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Ireland's political and cultural magazine
7 8 October 2016
O
ne year on from the UN Summit to agree the
Sustainable Development Goals, and
approaching the first anniversary of the Paris
Agreement on Climate Change there are wor-
rying signs that the consensus to ‘leave no
one behind’ was no more than a shallow aspiration. The
industry in measurement of the goals has intensified.
There is the opportunity to develop metrics for 17 goals
and 169 targets. Whilst the NGOs and the social scien
-
tists argue about the fine detail of how to measure
progress, a significant violation of EU law is about to
happen that will have a chilling effect on these global
agreements.
The EU has decided to provisionally apply the Cana
-
dian European Trade Agreement (CETA). It has done so
despite overwhelming legal opinion that this would be
in contravention of the EU’s founding treaties. The Agree-
ment is not a ‘trade’ deal in the ordinary sense of the
word. The scope of the deal extends far beyond trade
into many areas of investment and hence, in the eyes of
the law, is a ‘mixed deal’. As such it needs to be ratified
by every national parliament before being applied. How-
ever, the EU decision means that it comes into force in
its entirety as soon as it is signed.
The most controversial element of CETA is inclusion of
an Investor State Dispute Settlement (ISDS) system. This
mandates investor courts which sit outside the regular
national legal system, but have the ability to sue govern-
ments for actions which undermine the rights of
investors. If a government moves to change policy to pri-
oritise issues such as public health, social cohesion, or
environmental sustainability over the financial profit of
investors, it can and will be sued.
ISDS courts exist already. They have grown exponen
-
tially in the past decade to over 600 in 2014 as bilateral
trade deals have expanded. Once CETA is provisionally
applied, it is anticipated that a raft of new cases will be
lodged. Even if countries defy the European Commission
and if CETA, as expected, is legally challenged and
struck down in the Spring of 2018, corporations will still
have three years to sue governments.
If national and international policy frameworks were
heading in a shared trajectory of social cohesion, eco
-
nomic prosperity and environmental sustainability,
‘copper fastening’ them into such trade and investment
deals would be just about palatable. The logic of hand
-
ing over huge swathes of policy to unelected and
unaccountable entities could still be questioned, but
there could be some merit to copperfastening good poli-
cies and suing those in violation.
The problem is that any such shared trajectory is far
from the current reality. CETA, and similar deals, mod
-
elled on CETA, pose a serious threat to democracy and
stability globally. They will do nothing to help address
major global challenges such as climate change, which
requires a pro-active choice to end the fossil fuel era
and shift to a zero-carbon future. They will undermine
efforts to address significant public health problems
as science develops, such as our over dependency on
antibiotics. If CETA had been signed in the 1990s, it is
highly unlikely we would have smoking bans or plastic
bag taxes. Governments would have been sued to pre
-
vent them.
The Sustainable Development Goals and the Paris
Agreement require transformative action. Current frame-
works, based on the assumption of ever-increasing trade
in resources on a finite planet, are deeply flawed.
Addressing climate change requires policy choices to
prioritise certain forms of activity not on the basis of
profit alone, but on the basis of their social and environ-
mental good. Such choices are anathema to the
provisions of CETA and its like. CETA will inevitably lead
to governmental reluctance to pursue such progressive
policies, for fear of being sued. Bold ideas are now
needed that require radically new policy frameworks,
not the chilling effect of CETA.
The German population recognised this threat to
democracy and over a million people took to the streets
in Berlin to protest against CETA and its ‘sister’ TTIP, in
mid-September. In Ireland, despite the fact that our gov-
ernment has endorsed the proposal, there has been no
public outcry. Despite the efforts of a number of NGOs
and concerned citizens, very few people are even aware
that this is happening.
The poorest people will suffer the most with this next
generation of trade and investment. Most EU countries
have already put in place significant public health and
environmental frameworks. Developing countries, on
the other hand, may now be further pushed to retain low
standards rather than raising them. CETA moves sustain-
able development and curtailing climate change ever
further down the agenda.
Lorna Gold is Head of Policy & Advocacy with Trocaire
CETA outs
democracy
If CETA had been signed in the
1990s Governments would have
been sued to prevent smoking bans
or plastic bag taxes
by Lorna gold
ISDS are effectively
investor courts
outside the national
legal system,
but they can sue
governments for
actions which
undermine the
rights of investors
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