Since this Monday, September 11, was the deadline for citizens to intervene, challenge or defend the partial or full constitutionality of the Free Trade Agreement (FTA) signed between Ecuador and China, Acción Ecológica presented amicus curiae this instrument signed between both countries last May.

On August 28, the agreement was published in the Official Register, and as part of the constitutional procedure, ten days have been set to comply with that appeal.

According to the organization, there are several points of concern about the trade agreement, including chapters on investment and economic cooperation, as well as the implementation of the FTA.

The trade agreement between Ecuador and China continues its approval process, creating concern on the one hand and optimism on the other

In the document in which they dispute, they state that paragraph 10 of the opinion of the Constitutional Court states that “if this Agreement is ratified, Ecuador would undertake to issue, modify or repeal laws” and add that “the measures to be adopted in accordance with Article 2.1, containing generally applicable definitions of the Agreement, include any law, regulation, procedure, requirement or practice.

According to Acción Ecológica, “Ecuador’s constitution is widely recognized as progressive in terms of human rights and the enactment of nature, a condition that has permeated other norms in different areas, in order to overcome the development paradigm and establish the foundations Sumak kawsay or the good life. This has even led to decisions of this Court based on the aforementioned projections as a country.”

They cite examples such as the decisions on the Monjas River, in Quito, or the Aquepí River, in Santo Domingo, as well as the recent popular consultations on Yasuní and Chocó Andino. “A triumph that is responded to with more spaces where social participation, the community, with a greater will bet on strengthening processes oriented towards post-extractivism and care for nature.”

But, they say, “imposing a free trade agreement, and especially this one, sets the logic of unrestricted trade.” “Both goods and investments enjoy national and most-favoured-nation treatment, dramatically increasing the asymmetry between the parties.”

On August 9, the CC issued its opinion on the trade agreement, in which it indicated that the free trade agreement “subject to the cases provided for in article 419, paragraphs 3 and 6, requires legislative approval before being ratified by the part of the President of the Republic.”

Among other points, they point out “that although the text of the Treaty contains statements about environmental measures necessary to protect the life or health of humans, animals or plants, its practical application will lead to wide discretion and even rejection or denial of said measure, since it is noted that they cannot be used as a means of arbitrary or unjustified discrimination or a disguised restriction of trade in goods (Art. 15.1.).”

Acción Ecológica asked whether it would be considered arbitrary discrimination or a hidden restriction to prevent the entry into Ecuador of old and waste from Chinese production under the pretext of recovering raw materials, as stated in paragraphs (i) and (j) of Article 4.3 of fully received goods in relation to the goods that are intended to be placed on the market under the Agreement.

As for investment, they indicate that the treaty proposes to create the necessary environment for all forms of investment, including facilitating the issuance of licenses and operating permits.

In this context, they point out that it is necessary to take into account that China maintains its current status as a world power based on numerous transnational corporations that operate around the world, extract hydrocarbons and minerals, build mega-infrastructures and promote agro-industry. projects that provide food for their huge population or wood for their industry. Furthermore, as an example, they refer to the “excessive” procurement of balsa wood from Ecuador for the production of wind turbines, which is why they state that “this extraction of balsa has been carried out in recent years, which has caused a real invasion of buyers that has devastated several areas on the coast, the Amazon and the subtropics Sierra.

They add that the free trade agreement will put Ecuador on the business map of Chinese transnational companies, which generally operate with capital from the Chinese state, and sometimes with private capital from that country, and which have had a very worrying record of actions related to human, collective and natural rights.

Meanwhile, for the representative of the Corporation for the Promotion of Exports and Investments (Corpei) in Quito and the Sierra region, Francisco Rivadeneira, what Acción Ecológica presented will serve as a reference, an input, for the decision that the CC must make.

In this context, he pointed out that “the Court has no obligation in relation to the content” and that it also has no “obligation to respond to amicus which the Environmental Action or any other entity represents, serves only as a reference, an input for the decision they must make, which revolves exclusively around the constitutionality or unconstitutionality of the agreement.”

The trade agreement with China has already been published in the Official Register so that “every citizen can intervene defending or challenging its partial or complete constitutionality”

After the expiration of the ten-day period, Rivadeneira believes that the Constitutional Court has 20 days to formally declare the Government’s request on the constitutionality of the agreement.

In this sense, he indicated that it is expected that there will be no constitutional problems. “Let’s hope that this is the case, or that at least there should not be a constitutional problem on the investment side, as was the case in Costa Rica, because there is no table for the protection and attraction of investments as such, and I understand that no kind of arbitration mechanism is foreseen within the agreement to settle disputes between the company and the state,” he stated.