Yves here. Concern about the toxic misnamed trade deals known as Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership are finally breaking out of the blogosphere ghetto as the Obama administration is making another push to get so-called fast track approval from Congress. Note that Obama failed in the last Congress due mainly to considerable opposition in the Democratic party, along with some resistance among Republicans as well.
What may have torched the latest Administration salvo is a well-timed joint publication by Wikileaks and the New York Times of a recent version of the so-called investment chapter. That section sets forth one of the worst features of the agreement, the investor-state dispute settlement process (ISDS). As we’ve described at length in earlier posts, the ISDS mechanism strengthens the existing ISDS process. It allows for secret arbitration panels to effectively overrule national regulations by allowing foreign investors to sue governments over lost potential future profits in secret arbitration panels. Those panels have been proved to be conflict-ridden and arbitrary. And the grounds for appeal are limited and technical.
Mind you, the dangers of this pact are hardly unknown to anyone who has been paying attention. Elizabeth Warren tried to escalate concerns via a Washington Post op ed late last month. However, the administration has gone to unusual lengths to prevent Congress from making a proper review of the draft text, so the significance of the leak should not be underestimated. As we wrote:
And finally, for the Administration to insinuate that the TPP will result in greater transparency is dubious, given that it’s made it well-nigh impossible for anyone in Congress to do a proper review of the text. While the US Trade Representative technically allows access, in practice, that right is empty. The Congressman himself must read the text; no sending staffers or bringing experts allowed, and only staffers from the committees with direct oversight of trade bills (the Senate Finance Committee and the House Ways and Means Committee) are allowed to join their bosses. The USTR insists that the Congressman specify what chapter he wants to review in advance. The USTR then insists that the negotiator of those chapters be present. Since those negotiators travel, it usually takes three or four weeks to find a convenient time.
No note-taking is allowed. The text is full of bracketed sections where if language is disputed, the revisions suggested by other countries are in the brackets, with the country initials listed but then redacted, making it difficult to read (as in you can’t even read this dense text straight through; the flow of the document is interrupted by the various suggested changes). Having people from the USTR staring over your shoulder is distracting. And it’s an open question as to whether asking them questions is prudent, since it gives the USTR insight into what the Congressman is concerned about.
Perhaps these Congressmen have exceptional powers of concentration. But I read cases and legally dense material with some regularity, and I find my concentration starts going after an hour to an hour and a half. And I also find it difficult to get much more than a general sense of a contract of any length in one pass. You need to go over it again and again to see how the various sections tie together to even have an approximate grasp of what it means. There’s simply no way that any Congressman has anything more than a very fuzzy idea of what is in the TPP and the TTIP.
They very fact that the Administration is going to such absurd lengths to prevent informed Congressional review should be sufficient reason in and of itself to turn down the Administration’s request for fast-track authority.
So the significance of this particular document release cannot be overstated. For the first time, Congress can do a decent review of this critical section. Not surprisingly, they are finding a lot not to like. For instance, from the New York Times:
“This is really troubling,” said Senator Charles E. Schumer of New York, the Senate’s No. 3 Democrat. “It seems to indicate that savvy, deep-pocketed foreign conglomerates could challenge a broad range of laws we pass at every level of government, such as made-in-America laws or anti-tobacco laws. I think people on both sides of the aisle will have trouble with this”…
“U.S.T.R. will say the U.S. has never lost a case, but you’re going to see a lot more challenges in the future,” said Senator Sherrod Brown, Democrat of Ohio. “There’s a huge pot of gold at the end of the rainbow for these companies”…
Senator Brown contended that the overall accord, not just the investment provisions, was troubling. “This continues the great American tradition of corporations writing trade agreements, sharing them with almost nobody, so often at the expense of consumers, public health and workers,” he said…
Critics say the text’s definition of an investment is so broad that it could open enormous avenues of legal challenge.
This post by Joe Firestone raises some not-widely-discussed concerns about the ISDS provisions.
By Joe Firestone, Ph.D., Managing Director, CEO of the Knowledge Management Consortium International (KMCI), and Director of KMCI’s CKIM Certificate program. He taught political science as the graduate and undergraduate level and blogs regularly at Corrente, Firedoglake and Daily Kos as letsgetitdone. Cross posted from New Economic Perspectives
During a recent Amy Goodman interview of Lori Wallach, director of Public Citizen’s Global Trade Watch, on her Democracy Now show, Wallach neatly summarized the problems of progressives with the TPP:
Well, fast-tracking the TPP would make it easier to offshore our jobs and would put downward pressure, enormous downward pressure, on Americans’ wages, because it would throw American workers into competition with workers in Vietnam who are paid less than 60 cents an hour and have no labor rights to organize, to better their situation. Plus, the TPP would empower another 25,000 foreign corporations to use the investor state tribunals, the corporate tribunals, to attack our laws. And then there would be another 25,000 U.S. corporations in the other TPP countries who could use investor state to attack their environmental and health and labor and safety laws. And if all that weren’t enough, Big Pharma would get new monopoly patent rights that would jack up medicine prices, cutting off affordable access. And there’s rollback of financial regulations put in place after the global financial crisis. And there’s a ban on “Buy Local,” “buy domestic” policies. And it would undermine the policy space that we have to deal with the climate crisis—energy policies are covered. Basically, almost any progressive policy or goal would be undermined, rolled back. Plus, we would see more offshoring of jobs and more downward pressure on wages. So the big battle is over fast track, the process. And right now, thanks to a lot of pushback by activists across the country, actually, they don’t have a majority to pass it. But there’s an enormous push to change that, and that’s basically where we all come in.
I, too, am bothered by all the things Wallach mentioned and I, too, am strongly opposed to the TPP, and the upcoming Transatlantic Trade and Investment Partnership (TTIP), and the Trade in Services Agreement (TISA), which would impose similar agreements and rules to the TPP. So, I thought it would be worthwhile to add a few other concerns to the ones she mentions.
First, under the TPP, would the Government of the United States be sued and held liable in an investor state dispute action for a decision to stop issuing Treasury debt and fund deficit spending in an alternative way? Why not, since some private companies would lose profits as a result of that sort of action?
Second, under the TPP, would the Government of the United States be held liable if the Fed were to implement a policy maintaining negative interest rates for awhile? Why not, since this would cause investors in Government bonds to lose potential profits?
Third, under the Kingdom of the Netherlands – Czech Republic Trade Agreement, the Czech Republic was sued in an investor state proceeding for failing to bail out an insolvent bank which an investor company had an interest in. The investor company was awarded $236 million in the dispute settlement. So, under the TPP, or the TTIP, what would prevent a similar action against the Federal Reserve Bank of the United States, if it failed to bail out banks that were too big to fail in the future? And what could be the damages if the Fed decided to let the Bank of America fail, the FDIC took it into resolution and then a Saudi-based investment company decided to try to collect from the Federal Reserve?
Fourth, the TPP and the other agreements being put forward, provide for three-judge “courts” to conduct the dispute settlement proceeding. One of the judges is actually selected by the corporate plaintiffs. All of the judges are private attorneys who in other disputes may have represented corporate plaintiffs, and it is common for attorneys to be shifting roles from “corporate advocates” in one case to “judges” in another. Of course, the advocates get paid far more than the judges. Can anyone imagine a more criminogenic environment than this, where all the incentives are aligned in such a way as to extract funds from state treasuries for the benefit of corporations and corporate attorneys alike?
Fifth, in agreeing to such trade deals, Congress would, in essence, be turning over legislative power to the investor state dispute settlement courts and the corporations buying their loyalty. This is true because if Congress passes any laws that can be attacked in investor state disputes, the Government could find itself with billions in unanticipated costs suddenly levied upon it, and a law that cannot be enforced.
So, how long would it be until objections to legislation being contemplated by Congress surface taking the form of “. . . this legislation isn’t feasible to pass because its future costs arising out of litigation will be too high?” paralyze future Congresses when it comes to passing sorely needed legislation, because it would be easy to anticipate high cost law suits claiming that potential profits of multi-nationals were threatened by that legislation.
So, sixth this raises the question, of whether an Executive-Congressional agreement like the TPP would be maintained by future Congresses. The present Congress cannot bind a future Congress short of passing a Constitutional Amendment which is then ratified. So, let’s say the TPP passes, and a progressive Congress is elected in 2018 or 2020, after a few outrageous investor state settlements had been visited on previous Administrations. What then would prevent that future Congress from simply revoking its consent for the TPP?
This means that even if the TPP were to pass, that is no guarantee that the fight over it would end. Its opponents could simply refuse to accept ts passage and could and undoubtedly would work to get it revoked quickly, even to the point of making it an issue in the 2016 national campaigns. Moreover, each time there is a highly visible investor state settlement costing the United States billions, the issue of who benefits from the TPP would be raised again, and the forces opposing it would be strengthened.
Seventh, which brings us to another serious question, namely, would approval of the TPP with its investor-state dispute mechanisms even be constitutional? I think a case can be made that the TPP amounts to handing a legislative veto power over Congressional legislation to multinational corporation-dominated investor state courts. Does Congress really have the constitutional authority to provide such a veto power to authorities external to the United States?
It’s been established in law that Congress can delegate its legislative authority to all sorts of agencies it designates, but to do this, Congress has to set forth in legislation an “intelligible principle” under which its delegation of authority is constrained. General grants of legislative authority are clearly unconstitutional.
The “intelligible principle” in the TPP seems to be that these investor state three judge tribunals can invalidate future legislation, based on whether or not it is seen by such panels as hurting the potential profits of investor state plaintiffs, but otherwise their authority appears to be unconstrained. So, the constitutional question is whether this is a specific enough constraint for delegating Congress’s legislative authority to a private agency, as opposed to being an unconstitutional grant of arbitrary authority to an entity external to the United States.
Eighth, the TPP is reported to have a provision for expanding membership later, and China and Russia are often mentioned as states that might be added. Is this scenario at all likely or realistic? Can anyone reading this imagine that China would allow itself to be subject to decisions by 3 judge corporate-dominated courts on grounds that a corporate plaintiff’s future profits were jeopardized by an action of the Chinese state?
To those who offer this as a possibility, I say, please give the rest of us a break from pure fantasy. There is no way Beijing would ever bind itself in this way, given either its history or its current attitudes.
Ninth, and finally, I think we have to ask one final question in connection with Congress’s pending consideration of the TPP. How can it be that any Congressperson or Senator or president for that matter, would even consider for one moment delegating the legislative authority of the Congress to corporate dominated foreign powers acting in 3-judge courts?
Have they taken leave of their senses? Can’t they see the profound disloyalty to the United States and compromise to its sovereignty inherent in an agreement sacrificing the freedom of action of future Congresses on the altar of free trade and market fundamentalism? Have neoliberalism and corporate contributions blinded them so much that they cannot see that they are selling out the sovereignty of United States to a foreign power?
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They have not taken leave of their senses. They have been told that this is “Good for State X” by the people that they are accustomed to listening to (i.e. well-funded lobbyists). They have also chosen to play along with their own ignorance on this one. The aide to one of my senators seemed shocked that I would have expected the senator to read it calling all current versions “premature” and all discussion of it “speculation.” He also kept repeating that the sanator would not sign anything that was bad for our state but refused to elaborate how he would decide that or how he felt about similar prior bills.
At this point calls, not tweets and not e-mails, are what would make the difference. In the heirarchy of congress a personal call or a visit to a DC or regional office far outranks any electronic medium. The calls must be heard and replied to. The others are generally ignored.
I have called my reps and left messages with other key senators such as Wyden who is likely to introduce the fast-track bill as well as people like Ted Cruz who have a track record of opposing things like this.
In the call you should state your opposition and state that you will not vote for them or, more importantly, donate any money to them or their party if this should go forward. A loss of votes for an individual Senator is relatively meaningless because of the revolving door but threatening the lifeline of dollars to them and their party does hurt.
Ted Cruz opposes this? For real? Not just to fool the Tea People? Really? Do we know that for a fact?
Can we be sure?
Because if Ted Cruz opposes this FOR REAL where Wyden supports it, then Ted Cruz is a safer Senator for America’s future than Wyden, and Cruz would be a better President than Wyden (if Wyden were to think Presidentially) because at least Cruz is not a Traitor whereas Wyden is clearly an anti-Americanitic Traitor and an International Free Trade Conspirator.
So we should be very sure that we know whether Cruz opposes this for REAL as against just for SHOW.
I also think this is not correct. Remember Ted’s wife is in management at Goldman, although she has taken a leave during his presidential run for president.
Meaning Ted Cruz has a secret family interest in getting TTP/TTIP passed? And is merely preTENding to oppose them to fool his base? Is that the risk to which your comment is alluding?
Regarding this possible act by a future Congress
That would be a case of how the treaty was enforced. I haven’t seen any solid information on enforcement provisions. That’s where the “rubber hits the road.” (This looks suspiciously similar to all those “crazy conspiracy nutcases” ultimate bugaboo; the dreaded Black Helicopters.)
Presumably the usual forces of finance would take care of that — to disrespect foreign property claims would be a violation of “full faith and credit” as well as the Fifth Amendment, never mind the traditional liberal standstill and ratchet clauses in these agreements, and high inequality means a large precariat begging to do elites’ wet and dirty work in exchange for the chance to kiss their rings.
Well, since it’s likely most lawsuits will happen at state level, and most lobbyist action happens at federal level, once the “agreement” is in place, Congress will probably take the position it’s not their problem and ignore it, as usual. Just another state budget item to deal with. No Sovereign issues there!
That commitment can’t be binding on the US unless the TPP is passed as a treaty. The President alone could only maintain such an agreement for as long as she or he is in office if a future Congress were to cancel the agreement, and even then this would not force that future Congress to produce the money to pay any fines, oops I almost said taxes, levied by the tribunals
But isn’t the whole point of getting Congress to PASS Fast Track because these Treaties are being negotiated AS Treaties with the intention of getting them ratified AS Treaties? If Obama were planning to call these things “executive agreements” why would he care about getting them Fast Tracked by Congress in a Congressional Vote?
Only the plebes believe in “America the beautiful.” Obama wants to strengthen his legacy among the transnational capitalist class, the only class with any security in the utopia of money.
http://www.dailykos.com/story/2014/03/15/1284746/-The-society-of-money
Nice post, Cass!
I love Marx’s treatises on relations. One can see the influence of Kantian ethics. Treat other humans as ends without exception. Though not admitted, today, no individual is regarded or respected as an end them selves in economies. We are all means and Capital facilitates this.
I’d love to see the names and addresses of those negotiating the TPP, TPIP, TISA. No threat, just publish their names and addresses.
In the US, it’s the USTR, and the head is Michael Froman. I suspect it’s not hard to track him down.
“selling out the sovereignty of the United States to a foreign power” — and exactly how is this not treason?
I agree with you, and I’ve used the sovereignty argument in discussions about the TPP and TTIP. We need to be prepared for a potential contradiction, though, since the sovereignty argument can be used in other contexts as well. The U.S. has not ratified the treaty establishing the International Criminal Court, and one of the stated reasons for this is that the Court would violate U.S. sovereignty. The U.S. government doesn’t want a foreign court to prosecute U.S. spooks or soldiers for committing torture or war crimes. Israel has not ratified the treaty, presumably because of concerns that their people would be prosecuted for their treatment of Palestinians. China has neither signed nor ratified the treaty. Among other things, I’m sure the Chinese government doesn’t want their treatment of Tibetans or Uighurs to be handled by the Court. So it can be tricky deciding when the sovereignty argument is valid or not.
http://en.wikipedia.org/wiki/International_Criminal_Court
I don’T think it’s a question of the validity of the sovereignty argument, but rather of whether we want to give it up or not, in what areas, and to whom. You can argue that the International Criminal Court is a contribution to international civilization which merits giving up an aspect of our sovereignty, and that might be a strong argument. But I think it’s much harder to argue that the will of the people of the United States as expressed through their representatives ought to be replaced by the will of three-judge tribunals thoroughly beholden to multinational corporate interests.
That said, you’re right that the sovereignty argument is a two-edged sword!
The sovereignty threat issue is already in play by power of money over derelict “elected representatives” even without TPP etc.
Did you see the story broken by The Intercept a couple of days ago?
I’ve often pointed people to that masterful series premiered here in NC, “Journey Into A Libertarian Future.” What is this Trade Deal Wonderland that our Rulers are chumping us along into, again?
What I get a laugh out of, as a low-level ex-attorney, with some government enforcement and big-firm private practice experience, is the invocation all along of the virtues of the “rule of law.” Not to add to the sense of futility that so many of us are getting crushed by, https://www.marxists.org/history/australia/libertarians/iverson/futilitarianism.htm, which is artfully fed by the PTB at every turn, but I wonder how many other legal-trained people out there would agree that “there ain’t no such thing”? (Though of course one can take all kinds of advantage of the touching belief of others that “There is too!”)
Certainly not as peddled in the curricula of those long-ago civics classes, and inhaled while studying for the Boy Scout “Citizenship” Merit Badges, http://en.wikipedia.org/wiki/Merit_badge_%28Boy_Scouts_of_America%29 .
The ticks and tapeworms who want to finally demolish any kind of local or individual autonomy, and slurp up ownership of EVERYthing, are suckering the rest of us, in part, into accepting that THEIR rule, via that hopefully not inevitable triumph or at least ascendancy of RandHayekMiseLunzBlankfeiniean Kleptocorporatocracy, somehow partakes of and is legitimized by some patina of legalisticationalism: “It is written, therefore it shall be!” like the “terms” of the “deals” supposedly “binding” on Greece and Ukraine and other lesser states — actually what I learned in Contracts, first year law school, are “contracts of adhesion,” http://en.wikipedia.org/wiki/Standard_form_contract, which have some basic problems of enforceability where there actually is some “rule of law” in operation). Law only exists where the “terms” can be enforced, one way or another — what happens if the party of the second part tells the party of the first part to go take a flying F___ at the moon?
Hard to fix things, though, when the fix is in — just my observation from being born in New Jersey, having grown up in Chicago, and having spent summers and college in Rhode Island. And paying a little attention to other stuff over the last 60-plus years…
These dangers to our sovereign banking practices are very interesting. It is the profiteers v. the profiteers. It is inconceivable that anyone considering passing the TPP has given any thought to just how all these conflicting interests will work themselves out. It is simply a treaty that will promote pure chaos if it is implemented. It will cause irresolvable conflicts that only by finding the established rights of all the interested parties will these Investor State Tribunals be able to achieve some settlement and, oops, the TPP destroys all rights precedents. What an idiotic plan. That’s just for starters. It is also an attempt to preempt protectionism, clearly, by making a race to the bottom the only article of faith allowed. Which is why Greenspan et al wrote that vapid letter advocating the quick passage of the TPP with one express exception: That sovereign currency control be exempted from these tribunals. Because if the FedHead can’t tweak interest rates and the currency then it will slow our disgraceful decent to the very bottom. He’s just pointing out how useful “sovereignty” can be if it is used in the service of the TPP.
Obama, Ron Wyden or anyone who even considers this for a moment should receive a lifetime irrevocable seat in the proverbial clown car. This is, among so many points already made, elevation of Citizens United… Establishment of supreme global corporate personhood. Far surpassing sovereign nations, much less citizenship.
But then we have watched all political parties involved abrogate their duties/rule of law on a systemic level already war powers, secrecy, treasure, blood, jobs, health, environment… why wouldn’t they cash in one more time?
Yves, this is perhaps the most stunning, comprehensive takedown of the TPP I’ve read, to date. Kudos!
My only question is this: With all of the public’s focus upon the TPP and the TTIP/TAFTA, are we not letting TISA (the Trade In Services Annex to the General Agreement on Trade and Services [GATS]) slip by, under the radar? (Since TISA will accomplish for Wall Street, and many other sectors, much of what’s redundantly in those other two, better-known agreements.)
For more on TISA, see Bill Black’s Naked Capitalism post from June 25th, 2014: http://www.nakedcapitalism.com/2014/06/obama-latest-betrayal-tisa.html
Canada has signed China-FIPA, which has ISDS allowing Chinese investors the right to sue Canada over laws they don’t like.
Have Canadian investors the same right in China?
I don’t believe so, at least not in practice, it was essentially a massive give away.
Canadians with investments in China can submit claims for arbitration, but the legal process is somewhat different:
“Any citizen (corporate or individual) with an investment in the other contracting party’s state is eligible to launch a claim.
…
Pursuant to Annex C.21, if a Canadian measure is at issue, the investor initiating the arbitration will be deemed to waive the right to initiate or continue actions relating to the matter of the claim before any court or dispute settlement body with the exception of injunctive, declaratory or other extraordinary relief. On the other hand, where a Chinese measure is at issue, an investor will first have to navigate through China’s administrative reconsideration procedure. The claim may only be submitted to arbitration after four months have elapsed without resolve from China’s administrative reconsideration procedure. In addition, the claim may only be submitted under Article 20 if the investor has withdrawn the case from the Chinese national courts before judgment has been made on the dispute. If a case is withdrawn after judgment has been rendered, then that case may no longer qualify for arbitration.”
http://www.wl-tradelaw.com/the-canada-china-foreign-investment-promotion-and-protection-agreement-part-ii-investor-state-dispute-settlement-provisions/
hahahaha. Sure… sue me, round eye. You get your day in court, but the PRoC executes judges that take bribe, when we see the need to. Don’t let the gate in Great Wall hit you in the butt on your way out.
So does the China-Australia free trade agreement (ChAFTA), which has a bilateral ISDS clause giving Australian investors the right to sue China and vice versa. For more than a decade the Chinese have in fact shown themselves perfectly willing to sign ISDS agreements covering post-establishment issues, but not ISDS agreements that cover pre-establishment issues like those in the TTIP and TPP.
The Transatlantic Trade and Investment Partnership, investor-state dispute settlement and China
http://www.bilaterals.org/?the-transatlantic-trade-and-26827
What boggles my mind is the secrecy. Are they so politically tone-deaf that they don’t see how toxic it is to keep the whole thing under wraps? Or is it just simple arrogance, thinking that all those shlubs out there won’t notice or won’t care what gets slipped through Congress behind their backs. Either way, it’s monumentally dumbass.
‘The Congressman himself must read the text. No note-taking is allowed.’
That’s the same rule that applies to the classified 28-page Part 4 of the 9/11 commission report.
Democracy is a sick joke when only a carefully edited subset of the facts is released for public consumption.
Wish Ed Snowden were still at his terminal in Hawaii, collecting the incriminating evidence against these official conspirators.
Indeed.
The transnational kleptocrats of today make me think of Octavian (Augustus) in ancient Rome. They are trying to scrupulously observe a few legalities, here and there, and keep alive the illusion of being somehow constrained by publicly accountable institutions. As if a “tribunal” of corporate lawyers– who are their devoted lackeys– should make us feel like at least we’re being screwed in a formally “correct” fashion. Yet, at the same time, these transnational kleptocrats clearly feel they enjoy semi-divine status– and are eager to appropriate all power into their own hands.
Considering how awful the content of the deal is and resistance to previous trade deals (Seattle ’99, Genoa, etc.), the secrecy is probably necessary.
Yes, it’s necessary if you want to undermine democracy!
The agreement itself is secret, as is well known (among anyone aware of the TPP I guess). But I also like that the secret tribunals are highlighted above. Not only is the text of the agreement secret except when it gets leaked, but the court procedures will be secret as well and probably harder to leak. This thing is MULTIPLE layers of secrecy.
These “trade” agreements are attempts to push through a New World Order. It could probably be best called “Corporate Feudalism”.
I’d prefer another term, I’m not sure all peasants had it as bad as the world to come. Another F word might get me an argument. So looking for a more appropriate word: Corporate Dictatorship would fit the bill.
We should try lots of different words to see which catch on, if any do. It could be cheap field-based
Luntz-work in a precisely anti-Luntz direction.
Words like Corporate Slaverism, the World Globalonial Plantation, etc. And other better words that anyone cares to invent and launch.
African Economist Samir Amin uses this language:
“unipolar” “global order” and “oligarchy” and the title of his recent book “The Liberal Virus”
Unipolar global order is in contrast to his advocacy of “multipolar globalization”
The Trans Toxic Obama Partnership
TTOP. ah ha ha ha.
And we could start calling it all Obamatrade. That might turn the minds of people who are already against Obama himself against his Obamatrade as well.
“If you like Obamacare, you’ll love Obamatrade.” That might resonate with the Tea People, for example.
It’s hard to believe people like Chuck Schumer are so unaware of what these deals do. If he truly does not know, lord help us because know-nothings are in charge of our govt:
“This is really troubling,” said Senator Charles E. Schumer of New York, the Senate’s No. 3 Democrat. “It seems to indicate that savvy, deep-pocketed foreign conglomerates could challenge a broad range of laws we pass at every level of government, such as made-in-America laws or anti-tobacco laws. I think people on both sides of the aisle will have trouble with this”…
Reid v. Covert originally held that treaties can override Constitutional rights of US citizens, but SCOTUS changed its decision as a result of a rehearing for the only time in its history. (See also the Insular Cases, where SCOTUS blessed American imperialism.) In other words, representative government is, in fact, identical to monarchy by pageant and committee.
Also, being an effective veto, but not a technical veto, there’s a case to be made that ISDS is congruent with the Takings Clause, especially given a loose enough definition of “citizens”.
A Cogressional-Executive Agreement like the TPP is not a treaty according to US constitutional law. In fact, TPP and all the other free trade agreements following its pattern are in that form because actual trade treaties could never be ratified by the Senate.
A distinction that had been lost on me. Thank you for highlighting that. Then the next clearest route to a permanent yes hinges on whether the Senate could get to 2/3 if the Administration had, or could be plausibly said to have, included odious ISDS only as a gambit, akin to ACA’s public option. It’s a bad omen that Schumer and the NYT, all handmaidens to the elite down to the very cores of their bones, are running the shocked-in-Casablanca tape.
+10
And of course if legal objections get in the way, there’s always our humble Supreme Court to rule the right way.
Since when do little things like details get in their way?
In other words, representative government is, in fact, identical to monarchy by pageant and committee.
? Entirely in the dark what is meant by that. Any other decision would have been absurd and tyrannical. Whatever sort of agreement it is, treaty or not, federal or state law, the US constitution is supreme in US law. And thank God. That is a very good, very wise thing – too often it is forgotten how this has been an important model to the rest of the world. It answers Joe’s question somewhat.
The Supreme Court has never ruled a treaty/agreement unconstitutional. Really, why would it? – it has the greater power of “interpreting” them, which occasionally means interpreting black as white. Or bleen. :-) Though these trade agreements test the boundaries and the Court’s wits. They’re plainly unconstitutional to a plain man, violating Article I, Section 9, Clause 8 quite enough in spirit.
Pet peeve on wikipedia article & other comments: The US Senate doesn’t ratify treaties. It consents to them, or not. Then the President may ratify them, or not.
All I can add to the above comments is a purely political point: this the real Obama and, to a great extent, the real agenda of the Democratic Party, post-Clinton. It was actually the Clinton trade deals that made me a Green (perhaps I should be more grateful). They eliminate the usual “But Republicans!” excuse, because both the negotiations and the secrecy (an open admission of guilt) are purely administration actions.
This attack on our sovereignty and democracy isn’t technically treason, because there’s no war involved; but it’s certainly treacherous, a gross and intentional betrayal of their nation and their responsibilities.
Technically it is a war. Financial terrorism against the people. They are traitors. They must reap what they sow.
Totally agree, class warfare is still war and blood is being shed by those unfortunates at the bottom that are given no lifeline.
Ever watch the TV series Continuum? We seem to be heading quickly into this scenario where the Multi National Corporations rule the entire world and people are really worthless/useless for the most part.
The piece you posted about Matt Taibbi is a good example of how this transformation is taking place. At least in the *civilized* world. I’m sure the word Civilized is to be questioned in the future.
If a person stands back and looks upon the bigger picture with exponential growth demanded in a finite world I fear for our future. It appears to me that mankind is rushing helter skelter down a path of self annihilation. I just wish I could see some way that the direction could be altered. Knowing about a problem is the first step in solving it but many have seen this problem approaching for decades and yet the destructive pace of our choices is still accelerating.
If the TPP is enacted and ratified we are accelerating the rush towards devastation. Corporations are not people. They have no consciences. Growth is their goal and people only matter in their usefulness towards growth. And yet we live on planet earth and as yet have no ability to expand beyond it so our world is finite. At the present time, reality is in opposition to corporate growth.
More people does not mean a better life style for anyone, it means a finite world being degraded and divided by more mouths to feed and a larger demand on existing resources, especially fresh potable water which will come at the expense of the natural world. And that the natural world not only feeds us but cleans the air we breath. The world needs a change of attitude and I see no such thing in our future.
Is it just me doddering around senile and incredulous – or was there really a time not terribly long ago when government at least TRIED TO APPEAR AS THOUGH they understood/cared about not only corporations but the real human beings back home? And that legislation needed to appear reasonable to human beings? Maybe TPP consent by Congress will put paid to 250 years of person-oriented government, ushering in a new American era in which we defer to the unblushing and explicit priorities of our “citizen corporations,” to whom SCOTUS already ascribes First Amendment “rights” broader than those of the individual. Caloo calay!
Appearances went out the window when Bernanke showed up to congress with a three page $700B blank check and ordered them to pass it.
That was Paulson (TSec), but Ben probably helped him write the 3 page doc. Or they had Tim do it, while they hit the golf course.
The lot of them hit the golf course – the TARP doc was ready-to-go , five months in advance , courtesy of Neel Kash n’ kari :
http://www.andrewrosssorkin.com/?p=368
Oh, Frabjous day!
Currently corporations still get there power because we buy from them (although we in this example may include the 1s whom we may have little influence over). So stop it. When you can. I do realize some things produced by corpse-erations may be necessities.
In the future: perhaps governments will just raw create money for them. We’ll have to pay taxes to make sure the money the corpse-erations get has value ….
That’s right. Don’t buy Brawny paper towells, Quilted toilet paper, or Dixie paper products — all owned by the Koch Sisters.
If you really want to see what bullshit this is, this foregone-profits business, there’s a thorough analysis of the case law in State Responsibility Article 36 Compensation, paragraphs 27 through 34.
Profit compensation is for takings and breaches of contract, not for some chickenshit tycoon who’s afraid to take a chance. You can’t recover speculative profits, that was established by Amco Asia Corporation and Others. Risk is what you get paid to take. It’s not the state’s problem. The ISDS provisions in this treaty are legal hackwork that make hash of existing law to bail out every corporate loser in the world
I have become an Yvesian of late but my preceptor is more polite than I will be ever – “that the TPP will result in greater transparency is dubious” she writes. That’s diplospeak for furtivity in my book.
What’s the odds we end up with the administration using its secret courts to overturn decisions made in the merchants’ secret courts. That should remove the rule of law from the country. Then we can kill all the lawyers and get on with screwing up whatever’s left. Woohoo.
‘Have neoliberalism and corporate contributions blinded them so much that they cannot see that they are selling out the sovereignty of United States to a foreign power?’
Reverse that. The way they see it is ‘they are selling out the sovereignty of foreign powers to the United States’. Same as it ever was. It seems to be be mostly US corporations writing this travesty. They simply don’t conceive the screwing over of sovereigns embedded in the TPP will be visited on the US, just the other suckers who sign up to it. At the very least they think the balance will heavily favour American companies.
The thing is how long will it be before this barely concealed attack on national sovereignty is seen as just that by the nation under attack. I see a strong potential for war triggered by a country telling one of the superpowers signed up to this thing where they can stick their billion dollar settlement awarded by a crony kangaroo court. The greed of these rent-seeking psychopaths and their bought and paid for ‘judges’ will push the settlement amounts ever higher until a line in the sand is drawn and the tanks roll in.
+1000
My thoughts exactly–and if and when some judge rules against the U.S. Treasury for a large enough sum, the U.S. will simply refuse to pay. The enforcement mechanism is a one-way street: heads I win, tails you lose!
Chuck Schumer is perhaps the biggest snake in Congress.
My guess is that those in Congress helping to push fast-track already know what is in the text, or they think they know enough after being told what the text writers want them to know.
Those in Congress who are in the dark, yet want to know more, won’t learn of any of the fine language until after it is passed.
Where else in the business world is a buyer (Congress) asked to blindly accept what the seller (Obama-Wall Street) is offering without any thorough examination first.
What a bunch of freaking clowns.
These information security breaches have got to stop! Every time the sponsors’ secret agenda starts making some headway, some third-world peon uploads it to wikileaks. If this nonsense continues, we may have withhold the document from the TTP/TTIP delegates until after they vote to pass it….
This all seems contrived by the genetically-superior, modified brains of Monsanto.
“So, sixth this raises the question, of whether an Executive-Congressional agreement like the TPP would be maintained by future Congresses. The present Congress cannot bind a future Congress short of passing a Constitutional Amendment which is then ratified. So, let’s say the TPP passes, and a progressive Congress is elected in 2018 or 2020, after a few outrageous investor state settlements had been visited on previous Administrations. What then would prevent that future Congress from simply revoking its consent for the TPP?”
I think if it will be to late even if a progressive Congress were to be victorious by 2020 because of the projected realization
of a United States of Europe of EU leaders by the year 2020.
“The term United States of Europe (French: États-Unis d’Europe) was used by Victor Hugo, including during a speech at the International Peace Congress held in Paris in 1849. Hugo favoured the creation of ‘a supreme, sovereign senate, which will be to Europe what parliament is to England’ and said ‘A day will come when all nations on our continent will form a European brotherhood … A day will come when we shall see … the United States of America and the United States of Europe face to face, reaching out for each other across the seas.‘ [italicized mine].”
http://en.wikipedia.org/wiki/United_States_of_Europe
Surely the answer to TTIP and all the other abusive agreements is to use the precedent being created now by governments and corporations against them. When a corporations actions result in increased costs to the taxpayer (clearing up after Fracking companies), we have the same right to sue them as they do for lost future profits!!! Remember that taking health warnings off cigarette packets will result in increased healthcare costs for future treatment. Governments cant have it one way without supporting the comeback . . . or can they?!!!!
An officeholder is impeached not for the actions he has taken, but for the actions he is liable to take in the future misuse of his office. The impeachment procedure returns the office to a good steward, and the impeached leaves to spend quality time with his family. The TPP is one of the many reasons to support impeachment of this treasonous POS who currently acts as President. Selling arms to the Muslim Brotherhood to kill Americans in Benghazi is not a matter for impeachment. That is a matter for incarceration.
Smart post, Yves. Smart and necessary. Thank you.
Just another cover-up helping USA sell a pup.
No Court or Tribunal Under UN or IBRD?WorldBank can avoid USA Veto Powers under IBRD Law cover and UN SC Enforcement both grant USA 100% unconditional Veto power that precedes the TPP unless contracted out in the leaked document and it is not. Su USA has Veto 9 others do not but have no defence to USA International Law Rights in those matters.
“The leaked text provides stark warnings about the dangers of ‘trade’ negotiations occurring without press, public or policymaker oversight. It reveals that TPP negotiators already have agreed to many radical terms that would give foreign investors expansive new substantive and procedural rights and privileges not available to domestic firms under domestic law.”
Now having settled10 Nation TPP terms as (Any court, including any Tribunals & this special TTT Tribunal under UN-cover) must rely for enforcement on the UNSC and (USA will veto whatever they do not agree against themselves of any other Nation from any (or the other 9 members of TPP now proposed wording.
OK so what if the ((Any court, including any Tribunals & this special TTT Tribunal are under IBRD/World Bank) they still technically were once may still be under UNSC for enforcement, hence USA Veto. But in any case Wikipedia says “The World Bank requires sovereign immunity from countries it deals with. Sovereign immunity waives a holder from all legal liability for their actions. It is proposed that this immunity from responsibility is a “shield which [The World Bank] wants to resort to, for escaping accountability and security by the people” aq cover they don’t yet have I believe anyhow “As the United States has veto power, it can prevent the World Bank from taking action against its interests.” They can veto any IBRD/WB/IMF/IFC., etc as they see fit to veto. Refer Wiki