TTIP and Ireland: Referendum needed or not

lucernarian

I'm wondering if my question is suitable for this forum; my apologies if it isn't!

I'd like to know, within the context of existing treaties of the EU, are the provisions of TTIP as outlined in the media and other websites so far in any way a further modification or dilution of the powers of the Oireachtas to legislate for various matters of public interest etc? In other words, would a referendum be required in this country if TTIP were ratified by the US and EU as a whole?

BoJack Horseman

Well, TTIP is dead (sadly), the democrats in congress saw to that.

I'm pretty sure the Lisbon treaty is relatively flexible & allows a lot more changes without requirements for a new treaty.

Scofflaw

lucernarian wrote: »

I'm wondering if my question is suitable for this forum; my apologies if it isn't!

I'd like to know, within the context of existing treaties of the EU, are the provisions of TTIP as outlined in the media and other websites so far in any way a further modification or dilution of the powers of the Oireachtas to legislate for various matters of public interest etc? In other words, would a referendum be required in this country if TTIP were ratified by the US and EU as a whole?

I'd strongly doubt it. No sovereignty is lost as a result of TTIP, despite the many slogans to that effect.

ISDS, which most people would point to as a sovereignty issue, does not change the government's right to legislate as it sees best for Ireland. It does provide a mechanism whereby the government could be sued for some of its decisions, but that is already the case anyway - the Irish government has been sued in the ECJ and the ECHR, as well as the Irish courts.

Nor does regulatory cooperation in TTIP have any such implication, because regulatory cooperation is a voluntary arrangement that must be acceptable to both parties - in other words, it must be acceptable to the EU (and by extension, Ireland) before it can happen.

As for trade itself, that is an EU competence already.

cordially,
Scofflaw

The EU has agreed FTAs with about 50 countries, from Canada to Chile to South Korea, none of which have directly required a referendum in Ireland.

lucernarian

Scofflaw wrote: »

ISDS, which most people would point to as a sovereignty issue, does not change the government's right to legislate as it sees best for Ireland. It does provide a mechanism whereby the government could be sued for some of its decisions, but that is already the case anyway - the Irish government has been sued in the ECJ and the ECHR, as well as the Irish courts.

The matter of trade is obviously taken care of by existing EU treaties. ISDS couldn't but change the Govt's right to legislate as it sees best for Ireland, if it introduces an additional mechanism for the Govt. to be sued on said legislative decisions. It is not "already the case anyway" - the ECHR for instance, and the proposed ISDS cover two very different areas. Sufficiently different jurisdictions to render the comparison nearly meaningless to my mind.

Furthermore, there is the clear and obvious precedent of the referendum required here to pass the Rome Statute. I am trying to find out what the legal basis of the ECJ and ECHR is with regards to the Irish Constitution : is it covered by the third Amendment?

Thanks to all for the responses!

lucernarian

lucernarian wrote: »

The matter of trade is obviously taken care of by existing EU treaties. ISDS couldn't but change the Govt's right to legislate as it sees best for Ireland, if it introduces an additional mechanism for the Govt. to be sued on said legislative decisions.

Surely Ireland is already accountable to ISDS through the existing trade agreements? I would have presumed most states are accountable, and will have been so for decades, through our international agreements.

Scofflaw

lucernarian wrote: »

The matter of trade is obviously taken care of by existing EU treaties. ISDS couldn't but change the Govt's right to legislate as it sees best for Ireland, if it introduces an additional mechanism for the Govt. to be sued on said legislative decisions.

No, "it can't but help" is an arm-wave. The Irish government retains the right to legislate as it sees fit, but not the right to avoid compensating those affected - and that is already the case.

It is not "already the case anyway" - the ECHR for instance, and the proposed ISDS cover two very different areas. Sufficiently different jurisdictions to render the comparison nearly meaningless to my mind.

Irrelevant - the constitutional principle is the same. And ISDS tribunals cannot reverse law.

Furthermore, there is the clear and obvious precedent of the referendum required here to pass the Rome Statute. I am trying to find out what the legal basis of the ECJ and ECHR is with regards to the Irish Constitution : is it covered by the third Amendment?

The basis for the referendum is this:

Because submission to the jurisdiction of the International Criminal Court entails a partial transfer to the Court of the sovereign power of the State to administer criminal justice, it was necessary to amend the Irish Constitution prior to ratification.

That is, the state is literally transferring power to prosecute to an extra-national court, giving them some of what was previously a totally sovereign power.

This is not the case in ISDS by any stretch. ISDS provides for arbitration of compensation - the state transfers absolutely none of its powers.

cordially,
Scofflaw

lucernarian

Scofflaw wrote: »

No, "it can't but help" is an arm-wave. The Irish government retains the right to legislate as it sees fit, but not the right to avoid compensating those affected - and that is already the case.

A smidgin harsh. I'm someone who has friends almost baying for the blood of American and EU negotiators and I want to look at the lobbies involved with scepticism. I think my point was more earnest than that. I'm interested in the peripheral issues surrounding "compensation" for legislative decisions. I'm thinking of e.g. decisions that affects a US company more than other companies in terms of investment decisions. The company would have no standing in an Irish court unless it were registered as an Irish company now, but couldn't this forseeably change under the proposed TTIP treaty?

Irrelevant - the constitutional principle is the same. And ISDS tribunals cannot reverse law.

How much money or damages could they award against sovereigns or states?

This is not the case in ISDS by any stretch. ISDS provides for arbitration of compensation - the state transfers absolutely none of its powers.

Could you elaborate more on what the ISDS provides beyond what exists currently? Is the arbitration involved binding or non-binding? If the power to make a "binding arbitration" involving the state paying money out is now rested in another extraterritorial organisation, will it be able to appeal decisions made to another judicial entity?

glacial_pace71

Lucernian, in Irish law already there is the concept of misfeasance in public office, e.g. one of Enda Kenny's earliest political disasters was the Glencar Exploration case, in which a mining company acquired legitimate mineral rights from the Irish Government but was frustrated in acting on these rights by Mayo County Council using the planning legislation and national monuments legislation to undermine any attempt to give effect to the exploration:

http://www.bailii.org/ie/cases/IESC/2001/64.html

Much of the ISDS concerns surround issues of this nature, e.g. engaging in a licensing process and then finding that whatever notional rights you have are subsequently legislated out of existence.
I'd still have grave concerns however that ISDS could become a stick with which Big Tobacco could launch further attacks on public interest health legislation.
I can't see a referendum being needed though.

glacial_pace71

glacial_pace71 wrote: »

Lucernian, in Irish law already there is the concept of misfeasance in public office, e.g. one of Enda Kenny's earliest political disasters was the Glencar Exploration case, in which a mining company acquired legitimate mineral rights from the Irish Government but was frustrated in acting on these rights by Mayo County Council using the planning legislation and national monuments legislation to undermine any attempt to give effect to the exploration:

Surely all that shows is that companies can ask the courts to review government actions? I think lucernarian knows that, but is asking about foreign companies with no presence in Ireland forcing the government's hand on policy.

Is non-binding arbitration an oxymoron? Maybe I have misunderstood the term arbitration, but I have never heard of non-binding arbitration.

Anyway, this is possibly all moot, since the TTIP negotiations include the question of how disputes will be settled.

lucernarian

glacial_pace71 wrote: »

Much of the ISDS concerns surround issues of this nature, e.g. engaging in a licensing process and then finding that whatever notional rights you have are subsequently legislated out of existence.
I'd still have grave concerns however that ISDS could become a stick with which Big Tobacco could launch further attacks on public interest health legislation.
I can't see a referendum being needed though.

Thanks for the information! The Big Tobacco example was one which crossed my ears before. What concerns me is exactly what is the aspect of the TTIP that enables an "attack" or challenge to Irish law that wouldn't exist currently? I.e. BAT and Imperial haven't been able to say boo to recent Irish legislation except in the case of packaging recently. And a key issue is whether the Irish authorities can act on this before it is explicit EU "law" as a directive or whatever. I'm not currently 100% familiar with that case anyway

@ A Tyrant Named Miltiades!

Non-binding arbitration certainly is a term I've seen used in trade union disputes and perhaps in my Junior Cert Business Studies book back in the day?! Not sure exactly but either way it's not much of an oxymoron as a quick google suggests: http://www.lawsociety.ie/lawinfo/Areas-of-Law/Arbitration--Mediation/

The TTIP negotiations are discussing how disputes will be settled... How are disputes settled currently, like ones under the GATT and WTO agreements? I'm aware too that Ireland never needed a referendum to join the WTO. I'm wondering how disputes like this are handled currently and I'll brush up on that later.

glacial_pace71

Lucernian, there is an Advisory Group that sits as part of the EU's oversight mechanisms for the TTIP. On this there are reps from business, the trade unions etc.
The minutes of their meetings are publicly available:
http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153429.pdf

It's interesting to note that the absence of domestic anti-discrimination law in the US is cited as one reason in favour of TTIP. I find that a bit misleading: the 14th Amendment to their constitution has given rise to a huge body of caselaw, e.g. from matters as diverse as Roe -v- Wade on abortion to Brown -v- Topeka Board of Education re the issue of racial segregation. Further, there are numerous state-based regulatory schemes that complement the Federal laws on many issues. An Irish company wouldn't need to resort to TTIP as its sole avenue for legal remedy if some ex-Confederate state put an unreasonable condition on a tendering process.

However, the EU seem to be still papering the walls/felling forests with position papers:
http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF

The direction would appear to be lurching toward supranational appellate mechanisms.

I suspect there'll still be the problem of what the Commission already seeks to police at member-state level, e.g. some illegal state aid by Germany or some opaque health and safety regulations by France etc which are designed to frustrate the operation of the single market.

However, look at the existing range of WTO disputes:
http://trade.ec.europa.eu/doclib/docs/2003/november/tradoc_111230.pdf
Will many of these be displaced to the level of the companies affected by particular issues with national legislation? e.g. the locus standii moves from US-EU trade battles to Airbus versus Boeing being fought out through each launching actions against spurious 'national security' or other State-aid-by-stealth considerations etc?

Earlier, I said that Ireland is already subject to ISDS arbitration through its international agreements.

In fact, that's incorrect according to Nessa Childers. She has said that Ireland the only EU member state whose international agreements do not allow for ISDS arbitration.

I don't think concerns are misplaced after all, although it's not clear what will emerge.

lucernarian

A Tyrant Named Miltiades! wrote: »

Earlier, I said that Ireland is already subject to ISDS arbitration through its international agreements.

In fact, that's incorrect according to Nessa Childers. She has said that Ireland the only EU member state whose international agreements do not allow for ISDS arbitration.

I don't think concerns are misplaced after all, although it's not clear what will emerge.

That's very interesting information. Do you have any source or links to those comments?