FIPA CANADA-CHINA: INTERNATIONAL TRADE LAW AND WATER
Bérangère Maïa Natasha Parizeau
“We now better understand that the evolution of life on Earth has created interdependent ecosystems. The science of ecology tells us that everything is connected to everything else and that humanity has an integral place within this network of connections. We are confronted with mounting evidence that Earth's biosphere is in serious decline as a direct consequence of human actions. In 2005, the United Nations' Millennium Ecosystem Assessment Report put this evidence in stark terms. It established that the cumulative impacts of human activity on the planet's ecological systems to sustain future generations can no longer be taken for granted”.[1]
The planet is experiencing severe environmental degradation,[2] with international trade law and the GATT/WTO embodying core neoliberal values. This essay surveys international trade in relationship to the human ecological crisis (Rees, 2002).[3] In this report, I will analyzing the 31-year Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) ratified by the Harper government on October 1st, 2014, as it relates to Canada’s fresh water. The FIPA agreement will remain active until 2045.[4] Extreme poverty[5], depletion of natural resources, water scarcity, desertification, deforestation, pollution, melting glaciers, lake eutrophication, climate change, biodiversity lost, the growing population of the world and unsustainable material consumption of wealthy nations are all serious aspects of this ecological human crisis. Canada-China FIPA encourages the continuation of timber, mining and oil extraction, as well as the neoliberal trade of water as a commodity. China’s imports of Canadian lumber are a significant growing market.[6] Commercial deforestation disrupts the eco-systemic storing capacity of water in the earth, affecting hydrological cycles and the availability of fresh water supply. “Our privatized, commodified, and consumerised water-use practices are ecologically unsustainable because the disaggregation of water into discrete legal rights to control, sell, and use facilitates and encourages the extraction of water from rivers, creeks, streams, lakes, springs, groundwater aquifers, and other sources without regard to in-stream 'flows' or water levels needed to sustain the ecosystems, biological life, water quality levels, and hydro-logic structures and processes that depend on them”.[7] FIPA has opened Canada's water market to China's Foreign Direct Investments (FDI). “Unfortunately, there is no longer anything any Canadian government or court can do to stop the Canada-China FIPA.”[8] “Still insofar as policy analysis constitutes a profession with an ethos of its own, the aspiration to “speak truth to power” - even, or especially, unwelcome truths - must be its prime directive, its equivalent of the Hippocratic Oath (ASPA).”[9]
Environment Canada's website informs that Canada has 7% of the world's fresh water, and that “Canada is one of the highest water users per capita in the world”. According to Worldwatch by 2025, “1.8 billion people will live in countries or regions with absolute water scarcity, with almost half of the world living in conditions of water stress”.[10] In the article, China's environment in a globalizing world, How China and the rest of the world affect each other, Liu Diamond discusses the severity of China's water pollution crisis as a direct result of unsustainable economic growth[11] , industrial toxic waste, and untreated residential sewage water. This water pollution crisis has led to severe shortages of water in more than 100 cities.[12] Water shortages threatens public health in China and has become a major challenge for the sustainable economic development.[13] Eco-logic water management strategies, both local and global, are key to climate change adaptation procedures and precautionary principles. So far, the United Nations Framework Convention on Climate Change is the inter-governmental organization surveying climate change mitigation. Canada withdrawal from the United Nations Kyoto Protocol on December 15, 2011, was of course a clear indication that the government of Canada prioritizes neoliberal trade over committing to greenhouse gas emissions reduction.[14] This comes at a time when there is overwhelming scientific evidence that climate change is anthropogenic. “The ultimate objective of the Convention is to stabilize greenhouse gas concentrations “at a level that would prevent dangerous anthropogenic (human induced) interference with the climate system.” It states that "such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner.”[15]
With the rise of globalization, Bilateral Investment Treatise (BIT) have multiplied and form a complex network of trade agreements. It comes as no surprise that China and Canada would have interest in partnering in economics relationships. “Canada has opted to call its bilateral investment treatises (BIT) “foreign investment promotion and protection agreements” (FIPA). There is no significance in this difference in language.” [16] FIPA agreement is a standard Bilateral Investment Treaty (BIT). China and Canada have been negotiating since 1994, which inspired the title for Justin Carter's report in The Canadian Yearbook of Intentional Law 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement. In this legal scholarship, Justin Carter discusses the growing emphasis on sustainability “increasingly being broached in discussion. [...] Establishing normative and institutional foundations of economic and non-economic standards associated with investment treatises requires the identification of conditions that are conductive to the coordinated compliance between multiple policy domains.”[17]
The Canada-China FIPA agreement gives the lawful right to Chinese trans-national corporations to sue the Canadian government and challenge Canadian governmental policies that diminish their financial gains in international private courts, even if these policies protect the environment. The FIPA agreement promotes resources extraction and international trade. This agreement will protect Chinese foreign investors, prioritizing financial gain over ecological wealth. “The capitalist dream of individual freedom is embodied in the right to own private property. The property regime itself - as it stands now in New Zealand and throughout advanced capitalist societies - is unsustainable.”[18] This is of course a big problem.
With the emergence of neoclassical economics (neoliberalism), after the Renaissance and during the period of the Enlightenment in Europe, the use value of land was transformed by “the violent appropriation and enclosure of the commonwealth (modernity coloniality rift)”. The global commons were transformed into property rights[19] with the emergence of colonialism and capitalism. When discussing the origin of colonial domination, Dr. Ignacio Valero refers to the European middle age, western expansionism, and what he calls “religious zealotry,”[20] as the root causes of dissemination of indigenous culture. The destruction of alternative kinship systems included the despotic prohibition of indigenous sacred rituals in the Americas.
“The concept of “ownership,' a wholly alien idea in the Americas, is introduced to justify who is legitimate owner of these “new” lands. Roman law and Christian theology are enlisted to discern whether the indigenous habitant have a soul, and thus are fully human or not. This is a key question, for if they are not, or if they are less than humans, they may not have a right to own, in fact they may even be owned. As such grabbing their lands is an act of mercy, a favour, extended to the “heathens” and “barbarians” in exchange for the protection of the Christian kings and queens and their God. They are like children, like “minors,” who now have the lucky tutelage of said royal popes and their delegates, the colonial masters and clergy.”[21]
Ownership and property law are central to capitalism. “Property law scholar Kevin Gray concluded that property “does no really exist: it is a mere illusion.” This claim was published in the article “property in Thin Air” (1991) which recalls Karl Marx's critique of the paradigm of modern property rights as “the illusion of jurisprudence.” [...] Gray laments the impossibility of reaching a concrete definition of property”.[22] This statement by Kevin Gray brings indeed an unexpected perspective. If property law is considered mere illusion by a property law scholar, then late capitalism might be equated to a kind of fantastical confusion.
“A big problem in the United States today, and perhaps a growing problem elsewhere, is that we do not have a good sense of private property’s history. We do not realize how extensively prior generations have re-framed private rights to serve what they viewed as the public interest in their day. Lacking this historical perspective, we seem to view certain property arrangements as timeless, when in fact they are nothing but.”[23]
From the Department of Foreign affairs and International Trade, the 2001 Framework for Conducting Environmental Assessments of Trade Negotiations reported: “The report identifies key sectors where future Chinese FDI in Canada will likely target, including natural resources, information and communication technologies, pharmaceuticals, manufacturing, and agriculture. Although, it should be noted that what China ultimately needs from Canada for the time being are natural resources, the other sectors listed, while contributing robustly to the Canadian economy, will not likely be deeply penetrated by Chinese investment for some time.”[24] Dr. Pitman B. Potter lectured with Dr. Ljiljana Biukovic at the UBC Faculty of Law on January 28th 2013, both scholars discussed their concerns about the Canada-China FIPA agreement. Dr. Pitman B. Potter argued that inter-states BIT agreements reflect a conflict between state interests and investors. The key issue is the robust implementation of human and environmental rights under Canadian law. There is an ongoing tension between the international tribunal, and the application of human rights, and environmental law. Human right and environmental issues demand a process which is fair and equitable for the protection of disadvantage groups, and for biodiversity. This is especially relevant at this point in time, in regard to climate change and worldwide environmental degradation. “The environmental problem is no doubt one of the most critical problems facing our generation. One hundred and thirty-seven species are wiped out every day and one and a half acres of rain forest are felled every second.”[25]
What is the potential cost of FIPA for Canada's environmental sustainability? This question was raised by Dr. Ljiljana Biukovic, professor at the UBC Faculty of Law. The goal of the FIPA is to promote BIT for both Canadian investors in China and Chinese investors in Canada. In her presentation Dr. Ljiljana Biukovic explained that the FIPA is a standard agreement. Nevertheless, it is facing serious critic because of the lack of transparency surrounding the agreement. Investment policy tends to promote the liberalization between developed and developing countries to stimulate economic growth and energy security. [26] Dr. Ljiljana Biukovic also mentioned that other regulatory changes are happening, worldwide there is a trend to liberalize and promote Foreign Direct Investment (FDI) to encourage economic growth in specific industries, water is one of theme. The main goal of investment policy agreement is to minimize political risk faced by investors when investing in developing countries. The main concern here is China’s access to Canada’s finite natural resources at a time of great environmental uncertainty. Through the FIPA Chinese investors will have the right to sue the Government of Canada, without the Canadian government being able to sue the foreign investors the next three decades.
The potential for coordinated compliance lies in institutional capacity to prioritize ecological health in Canada at all level of government, including Non-Governmental-Organization’s (NGO). Liberalism is restricted by Earth's biophysical carrying capacity, by the Earth’s aggravating resource depletion, and by the urgency of climate change. The complementary roles of NGO’s, governmental and inter-governmental institutions need to be articulated clearly as to maximize inter-institutional capacity for environmental protection. The government of Canada’s is responsible for implementing climate change adaptation measures that include sustainable water management and post-growth socioeconomic strategies. It is possible to arrive at a coordinated compliance for the highest ecological standards to protect all remaining life forms with a progressive, intelligent and imaginative plan which builds on local and decentralized economies. This is an opportunity for extraordinary creativity.
“China is growing fast and, as it grows, it is faced with urgent environmental challenges. Climate change, species loss, pollution, water scarcity and environment damage are not problems confined to one country: they are challenges that concern all the world's citizens, but the rise of China gives them a new urgency. Tackling these challenges will require a common effort and common understanding.”[27]
Law historically was associated with religio-political covenants[28]. “Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings)”.[29] The procedural steps for the inclusion of the interrelationship of human and nature in international law is researched at the edge of academia. The concept of paradigm shift has become central to emerging legal, political and economic scholarships. “One need only compare the complex and vast array of international, regional, and national environment laws with reports such as the United Nations’ Millennium Ecosystem Assessment, to conclude that we are fast reaching the limits of this law and the biosphere. It is time to take a different path: to create legal framework that explicitly recognize that humanity is an interdependent part of the larger ecological order and that overall condition of that order is of paramount importance.”[30] The limits of the earth and the interdependence of humans with their ecological environment must become an integral part of international law as well as the economic process for the survival and the well-being of the web of life. This paradigm shift is a sacred process. This process is an opportunity for creativity and new social goals. Humanity has the potential to reclaim ecological balance by developing the appropriate legal framework. The intrinsically changeability of law, to promote the well-being of humanity and the earth, only requires political determination. “Legal rules and principles are not frozen in time, but rather are able to evolve and adapt to meet new challenges and changing circumstances.” [31]
Law makers have an ethical responsibility to restructure the legal system as to reflect the interdependence of humans and ecology as well as protect Earth, earthlings and biodiversity. “Joseph Guth: If we are ever to develop an ecologically sustainable economy, we must free ourselves from existing system of legal incentives that is compelling us to destroy the Earth. Our law must enforce a limit to the scale of environmental damage that we are collectively permitted to inflict upon the Earth. This would represent a transformation in the law’s understanding of public welfare, and a dramatic evolution in the structure of property law.” Law is malleable. Capitalist consumerist society is unsustainable, and human creativity is limitless. This process will involve local decentralized economies, and a legal framework which acknowledges the interrelationship and interdependence of humans and nature.
In the Journal Ecological Economics, UBC’s emeritus professor Dr. William E. Rees analyzes globalization from a biophysical perspective. Dr. Rees demonstrates that the economy is a sub-system of ecology and that the international trade system is bio-ecologically restrained by Earth’s carrying capacity. Dr. William E. Rees critiques mainstream economic principles of infinite growth on a finite planet; “techno-industrial society is inherently unsustainable”[32] from a biophysical perspective. Dr. Rees advocates for an economic system which values healthy o ecosystems. “Sir Macfarlane Burnet, a Nobelite, in a special lecture considered it imperative “to prevent the progressive destruction of the earth’s irreplaceable resources” [quoted, 15, p. 1]. And a prestigious institution such as the United Nations, in its Declaration on the Human Environment (Stockholm, 1972), repeatedly urged everyone “to improve the environment.” [...]since exponential growth in a finite world leads to disasters of all kinds, ecological salvation lies in the stationary state [42; 47; 62, pp. 156-184; 6, pp. 3f, 8, 20]. *13* H. Daly even claims that “the stationary state economy is, therefore, a necessity” [21, p. 5]”[33] Ecological economics is an interdisciplinary field of research which views ecology and the limits of Earth’s natural resources as an integral part of a healthy economic system. “Cleveland suggest that the physiocrats’ steadfast belief that Nature was the source of wealth became a recurring theme throughout biophysical economics’; but he does not elaborate on the parallel. Georgescu-Roegen characterizes physiocratic doctrine (referring specifically to Quesnay's Tableau Économique) as an ‘analytico-physiological approach,’ meaning a manifest endeavor to submit the economic phenomena to a physiological analysis akin to that of biology.”[34] To develop a rational biophysical approach to ecological economics would provide the scientific analysis necessary to honor the natural limits of Earth.
The Canada China FIPA agreement allows Chinese foreign investors to have a firm hold over timber and Canada’s privatization of water supply for neoliberal trade, and ultimately a kind of economic slavery and dictatorship. Chinese foreign investors may sue the government of Canada for environmental policies that will infringe on their financial profits. Is this why Justin Trudeau sold out Canada by buying the Trans Mountain pipeline? “The answer is likely yes.”[35] This is simply unacceptable at a time of environmental urgency. A paradigm shift in human ecological consciousness will need to happen if we are to adapt to the global human ecological crisis. Canadians are responsible for pressuring political powers to prioritize ecological health over trade liberalization. Canada-China relationships should be developing a framework determined by strict ecological precautionary principles for both countries to protect the biosphere.
Water is Life.
[1] Property Rights and Sustainability, The Evolution of Property Rights to Meet Ecological Challenges, Grinlinton, Taylor, ed., 2011, p.9. Millennium Ecosystem Assessment Board, Living Beyond Our Means (Washington D.C.: Millennium Ecosystem Assessment Board, 2005), http:www.millenniumassessment.org/en/BoardStatement.aspx (assed July 25, 2010)
[2]“An increasing number of worrisome phenomena are global in nature, such as scarcity of energy resources, the deterioration of the environment and intensification of natural disasters, as well as the risks of climate change. These phenomena are also the products of the rapid economic growth generated by globalization.” The WTO: Governance, Dispute Settlement & Developing Countries, Merit E. Janow, Victoria Donaldson, Alan Yanovich, ed., p.6
[3]Professor Emeritus William E. Rees and former director of the School of Community and Regional Planning at UBC, refers to the global environmental crisis as a “human ecological crisis”. His intention is to point to the problem: the ecological crisis is anthropogenic.
[4] https://canadians.org/canada-china
[5]“Hunger is on the rise with 18,000 children dying each day from hunger and related illness.” Plan B, Mobilization to Save Civilization, Lester R. Brown, p.50).
[6]http://www.cbc.ca/news/canada/british-columbia/story/2011/07/17/bc-china-lumber.html
[7]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.185
[8] https://canadians.org/canada-china
[9]The Oxford Handbook of Public Policy, Robert E. Goodin, Michael Moran, and Martin Rein, 2008, p.6.
[10]http://www.worldwatch.org/looming-threat-water-scarcity-0
[11]“China's environmental problems are also spilling over into other countries, while other countries affect China's environment through globalization, pollution and resource exploitation. China is already the largest contributor of sulphur oxides and chlorofluorocarbons to the atmosphere, its dust and aerial pollutants are transported eastwards to neighbouring countries and even North America; and it is one of the two leading importers of tropical rainforest timber, making it a driving force behind tropical deforestation.”
[12] China's environment in a globalizing world, How China and the rest of the world affect each other, Liu Diamond
[13]Rethinking China’s Urban Water Privatization, Ge Yun, waterjustice.org
[14]http://unfccc.int/files/kyoto_protocol/background/application/pdf/canada.pdf.pdf
[15]http://unfccc.int/key_steps/the_convention/items/6036.php
[16]The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.197
[17]See Pitman B. Potter, “Co-ordinating Corporate Governance and Corporate Social Responsibility” (2009) 39 H.K.L.J.677, The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, 250.
[18]The Concept of Property,” Course Book for LAW 121 “Law and Society” Faculty of law, the University of Auckland (2010), 103.
[19] How Free is Free? Property, Markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, 2013, p.2
[20] How Free is Free? Property, markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, p.2
[21] How Free is Free? Property, markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, p.3
[22]Property Rights and Sustainability, The Evolution of Property Rights to Meet Ecological Challenges, Grinlinton, Taylor, ed., 2011, p.153
[23](Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.51).
[24]The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.251
[25] Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011 Forward
[26]“Consider the scant attention that BITs have given to human rights and environment obligations for states and investors, it might be regarded that such norms have been subordinated to the primacy of investment liberalization.” The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.255
[27]http://www.chinadialogue.net/static/about
[28]Daniel J. Elazar, The Convenant Tradition in Politics, 4 Vols, Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.66
[29]Frederick M. Abbot, Christian Breining-Kaufmann, Thomas Cottier, ed., International Trade and Human Rights: Foundations and Conceptual Issues Ann Arbor: University of Michigan Press, 2006, p.98
[30]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.18
[31]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.275
[32]Ecological Economics 59 (2006) 200-225)
[33]Georgescu-Roegen, 1975
[34]Marxism and Ecological Economics, Towards a Red and Green Political Economy, Paul Burkett, p.24
[35] https://canadians.org/blog/did-canada-china-fipa-influence-trudeaus-decision-buy-kinder-morgan-pipeline
Environment Canada's website informs that Canada has 7% of the world's fresh water, and that “Canada is one of the highest water users per capita in the world”. According to Worldwatch by 2025, “1.8 billion people will live in countries or regions with absolute water scarcity, with almost half of the world living in conditions of water stress”.[10] In the article, China's environment in a globalizing world, How China and the rest of the world affect each other, Liu Diamond discusses the severity of China's water pollution crisis as a direct result of unsustainable economic growth[11] , industrial toxic waste, and untreated residential sewage water. This water pollution crisis has led to severe shortages of water in more than 100 cities.[12] Water shortages threatens public health in China and has become a major challenge for the sustainable economic development.[13] Eco-logic water management strategies, both local and global, are key to climate change adaptation procedures and precautionary principles. So far, the United Nations Framework Convention on Climate Change is the inter-governmental organization surveying climate change mitigation. Canada withdrawal from the United Nations Kyoto Protocol on December 15, 2011, was of course a clear indication that the government of Canada prioritizes neoliberal trade over committing to greenhouse gas emissions reduction.[14] This comes at a time when there is overwhelming scientific evidence that climate change is anthropogenic. “The ultimate objective of the Convention is to stabilize greenhouse gas concentrations “at a level that would prevent dangerous anthropogenic (human induced) interference with the climate system.” It states that "such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner.”[15]
With the rise of globalization, Bilateral Investment Treatise (BIT) have multiplied and form a complex network of trade agreements. It comes as no surprise that China and Canada would have interest in partnering in economics relationships. “Canada has opted to call its bilateral investment treatises (BIT) “foreign investment promotion and protection agreements” (FIPA). There is no significance in this difference in language.” [16] FIPA agreement is a standard Bilateral Investment Treaty (BIT). China and Canada have been negotiating since 1994, which inspired the title for Justin Carter's report in The Canadian Yearbook of Intentional Law 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement. In this legal scholarship, Justin Carter discusses the growing emphasis on sustainability “increasingly being broached in discussion. [...] Establishing normative and institutional foundations of economic and non-economic standards associated with investment treatises requires the identification of conditions that are conductive to the coordinated compliance between multiple policy domains.”[17]
The Canada-China FIPA agreement gives the lawful right to Chinese trans-national corporations to sue the Canadian government and challenge Canadian governmental policies that diminish their financial gains in international private courts, even if these policies protect the environment. The FIPA agreement promotes resources extraction and international trade. This agreement will protect Chinese foreign investors, prioritizing financial gain over ecological wealth. “The capitalist dream of individual freedom is embodied in the right to own private property. The property regime itself - as it stands now in New Zealand and throughout advanced capitalist societies - is unsustainable.”[18] This is of course a big problem.
With the emergence of neoclassical economics (neoliberalism), after the Renaissance and during the period of the Enlightenment in Europe, the use value of land was transformed by “the violent appropriation and enclosure of the commonwealth (modernity coloniality rift)”. The global commons were transformed into property rights[19] with the emergence of colonialism and capitalism. When discussing the origin of colonial domination, Dr. Ignacio Valero refers to the European middle age, western expansionism, and what he calls “religious zealotry,”[20] as the root causes of dissemination of indigenous culture. The destruction of alternative kinship systems included the despotic prohibition of indigenous sacred rituals in the Americas.
“The concept of “ownership,' a wholly alien idea in the Americas, is introduced to justify who is legitimate owner of these “new” lands. Roman law and Christian theology are enlisted to discern whether the indigenous habitant have a soul, and thus are fully human or not. This is a key question, for if they are not, or if they are less than humans, they may not have a right to own, in fact they may even be owned. As such grabbing their lands is an act of mercy, a favour, extended to the “heathens” and “barbarians” in exchange for the protection of the Christian kings and queens and their God. They are like children, like “minors,” who now have the lucky tutelage of said royal popes and their delegates, the colonial masters and clergy.”[21]
Ownership and property law are central to capitalism. “Property law scholar Kevin Gray concluded that property “does no really exist: it is a mere illusion.” This claim was published in the article “property in Thin Air” (1991) which recalls Karl Marx's critique of the paradigm of modern property rights as “the illusion of jurisprudence.” [...] Gray laments the impossibility of reaching a concrete definition of property”.[22] This statement by Kevin Gray brings indeed an unexpected perspective. If property law is considered mere illusion by a property law scholar, then late capitalism might be equated to a kind of fantastical confusion.
“A big problem in the United States today, and perhaps a growing problem elsewhere, is that we do not have a good sense of private property’s history. We do not realize how extensively prior generations have re-framed private rights to serve what they viewed as the public interest in their day. Lacking this historical perspective, we seem to view certain property arrangements as timeless, when in fact they are nothing but.”[23]
From the Department of Foreign affairs and International Trade, the 2001 Framework for Conducting Environmental Assessments of Trade Negotiations reported: “The report identifies key sectors where future Chinese FDI in Canada will likely target, including natural resources, information and communication technologies, pharmaceuticals, manufacturing, and agriculture. Although, it should be noted that what China ultimately needs from Canada for the time being are natural resources, the other sectors listed, while contributing robustly to the Canadian economy, will not likely be deeply penetrated by Chinese investment for some time.”[24] Dr. Pitman B. Potter lectured with Dr. Ljiljana Biukovic at the UBC Faculty of Law on January 28th 2013, both scholars discussed their concerns about the Canada-China FIPA agreement. Dr. Pitman B. Potter argued that inter-states BIT agreements reflect a conflict between state interests and investors. The key issue is the robust implementation of human and environmental rights under Canadian law. There is an ongoing tension between the international tribunal, and the application of human rights, and environmental law. Human right and environmental issues demand a process which is fair and equitable for the protection of disadvantage groups, and for biodiversity. This is especially relevant at this point in time, in regard to climate change and worldwide environmental degradation. “The environmental problem is no doubt one of the most critical problems facing our generation. One hundred and thirty-seven species are wiped out every day and one and a half acres of rain forest are felled every second.”[25]
What is the potential cost of FIPA for Canada's environmental sustainability? This question was raised by Dr. Ljiljana Biukovic, professor at the UBC Faculty of Law. The goal of the FIPA is to promote BIT for both Canadian investors in China and Chinese investors in Canada. In her presentation Dr. Ljiljana Biukovic explained that the FIPA is a standard agreement. Nevertheless, it is facing serious critic because of the lack of transparency surrounding the agreement. Investment policy tends to promote the liberalization between developed and developing countries to stimulate economic growth and energy security. [26] Dr. Ljiljana Biukovic also mentioned that other regulatory changes are happening, worldwide there is a trend to liberalize and promote Foreign Direct Investment (FDI) to encourage economic growth in specific industries, water is one of theme. The main goal of investment policy agreement is to minimize political risk faced by investors when investing in developing countries. The main concern here is China’s access to Canada’s finite natural resources at a time of great environmental uncertainty. Through the FIPA Chinese investors will have the right to sue the Government of Canada, without the Canadian government being able to sue the foreign investors the next three decades.
The potential for coordinated compliance lies in institutional capacity to prioritize ecological health in Canada at all level of government, including Non-Governmental-Organization’s (NGO). Liberalism is restricted by Earth's biophysical carrying capacity, by the Earth’s aggravating resource depletion, and by the urgency of climate change. The complementary roles of NGO’s, governmental and inter-governmental institutions need to be articulated clearly as to maximize inter-institutional capacity for environmental protection. The government of Canada’s is responsible for implementing climate change adaptation measures that include sustainable water management and post-growth socioeconomic strategies. It is possible to arrive at a coordinated compliance for the highest ecological standards to protect all remaining life forms with a progressive, intelligent and imaginative plan which builds on local and decentralized economies. This is an opportunity for extraordinary creativity.
“China is growing fast and, as it grows, it is faced with urgent environmental challenges. Climate change, species loss, pollution, water scarcity and environment damage are not problems confined to one country: they are challenges that concern all the world's citizens, but the rise of China gives them a new urgency. Tackling these challenges will require a common effort and common understanding.”[27]
Law historically was associated with religio-political covenants[28]. “Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings)”.[29] The procedural steps for the inclusion of the interrelationship of human and nature in international law is researched at the edge of academia. The concept of paradigm shift has become central to emerging legal, political and economic scholarships. “One need only compare the complex and vast array of international, regional, and national environment laws with reports such as the United Nations’ Millennium Ecosystem Assessment, to conclude that we are fast reaching the limits of this law and the biosphere. It is time to take a different path: to create legal framework that explicitly recognize that humanity is an interdependent part of the larger ecological order and that overall condition of that order is of paramount importance.”[30] The limits of the earth and the interdependence of humans with their ecological environment must become an integral part of international law as well as the economic process for the survival and the well-being of the web of life. This paradigm shift is a sacred process. This process is an opportunity for creativity and new social goals. Humanity has the potential to reclaim ecological balance by developing the appropriate legal framework. The intrinsically changeability of law, to promote the well-being of humanity and the earth, only requires political determination. “Legal rules and principles are not frozen in time, but rather are able to evolve and adapt to meet new challenges and changing circumstances.” [31]
Law makers have an ethical responsibility to restructure the legal system as to reflect the interdependence of humans and ecology as well as protect Earth, earthlings and biodiversity. “Joseph Guth: If we are ever to develop an ecologically sustainable economy, we must free ourselves from existing system of legal incentives that is compelling us to destroy the Earth. Our law must enforce a limit to the scale of environmental damage that we are collectively permitted to inflict upon the Earth. This would represent a transformation in the law’s understanding of public welfare, and a dramatic evolution in the structure of property law.” Law is malleable. Capitalist consumerist society is unsustainable, and human creativity is limitless. This process will involve local decentralized economies, and a legal framework which acknowledges the interrelationship and interdependence of humans and nature.
In the Journal Ecological Economics, UBC’s emeritus professor Dr. William E. Rees analyzes globalization from a biophysical perspective. Dr. Rees demonstrates that the economy is a sub-system of ecology and that the international trade system is bio-ecologically restrained by Earth’s carrying capacity. Dr. William E. Rees critiques mainstream economic principles of infinite growth on a finite planet; “techno-industrial society is inherently unsustainable”[32] from a biophysical perspective. Dr. Rees advocates for an economic system which values healthy o ecosystems. “Sir Macfarlane Burnet, a Nobelite, in a special lecture considered it imperative “to prevent the progressive destruction of the earth’s irreplaceable resources” [quoted, 15, p. 1]. And a prestigious institution such as the United Nations, in its Declaration on the Human Environment (Stockholm, 1972), repeatedly urged everyone “to improve the environment.” [...]since exponential growth in a finite world leads to disasters of all kinds, ecological salvation lies in the stationary state [42; 47; 62, pp. 156-184; 6, pp. 3f, 8, 20]. *13* H. Daly even claims that “the stationary state economy is, therefore, a necessity” [21, p. 5]”[33] Ecological economics is an interdisciplinary field of research which views ecology and the limits of Earth’s natural resources as an integral part of a healthy economic system. “Cleveland suggest that the physiocrats’ steadfast belief that Nature was the source of wealth became a recurring theme throughout biophysical economics’; but he does not elaborate on the parallel. Georgescu-Roegen characterizes physiocratic doctrine (referring specifically to Quesnay's Tableau Économique) as an ‘analytico-physiological approach,’ meaning a manifest endeavor to submit the economic phenomena to a physiological analysis akin to that of biology.”[34] To develop a rational biophysical approach to ecological economics would provide the scientific analysis necessary to honor the natural limits of Earth.
The Canada China FIPA agreement allows Chinese foreign investors to have a firm hold over timber and Canada’s privatization of water supply for neoliberal trade, and ultimately a kind of economic slavery and dictatorship. Chinese foreign investors may sue the government of Canada for environmental policies that will infringe on their financial profits. Is this why Justin Trudeau sold out Canada by buying the Trans Mountain pipeline? “The answer is likely yes.”[35] This is simply unacceptable at a time of environmental urgency. A paradigm shift in human ecological consciousness will need to happen if we are to adapt to the global human ecological crisis. Canadians are responsible for pressuring political powers to prioritize ecological health over trade liberalization. Canada-China relationships should be developing a framework determined by strict ecological precautionary principles for both countries to protect the biosphere.
Water is Life.
[1] Property Rights and Sustainability, The Evolution of Property Rights to Meet Ecological Challenges, Grinlinton, Taylor, ed., 2011, p.9. Millennium Ecosystem Assessment Board, Living Beyond Our Means (Washington D.C.: Millennium Ecosystem Assessment Board, 2005), http:www.millenniumassessment.org/en/BoardStatement.aspx (assed July 25, 2010)
[2]“An increasing number of worrisome phenomena are global in nature, such as scarcity of energy resources, the deterioration of the environment and intensification of natural disasters, as well as the risks of climate change. These phenomena are also the products of the rapid economic growth generated by globalization.” The WTO: Governance, Dispute Settlement & Developing Countries, Merit E. Janow, Victoria Donaldson, Alan Yanovich, ed., p.6
[3]Professor Emeritus William E. Rees and former director of the School of Community and Regional Planning at UBC, refers to the global environmental crisis as a “human ecological crisis”. His intention is to point to the problem: the ecological crisis is anthropogenic.
[4] https://canadians.org/canada-china
[5]“Hunger is on the rise with 18,000 children dying each day from hunger and related illness.” Plan B, Mobilization to Save Civilization, Lester R. Brown, p.50).
[6]http://www.cbc.ca/news/canada/british-columbia/story/2011/07/17/bc-china-lumber.html
[7]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.185
[8] https://canadians.org/canada-china
[9]The Oxford Handbook of Public Policy, Robert E. Goodin, Michael Moran, and Martin Rein, 2008, p.6.
[10]http://www.worldwatch.org/looming-threat-water-scarcity-0
[11]“China's environmental problems are also spilling over into other countries, while other countries affect China's environment through globalization, pollution and resource exploitation. China is already the largest contributor of sulphur oxides and chlorofluorocarbons to the atmosphere, its dust and aerial pollutants are transported eastwards to neighbouring countries and even North America; and it is one of the two leading importers of tropical rainforest timber, making it a driving force behind tropical deforestation.”
[12] China's environment in a globalizing world, How China and the rest of the world affect each other, Liu Diamond
[13]Rethinking China’s Urban Water Privatization, Ge Yun, waterjustice.org
[14]http://unfccc.int/files/kyoto_protocol/background/application/pdf/canada.pdf.pdf
[15]http://unfccc.int/key_steps/the_convention/items/6036.php
[16]The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.197
[17]See Pitman B. Potter, “Co-ordinating Corporate Governance and Corporate Social Responsibility” (2009) 39 H.K.L.J.677, The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, 250.
[18]The Concept of Property,” Course Book for LAW 121 “Law and Society” Faculty of law, the University of Auckland (2010), 103.
[19] How Free is Free? Property, Markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, 2013, p.2
[20] How Free is Free? Property, markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, p.2
[21] How Free is Free? Property, markets, and the Aesthetic(s) of the Common(s), Ignacio Valero, p.3
[22]Property Rights and Sustainability, The Evolution of Property Rights to Meet Ecological Challenges, Grinlinton, Taylor, ed., 2011, p.153
[23](Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.51).
[24]The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.251
[25] Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011 Forward
[26]“Consider the scant attention that BITs have given to human rights and environment obligations for states and investors, it might be regarded that such norms have been subordinated to the primacy of investment liberalization.” The Canadian yearbook of international law, 2009, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement, Justin Carter, p.255
[27]http://www.chinadialogue.net/static/about
[28]Daniel J. Elazar, The Convenant Tradition in Politics, 4 Vols, Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.66
[29]Frederick M. Abbot, Christian Breining-Kaufmann, Thomas Cottier, ed., International Trade and Human Rights: Foundations and Conceptual Issues Ann Arbor: University of Michigan Press, 2006, p.98
[30]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.18
[31]Property Rights and Sustainability The Evolution of Property Rights to Meet Ecological Challenges edited by David Grinlinton and Prue Taylor, 2011, p.275
[32]Ecological Economics 59 (2006) 200-225)
[33]Georgescu-Roegen, 1975
[34]Marxism and Ecological Economics, Towards a Red and Green Political Economy, Paul Burkett, p.24
[35] https://canadians.org/blog/did-canada-china-fipa-influence-trudeaus-decision-buy-kinder-morgan-pipeline