There was flurry of media excitement last week over the leak in Germany (on August 14th) of an unofficial and incomplete version of the Canada-EU economic and trade agreement (CETA). But not much real drama. In fact, public and business reactions in Canada have been quite tame.
Leak Was Expected
As the final drafting by officials came to an end, it was expected that the text would be leaked sooner rather than later– and more likely in Europe, where there are many more officials involved in EU headquarters in Brussels than in Canada. The PMO exercises much stricter controls over these sorts of things. At EU headquarters, there are many possible outlets for leaking these kinds of documents.
No Surprises – So Far
From the moment negotiations began, it was clear that the Canada-EU deal would be a massive treaty, much farther-reaching than the NAFTA. It’s really an epic document, a modern treaty with a lot of beyond the border stuff.
While the value of two-way trade and investment is far less than with the US, the breadth and depth of the CETA makes the NAFTA look like a bit of a novella in comparison.
Last week’s leaked version seems pretty close to what is likely to be the final treaty text. It seems basically consistent with the Agreement in Principle summary issued by the Harper government last October.
The devil is always in the details and those details obviously will warrant careful examination. But on a cursory review, there are few if any surprises in the leaked text. There are provisions for enhanced patent protection for pharmaceuticals as disclosed in the October 2013 summary, as well as more protection for geographic indications, more coverage for procurement at the national and sub-national levels, more detailed rules on investor-State dispute settlement (ISDS) and so on. This is only an unofficial document, however, and more is to come.
Road to Ratification
It will be important to examine all of this carefully when the official text is finally released. That is still a long way off. Some media reports had suggested that the final text would be signed at the Canada-EU summit on September 25th in Ottawa. But the PMO press release certainly didn’t go that far, stating clearly that even though officials have finished their final negotiations, the CETA still requires a full legal review and translation into many EU languages.
When it will be officially signed remains to be seen. Signature and ratification are distinct steps in treaty-making. Ratification and entry into force could take another year even after formal signature. The treaty will have to be tabled in Parliament and referred to a Commons committee for examination before formal ratification.
During that process, there will be ample opportunity for debate and public discussion, even if this will not result in any parts of the text being amended or re-negotiated. A majority government in Ottawa ensures that, at the end of the day, Parliamentary approval for Canadian ratification is a foregone conclusion.
Not so in Europe. While the Lisbon Treaty gives the EU Commission authority to negotiate trade agreements, when it comes to implementation, it’s not clear whether the CETA comes under the exclusive jurisdiction of the Commission and the European Parliament. If it’s determined that CETA implementation involves shared jurisdiction with the twenty-eight EU member countries – what’s called a “mixed agreement” – it will require legislative approval by each of those countries.
I expect that this issue will be a hotly contested one in the EU. The German opposition to ISDS disclosed last month is a shot across the bow. There is the possibility of litigation before the European Court of Justice on this issue.
My prediction is that even after the fanfare surrounding the Canada-EU summit this September, the road to ratification will be long and bumpy, particularly on the other side of the Atlantic.