Another goodbye to democracy if TTIP is passed

Corporate control on both sides of the Atlantic will be solidified should the Transatlantic Trade and Investment Partnership be passed. Any doubt about that was removed when Greenpeace Netherlands released 13 chapters of the TTIP text, although the secrecy of the text and that only corporate representatives have regular access to negotiators had already made intentions clear.

Health, safety, environmental and food laws will all be at risk, with United States negotiators continuing to seek the elimination of European safeguards against genetically modified organisms. But European Union negotiators, although as yet unable to find sufficient common ground with their U.S. counterparts on some issues, are offering plenty of dubious language at the behest of European multi-national corporations.

The Transatlantic Trade and Investment Partnership is very much similar to the Trans-Pacific Partnership, and although negotiations over it are apparently far from complete it is firmly in the TPP’s anti-democratic spirit. The Transatlantic Partnership, just like other “free trade” agreements, has little to do with trade and much to do with granting the wish lists of corporate executives and financiers, complete with secret tribunals that can overturn legislation without appeal.

As is customary with “free trade” agreements, the devil is in the details. What really lies within the dry, bureaucratic language is text that leaves little, if any, room for democratic control over a wide range of legislative oversight. In part this is because the text uses words like “must” and “shall” for what signatory governments are expected to do on behalf of multi-national corporations but words like “may” and “can” when it comes to the very brief mentions of health, safety, environmental and labor concerns, and in part because of who will be interpret the text, and how.

Under existing “free trade” agreements, the countries with stronger regulations, such as Canada under the North American Free Trade Agreement, are routinely ordered to overturn them as “barriers” to trade. Smaller countries are routinely sued by multi-national corporations for attempting to safeguard sensitive environments or regulate tobacco, such as El Salvador’s attempt to protect its largest remaining water source from a gold mine. These suits are not heard in ordinary courts, but rather in secret tribunals in which corporate lawyers who specialize in representing multi-national capital in international disputes switch hats and sit in judgment of similar cases as judges.

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Governments must meet corporate expectations

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Such one-sided rules are imbedded in the Transatlantic Trade and Investment Partnership text. The leaked chapter on dispute settlement contains unmistakeable language. Multi-national corporations will be eligible to sue on the basis that “a benefit the Party could reasonably have expected to accrue to under this Agreement is being nullified or impaired.” A series of rulings handed down by the secret tribunals in similar cases have established that an “investor” is eligible to sue for any potential profits it asserts it would have earned had not a regulation it dislikes been in place.

The chapter goes on to set out the necessary qualifications of arbitrators, stating that they must have “expertise” in the field. These “experts” will almost inevitably be corporate lawyers as they fill the rosters of the secret tribunals. The clause that the judges “shall be independent and serve in their individual capacities” is a joke — these are people who have spent decades serving corporate clients and thoroughly absorb their clients’ perspective. That they have “officially” switched hats is meaningless.

That there will be no appeal against judgements handed down is exemplified three pages later. It is EU negotiators who propose these two sentences: “The ruling/report of the panel shall be unconditionally accepted by the Parties” and “The Party complained against shall take any measure necessary to comply promptly and in good faith with the panel ruling.” What these mean is that there can be no appeal against what tribunal panels consisting of three corporate lawyers decree and that laws must be changed immediately based on the secret tribunal’s ruling.

There is much more there. A reading of the chapter on sanitary and phytosanitary measures, which, inter alia, covers regulations on agriculture, can easily be interpreted to overturn bans on genetically modified organisms. Here is the chapter’s Article 11 as proposed by EU negotiators:

“1. Sanitary and phytosanitary procedures shall be established with the objective of minimizing negative trade effects and simplifying and expediting the approval and clearance process while ensuring the fulfillment of the importing Party’s requirements. 2. The Parties shall ensure that all sanitary and phytosanitary procedures affecting trade between the parties are undertaken and completed without undue delay and that they are not applied in a manner which would constitute an arbitrary or unjustifiable discrimination against the other Party.”

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Corporations would get last word on regulation

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Despite the European Commission’s attempts to paint itself as heroically standing against U.S. insistence on forcing GMOs on European consumers, this EU language could be interpreted to overturn bans on GMOs. That is especially so in the wake of the already agreed-upon language of Article 5, where we read:

“When issuing or submitting any final administrative decision for an SPS regulation, the Party shall make publicly available on the Internet an explanation of: … any alternative identified through public comments, including by a Party, as significantly less restrictive to trade.”

Under this clause, governments must make the case on behalf of complaining corporations that want to eliminate a protective regulation! There is further language demanding that any new regulation be justified, including a requirement that a government explain why it did not adopt any alternatives that would be “less restrictive to trade.” There is precedent here under the North American Free Trade Agreement, in which a tribunal, in ordering that Canada reverse a ban against PCBs, a carcinogen banned under two Canadian treaties, ruled that, when formulating an environmental rule, a government “is obliged to adopt the alternative that is most consistent with open trade.” So much for democracy!

There is also an agriculture chapter, which contains this sentence: “The Parties shall work together to facilitate the successful conclusion of agriculture negotiations in the WTO that substantially improves market access for agricultural goods.” All the activist work that prevented the conclusion of World Trade Organization talks over the past decade would be undone, and provide an additional opening for GMOs and the elimination of other safety rules.

Thus we should take with mounds of salt this public statement by European Trade Commissioner Cecilia Malmström, issued on May 2:

“Any EU trade deal can only change regulation by making it stronger. … No trade deal will limit our ability to make new rules to protect our citizens or environment in the future. I am simply not in the business of lowering standards.”

Commissioner Malmström further asserts that “no, the EU industry does not have greater access to EU negotiating positions than other stakeholders.” That statement is on par with someone offering to sell you the Brooklyn Bridge and the Eiffel Tower. The public-interest group Corporate Europe Observatory, upon successfully petitioning to receive documents from the European Commission, found that that of 127 closed meetings preparing for the Transatlantic Partnership talks, at least 119 were with large corporations and their lobbyists. Although it is true that EU negotiators are sometimes at odds with their U.S. counterparts, the EU has offered its share of anti-democratic measures, not inconsistent with the lack of accountability Europeans have come to expect from EU institutions.

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Watchdog groups sound multiple alarms

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In its latest assessment of the Transatlantic Trade and Investment Partnership, Corporate Europe Observatory notes that the TTIP will negatively impact laws on both sides of the Atlantic, noting that “the new EU proposal on regulatory cooperation in TTIP does nothing, not even little, to address the upcoming democratic threats.” The Observatory says:

“Regulatory cooperation, on the surface a way to ‘harmonise’ rules across the Atlantic, could in practice weaken rules on protecting us against everything from toxic chemicals and unhealthy food, to wild speculation by banks. The European Commission recently published its new positions on this cooperation. The two chapters they released reveal the Commission is willing to change how it makes laws to favour trade and multinationals over all public interest considerations. Under regulatory cooperation trade officials will continue to negotiate our future and existing laws. This pushes contentious issues farther away from public scrutiny to be brokered over the coming years after TTIP is passed, giving big business lobby groups ample opportunities to influence the result of the decision-making.”

Other watchdog groups sound similar warnings. The Sierra Club, noting the words “climate change” never appear in the TTIP text, points out some of its environmentally destructive measures:

“Under the National Treatment terms of the leaked text, the U.S. Department of Energy would be required to automatically approve the export of liquefied natural gas to the EU. … Both the U.S. and the EU have proposed “regulatory cooperation” rules that would undermine climate and environmental protections if they are deemed harmful to trans-Atlantic trade or investment. The U.S. has proposed that governments on both sides of the Atlantic should be required to review proposed regulations before enactment to pursue compliance with ‘international trade and investment obligations.’ The EU has proposed similar language.”

Compliance with “international trade and investment obligations” would mean conforming to the types of secret-tribunal decisions mentioned above.

Friends of the Earth, in its review of the leaked text, provides this warning:

“Sensible regulatory safeguards, such as those related to food safety and toxic chemicals, among many others, would also be stymied. Industry-friendly, cost-benefit analysis would hamstring new environmental initiatives. For example, insecticide safety standards would be lowered if the undervalued ‘benefit’ of new regulations protecting the bees is outweighed by the ‘cost’ to corporate profits, thus threatening the pollinators necessary for our food system.”

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Yep, it’s as bad as we thought it would be

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The senior policy analyst for the Institute for Agriculture and Trade Policy, Steve Suppan, in noting that predictions about the TTIP’s impact on agriculture “have been sadly confirmed,” wrote:

“The text shows the U.S. Trade Representative protecting corporate interests by shielding environmental, health and safety data used in TTIP risk assessment as confidential business information, preventing peer scientific review. The end result of the U.S. proposal would be increasing the burden on governments to justify food safety rules while placing no burden on industry to demonstrate that its products—including new kinds of GMOs, food or agri-nanotechnology products—are safe.”

What we have here is the ordinarily and normal course of capitalist logic. There is no real point to seeing something inherently evil in U.S. or EU officials or their having some particular moral failing. These governments reflect the dominant interests within their countries, as is the case in all capitalist countries. Large industrialists and financiers dominate their societies through control of the mass media and a range of other institutions to the point that their preferred policies become, through heavy repetition, the dominant ideas across society and the ideas adopted by political leaders intellectually and financially dependent on them.

Thus the recent revelations of NSA spying in Europe have had no effect on the Transatlantic Partnership negotiations. The talks began, on schedule, with embarrassing discussions of spying relegated to a “parallel” track, separate from what really counts, the main negotiations to dismantle regulations. The TTIP is quite consistent with the project of the EU: European capitalists’ desire to possess the ability to challenge the United States for economic supremacy, but who cannot do so without the combined clout of a united continent.

Working people on both sides of the Atlantic will be the losers if the TTIP passes, and that is underscored by the secrecy surrounding it. Capitalists, despite the competition among them, are united in their drive for complete domination and profits above all other human considerations. We had better be united across borders in the necessary fight to first stop TTIP and other agreements under consideration, and then roll back those already in place.

Pete Dolack