Steven Shrybman: CETA’s “interpretive declaration” promises ring hollow
Steven Shrybman considers whether an “interpretive declaration” can address the significant concerns with CETA (Short answer: No, it can’t)
Canada and the European Commission have said they intend to issue an “interpretive declaration” setting out “legally binding clarifications” concerning some of the more contentious provisions of Comprehensive Economic and Trade Agreement (“CETA”). However, in an opinion prepared for the Council of Canadians, Steven Shrybman says that the proposed declaration will likely have little effect.
Steven concludes that, while such a declaration might provide context, it would not be legally binding on a tribunal interpreting inter-state dispute or investor-state damage claim.
Steven also notes that many of the calls to reform CETA involve significant changes, such as the removal of Investor-State Dispute Procedures, or requiring that investors first exhaust domestic remedies before seeking recourse to this extra-judicial dispute regime. These kinds of changes, he says, are entirely beyond the reach of an interpretative declaration. To have even to have a minimal impact, Canada and the EU would have to explicitly indicate that their declaration is a condition precedent to their consent to CETA. Even then, a conditional declaration would be entirely at the mercy of the interpretation that an inter-state or investor-state tribunal might give it. Absent an amendment to CETA itself, nothing can displace the authority of CETA tribunals to be the ultimate arbiters of its meaning.
Whatever declaration may emerge, its effect on a particular inter-state dispute, or investor-state claim will ultimately be determined by a tribunal obligated to interpret and apply the un-amended provisions of the CETA text and do so in a manner that serves the Agreement’s stated purposes.
Update:
Shortly after this opinion was provided, the “Joint Interpretive Declaration” was leaked. In Steven’s view, the declaration does not meet the requirements to be considered as an “interpretative declaration” under international law. In an addendum to his opinion, he stated that,
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.”
The Seattle to Brussels Network (S2B Network) has released a detailed analysis of the Joint Interpretive Declaration. It quotes Steven’s opinion and addendum and, after examining each passage of the Declaration, concludes that:
The Joint Interpretative Declaration on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (sent on 10th October to all EU Member States) does not change or clarify any of the specific provisions in CETA’s text. Instead, it is a reaffirmation that investors can bypass the domestic court systems and will enjoy ample rights without any obligations.
You can read the S2B’s analysis of the Declaration here.