Georgetown Journal of International Law Online: Canada

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By Anna Jarman

Last year, the “refugee crisis” experienced a political reckoning, as governments around the world sought to tighten boarders and curtail refugee-friendly policies where they had previously existed. At the same time, the number of displaced people continued to climb in 2017, after it reached its highest number ever at 65 million people at the end of 2016. The below events chronicle 2017’s most significant developments in the refugee crisis and the policy responses to it.

Travel Ban – Shortly after taking office, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” which greatly reduced the number of refugees the U.S. would admit -- including blocking admission of all Syrian refugees -- and suspended entry of nationals from seven Muslim-majority countries for 90 days. The order was met with immediate protests, international criticism, and legal challenges by those who saw the order as a “Muslim ban.” A nationwide temporary restraining order was issued in the case Washington v. Trump, and upheld by the Ninth Circuit. The first order was replaced by a second and then a third order which revised the original list of countries, clarified the effect on green-card holders, and made the 90-day ban permanent. The Ninth Circuit upheld a lower court decision finding the order unlawful in Hawaii v. Trump; the Supreme Court granted cert in January, and allowed the administration to implement the travel ban while legal challenges were pending.

Refugees Cross U.S. Border into Canada – the number of asylum seekers illegally crossing from the U.S. into Canada spiked to more than 15,000 people last year. The refugees, many of whom fear Trump’s immigration policies, were met by both opposition by anti-migrant groups and a supportive response by Canada, which granted asylum at increasing rates.

South Sudan – Displacement from South Sudan’s war became the largest refugee crisis in Africa. More than 2 million people had fled to neighboring countries by the end of the year, with another 2 million displaced inside the country.

Rohingya Refugee Crisis – After a group of militant Rohingya Muslims attacked police bases in northern Myanmar on August 25, the army responded with a brutal show of force, burning villages, killing civilians, and raping women. Within weeks, over 420,000 Rohingya refugees had fled, leading to a mass exodus “unprecedented in terms of volume and speed,” according to the International Organization for Migration. Over 700,000 Rohingya have now fled to squalid refugee camps in neighboring Bangladesh. The U.N.’s human rights commission described the retaliation as ethnic cleansing and possibly genocide.

German and Austrian Elections – Radical right-wing populist parties performed well in both the Austrian and German elections. The newly elected Chancellor of Austria, Sebastian Kurz, earned his reputation as foreign minister for tightening Austria’s borders during the refugee crisis, when Austria was taking in more asylum-seekers than any EU country except Sweden. Germany’s chancellor, Angela Merkel has tightened her asylum policy under pressure from the far right and in response to backlash against her initial welcoming stance. Germany resumed deporting Afghans whose asylum claims were rejected after stopping deportations in May when a bombing near the German embassy in Kabul killed around 150 people.

Manus Island Removal – Hundreds of asylum seekers held for years in an Australian-run detention center on Papua New Guinea’s Manus Island were forcibly removed in November, three weeks after Australia officially closed the camp. Afraid to leave the camp, the refugees had remained, despite Australia cutting off electricity, food, and water. Security forces eventually stormed the camp destroying the refugees’ shelters and belongings.

Climate Change Spurs Migration -- Research published last year suggests that changing weather is spurring people to seek asylum in Europe, and predicts that trend to continue as temperatures are projected to rise. The research has sparked discussions on the appropriateness of the current definition of “refugee,” which includes people fleeing persecution but not those forced to leave by climate change.

East Congo – Eleven Congolese refugees were killed by Rwandan police responding to a protest over reduced food rations in a Kiziba camp. Over 17,000 Congolese refugees inhabit the Western Rwanda refugee camp. Violence in Eastern Congo has worsened recently due to clashes between government soldiers, local militias, and foreign rebels.

Looking ahead, the U.S. Supreme Court is expected to hear arguments on the travel ban this year, and the new Austrian and German governments are likely to further articulate their more restrictive immigration policies. At the same time, the international community will grapple with how to respond to the world’s ever-increasing number of displaced persons fleeing conflict, ethnic cleansing, and changing climate.

April 03, 2018

By Alexandra Moffit

Photo: President Clinton Signing NAFTA, Creative Commons License

1. The North American Free Trade Agreement (NAFTA) is a treaty between the United States, Canada, and Mexico that’s been in effect since 1994.

The region is home to over 444 million people. Before NAFTA, the United States and Canada created a free trade agreement in 1989. The three countries started negotiations under the tenure of President George H. W. Bush, and the treaty was completed and signed into law by President Clinton.

2. NAFTA was put in place to encourage economic integration between Canada, the United States, and Mexico.

NAFTA pushes countries to open their markets and eliminate tariffs. Another major goal of the treaty was to create and encourage North American competitiveness in the world. NAFTA was to create an economic zone like the European Union.

Similar to the European Union, an open economic zone would allow each country to specialize. In the United States, one oft-cited example is manufacturing. Since manufacturing is often cheaper in Mexico, some companies have moved production from the United States to Mexico under NAFTA. On the other hand, surplus agriculture such as almonds in the United States could be exported to Mexico or Canada.

3. NAFTA isn’t just an agreement – there are many institutions in place to facilitate it.

NAFTA includes a Free Trade Commission. This commission oversees the work of several working groups, committees, and other entities of NAFTA. There are many working groups in place to encourage investment and trade. These are in place to encourage cooperation in areas such as labor and environmental policies. Important aspects of NAFTA include customs, goods, agriculture, and business. Millions of people in each of the three countries depend on NAFTA every day.

4. President Trump hates NAFTA.

President Trump blames NAFTA for the loss of some U.S. jobs to Mexico. He has called the treaty the “worst trade deal in history.” President Trump also remarked, “I’ve been opposed to NAFTA for a long time, in terms of the fairness of NAFTA.”

As President Trump said, the treaty caused some job loss in the United States’ Rust Belt, specifically in the manufacturing sector. However, millions of other American jobs depend on NAFTA In addition, there is no proven direct causation for any net loss of jobs being because of NAFTA, as job losses depend on many factors. For example, around the same time as NAFTA, China emerged as a manufacturing powerhouse and joined the World Trade Organization. China joining the WTO is one of the many potential factors that resulted in job losses in the United States’ manufacturing sector since 1994.

5. The United States, Canada, and Mexico have been renegotiating NAFTA for several months, and there is no end in sight.

Since President Trump took office, renegotiating NAFTA has been a top priority. The three countries have been negotiating a rewrite of the treaty for the past few months, with four rounds of talks completed so far.

In the most recent meetings, the NAFTA negotiators have decided to extend negotiations into 2018. The three North American powers have not been able to find common ground on several important points. These contentious points include how to rewrite the treaty and whether NAFTA should have to be renewed every five years. The fate of NAFTA is in jeopardy. Many experts believe that the dissolution of NAFTA could jeopardize North American competitiveness, making competing with China and the European Union more difficult. The current American climate of protectionism could hurt the economic growth of all three countries in the short term and long term.

November 16, 2017

By Alexandra Moffitt

This week, a fourth round of negotiations begin in Ottawa as the United States, Canada, and Mexico meet to renegotiate the North American Free Trade Agreement (NAFTA). NAFTA covers issues of customs, government procurement, and intellectual property rights, among others. Millions of Americans depend on NAFTA every day directly and indirectly. On October 5^th, the Atlantic Council released a report entitled “What if NAFTA ended? The Imperative of a Successful Renegotiations” and held an event on the topic. Following keynote remarks from Representative Will Hurd and the Honorable Bill Zoellick, the drafters of the Atlantic Council report and Mr. Zoellick held a roundtable discussion of the effects of NAFTA and the importance of maintaining the agreement. The atmosphere framing the discussion are President Trump’s anti-NAFTA remarks in recent months.

In his keynote, Congressman Will Hurd, a Member of the U.S. House of Representatives from Texas, said, “sometimes we forget to talk about things we take for granted.” He stressed that NAFTA created North American competitiveness in the world, and that a lot of Americans do not know that Mexican companies create jobs in the U.S. He underscored the importance of keeping NAFTA for the economic benefits.

Former U.S. Trade Representative Bill Zoellick indicated that there were serious risks and huge implications if NAFTA were lost. NAFTA is a continental base for the 21^st century, which connects three democracies and 500 million people. NAFTA allows the three countries to better compete in the global system. Zoellick said, “bilateral trade deficits are negative trade income” to President Trump, which Trump equates to losing. Zoellick called this “economic nonsense.” NAFTA negotiators are trying to push other countries to open their markets, and remove exemptions, while removing obligations from the organization.

After Mr. Zoellick’s remarks, the event transformed into a panel discussion of the NAFTA renegotiations with Phil Levi, Daniel Schwanen, and Javier Mancera serving as experts for the United States, Canada, and Mexico respectively. Each of the three drafted sections of “What if NAFTA ended? The Imperative of a Successful Renegotiations.” Phil Levi said there is a lot of uncertainty surrounding NAFTA. After President Trump’s Executive Order on NAFTA, businesses and agriculture came out against it. Mr. Levi cautioned that the most difficult issues in the NAFTA renegotiation have not been discussed yet.

Javier Mancera indicated that Mexico is looking to add new chapters rather than renegotiating previously decided ones. Because Chapters 11 and 19 of NAFTA each provide for a private right of action pursuant to violations, these chapters are immensely important to Mexico. Mr. Mancera mused that it was surprising that American Republicans would want to remove that clause. Daniel Schwanen stressed that Canadians have a consensus that trade helps the country. This feeling of goodwill towards international trade buoys Canada’s stance on NAFTA.

The most captivating moment of the discussion came at the end. Panelists were asked what percentage they gave that President would pull out of NAFTA. The panelists gave their percentages as 50%, 50%, 40%, and more than 50%. These percentages from experts in the field offer a chilling picture for the future of NAFTA. North America’s competitiveness in global trade are at a turning point. Will President Trump jeopardize North America’s status in the world?

October 14, 2017

By Jose Corte-Real

The Future Model for European Trade Deals?

After seven years of negotiations, the landmark Comprehensive Economic and Trade Agreement (CETA) was signed on October 30, 2016. The agreement, which has been touted as a major success for the future of EU trade deals, has also been the target of criticism and protests. With approval from the European Parliament and the Canadian Parliament, 90% of the deal will be able to take effect, leaving the rest of the deal to be ratified and implemented by each of the twenty-eight member states’ national legislatures.

The deal purports to remove 98% of tariffs between Canada and the EU, and officials hope it will generate a €10.9 billion ($14.3 billion Canadian) increase in trade worth. Further, EU exporters are estimated to save €500 million in duties annually, and there will be mutual recognition in regulated professions such as architecture, accounting, and engineering and easier transfers of company staff and other professionals between the EU and Canada. The European Commission also hopes CETA will create a more level playing field between Canada and the EU on intellectual property rights and strengthen the protection and enforcement of copyrights. “Canadians and Europeans share the understanding that in order for real and meaningful economic growth, we need to create more good, well-paying jobs for our citizens. Progressive trade agreements like the one signed today, will do just that,” Trudeau said, shortly after signing the landmark deal.

European Commission President Jean-Claude Juncker referred to a “new chapter” in relations between Canada and the EU, hoping this deal will open new opportunities for the millions of workers seeking them on both sides of the Atlantic.

The seven years of negotiations between each of the EU member states and Canada were left hanging in the balance as Wallonia, Belgium’s southern French speaking region with a population of 3.6 million people voted to veto the agreement just a few days before the deal was due to be signed. Because all twenty-eight EU states had to agree on the deal before it Trudeau could sign it, Belgium’s veto almost pushed back the long-awaited deal yet again. Belgium was the lone holdout to signing the deal because its regions can veto international treaties. The protestors were fearful of an investor-state dispute mechanism provision and sought safeguards for labor, environmental and consumer standards, and more protection for Walloon farmers who believe they will face increased competition from Canadian imports. In order for the deal to move forward, a last minute addendum was added addressing the regional concerns.

Further criticisms of the deal include that it will weaken European consumer rights protections, including those concerning food safety, and that tariffs are already low and do not need lowering. The deal has also been criticized as being beneficial only to big business and multinational corporations while risking net-losses, unemployment, and environmental damage that might impact individual citizens. These criticisms seem to highlight how hard it is to get free trade agreements done in a multifaceted and multicultural economy such as the EU’s. CETA also brought up a lot of talk in Brussels regarding finding a new consensus on trade. Whatever this consensus is, it will be very relevant to how the EU approaches Brexit negotiations.

A Potential Model for Post-Brexit Relations with the UK?

Many of the British leaders who advocated a leave vote during the Brexit campaign pointed to Norway and Switzerland’s relationship with the EU as a model to aspire to. However, the CETA model may be significantly more appealing. Norway and Switzerland’s access to the European Union single market comes at a steep price. Both countries sign up for most EU regulations, accept the free movement of EU workers, and make payments into the EU budget. CETA seemingly will give Canada access to the EU single market without the obligations faced by Norway and Switzerland. However, some Brexit proponents still have apprehensions about using CETA as a viable model for a trade deal with the EU.

CETA’s removal of tariffs does not include some sensitive food items such as eggs and chicken. Further, the EU will still require Canada to comply with its rules of origin, which oblige non-EU states to undergo rigorous customs checks. Because of these customs requirements, Canadian exporters are expected to face extra costs in order to prove their goods are “made in Canada.”

Finally, the service industry, which makes up about 80% of the United Kingdom’s economy are only partially covered by CETA. Thus, although CETA could be a good starting model for discussions with the EU, it is expected that a trade deal between the UK and the EU would have to be significantly more comprehensive in order to deal with the intricate web of ties that currently link the UK and the EU.

How CETA Will Affect the Legal Landscape of Investor-State Disputes

A lot of debate has revolved around an investor-state dispute settlement mechanism included in the deal through which a permanent arbitration tribunal is to be established. This tribunal, which will settle disputes between companies and governments, has been controversial, with many protestors claiming it gives too much power to big multinationals at the expense of consumers and workers. Amongst other criticisms, critics allege that the investor-state dispute settlement provisions will allow U.S. companies to engage EU states in arbitration through Canadian subsidiaries.

Section 4 of CETA provides investment protection to foreign investors and guarantees a “fair and equitable treatment and full protection and security.” CETA will allow foreign corporations to sue states before arbitral tribunals if they claim to have suffered losses because a state violated its Non Discriminatory Treatment obligations (which can be found in section 3 of CETA) or because of a violation of the guaranteed investment protection.

Such investor-state arbitrations are not necessarily new under public international law, but for transatlantic trade and investment, the comprehensiveness of this parallel model of justice is new. In addressing fears of confidentiality of arbitral proceedings, CETA provides transparency by adopting the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.

The tribunal will consist of fifteen members named by Canada and the EU, dealing with individual cases in panels of three, and an appeals mechanism will be established to ensure “legal correctness” of the awards. Further, the tribunal’s members will not be allowed to appear as experts or party counsel in other investor-state disputes.

These investor tribunals are not a guaranteed part of CETA, and each national legislature will have to ratify them individually. For example, Belgium’s opposition to the court suggests that it might never be enacted there, meaning Canadian companies will not be able to use the arbitration tribunal to sue Belgium over policies that negatively affect their investments. This could serve as a model for other countries that worry this provision unduly gives too much power to corporations.

Moving Forward

Supporters of the deal say that it will create more than one million jobs, with the European Commission saying the deal will be worth €545 to each European citizen every year. Opponents are angry that CETA meetings were held in secret and fear that the deal has given too much power to corporations by making it easier for them to sue governments. However, only time will tell if this deal will boost the stagnant economies of these two global markets and serve as a viable model for the future of EU trade deals.

November 25, 2016

By Justin Kirschner

After negotiations that have spanned two Canadian governments, Canada and the European Union this week announced they overcame a major hurdle and moved one step closer to inking what Canadian Trade Minister Chrystia Freeland called a "gold-platted" trade deal. Formally known as the Comprehensive Economic and Trade Agreement (CETA), the deal’s latest draft resolved the thorny issue of how and when companies can directly sue governments. To assuage EU worries that ad-hoc arbitration panels would settle disputes, well, arbitrarily, and thus give multinationals a legal backdoor around government regulations, CETA will create a permanent investor-state tribunal that comes with a built-in appeal process and consists of members appointed by both sides. Hovering in the background of this part of the EU-Canada deal is the skeptical eye of the United States. The EU and the US are in the middle of negotiating their own bilateral trade deal, TTIP, and a major sticking point of those talks is investor-state dispute resolution. The U.S. has steadfastly opposed a permanent tribunal like the one Canada and the EU have agreed to create, while the EU hopes that CETA will serve as a template TTIP will ultimately duplicate.

March 27, 2016

By Abbie Schepps

The U.S., Russia, Canada, Denmark, Norway and Iceland are all laying claim to an area of the arctic. Rich in oil and holding 30% of the Earth’s natural gas, the countries are engaged in a massive territorial dispute. The real appeal is that the melting ice, vanishing at 13% a decade, is expected to make drilling, mining and shipping easier. In order to claim a portion of the arctic, the countries are going to have to show an extension of their continental shelf, a “hugely expensive and complicated” task. Though Norway is the only nation to have its claim for a portion approved, Canada is currently scrambling to defend its territory. Canada claims this is a sovereign Canadian waterway and not an international waterway. With the arctic ice melting rapidly, there is at least an understanding that these countries are better off cooperating.

September 16, 2015

By Jenny Park

In response to Russia’s continued support of the rebel forces in eastern Ukraine, Canada announced that it will increase economic sanctions against Russian individuals and companies. The first of these sanctions are targeted at 17 Russian and Ukrainian organizations, with intensifying sanctions should Russia and the Russian-backed rebels fail to abide by the Minsk ceasefire agreement reached last week.

Although this Minsk ceasefire agreement was drafted by Russia and approved by the UN, the U.S. has since accused Russia for violating the Minsk agreement. Read more from BBC.

February 27, 2015

By Craig Tarasoff

The World Trade Organization has ruled that the US has not brought its meat labeling regulations in compliance with international fair trading rules. This follows a 2012 WTO ruling that the United States’ meat-labeling program, which required retailers to label meats with their countries of origin, unfairly discriminated against Canada and Mexico. The US has missed its deadline to change its regulations to provide equal treatment to meat and pork imported from those two countries. According to Reuters, if the US does not make changes acceptable by the WTO Appellate Board, Mexico and Canada can impose trade sanctions on the US.

November 25, 2014

By Kristen McCannon

Russia announced last week that it will conduct two new observation flights over military bases in Canada and the United States. The Treaty on Open Skies, which grants signatory countries the right to survey each other’s military installations through unarmed flights, remains in full force despite the ongoing crisis in Ukraine. Russia signed the treaty in 1992 and has already conducted 31 observation flights this year.

November 06, 2014

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