Thank you very much, Mr. Chair and members of the committee. It's a pleasure to be here today in person.
You actually have a copy of the gist of my remarks here as a chapter to a report prepared by the CCIC, the Canadian Conference of International Cooperation. The chapter that I contributed to that work deals with the environmental side agreement to this treaty. I'll primarily focus on that agreement, but I will offer a few comments about this proposal to attach some type of human rights assessment conditionality to the agreement as well.
Let me begin by relating a little history, because it provides the context within which I think we can better understand what these side agreements and assessment proposals really mean in the larger framework of international law.
It wasn't very long ago that most international agreements were of one type. They were largely expressions of good-faith commitment by nation-states that were binding on them as a matter of international law, but with respect to which there was no meaningful compliance or enforcement mechanism. That wasn't only true of environmental agreements and human rights agreements, such as those articulated with the founding of the United Nations in 1948; it was also true of the General Agreement on Tariffs and Trade.
As members of the committee should know, until the advent of the WTO, you would not be the subject of sanctions under the GATT unless you agreed. In other words, if someone filed a complaint against you under the GATT and the tribunal found you were out of compliance with GATT rules, you basically had to agree to fix the problem. If you didn't, there were no sanctions that could be imposed by the GATT without your consent, because the rule was one of consensus.
That changed. That level playing field for international law, human rights law, commercial law, environmental law, changed rather dramatically in the mid-1990s—not long ago—with the advent of the WTO and NAFTA.
Let me start first with the WTO. Under the WTO, the rule with respect to the imposition of sanctions changed fundamentally. Unless blocked by a consensus of WTO members, sanctions would be applied if approved by the appellate body of the WTO. We went from a system in which there was a consensus required for sanctions to be applied, to a system in which unless there was a consensus to block a decision by the appellate body that you were out of compliance with the WTO, sanctions would be imposed. That represented a sea change in terms of the enforceability of the WTO.
But something had happened previously that was even more fundamental, as a departure from the norms of international law, and that was to be found in the investment chapters of NAFTA. Under that chapter, for the first time—there were some antecedents, but certainly for the first time in a trade agreement—private parties, private investors, private companies were given the right to seek damages for non-compliance with the provisions of a treaty with respect to which they were not parties, and under which they had no obligation. Think of arbitration without consent. You don't have any obligations under this agreement, but you have the right to enforce it. That was a radical departure from the norms of international commercial law, because the rights being asserted weren't fundamentally commercial. We've seen this instrument being invoked to challenge environmental laws and privatization schemes that have gone sour. They're not about commercial arrangements. It was a fundamental departure from international law, where you allowed a third party the right to enforce agreement to which they weren't a party.
That changed the landscape in a very dramatic way, but not for the protection of ecological security and human rights. Those instruments still remained hortatory instruments. There were no new enforcement mechanisms attached to the UN convention on human rights or the various charters attached to it, or to the Framework Convention on Climate Change, or the international Convention on Biodiversity. Those largely remained, primarily remained, hortatory mechanisms that represented binding obligations for states, but not obligations that they would have to meet for fear of some sanction, because no sanction was permitted.
This brings me then to the environmental side agreement of this particular proposed free trade agreement, and the precedent for that can be found in NAFTA. The problem with these agreements is that they are similarly binding, I suppose, because they're agreements, but they're non-enforceable. So you get these side agreements attached to treaties that have very powerful enforcement mechanisms, particularly the right of private enforcement built into the investment rules, but they themselves have no meaningful compliance or enforcement feature.
If you're an environmentalist, and I happen to be—I still happen to be, but I worked for years for environmental NGOs—it doesn't seem like a very reasonable bargain unless you're persuaded that somehow protecting the commercial interests of large and powerful corporations, resource corporations, and oil and gas corporations is more important than protecting the climate, preserving biodiversity, or protecting human rights. Why is the protection of corporate and commercial interests more important than the protection of these other forms of security and human rights?
I am very doubtful that Canadians would agree to the essential ordering of priorities that you now find married in these international agreements, where the protection of commercial rights is very hard, very precise. If you're a large corporation, you're entitled to damages, often in the tens of millions of dollars, if countries fail to comply with their obligations under these regimes. But if you're a victim of human rights abuses or you're an environmental NGO concerned about the decline of the environment, you're without any effective remedy to address those problems.
In the last two or three minutes I have, let me comment on this proposal to attach some requirement for human rights assessment to this free trade agreement with Colombia. You'll suspect that I'm no more enthusiastic about that than I am about the environmental side agreement to the trade agreement, and in fact the proposal for human rights assessment is far more modest than the one associated with assessing the environmental impacts of the agreement.
My primary concern arises from the fact that we actually don't need another institution to remind us that we're in trouble ecologically or that there are serious human rights problems ongoing in Colombia. What we need are effective mechanisms to address those problems, particularly if, in establishing rights of private enforcement to the benefit of large corporations, we will actually aggravate ecological and human rights problems. That's an inevitable result when you give one actor in an equation special and powerful enforcement tools but no other.
I've looked at Mr. Brison's proposal, such as it is. There aren't any details there, as Mr. Harrison indicates. I don't think the proposal is a plausible one, even if it were fleshed out. But for it to be fleshed out you would have to create an institution to preside over complaints; it would have to be transparent. There would have to be a dispute process that allowed people access to meaningful remedies free from the threat of reprisals, and that would hold not only the state but private actors to some measure of accountability under the regime.
I look forward to any questions the committee has.
Thank you very much for your patience, Mr. Chairman.