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Michael Geist*
The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has generated considerable confusion over where the Trudeau government stands on the deal. The TPP was concluded several weeks before the October election and the Liberals were careful to express general support for free trade, but refrain from embracing an agreement that was still secret.
Over the past month, there have been mixed signals over the issue. Chrystia Freeland, the new Minister of International Trade, has committed to a public consultation and noted that her government is not bound by commitments made by the Conservatives (in the interests of full disclosure, I had the opportunity to meet with Minister Freeland to discuss the TPP earlier this month). Yet following a meeting between Prime Minister Justin Trudeau and U.S. President Barack Obama at the APEC conference in Manila, Obama indicated that he expects Canada to soon be a signatory to the deal.
How to explain the seemingly inconsistent comments on the Canadian position on the TPP? The answer may well lie in the differences between reaching an agreement-in-principle, signing the formal text, and ratifying the deal. Each step is distinct and carries different legal obligations.
The agreement-in-principle occurred in early October during the final round of negotiations in Atlanta. Contrary to reports that Canada "signed" the TPP at the time, there was nothing to sign. The agreement-in-principle closed off the outstanding issues, but the formal text still needed to be finalized. There were some legal implications of the agreement-in-principle, however. For example, the intellectual property chapter includes an annex that permits Canada's notice-and-notice rules to qualify as an alternative to the TPP's notice-and-takedown system (which is modeled on U.S. law). The annex states that only countries that have a similar system at the time of the agreement-in-principle can use the exception, effectively creating a Canadian-only rule.
The next formal stage may be the signing of the TPP, which reports indicate could happen in New Zealand as early as February 2016. There will be strong incentives for all TPP negotiating countries, including Canada, to sign the agreement even if they are unsure about whether they will ultimately ratify it. Chapter 30 of the TPP on Final Provisions addresses some of the technical issues associated with the TPP. The chapter grants special rights to "original signatories," who are the only ones who qualify for the rules related to entry into force of the agreement (in the event that not all TPP countries ratify the agreement within two years, it takes effect once six original signatories which account for 85 percent of the GDP of the original signatories have ratified it). In other words, if Canada does not participate in the signing of the text, it will not be an original signatory and it will not count for the purposes of the TPP taking formal effect.
The benefits of being an original signatory may be what ultimately motivate Canada to sign the TPP and why President Obama expects it do so. However, the TPP would only become binding upon ratification of the agreement. That would require Canada to amend a wide variety of laws to ensure that it is compliant with TPP requirements. From a legal perspective, there is a significant difference between signing a treaty (which represents only a supportive gesture) vs. ratifying a treaty (which creates new legal obligations). Howard Knopf has characterized it as the difference between dating and marriage.
It should be noted that many countries sign but do not ratify treaties. Indeed, Canada has a fair number of international treaties that is has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.
Canada could find itself in the same position with the TPP. Assuming it signs early next year, there will be still be ample time to conduct a full, open consultation on the treaty. Many have already expressed serious concerns with the implications of the TPP for intellectual property, privacy, Internet governance, and the environment. In light of the mounting concerns, the government could sign the TPP as an original signatory, but still decide to not ratify without changes to the deal.
*Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa and is a founding member of the Centre for Law, Technology and Society. He is also an internationally syndicated columnist, and author of a popular blog on technology law issues.