our governments for policy decisions taken in the public interest. It doesn’t mention the precautionary principle, which protects consumer safety. It doesn’t protect communities’ ability to buy local. We can do much better.”

One of Canada’s foremost trade lawyers recently issued a legal opinion stating that the 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, had previously 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.

“To assure the ability to regulate, protect public services and ensure worker rights, negotiations on CETA must be reopened,” says Barlow. “Clauses on investor-state dispute settlement (ISDS), regulatory cooperation, and ratchet and standstill have to go.”

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.

The legal opinion can be read here: CETA: The Effect of an Interpretative Declaration by Canada and EU Commission

Addendum: After carefully reviewing the declaration, 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.”

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