sovereignty

Thu, 2012-10-25 14:56Carol Linnitt
Carol Linnitt's picture

The Rush to Ratify: BC Rejected International Investment Deal in '98 and Should Do So Again

This past weekend trade investment lawyer, Gus Van Harten, spent his time in his basement, rifling through old files. He knew that somewhere, buried in piles of international investment and legal trade documents, there was the answer to this one nagging question he couldn't shake: hadn't British Columbia already refused an investor-state treaty like the China-Canada Investment Deal once before? And wasn't that rejection because the trade deal was 'unconstitutional?'

And there the answer to his question lay: in a 1998 special legislative report BC published on the OCED's then-proposed Multilateral Agreement on Investment (MAI). In this document, a BC Special Committee outlines why an investor-state mechanism like MAI - which is essentially the same as the proposed China-Canada Investment Deal - is dangerous for provinces determined to protect their jurisdictional rights when it comes to governmental sovereignty, natural resources, First Nations, environmental protection and human and labour rights. 
 
The legislative committee recommended that “when negotiating the MAI or any future investment treaty, the federal government must ensure that the agreement does not apply to matters within provincial jurisdiction, including local government measures, without the express consent of the Legislative Assembly of British Columbia…If the federal government fails to provide for such consent, then the provincial government should explore all means, including legal action, to defend vigorously its own jurisdictional rights and those of local governments to represent the interests of British Columbians.”
 
According to this logic, British Columbians and all of our elected provincial officials should be up in arms over the proposed China deal. 
Wed, 2012-10-17 14:23Carol Linnitt
Carol Linnitt's picture

China Investment Treaty "a Straitjacket" for Canada: Exclusive Interview with Trade Investment Expert Gus Van Harten

This post is the first of a series on the Canada-China Investment “Straitjacket:” Exclusive Interview with Gus Van Harten.

I recently picked up a copy of Francis Fukuyama's 2011 book, The Origins of Political Order. Sitting on the bedside table at the house I was staying at, the book made for some 'light' bedtime reading. I heaved the enormous tome onto my lap and, opening it to a random page, read this alarming passage: 

There is no rule of law in China today: the Chinese Communist Party does not accept the authority of any other institution in China as superior to it or able to overturn its decisions. Although the People's Republic of China has a constitution, the party makes the constitution rather than the reverse. If the current Chinese government wanted to nationalize all existing foreign investments, or renationalize the holdings of private individuals and return the country to Maoism, there is no legal framework preventing it from doing so (Pg 248)

My concerns with China's treatment of foreign investments arose in light of China's recent bid for Nexen, a Canadian company with large holdings in the Alberta tar sands. Since Canada is having trouble with the management of the tar sands now, what would it look like if we had Chinese state-owned enterprises like the Chinese National Offshore Oil Company (CNOOC) in the mix?

It turns out the problem is of magnitudes greater than I had originally conceived, and concerns not only Canada's management of its resources, but its sovereignty, its democracy, and the protection of the rights and values of its citizens.

Perhaps most strikingly, Canada is embracing this threat, showing telltale signs the real culprit in this dangerous deal isn't China at all.

In order to untangle the web of an international trade deal as complex as the China-Canada Investment Treaty, which establishes the terms of the Nexen deal - the biggest overseas takeover by a Chinese company -  I spoke with Professor Gus Van Harten of Osgoode Law School, an expert on foreign investment deals of this sort.

Below is Part 1 of our interview:

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