I've received a lot of emails and DMs over the weekend about CETA, the Comprehensive Economic and Trade Agreement negotiated between the EU and Canada - and where the Green Party stands on it as of the end of 2020.
There's a lot to unpack about this story, a lot of subtle shifts in position and amendments over 11 years of negotiation, litigation and legislation. However, with so many moving parts, 'where we are' makes more sense with an overview of 'how we got here' and what has changed since different milestones were reached.
- Creation of CETA and ICS
- Legal challenges to CETA
- Current state of play in Ireland
Let's jump in.
1. Creation of CETA and ICS
Negotiations between Canada and the EU opened in May 2009, and the finalised text of the deal was published in September 2014.
Local and international civil society groups criticised two main elements of the deal as published: the non-transparent way the deal had been negotiated and the relative rights of corporate investors vs national governments in the event of a dispute. The EU and Canada began working on new arrangements for investment disputes.
In view of CETA's interaction with domestic laws in member states, questions were raised about whether the EU could bring the deal into force without referring it to member states. Environmental groups, trade unions and the European Greens all spoke against the implementation of CETA at any level, fearing lawsuits predicated on tightening domestic regulations on labour rights, climate action and environmental health.
In February 2016, the EU and Canada published substantial revisions to the chapter on Investment Protection. Rather than relying on existing systems of arbitration of Investor-State Dispute Settlement (ISDS), CETA now created its own dispute resolution mechanism to take effect when the deal was fully ratified: the Investment Court System (ICS). Though the text of the treaty sets out rules around how and when ICS can be used by investors, civil society groups pointed to the specific language used and argued that the "right to regulate" was not protected sufficiently.
It's in this context that the Green Party of Ireland held its 2016 National Convention and passed the following motion, proposed by the Brussels Greens.
In July 2016, the EU confirmed that CETA would need to be ratified by each national parliament in the EU as well as the European Parliament, adding 27 extra steps on the road to introducing the ICS strand of the deal.
2. Legal Challenges to CETA
The treaty was signed by the Canadian PM and the heads of the EU institutions in October 2016. National parliaments then began considering CETA in the context of domestic legislation. Germany immediately referred CETA to its Federal Constitutional Court for a view on whether it is compatible with German law. (As of 14 December 2020, the FCC has yet to make a judgement, and Germany is one of the 11 EU member states that have not ratified the deal.)
Back in Brussels, the European Parliament voted to adopt CETA in February 2017; the treaty came into provisional effect seven months later. Since September 2017, member states have been able to trade with the Canadian market in accordance with the terms of CETA. However, the Investment Court System (ICS) for resolving disputes between states and investors does not take effect in this provisional period: ICS only applies once CETA is ratified in all EU member states.
As CETA provisionally entered force, Belgium asked the European Court of Justice for a view on whether ICS is in keeping with EU law. The Court ruled in April 2019, saying ICS was legally compatible with the body of EU law.
3. Current State of Play in Ireland
Programme for Government
The Green Party entered Ireland's governing coalition in June 2020, supported by 76% of the party's membership. Despite support for CETA ratification in both Fianna Fáil and Fine Gael, CETA was notably not mentioned in the final Programme for Government.
In fact, the language of the Programme specifically excludes CETA - it refers only to support for trade deals that will open "new markets" for Irish exporters. With CETA provisionally in force since 2017, this means there is no new market access to be gained through final ratification, which only adds ICS.
Other coups for the Irish Greens on international trade include recognition that deals must support the Paris Agreement on climate action, and securing assessments of the economic impact and sustainability of Mercosur.
On Friday 11 December 2020, ratification of CETA appeared on the Dáil schedule to the surprise of the general public. The debate was scheduled to be held on the afternoon of Tuesday 15 December. However, the Green Party chose not to make a statement about how its TDs would vote on the issue.
The Green Party's position on CETA has not changed or been superseded since its Convention motion in 2016. However, the party allows its members to amend policies democratically. It's very possible that the members of 2020 may not share the 2016 assessment of what the Investor Court System means, or how the party should approach it. If it comes before the membership for review, there is certainly an argument to amend out the parts referring to events that have already come to pass.
After a weekend of emphatic statements from civil society groups, it came as a great relief to many members (including myself) to hear on Monday 14 December that the debate and vote had been deferred to January 2021. You can read some detailed responses from NGOs here:
- Civil Society Letter on CETA (14 December 2020) written by Seattle to Brussels Network and supported by Environmental Pillar, Climate Case Ireland, Sonairte, Friends of the Earth Europe and a wide range of civil society bodies.
- Friends of the Earth Europe - Letter to An Taoiseach (14 December 2020)
- Friends of the Earth Ireland - John McSweeney: Why I'm urging TDs to postpone the vote to ratify CETA, the EU-Canada trade deal (14 December 2020)
- Irish Congress of Trade Unions - Congress seeks delay in tabling CETA motion in Oireachtas (14 December 2020)
- Comhlámh Trade Justice - Irish Government to push through CETA trade deal
- An Taisce - CETA imperils Irish climate and nature action (13 December 2020)
It remains to be seen what January will bring for CETA in Ireland, but I look forward to a detailed and open debate.