CETA has now been signed, although perhaps not yet sealed and delivered. The Joint Interpretative Instrument that helped CETA reach the provisional application stage (ratification is still a ways off) is here. I've been curious about what impact this instrument of interpretation will have on the interpretation of the CETA text. Let's look at a couple examples of the interpretative guidance and the corresponding text it interprets.
First up, the right to regulate. The interpretative instrument says:
2. Right to regulate
CETA preserves the ability of the European Union and its Member States and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest, to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity.
Let's compare that to Article 8.9, para. 1 of the investment chapter:
1. For the purpose of this Chapter, the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection or the promotion and protection of cultural diversity.
To me, the interpretative instrument, at least in relation to the investment obligations, seems to just restate the language of the text. Assuming the interpretative instrument were invoked to help with treaty interpretation on this issue, would the interpretation be affected in any way?
OK, let's try another. How about the issue of water rights? The interpretative instrument says:
11. Water
CETA does not oblige Canada or the European Union and its Member States to permit the commercial use of water if they do not wish to do so. CETA fully preserves their ability to decide how to use and protect water sources. Furthermore, CETA will not prevent the reversal of a decision to allow the commercial use of water.
And here's the CETA text on water rights:
ARTICLE 1.9
Rights and obligations relating to water
1. The Parties recognise that water in its natural state, including water in lakes, rivers, reservoirs, aquifers and water basins, is not a good or a product. Therefore, only Chapters TwentyTwo (Trade and Sustainable Development) and TwentyFour (Trade and Environment) apply to such water.
2. Each Party has the right to protect and preserve its natural water resources. Nothing in this Agreement obliges a Party to permit the commercial use of water for any purpose, including its withdrawal, extraction or diversion for export in bulk.
3. If a Party permits the commercial use of a specific water source, it shall do so in a manner consistent with this Agreement.
Among other things, the interpretative instrument states that "CETA will not prevent the reversal of a decision to allow the commercial use of water." Here's my question: Was that not clear from the text itself? Could the text have been interpreted to mean that "the reversal of a decision to allow the commercial use of water," on its own, would violate CETA? Will the interpretative instrument have any impact on the actual interpretation of the CETA text?
(As a side note, paragraph 1 of the text is also interesting. Assuming water in its natural state is not a good or a product, why does that mean only chapters 22 and 24 apply? How about the investment chapter?)
So that's two examples. Are there other issues where people see an impact from this interpretative instrument?
