02 January 2016


In my last TTIP column, I discussed the CETA negotiations with Canada, which started before those of TTIP, but have continued in parallel with them.  That's because what happens with CETA has a massive effect on TTIP, in part because it acts as a template for the TTIP, but also because Canada's economy is tightly integrated with that of the US in many ways, and so CETA is already a kind of shadow agreement with the US.  Once again, the area where that probably matters the most is for the investor-state dispute settlement chapter included in CETA.

To see why, consider what happens if ISDS is not included in TTIP, but is present in CETA.   Philip Morris is suing Australia over the latter's strict laws aimed at reducing tobacco consumption, even though the trade agreement between the US and Australia does not contain any ISDS mechanism, by invoking an agreement between Australia and Hong Kong, using its subsidiary in the latter.  Similarly, any US company that wanted to sue the European Union would not be greatly inconvenienced if there is no ISDS in TTIP: it will simply use a Canadian subsidiary, which are pretty common given the integration between the economies in north America, to sue using CETA.

That means even before fighting ISDS in TTIP, we must fight it in CETA. But time is running out.  As I mentioned in Update XXXVI, CETA seems "finished" in some undefined sense - at least finished enough that both sides are getting ready to sign something later this month.  Since there is no way that the results of the ISDS consultation conducted by the European Commission earlier this year will be ready then, this effectively means that the intention is to ignore the 150,000 comments, most of which were strongly against including ISDS in TTIP, and enshrine it in CETA.  If that happens, then US companies will in any case have a large and convenient back-door for suing the EU even if ISDS is dropped from TTIP.

We have every reason to fear that ISDS will indeed be in CETA because of remarks made by the Italian vice-minister for trade to the European Parliament's international trade committee, INTA.  Here's how the Canadian title Embassy reported his comments:

The controversial investment protection chapter of the Canada-European Union trade deal should not be reopened, Italy’s vice minister of trade said on Sept. 3, putting his comments at odds with those of other EU countries—and raising further questions about the approval process of the much-awaited deal.

“We [member states] gave the [European] Commission the mandate to negotiate the investor-state dispute settlement agreement. Now that negotiations are finished, it is difficult to say we changed [our mind] and let’s re-discuss,” Carlo Calenda, Italy’s vice-minister of trade, told members of the European Parliament during a meeting of the parliament’s international trade committee. “If we move in this way, we will have to open up all the chapters and waste a lot of time.”

That's pretty extraordinary.  He's arguing that allowing the European public, in whose name these negotiations are supposedly being conducted, to express their opinions on the text before it is fixed for ever, would "waste a lot of time".  That reveals why the European Commission's assurance that the people would have an opportunity on to be heard later on was always a completely worthless, since at point the text would be frozen.  The Italian minister's comments confirm that there is no intention of changing anything that was agreed in secret behind closed doors, whatever the EU public thinks.

This represents a betrayal that is exacerbated by the fact that the public has forcefully let the European Commission know that it does not want ISDS, even if the detailed results of the consultation have not yet been released.  Instead, the Commission is pretending those 150,000 responses never happened, and that it is at liberty to push through its own anti-democratic agenda.

What makes things even more ridiculous is that in the same Embassy article, the EU's chief negotiator for CETA, Mauro Petriccione, is reported as saying that it was impossible to address all the issues that were likely to arise:

“The debate isn’t finished,” he added. “I cannot promise you that this text answers concerns that are still being debated or which may arise in the future.”

In fact, as I explained in a column back in March, we know that a previous massive flaw in the text was only discovered because a copy was leaked that allowed independent experts to check it.  Freezing CETA's text without allowing more such scrutiny to be applied is just folly, and almost guarantees that there will be problems later on.

That meeting before the European Parliament's INTA committee drew an another, even more significant comment from the Italian politicians present, as Yanick Jadot, an MEP on INTA explained in a perceptive article:

In one of Italy’s first appearances in the European Parliament since it assumed the Council Presidency in July, Carlo Calenda, the minister charged with overseeing TTIP for the Council, announced to the INTA committee the possibility of concluding an “interim agreement” for TTIP in light of lack of progress to date.

The announcement is politically significant. It is both a clear indication that a thorough TTIP reevaluation is underway at the highest levels in Brussels, and that a comprehensive agreement may be too controversial and substantial to swallow in one go. The minister noted that a “profound reflection on the negotiation strategy” was now needed and that a decision to go for an interim agreement could take place after the US mid-term elections in November, with an aim to conclude it in 2015.

As Jadot rightly notes, this is a clear sign that TTIP is in trouble, and the European Council and Commission are desperately trying to find some way to conjure up at least half an agreement to save face.  Whether that can then be converted into an "ambitious" one, as the Commission has been insisting is necessary, is another matter. 

As well as this unexpected signal from deep within the political machine that even its supporters know that TTIP is going nowhere, this suggestion for an "interim" agreement is an important development because the US is totally against the idea:

Anthony Gardner, the new US Ambassador to the EU, immediately refuted Italy’s interim suggestion at the same INTA meeting, aggressively defending a comprehensive deal:

“There are many geopolitical and economic reasons to conclude an ambitious agreement, and I say ambitious because we continue to believe, like our Commission colleagues, that only a comprehensive agreement would yield the significant results our leaders want. Yes I know our friend Carlo Calenda believes an interim agreement should be considered but we continue to believe that only a comprehensive agreement will work.”

While Mr. Gardner said he would look forward to “a regular, open and honest dialogue”, he went on to attack those who have raised issues of concern, such as chlorine washed chicken. Such issues he claimed were “peripheral” and amounted to “scaremongering”. So much for an open and honest dialogue. He then warned those who “refuse to believe” the assurances of both sides: “do not prejudge the results, wait until we have advanced texts before you make up your mind.”

Of course, that's precisely what we, the public, can't do: no texts will be released to us until it is too late to do anything about - exactly with CETA.  So telling people to wait until we have "advanced texts" is just another kick in the teeth.  No wonder, then, that the resistance to ISDS and TTIP is growing.  Here's what's happening in the UK:

British trade unions are this week expected to lend their support to a growing campaign opposed to a new international trade deal which critics claim threatens to make the privatisation of the health service irreversible.

Three of the UK's biggest unions have tabled motions at the Trade Union Congress in Liverpool outlining their opposition to the transatlantic trade and investment partnership (TTIP), a huge trade deal being negotiated behind closed doors at the European commission between EU bureaucrats and delegates from the US.

Meanwhile, Europe-wide initiatives are springing up.  For example, there's the European Citizens’ Initiative, an official petition:

An alliance of more than 200 civil society organisations from all across Europe has launched a European Citizens’ Initiative (ECI) with the aim of repealing the European Union’s negotiating mandate for the Transatlantic Trade Investor Partnership (TTIP) and not concluding the Comprehensive Economic and Trade Agreement (CETA).

The ECI was registered with the European Commission on 15 July. The collection of signatures is due to start in mid September 2014.

Here's how that will work:

One million signatures must be gathered within one year. Additionally, in seven EU states a specific minimum of supporters must be achieved, e.g. 72,000 signatures in Germany, 55,500 in France, or 54,750 in the United Kingdom. If the initiative succeeds in doing this, then the EU Commission organises a hearing in the EU Parliament, and concerns itself with the matter. The ECI citizen’s committee then finally receives a written response from the Commission. If the Commission decides to present a legal act, then this is is passed on to the European Council and to the European Parliament.

Obviously, that's a pretty long-term project, and before then, people plan to take to the streets of Europe on 11 October to protest against TTIP.  Many readers will doubtless recall that demonstrations against ACTA in 2012 led to the rapid collapse of support for the agreement, and its eventual rejection by a massive majority in the European Parliament.  It will be interesting to see whether these European marches will similarly signal the beginning of the end for CETA and TTIP.

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