To take effect, the Trans-Pacific Partnership (TPP) will need to be passed by one up-or-down vote in the US Senate and by one vote in the House of Representatives — only one vote in each chamber on the entire 30 chapters of policy proposals in 5,000 pages of legalese. Legislation that passed Congress by a few votes last June, called trade promotion authority — aka fast track — mandates the process of how the TPP will be treated in congress. It prohibits any changes to the text by Congress members and limits the time permitted for debate.
President Obama prepared enabling legislation that conforms to fast track requirements and is expected to present the TPP package to congress during the lame duck session after the election.
The TPP is a free trade agreement although the compact enters the US legal system as though it were an international treaty. Proposals passed in a treaty override domestic laws that are made by elected representatives through legislative process. In addition, a new and growing aspect of international law is built into free trade agreements.
Were the TPP to pass in Congress, a variety of US laws would be changed to conform to the policy proposals written into the treaty. Some of these policies would impact issues of food safety, genetically modified food and country of origin labeling and, in a most alarming way, climate change. TPP protects the fossil fuel industry from regulation, notably fracking companies, rather than systematically favoring sustainable energy development.
Investments in corporations registered in TPP countries that explore for and extract oil and gas in the US as well as those involved in building the infrastructure (pipelines, compression stations and export facilities) would be explicitly protected against environmental laws limiting pollution under TPP. There is an enforcement mechanism built into all free trade agreements that is built into the TPP.
The Investor-State Dispute Settlement (ISDS) procedure built into free trade agreements is becoming a new branch of international law. Policy written into free trade agreements is enforced in private tribunals. Access to gas fracked within the US would be guaranteed by a chapter in the TPP to consumers within the 11 TPP signatory countries. No environmental review nor intervention by any agency nor branch of the US government would be permitted. TPP is the largest free trade agreement ever. The policies that would be subject to ISDS adjudication cover issues that could never pass through US legislative procedures like pharmaceutical prices and internet access among others.
A corporation registered in any TPP country involved in exploring for, extracting, compressing, transporting or exporting liquefied natural gas (LNG) from the US to any TPP signatory nation could sue, in a private ISDS tribunal, any branch of the US government that might legislate to protect territory and/or population or that writes regulations to implement legislation already passed. This legal structure written into free trade agreements protects investors’ supposed right to make a profit. No such mechanism protects the environment, labor or human rights. An ISDS case can be initiated only by corporate investors against a government.
An ISD suit can be brought by corporate investors before a private ISDS court solely on purported violations of the policy proposals in a free trade agreement. In the case of the TPP, ISDS enforces the policy proposals in 30 chapters, over 5,000 pages of legalese written in secret over more than five years by trade ministers from 12 Pacific-rim nations and hundreds of advisors from multinational corporations. Corporate lawyers rotate through as judges.
According to each free trade agreement, the private trade tribunal is granted the authority to award penalties of taxpayer money if the suit brought by investors against a government is judged by the three corporate lawyers to be based on applicable evidence. No appeal is permitted.
The language is that government regulation is ‘in restraint of trade.’ The TPP protects foreign investment. However, an office of a multinational registered in whatever country makes any corporation a native there. Investment capital moves easily around the globe.
Trans-Canada is now suing the US government in an ISDS tribunal created under the North American Free Trade Agreement (NAFTA). Investors in Trans-Canada claim they lost $15 billion in profit they expected to earn when President Obama cancelled the Keystone XL pipeline. Any foreign investment already made in infrastructure is an invitation to more suits against our attempts to eliminate fracking and turn to creating sustainable energy. The NY State ban on fracking could be a target of an ISDS suit should the TPP pass in congress.
Several additional Free Trade Agreements are under construction. The largest and most publicized, the Trans-Atlantic Trade and Investment Partnership (TTIP), is being negotiated in secret between the US and the European Union. France opposes, and the German administration is split. Protests occur regularly throughout the continent.
A strong, extensive and growing network of organizations and individuals in the U.S. and worldwide are working to defeat the TPP. Should the TPP go down, the domino effect would disable free trade initiatives for the moment.
Once the TPP is defeated, progressive forces will have an opportunity to concentrate on putting forward a globalized procedure for exchanging goods and services among nations that is based on protecting all living beings, the planet and the future. First we must defeat the TPP. Each of us has a voice to raise and a role to play.