ISDS: a potential ICBM on sovereignty

In today’s global economy, you no longer need nuclear weapons to destroy or take over another country; you can just sue them to death under free trade agreements.

In today’s global economy, you no longer need nuclear weapons to destroy or take over another country; you can just sue them to death under free trade agreements.

In my youth, we used to fear intercontinental ballistic missiles tipped with multiple nuclear warheads that could destroy us all in a matter of minutes. Today, we shudder at the thought that some refugees might want to bomb or shoot up a Canadian mall or movie house.

But the real threat to our sovereignty and control over our own lives is planeloads of lawyers representing transnational corporations seeking to tear down our environmental, food safety and labour laws — or any laws that might potentially reduce their profits.

Their tool is ISDS: Investor-to-State Dispute Settlement rules buried within our free trade agreements.

Canada has recently completed negotiations on two huge international trade deals. But there’s a good chance neither the Canada Europe Trade Agreement nor the Trans Pacific Partnership will be ratified — at least not in their present form.

“Their present form” ought to be moot, because officially, the negotiations are over. Canada has signed on in principle to both. Officially, no country is supposed to be able to re-open negotiations, only to ratify, or not ratify.

But in news reports from Europe, where prime minister Justin Trudeau and his cabinet are working hard to sell our diversity and resourcefulness, diplomats are working to re-work the wording on CETA, in order to save it.

CETA is not a done deal, and may never get done, because hundreds of thousands of Europeans don’t want their national parliaments to cede sovereignty over their air, water, labour laws, food safety, health care and natural resources to foreign corporate interests.

Huffington Post reported last year that Canada is the most-sued nation in the developed world. Under Chapter 11 of the North America Free Trade Act, American companies have launched no less than 35 claims against us, seeking something in the order of $6 billion in damages.

Why? For banning fracking of gas wells in Quebec, for one thing, when people got nervous about its effects on water. Or for another, a national ban on neurotoxin MMT (a gasoline additive). Or for insisting that PCB wastes be disposed in proper facilities as prescribed by another international treaty. Or that Newfoundland and Labrador took back some water and hydro rights on land after a pulp and paper company closed its last mill in the area and moved out. Or when local resistance persuaded the Ontario government to refuse a permit for a company to develop a quarry, over concerns regarding groundwater contamination.

American companies have a 100-per-cent success rate in suing Canada.

Huffington Post reports it’s cost us about $65 million so far to defend against these lawsuits, in which we’ve had to change laws to suit the companies and/or pay penalties so far of about $170 million. More suits are pending.

Maude Barlow of the Council of Canadians goes further (you had to know she would). She says that under NAFTA, CETA or the TPP, companies could forbid Canadian provinces or dozens of other nations from raising their minimum wage, for instance. Or they could insist that Canada allow the sale of milk products containing bovine growth hormone, which is currently illegal in Canada.

A national Buy Canadian policy? Couldn’t happen.

She’s in Europe right now with all the bigwigs at Davos and talking to local interest groups in various European countries, warning them against the dangers of signing away their sovereignty so that powerful corporations can guarantee themselves higher profits.

News reports now suggest the message is being heard — and the European agreement is in danger. American lawmakers are angry that corporate lobbyists saw the text of TPP long before the deal was done and are raising a stink about loss of U.S. sovereignty. If the U.S. doesn’t ratify — and tells us why — TPP is dead.

CETA needs to be ratified by all the countries concerned. That means it must be translated into 23 languages, and all the different copies must agree on what the deal means, legally.

That’s the window through which European diplomats are talking to Canadian diplomats right now. The ISDS portion of CETA needs to be watered down so that nations can remain in control of their own laws, social policies and environments.

In other words, still call themselves nations and not branch offices.

The global economy has already changed how we all live. You can’t build a blue jean factory in Canada without competing against child labour costs in Asia.

But our water is still our water. Our forests are still our forests and wild areas. We’ve already given up ownership of oil and gas resources, but we don’t need to give up the right to develop green energy technologies within our borders as a result.

In the alphabet soup of international deals, ISDS could be the ICBM that either nukes our notions of nationhood, or the deals themselves.

Follow Greg Neiman’s blog at

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