J’étais interviewé par Debates.EU sur l’accord commercial entre l’UE et le Canada, le CETA si controversé en France alors que peu de ses détracteurs prennent le soin de le lire, avec Pierre d’Argent professeur en droit international et Magda Stockiewicz.
J’ai moi-même travaillé pendant des mois sur cet accord, approuvé par le Parlement européen à 59% le 15 février 2017 après un changement de fond en comble de son chapitre juridique en février 2016. Cet accord est utile, il n’est absolument pas diabolique comme je l’ai écrit dans l’Express ici, il n’est pas non plus le remède à tous nos maux, loin de là.
Le débat est ici, en anglais, datant du jour même de l’adoption de l’accord par les députés européens. Je l’ai recopié ci-dessous également.
Good morning all, and thank you for joining us today.
When you hear the opinions on the other side, where do you find yourself in the biggest disagreement.
Let me give it a go to start our discussion:
- The current trade agreements, including CETA, are designed to benefit multinational corporations rather than people and the environment and therefore we oppose them. It is not true that those opposing, including my organisation FoE Europe, are against international trade as such, but we believe it needs to be managed in a way that it benefits people and the planet. CETA is not about rejecting Canada or its government.
- It’s about rejecting an agreement that was negotiated with the ultra-conservative Harper government to the benefit of large corporations. Trade unions and civil society organisations in Canada also call for CETA to be rejected: This is not about Canada vs Europe, but about an agreement that would benefit multinational corporations and harm citizens and the environment on both sides of the Atlantic.
- International cooperation is absolutely essential to solving many of today’s pressing issues, whether it is climate change, tax evasion, the protection of biodiversity or holding multinational corporations accountable for their conduct. We support and engage with efforts of tackling these issues at the international level. We would be glad to support European-Canadian cooperation to further environmental and social causes.
- I find myself at odds with anybody that denies the complexity of CETA.
- If the #NoCeta side tells me it is going to endanger our democracy, lower social and environmental standards and allow US companies to sue our public authorities to make profits, I confidently disagree and wonder what their reasoning is. I have read a number of reports published by the stop-CETA campaigns and I worry about the acute level of disinformation.
- On the other hand, I am no CETA fan either – the way our industry communicates on matters of public concern is also a disgrace. #CetaNOW lacks a soul, a human spirit that would be credible enough to respond to people’s legitimate concerns. Instead, the arguments used are statistics, claiming an increase of 20 to 25% of EU-Canada trade – but people are not stupid and wonder where that extra wealth is going to go, in other terms are our companies going to redistribute wealth in Europe, or will they simply avoid paying their corporate tax.
- CETA will not make it worse, but it won’t make things that much better either. It’s basically reducing the cost of trading between Canada and the EU, which increases our purchasing power, with a lot of positive side effects for our economies but also a few negative side effects that we will need to carefully address – such as job losses in the dairy industry in Canada or in the fresh beef industry in France.
- Good morning to all,
- I could not disagree more with Madga and agree more with Schams.
- Opposition against CETA is based on lies about the content of the treaty. Let me take one example: Madga tells us the treaty has been negotiated with the Harper government to the benefit of multinationals. How come the Trudeau government stands behind the treaty and considers it to be mutually beneficial? Is it not an insult made to the current Canadian government because it boils down to claiming Trudeau’s government itself is just a puppet in the hands of multinationals? And is it not corrosive of the basic trust and confidence in the EU institutions?
- Magda is just fuelling a very powerful propaganda machine which has been extremely effective in distorting the public’s perception of the content of the treaty. Speaking from an area I know a little bit better, activists have lied about the investment protection and investment dispute provisions of CETA. Even this morning on Belgian radio, a socialist MEP was opposing CETA because of the “private investment tribunals” when it is clear from the very text of the treaty that no such tribunals are provided for. We have heard about GMO beef and bleached chicken: all lies about what CETA is about and its rules, lies that are fuelling fear and discontent and opposition to our Union.
- As far as the purported effects of the treaty are concerned, I am sorry to say but CETA preserves all WTO mechanisms for trade protection. It is nonsensical amalgam to write that CETA would increase poverty and destroy the environment worldwide, etc. CETA is just there to reduce trade barriers between two large democracies that share very similar societal concerns about themselves and about the rest of the world. Matters relating to tax cooperation and tax evasion are dealt with at OECD level http://www.oecd.org/tax/beps/ and Canada is a great ally in those very much needed improvements.
My conclusion is simple: it is a very old and well-known political trick to fight a battle in the streets when one knows that the normal institutional battles are lost. Because the public opinion does not necessarily take time to read those treaties, it is very easy for activists to distort and lie about their content. As much as I welcome true public scrutiny, I cannot but oppose what activists have been saying about the content of the treaty, simply because it is not what the treaty says.
- I will not speculate on the reasons for Trudeau government to support CETA nor will I comment on Pierre’s accusations.
- Let me bring my point of view on investor-state dispute settlement (ISDS).
CETA-text pays lip service to public concerns about investor–state dispute settlement by replacing it with an ‘Investment Court System’. While it improves some procedural aspects of ISDS—for example, by making arbitrators less prone to conflicts of interest—the protections afforded to investors in this new ‘court’ system are largely unchanged.
- Under CETA, foreign investors still receive extraordinary legal rights to sue governments for measures that may negatively effect their investments. These protections, which are not available to domestic investors or ordinary citizens, may expose taxpayers to huge financial liabilities and threaten to chill public policy. We should not be expecting the system to not be used if it’s available. UNCTAD (United Nations Conference on Trade and Investment) reported lately that in 2016, investors initiated 62 known ISDS cases pursuant to international investment agreements (IIAs). This number is lower than in the preceding year (74 cases in 2015), but higher than the 10-year average of 49 cases (2006-2015). The system is fundamentally flawed and the CETA provisions have not changed it.
- Regarding benefits and losses coming from the agreement let me quote from the Opinion of the Committee on Employment and Social Affairs of the European Parliament from December last year:
The defining end-result from the CETA must be decent job creation, balanced wage increases and expanded entrepreneurship possibilities.
- However, regarding decent job creation, empirical evidence based on real-world models indicates at best marginal overall increases for EU employment of no more than 0.018% over a 6 to 10 year implementation period. Furthermore, recent studies using such models have forecast actual job losses of 204 000 for the EU as a whole, including 45 000 for France, 42 000 for Italy and 19 000 for Germany.
- What is more, the Sustainability Impact Assessment of 2011 shows significant sectorial dislocations, eventually leading to increases in long-term unemployment. As to wages, evidence shows that the agreement would contribute to widening the incomes gap between unskilled and skilled workers thus increasing inequalities and social tensions. What is more, sizable redistribution effects concerning national income are projected, for the EU amounting to a 0.66% increase in favor of capital owners, thus further deepening social dislocations.
The agreement contains no single chapter with specific measures to support SMEs. There are currently 20.9 million EU SMEs (93% with fewer than 10 employees), but only 619 000 export outside the EU. In the liberalized environment created by CETA, such SMEs will be exposed to the full force of competition from large North American transnational corporations thus endangering the 90 million jobs (67% of total employment) that they are providing.
- It is always difficult to speculate on economic impacts and measure in job-creation terms the net result of a free-trade agreement. However, the fact of the matter is that such agreements aim at facilitating trade, not reducing it, and that their economic impact on trade should be beneficial. Those treaties are there to create trust between trading sides and reduce barriers.
- As far as the investment chapter of CETA is concerned, I am just amazed to read, time and time again, that the treaty pays “lip service to public concerns”. What about the following provision:
- “Article 8.9
Investment and regulatory measures
1. For the purpose of this Chapter, the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection or the promotion and protection of cultural diversity.
- 2. For greater certainty, the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor’s expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section.
- 3. For greater certainty, a Party’s decision not to issue, renew or maintain a subsidy:
(a) in the absence of any specific commitment under law or contract to issue, renew, or maintain that subsidy; or
(b) in accordance with any terms or conditions attached to the issuance, renewal or maintenance of the subsidy, does not constitute a breach of the provisions of this Section.
- 4. For greater certainty, nothing in this Section shall be construed as preventing a Party from discontinuing the granting of a subsidy or requesting its reimbursement where such measure is necessary in order to comply with international obligations between the Parties or has been ordered by a competent court, administrative tribunal or other competent authority, or requiring that Party to compensate the investor therefor.”
- On the Investment Court in CETA — I am sorry to be blunt again –, it is just ridiculous to pretend that things are “largely unchanged”. Saying that is either based on ignorance or on deceit. I urge readers to read Section F of Chapter 8 and judge by themselves: http://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/
- I am not saying that the current system in pre-CETA bilateral investment treaties is perfect. It is not and it needs to be improved. But neither is it the ugly monster described by activists: having only advised and argued investment cases on behalf of governments, I can tell you that governments are winning those cases more and more often. Sometimes they do not because their actions are egregious. But my firm has won the Philip Morris v. Uruguay case on behalf of Uruguay and in defence of its public health policy and the case was argued and won on treaty provisions that were much loser and vaguer than the above article 8.9. Again, I urge reader to check for themselves: http://www.italaw.com/sites/default/files/case-documents/italaw7417.pdf
- The arguments based on a comparison between the current bilateral investment ISDS and CETA are made in bad faith because they tend to compare two very different dispute settlement mechanisms and substantive provisions; those arguments are simply presented in order to mislead the public.
- CETA provides a unique opportunity to terminate existing bilateral investment treaties and establish new rules and new procedures. It is a unique opportunity to establish a new model. To pretend that things are unchanged with CETA and that we would still be with a recycled-ISDS mechanism is simply wrong.
- People need also to know the reason why resorting to domestic courts is not a good option: simply because CETA does not create legal rights that can be claimed in domestic courts. It has no direct effect: art. 30.6 CETA. Why is this? Simply to preserve the freedom of each contracting party to regulate and prevent the possibility for anyone to ask domestic courts to quash public regulations that would allegedly be in breach of CETA. If you open the door of domestic courts, not only claims for damages (which are the only possible claims at the Investment Court and on very limited and narrowly defined grounds) could ensue, but also claims for annulment of legislation and regulations would be possible. So, replacing the Investment court with domestic courts would actually be more advantageous for investors. As the treaty is about trade AND investment, the investment provisions would be differently interpreted on both sides of the Atlantic by the respective domestic courts and investors would choose the location of their investment in light of more generous domestic case-law. Therefore, it is in order to prevent investors benefitting from domestic forum shopping that we need an international court. And that is what CETA provides, so as to prevent investors from putting domestic courts in a competitive race to-the-bottom interpretation.
I absolutely respect the level of analysis and deep cuts into the provisions and details of the agreement, but I do fear we may lose our readers.
- So to take a step back at the larger picture, and acknowledging that the vote is coming in officially, and the agreement has, in fact, been ratified as is.
What does this deal, 8 years in the making, indicate for the state of future trade agreements?
And going forward within CETA itself where is there room to influence change as it proceeds through the process of seeking approval throughout National Parliaments?
- Indeed, I am writing live from the European Parliament where the EU-Canada CETA agreement was just approved by 59% of the European Parliament’s members today, with 408 MEPs in favour, 254 against and 33 abstentions, it was interesting to see that two thirds of the socialists, as well as the whole center and center-right, voted in favour of CETA while the far-left, the far-right, the Greens and one third of the socialists voted against.
- To answer on the question on CETA’s future steps: because of popular mistrust in any trade agreement currently, there has been an exceptional measure to basically delay the implementation process, to try and give more time for people to read and debate about CETA, as you can see it is an intense debate. So in this extraordinary context the EU has decided to let all Member States ratify at their national level too, although trade policy has been decided by our representatives at the EU level since the 1960s. This shows how flexible the EU is. Now all the 38 parliaments that have their say at national level on trade will need to approve CETA, starting with Latvia’s Parliament which just approved it. The reason why it is more than the number of EU Member States (28) is because in a few states like Belgium, regional parliaments have that competence.
- So, we’re in for at least two years of national parliaments ratifying. It took the European Parliament 15 months to ratify, imagine for Parliaments that are not used to EU trade policy. All EU Governments support CETA, but nothing prevents parliaments from voting against. Once this is all done, the investments court system and a few other provisions will be enforced. Until then, 98% of our tariff barriers are going to be lifted. So in a few months Canada’s Maple Syrup will be sold 8% cheaper in Europe, and Europe’s Airbus will be able to provide more services in Canada without facing discrimination, as long as it complies with Canada’s laws obviously.
On the general question over the future of international trade agreements, it really depends where. In the EU the European Parliament has veto power thanks to the Lisbon treaty, so since 2009. So the EU trade experts will need to consult civil society a lot more in order to establish more trust, if there is such a thing as the EU in 20 years because at this point I’m not even sure, given the rise of nationalisms across our continent. If the EU trade policy is stalled by a renationalising of the EU competences, it will make the whole of Europe prone to the divide-and-conquer strategies of China, the US and other trade powers.
- The EU-Canada CETA agreement goes now to national parliaments for their decision. I would advice that during the considerations the national parliaments debate the following aspects:
- – How much the agreement benefits citizens and what are the risks it brings?
- – What are economic impacts not only on trade, but on citizens, municipalities, SMEs from the agreement?
- – What are the environmental, social and labour related impacts?
- It would be also wise for any of the EU member states to consider asking a question to the European Court of Justice if art 8 of CETA agreement on the Investment Court System is compatible to EU Treaties?
- There is one clear beneficiary of investor-state dispute mechanism, a handful of law firms who advise the suing company or the sued government, whichever side, they can count on their hourly fees to be paid. We should not underestimate that at the moment there are 9 EU member states that have ISDS type of agreements, with CETA through such a system will extend to EU 28(27).
And finally, regaining trust in EU project can not be done by agreeing to one of the most publicly opposed deals but by having guts to take decisions and regulate in the interest of citizens and the planet. The far right parties are exploiting grievances of people who feel left behind by the current model of corporate-led globalisation – that’s why it is important to work towards a fair and sustainable trade regime, which does not contribute to rising inequalities and injustice. CETA in its current form does not fulfil these requirements. It also means creating an international trade system that works for the poorest and respects their rights, instead of withdrawing into national boundaries.
Agreed with Schams.
- Could Magda substantiate the claims she made in her last paragraph, on the basis of the very text of the treaty that the overwhelming majority of MEPs’ have voted in favour? Does Magda consider that all MEPs who just approved CETA are in favour of an unjust world, with more pollution, more social inequality and more power for the powerful multinationals? Isn’t that just absurd? Isn’t it just another dangerous and unsubstantiated claim against the “elites” (similar to the personal attack regarding the “clear beneficiary of investor-state dispute mechanism”)? Who is destroying the public’s trust in our institutions, if not those who falsely claim that the institutions have negotiated treaties behind the back and on the back of the people, allegedly just for the sake of the happy few?
- I am sorry, but if we are going to have a meaningful debate in national and regional parliaments, it is to be hoped that debates are not based on slogans but on the basis of the text to be approved or rejected itself, unless one is eager to fuel populism and nationalism, and ultimately to destroy our Union.
- It is VERY telling that the far-right and the far-left have voted hand in hand at the EP.