As Belgium’s leaders emerged Thursday to announce their compromise on the Canada-Europe trade deal, copies of two declarations found their way onto European websites.
One was Belgium-specific and didn’t really alter anything in the agreement — the Flemish premier admitted as much on his way out of the talks — but obviously helped change some minds in Wallonia.
But the second declaration that popped up on at least one Belgium news site could be a critical update to the CETA annex Canada helped draft to clarify some of the more controversial and vague wording in the legal text.
That second document, presumably leaked, since it has yet to be released officially, is far more significant.
Joint declaration may be signed this weekend
A joint interpretative declaration, written jointly by the European Commission and Canada, was seen as a tool to overcome opposition to the deal long before Wallonia’s regional legislatures voted no.
It aimed to address concerns critical to the support of centre-left parties in Germany and Austria. More recently, it also was meant to help win over the Walloons.
Neither the European Commission in Ottawa, nor International Trade Minister Chrystia Freeland’s office, will confirm that what was posted online constitutes the agreed final version of the declaration.
But a final version has been agreed — when Freeland decided to conclude Canada’s negotiations last week, that signaled the end of Canada’s willingness to rewrite.
Sources suggest the final wording could be officially released before Canada signs the deal in Brussels — an event now expected to follow close on the heels of successful votes in Wallonia scheduled for Friday afternoon, local time.
The declaration may be signed alongside the nearly1,600-page legal text, to give it added weight.
This latest online version of the joint interpretative declaration appears to directly respond to concerns raised in recent months. Here are a few highlights (loosely translated from French):
On the EU’s ability to regulate and maintain its standards:
“CETA will not weaken our respective standards and regulations in food safety, product safety, consumer protection, health, environmental or labour protection. Imported goods, service providers and investors must continue to meet the requirements imposed at the national level, including applicable rules and regulations. The European Union and its member states, on one hand, and Canada, on the other hand, reaffirm the commitments made in terms of the European Union’s precautionary principle in the context of international agreements.”
On whether this declaration constitutes a legally binding agreement:
“This joint instrument exposes clearly and unambiguously, within the meaning of Article 31 of the Vienna Convention on the Law of Treaties, what Canada and the EU agreed on a number of provisions that were the subject of debate and concern… This concerns, in particular, the impact of CETA on the ability of governments to regulate in the public interest, provisions on investment protection and dispute settlement, and the sections on sustainable development, labour rights and environmental protection.”
On local governments’ rights to regulate:
“CETA preserves the ability of the European Union and its member states and Canada to adopt and enforce their own laws and regulations to regulate economic activity in the public interest, to achieve legitimate public policy objectives, such as the protection and promotion of public health, social services, public education, safety, environment and public morality, social or consumer data protection and privacy, as well as promotion and protection of cultural diversity.”
On regulatory cooperation:
“CETA offers Canada and the European Union and its member states a platform to facilitating cooperation between their regulatory authorities, with the aim of improving the quality of regulation and more effective use of administrative resources. This cooperation will be made on a voluntary basis. Regulatory authorities can freely choose to cooperate, but are not constrained or forced to implement the results of their cooperation.”
On public utilities:
“CETA does not prevent public authorities from defining and regulating the provision of these services in the public interest. CETA will not require public authorities to privatize services and will not stop the expansion of services they provide to the public. CETA will not prevent public authorities from providing public services previously privatized or bringing under public control services they had chosen to privatize. CETA does not mean that a private procurement contract means that service is forever commercialized.”
“CETA does not oblige Canada or the European Union and its member states to authorize the use of commercial water if they do not want to. CETA fully preserves their power to decide how they use and protect water sources. Moreover, CETA will not prevent a reversal of a decision authorizing the commercial use of water.”
Investor court provisions
There are also more than two pages of clarifications on the controversial investor court provisions (ISDS), including these key lines:
- “CETA will not give more favourable treatment to foreign investors than domestic investors. CETA does not favour using the investment court system it sets up. Investors can opt for the available remedies in national courts.”
- “CETA states that governments can change their legislation, regardless that these changes can have adverse effects on an investment or on expectations of profit of an investor. Moreover, CETA specifies that any compensation owed to an investor will be based on an objective determination… and will not exceed the loss incurred by the investor.”
- “Under CETA, companies must have a real economic link with the economies of Canada or the European Union to benefit from the agreement, and shell companies or “mailbox companies” located in Canada or in the European Union by investors from other countries can not bring proceedings against Canada or the EU and its member states.”
- “Members of these courts possess the qualifications required in their respective countries for appointment to judicial office and will be appointed by the European Union and Canada for a specified period. Business will be heard by three randomly selected members. Strict ethical rules were laid down for Tribunal members to ensure their independence and impartiality, and the absence of conflict of interest, bias or appearance of bias…”
- “CETA is the first agreement providing for an appeals mechanism to correct errors and ensure consistent decisions….”
A table cross-referencing the complete text of the declaration to specific articles in the legal text is on the final two pages, to directly link each statement to the relevant part of the agreement.
Belgium to vote on its own declaration
The Belgium-specific declaration released Thursday in French and (Flemish) Dutch is four pages long and lays out four main points. All were previously understood to be true — which is why officials characterized the recent talks with Wallonia as more about education than re-negotiation.
Loosely paraphrased, it says:
- Belgium’s regional legislatures will be part of the full ratification process for the Comprehensive Economic and Trade Agreement (CETA), with provisions to withdraw should ratification fall through.
- The provisional application of CETA that would follow a successful ratification vote in the European Parliament, expected by early 2017, will not include the controversial investor court system.
- Belgium’s regions do not give up their jurisdictional authority over regulations under this deal.
- Unspecified “safeguards” will be applied to ensure Belgium’s agriculture sector does not suffer from some kind of as-yet undefined “market imbalance” as a result of Canadian imports. (This may signal compensation for Walloon farmers.) As well, existing regulations will continue to apply on things like genetically modified organisms (GMO foods), including the EU’s precautionary principle, which says that if something can’t be proven safe, it won’t be allowed.
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