Due to provisional implementation an agreement with severe consequences for our democracy will enter into force without any debate in a democratically elected body – and even if the agreement would probably be suspended its most harmful clauses would not cease to exist
by Felix Heilmann
In a real democracy, parliaments have the last say on all wide-ranging decisions. Not when it comes to trade agreements, though, it seems: A clause in CETA would allow large parts of it to enter into force without having ever been agreed upon in any parliament – including the much-loathed investment protection ISDS!
Right now, executives throughout Europe are silently preparing CETA’s entry intro force through this back door, which would allow CETA to enter into force once the Council of the European Union – but none of the European Parliaments – gave its consent, a backdoor that has been described by the German ministry of economics as “perfectly democratic” just recently.
You think it can’t get worse? Hold on: Thanks to one sentence, hidden somewhere on page 228, EU Member States would be subject to corporate lawsuits even if they decide against CETA – for three whole years! In Article 30.8 of the CETA agreement it is stated that ISDS claims “may be submitted […] if […] no more than three years have elapsed since the date of suspension or termination of the agreement”.
So let’s put the pieces together: Decision-makers are currently pushing for “provisional implementation” of CETA. This would mean that “probably 95 per cent” – according to the Canadian chief negotiator Steve Verheul – would come into force once 15 out of the 28 EU member states’ governments gave their consent. These 95 percent would include corporate courts, as Bernd Lange, chair of the European Parliament’s committee on international trade, admitted. In clear words: Neither the European Parliament, nor any national parliament, would have to give their consent to CETA and it would still be put in practice!
Once provisionally implemented, the agreement could continue to be in force for good without having ever been discussed in a parliament, as there would be no deadline on when a parliament would need to vote on it in order for the agreement to be fully implemented.
And it is still getting worse: Even if a parliament of a member state would decide to reject CETA, there would be no legal duty for the EU to step out of the treaty, as the scientific advisory board of the German Bundestag acknowledges. Leaving the treaty would require a vote in the Council, which is not directly affected by parliamentary decisions – your parliament’s democratic decision will not make a difference.
But even if we assume that European decision-makers would listen to the decision of elected representatives (something they should do in a democracy) and choose to suspend the treaty, European countries – thanks to the short sentence on page 228 – would still be subject to corporate lawsuits for thee years to follow! One shocking example of where this leads to was provided in 2014, when Russia was forced to pay $50 billion due to an ISDS lawsuit made possible by a treaty the country had only provisionally implemented and actually decided to leave in 2009 – however, due to a clause comparable to the one found in CETA, Russia has still been forced to pay.
So let’s wrap this up: Due to provisional implementation, an agreement with severe consequences for our democracy will enter into force without any debate in a democratically elected body – and even if the agreement would probably be suspended, its most harmful clauses would not cease to exist.