By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. Originally published at at Down With Tyranny. GP article archive here.
Clinton: I have said that I will renegotiate NAFTA, so obviously, you’d have to say to Canada and Mexico that that’s exactly what we’re going to do. . . . Yes, I am serious. . . . I will say we will opt out of NAFTA unless we renegotiate it, and we renegotiate on terms that are favorable to all of America. . . .
The big news is Bernie Sanders’ announcement that as president he will reject TPP, the “job-killing trade deal” that Barack Obama, many Republicans and the money wing of the Democratic Party is so eager to see passed.
From a Sanders campaign press release:
Sanders Vows to Reject Job-Killing Trade Deal
As the Trans-Pacific Partnership trade pact was signed by the United States and 11 other countries, Bernie Sanders promised to “fundamentally rewrite our trade policies to benefit working families, not just the CEOs of large, multinational corporations.”
Sanders has opposed the Pacific trade deal, the North American Free Trade Agreement and permanent normal trade relations with China since day one. The North American Free Trade Agreement led to the loss of 700,000 jobs. The trade deal with China led to the loss of 3.2 million jobs. And since 2001, nearly 60,000 manufacturing plants have been shut down and 4.7 million jobs have been lost. …
“As your president, not only will I make sure that the TPP does not get implemented, I will not send any trade deal to Congress that will make it easier for corporations to outsource American jobs overseas,” Sanders said.
If I read this right, the following is true. If Sanders is president, TPP is dead, whether it passes Congress or not. Something to think about — and something for the signers of TPP to think about, especially those leaders who put their careers on the line with their own countries’ compromises. All for naught?
What About NAFTA? Can We Really “Get Out In Six Months”?
But there’s more than just the news of the potential death of TPP at the hand of a President Sanders. One obvious question is — What about Ms. Clinton? Will she make the same statement? If I were the Sanders campaign, I’d ask that again and again.
But there’s more. It turns out that according to Al Gore in his debate with Ross Perot, we can get out of NAFTA “in six months” if the president wants to. Let that sink in, in light of what Sanders just said. I’d be overjoyed if Sanders would confirm this and promise to do that as well.
But on the Clinton side, there were some very specific promises made in the 2008 campaign, and specifically during the February debate in Cleveland moderated by Tim Russert. Those promises are so specific that they should be revisited — and reverified. Another something that the Sanders camp could easily do.
Here’s what happened. During the debate in Cleveland, candidates Hillary Clinton and Barack Obama discussed what they would do to “fix” NAFTA. Here’s the relevant section from the transcript. Note the introduction and Al Gore’s comment. I’m trimming and emphasizing what I think is key in this. Ellipses and emphasis mine. Hyphens are part of the transcript:
MR. RUSSERT: I want to ask you both about NAFTA because the record, I think, is clear. … Senator Clinton. Senator Obama said that you did say in 2004 that on balance NAFTA has been good for New York and America. You did say that. … You said in ’96 it was proving its worth as free and fair trade. You said that — in 2000 — it was a good idea that took political courage. So your record is pretty clear.
Based on that, and which you’re now expressing your discomfort with it, in the debate that Al Gore had with Ross Perot, Al Gore said the following: “If you don’t like NAFTA and what it’s done, we can get out of it in six months.[“]
The president can say to Canada and Mexico, we are out. This has not been a good agreement.” Will U.S. president say we are out of NAFTA in six months?
SEN. CLINTON: I have said that I will renegotiate NAFTA, so obviously, you’d have to say to Canada and Mexico that that’s exactly what we’re going to do. …
MR. RUSSERT: Just because — maybe Clinton —
SEN. CLINTON: Yes, I am serious.
MR. RUSSERT: You will get out. You will notify Mexico and Canada, NAFTA is gone in six months.
SEN. CLINTON: No, I will say we will opt out of NAFTA unless we renegotiate it, and we renegotiate on terms that are favorable to all of America.
Then, after she pivots to Obama’s comments (fair enough in a debate), this:
SEN. CLINTON: … But let’s talk about what we’re going to do. It is not enough just to criticize NAFTA, which I have, and for some years now. I have put forward a very specific plan about what I would do, and it does include telling Canada and Mexico that we will opt out unless we renegotiate the core labor and environmental standards — not side agreements, but core agreements; that we will enhance the enforcement mechanism; and that we will have a very clear view of how we’re going to review NAFTA going forward to make sure it works, and we’re going to take out the ability of foreign companies to sue us because of what we do to protect our workers. …
MR. RUSSERT: But let me button this up. Absent the change that you’re suggesting, you are willing to opt out of NAFTA in six months?
SEN. CLINTON: I’m confident that as president, when I say we will opt out unless we renegotiate, we will be able to renegotiate.
This is an amazing exchange. You may want to read it a second time, just to be sure you read it right.
“Opting Out” of NAFTA
Two takeaways, I think, are apparent from this:
1. A president can opt out of NAFTA in six months, according to Al Gore, who really ought to know, since his administration negotiated it. Neither candidate in the above debate disputes that point, nor does the moderator.
2. This suggests obvious questions for Sanders and Clinton. Will you promise to opt out of NAFTA as soon as you take office? Or barring that, will you threaten to opt out to force renegotiation?
In particular, for Clinton, will you do the following, as promised?
- “renegotiate the core labor and environmental standards — not side agreements, but core agreements,” and
- “take out the ability of foreign companies to sue us.”
The second is a reference to the ISDS, or Investor-State Dispute Settlement clause, the “corporations can sue sovereign nations” provision that has people like Elizabeth Warren so exercised (see video below at about 3:15).
We’re well beyond generalities and vague beliefs with this. There’s plenty to get specific about. I urge the Clinton campaign to take up the challenge and affirm that she stands side by side with Sanders — for the American people and against TPP and NAFTA. After all, we know from the 2008 debate and her own recent comments that she understands these deals the same way Sanders does. The question is, what will she actually do?
The head of the U.S. Chamber of Commerce has publicly said he expects a President Clinton to support TPP. This is her opportunity to prove him completely wrong. I hope she takes it.
Economic Justice and Racial Justice
One final word. A very large percentage of our racial justice problems starts with wealth and income inequality. To take an obvious example, you’d have to be blind not to see that racism helped create the Flint crisis. And you’d have to be blind not to see as well that the devastation of largely minority cities like Flint and Detroit have their roots in “job-killing trade deals” like NAFTA.
Put simply, without GATT, the WTO, NAFTA and similar agreements, would the American auto industry and all of its supply chain and service companies have been decimated and shipped to Asia? U.S. automakers have made a number of mistakes, but nothing was as devastating as the financial attraction to CEOs in all industries of doing almost all manufacturing abroad. Flint and Detroit lived by manufacturing, and were killed as viable cities by the loss of it.
I understand there will be a debate in Michigan, in particular, in Flint. If so, I’m glad to hear that. I hope, at some point in the discussion, NAFTA is mentioned as one of the great causes of the devastation that state has suffered.
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I would argue that you don’t want to eliminate the ISDS. You want to make it better, and you can in a few simple steps:
* Make the hearings public, and by public, I mean streamed online with transcripts, with all participants being outed.
* Require a proving of intent to discriminate on the basis of nationality of the litigant.
* Require a proving that there is no public interest being served.
* Require evidence from the public to be heard.
With those three items, the ISDS is not bad.
You don’t appear to have a good grip on how these panels work. Your view is naive and uninformed.
I suggest you read this post. Your remedies won’t being to address the issues presented in it. The “not bound by precedent” and “no appeal” means these are kangaroo courts. And it’s a small set of arbitrators how make these rulings and they are the ones who lodge the cases, which means they have a big financial incentive to give pro-investor rulings.
This is an excerpt from the post, which I suggest you read in full:
http://www.nakedcapitalism.com/2015/03/the-administrations-dishonest-response-to-elizabeth-warrens-attack-on-secret-investor-arbitration-panels-in-trade-deals.html
ISDS is not the problem with the new trade agreements. ISDS has been around as long as the early bilateral trade agreements, and many many countries favor it as the best mechanism available for dispute settlement.
Is the problem that there is no appeal? Then who would be the appeal body, and how long would it take to resolve these disputes? And how much would it cost?
Is the problem that the tribunals are really kangaroo courts stacked with corporate lawyers? In fact university academics from many countries are frequently appointed. And the data show that these so called kangaroo courts are not simply rubber stamping massive awards against states. States actually have a very high success rate, and win a significant percentage of cases on procedural grounds (including the poster child tobacco case from Australia) even before the tribunals consider the merits.
Is the problem a lack of stare decisis? Talk about a US-centric view of the world… Civil law countries have no formal doctrine of stare decisis, but well reasoned precedents are nevertheless respected and followed. The same is true with the growing body of international law. No formal binding effect, but there is still a discernible trend that carries significant precedential weight.
What is the alternative to ISDS? Litigating in the national courts? If you are quick to say YES, then question why we should bother to have trade agreements in the first place. And perhaps we should not! But IF you are going to have nation-to-nation trade agreements, it should be obvious that there will be disputes, and those disputes cannot and should not be finally resolved in the courts of either signing party.
I fully oppose the new multilateral trade agreements, but not on ISDS grounds. The problem is the scope of what now constitutes “trade”. Intellectual property rights should not be globalized. “Trade” in services should not be globalized. There should be no globalized standard that precludes countries from adopting the precautionary principle as part of its domestic regulations. But once you put all of that in your treaty, the horse has already left the stable when you start complaining about the ISDS barn door.
ISDS is not the problem. If that was the problem, one would expect other countries (again, get out of the US-centric view that the US invented the process and the procedure is unique to US trade deals!) to have developed a better solution by now.
Honestly, you are virtually making your remarks up out of whole cloth. Your claims have been rebutted extensively by Public Citizen, and I’ve only featured a very small portion of their work on my site.
The idea that national laws can be trampled by investors for the loss of only theoretical future profits is complete garbage. Investors take risks. One of them is the risk of adverse regulatory changes and court rulings. The idea that their risk capital has a privileged status over the rule of law and over the rights of governments to set workplace standards, environmental and consumer safety laws, anti-discrimination laws, and minimum wages (for starters) is simply not defensible on its face. There’s no justification for the implicit position in ISDS, that foreign investors deserve better protection than domestic ones. That argument was used in connection with trade deals like CAFTA because emerging economy courts were allegedly cronyistic. The record of suits shows that ISDS suits have overwhelmingly been used to thwart environmental, labor, and consumer safety laws. And you can’t argue that the advanced economies that are the signatories to the TTIP and the TTP deserve to be treated as if they have banana republic courts.
Moreover, as you ought to know, the ISDS provisions in the TTP and TTIP are far more investors friendly the ones in CAFTA. So you are flat out lying when you act as if the TTP and TTIP are nothing new.
Only under the new regime, investors get paid not for taking risk, but simply for having access to money…
Additional Treaty Law Background
http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html
http://www.npr.org/templates/story/story.php?storyId=89100044
Any treaty, law, or constitional law can be amended or struck down. Other parties may attempt to apply penalties, then the question is of power.
Most WTO dispute resolution mechanisms involve government members, rather than direct corporate/NGO action, this in theory gives Civil Society a voice in how disputes are resolved through the pressures they bring on government members. Removing government bodies from dispute resolution removes this mechanism, and makes unilateral actions bolder as a narrow corporate interest is less encumbered with tit-for-tat calculations when the costs of any retaliatory move will be born by all of civil society.
Narrow corporate interests never balance well against the interest of any civil society, which is why fascism (the label Mussolini applied to his form of government corporatism) didn’t work out well over the (fairly short) long run.
It is self-evident we can simply quit ANY of our trade agreements. They are not laws, they are definitely NOT treaties which have solid constitutional force of law (they are the “law of the land”). These are mere agreements. Being mere agreements, of course we can simply quit them as we wish. Presidents and Congress don’t want us all to realize this is so, they WANT us to think these things are writ in stone and immutable, but they are not. They are totally stoppable and MUST be stopped. We DO need a law, perhaps even a Constitutional Amendment (tacked onto the amendment to overturn Citizen’s United) that bars ISDS from ever being placed in ANY trade agreement or treaty in the future. There is no valid reason whatsoever for corporations to side-step our courts and juries to try and overturn duly passed laws and regulations.
I believe they are treaties. There’s an interesting legal precedent for a President unilaterally, that is, without Senate approval, withdrawing from a treaty. This was when George W. Bush unilaterally withdrew us from the Anti-Ballistic Missile Treaty. It was never tested in the courts, however. The constitution clearly gives the president the authority to negotiate treaties, and the Senate the ability to confirm or reject them, but it says nothing about withdrawing from treaties. Of course when Bush withdrew from the ABM treaty no one cared to mount a legal challenge, but if a President Sanders were to come into office on day 1 and announce the withdrawal from NAFTA, some may raise legal objections.
What Gore said, however, seems to imply that there is a specific clause within the NAFTA treaty itself that allows for withdrawal.
If one of the trade agreements is ratified by 2/3 of the Senators present during the vote, then it has the status of a treaty. But NAFTA was ratified by simple majority of both the House and the Senate (and the majority in the Senate was less than two thirds). So NAFTA is not a treaty, but it is a law.
I’m assuming this was an up or down Fast-Track vote. It seems like this ratifies the treaty, but does that make the treaty domestic law? I’m not that knowledgeable in this area, but I don’t think that international treaties bind the U.S. Congress. That is, Congress would have to pass the treaty provisions into law to make them binding.
Constitutionally, a treaty is the law of the land, but if a treaty requires appropriation of funds, I don’t see how that part of it can be binding unless the House of Representatives is involved.
It does not ratify the treaty, but makes it law.
So, backwards.
(At least, this is the view of constitutional scholars that I’ve read as the Constitution is pretty clear on the issue. Congress doesn’t get to change the Constitution without the states, so even if they wanted to “override” it with a vote they can’t by law, let alone with only a majority of the Senate. Apparently actually ratifying a treaty–much like actually declaring a war–is out of vogue, though that hasn’t slowed down the treaties or wars. One could even describe it as a blatant disregard for the law of the land, if one was inclined.)
NAFTA withdrawal: article 2205. Six months notice all that’s required.
http://sice.oas.org/trade/nafta/chap-22.asp#A2205
Article 2205: Withdrawal
A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.
Article 2206: Authentic Texts
The English, French and Spanish texts of this Agreement are equally authentic.
I’d add that I imagine that the original negotiators were so sold on the benefits of NAFTA that they didn’t bother making withdrawal difficult.
this was right after the end of the Cold War/the “end of history”/the triumph of the West, etc.
And I would like to add that every Democrat ever promises to renegotiate/withdraw from NAFTA whenever they have to campaign in the Midwest, and nothing has changed in the slightest.
Be wary of Democrats talking trade deals. (Even Sanders.)
The last one who promised to rework NAFTA is now signing us up for the TPP.
Racism!!! It seems that this term has become the largest boogeyman in the room. Even with a “black” president now this concept never runs out of steam.
Racism exists??? Sure, no doubt.
How about power, such as the Powerful do what they wish, the Weak suffer what they must? This is timeless, and colorless, and universal. The problems with Flint is that they have no significant power, so they suffer. Suffer what? Whatever they must until they get some power.
Are the communities in West Virginia suffering (from the effects of coal mining, or more particularly mountaintop removal) because of racism?
They are NOT treaties. Treaties actually take a lot more work to pass, are much harder to pass. I thought they were treaties too but was made aware of the fact that they are NOT. It’s part of why they are called “Agreements” and never ever referred to as “treaties”.
NOT a “treaty” within the sense of the US Constitution, that “quaint document…” https://en.wikipedia.org/wiki/Treaty_Clause
I seem to recall that the Iran nuclear deal not following the treaty process meant that any future president could pull the plug on it. Now when has ANY trade deal EVER followed the treaty process?
How can the “fast track” process by one or a handfull of votes ever result in a treaty? You would think that Obama, the constitutional law professor (who also promised to renegotiate NAFTA) would know the answer to the $64K question.
TPP is unconstitutional and unenforceable. Just need to put it into court: http://www.theatlantic.com/politics/archive/2015/06/tpp-isds-constitution/396389/
Not entirely relevant, because it’s Bill Clinton, but interesting. My Dad went to Taunton Mass. for a 2010 rally for Barney Frank and Bill Clinton spoke. Here’s a link to the Taunton Gazette (http://www.tauntongazette.com/article/20100928/NEWS/309289339) story on the rally.
While not reported here, Bill Clinton said NAFTA was something he would take back. My Dad still gets wicked pissed off, “Not only are the horses out of the barn, Bill, they’re running on another farm!”
TPP like NAFTA has a special status; it is easy to get out of during a presidential election cycle but becomes immutable after the election and and remains so until the next one.
+1
Reality.
I have been meeting with legislative assistants for Oregon politicians who caved on fast track, swooshed by Obama to support it last summer.
Fast track’s simple majority, up/down vote on the treaty doesn’t have any wiggle room for filibuster or amendments. So is the central question of this post whether the Chief Executive of this country has the capacity to negotiate the TPP should Congress pass it? And if so, for how long?
Access to medicines is a hot button issue with the likes of Shkreli and Sovaldi painting a picture that PhRMA IP sold on the not-so-free market can bankrupt governments. Yet I am having difficulty convincing legislative staff that ISDS could hold us hostage–esp. since the U.S. makes no attempt to negotiate drug prices at the national level. PhRMA knows that discounts and prices based on the average wholesale price can easily be distorted by raising the price for private insurance companies–which decrease access through tiered pricing.
How does the annex box the U.S. in a corner when it comes to price negotiations?
https://www.citizen.org/documents/tpp-transparency-annex-burning-questions-november-2015.pdf
Public Citizen points out, “the ambiguous language of the TPP leaves our domestic healthcare policies vulnerable to attack by drug and device manufacturers.” And of course, Medicare for All would not benefit from savings if these prices cannot be negotiated.
The aide’s reasonable question is why any country would agree to the TPP if their capacity to negotiate prices is hindered by the annex and threat of the ISDS.
The answer is embedded in Hillary’s response at 3:30. NAFTA has not worked in Ohio and upstate New York. In other words, financial epicenters where plutocrats converge.
And it is the devil in the details for a country like Japan which joined TPP negotiations in 2013 in large part because of its interest in cheaper U.S. gas supplies.
Yet… Congress is pissed off about how pharmaceutical companies are literally getting away with murder.
Any thoughts on how best to frame the potential damage of the TPP and pharmaceutical costs?
I meant to say… In other words, financial epicenters where plutocrats DON’T converge.
It’s frustrating that my comment to a comment that is awaiting moderation gets published before the first one.
So here is the first one. Minus a link–if that is why it is being moderated.
I have been meeting with legislative assistants for Oregon politicians who caved on fast track, swooshed by Obama to support it last summer.
Fast track’s simple majority, up/down vote on the treaty doesn’t have any wiggle room for filibuster or amendments. So is the central question of this post whether the Chief Executive of this country has the capacity to negotiate the TPP should Congress pass it? And if so, for how long?
Access to medicines is a hot button issue with the likes of Shkreli and Sovaldi painting a picture that PhRMA IP sold on the not-so-free market can bankrupt governments. Yet I am having difficulty convincing legislative staff that ISDS could hold us hostage–esp. since the U.S. makes no attempt to negotiate drug prices at the national level. PhRMA knows that discounts and prices based on the average wholesale price can easily be distorted by raising the price for private insurance companies–which decrease access through tiered pricing.
How does the annex box the U.S. in a corner when it comes to price negotiations? Link: Google “TPP Text Analysis: Three Burning Questions about the TPP”
Public Citizen points out, “the ambiguous language of the TPP leaves our domestic healthcare policies vulnerable to attack by drug and device manufacturers.” And of course, Medicare for All would not benefit from savings if these prices cannot be negotiated.
The aide’s reasonable question is why any country would agree to the TPP if their capacity to negotiate prices is hindered by the annex and threat of the ISDS.
The answer is embedded in Hillary’s response at 3:30. NAFTA has not worked in Ohio and upstate New York. In other words, financial epicenters where don’t plutocrats don’t converge.
And it is the devil in the details for a country like Japan which joined TPP negotiations in 2013 in large part because of its interest in cheaper U.S. gas supplies.
Yet… Congress is pissed off about how pharmaceutical companies are literally getting away with murder.
Any thoughts on how best to frame the potential damage of the TPP and pharmaceutical costs?
Lots of issues in there. One note: “the US” does indeed “negotiate drug prices with Big Pharma.” The VA is a “yoooge” buyer of medications and they do not pay anything like what the ordinary mope pays over the counter or what the private ACA and other UNsurance (UNsure what is covered, UNsure whether your meds you need will be “on the formulary” next week, UNsure whether your “provider” will be kicked off the Most Favored list or just stopped practicing or will not “take” your ObamUNsurance) companies pay to the pharmacies who take their cut too…
Wish you well trying to get the schmucks Oregun sent to the Legislature to “represent them.” Who “them” is, is an interesting question in itself. I think $$$$$ have something to do with it…
Unsure – they take the certainty out of your gambling, making it life-like, realistic.
Life is a big gamble, so should be your health care.
So, now, I am one of the unsures.
Medicaid and the VA does negotiate pharma pricing. Medicare is still lining up to do so. Once Medicare does than e should see a substantial drop for commercial insurance providers. To say the US negotiates pharma pricing is not exactly true.
VA also has its formulary and does not provide everything which is the way Medicare is heading. The priority will be better outcomes for the money spent.
Comment moderation is performed largely by algorithms, of necessity. Deal.
The answer to your representative’s staffer is that it’s not “countries” that make decisions, it’s people. Pushing for the deal is in the interests of those individuals who are negotiating the agreement and the people who influence them, not for “the country” in some general sense.
This is one instance where pointing to public choice theory might actually be useful.
I’m a Bernie supporter, financially in a small way and philosophically, but I need help in understanding what the world would be like if we did not have the TRADE parts of NAFTA and other similar treaties. Exactly what part do we want to re-negotiate?
I get that trade is two-sided and these treaties have been sold on the notion that the U.S. will increase its exports, ignoring the reality that those countries with lower labor costs will increase their exports to the U.S. more, leading to our trade imbalance. But with this trade imbalance we are helping raise the standard of living of poorer parts of the world.
I have not forgotten Ross Perot’s remark during his candidacy that he had asked a friend about the drag on U.S. income and his friend said that it would continue that way until the salaries of the rest of the world caught up with ours. So China is “catching up” and as a result I see more clothes come from Bangladesh and Vietnam. What would the world we live in be like if every hourly paid employee made the same wage for the same job?
NAFTA is the reason Congress voted to remove the country of origin labeling from imported food. So instead of amending the treaty or getting rid of the parts that adversely affect Americans, they caved in to the WTO and the lawsuit brought by Mexican fisheries who don’t want to send us dolphin-free tuna. Now we’re about to be sued by the folks who wanted to bring us the Keystone XL pipeline, which Americans don’t want either. I suppose a world without NAFTA would mean we’d still have factories and jobs and I could eat something safe that wasn’t grown locally.
At this point, even *Pat Buchanan* is making sense.
We are a country, not a charity. If you believe Americans have a moral obligation to go jobless and drink lead so that Chinese and Bangladeshis can transfer our jobs to their countries, then you are morally obliged to give up your job, move to Flint, and drink lead to show us how its done. Until you can offer visible proof that the analog meatspace person which sends the comment-writer here writing this comment is living on a street corner in Flint and drinking lead to show your personal commitment to making Bangladesh richer by making America poorer, you have no standing to comment on this or any other trade related matter.
Free Trade is the new Slavery. Protectionism is the new Abolition. Morally radioactive human waste filth which supports any kind of Free Trade Slavery of any sort whatsoever deserves to eat lead and die screaming in pain.
All so much rhetoric from a candidate. As has been bantered about for years, what solution does the public have to buyers remorse concerning non-performance from a politician?
“You have choice. You can vote every four years.” ~ VP Cheney (Can’t find a citation! Has the Net been scrubbed?)
Once in a while, we get a special politician….maybe.
or alternatively every town in America could have a new dealership – a car printing company; and a separate engine company that builds sturdy little electric engines and etc. etc. Decentralization.
I believe I read that no one country can get out of the TPP without all countries in the treaty getting out of it. It’s as close to locked in as you can get. I’ll try to find a link for it.
I’m sure I read that no nation can pull out of the TPP unless all nations decide to. So far, all I’m finding is that not 1 word of the TPP can be changed without all member nations agreeing to it. Considering the ISDS, why would we think this is a Constitutional agreement with an opt out clause?
What is New Zealand, Japan, Vietnam, etc, going to do? Invade the US? Send their navies to enforce TPP? They can’t do jack squat and we can get out of it by saying we are out of it. Done. Unenforceable. Unconstitutional.
We’re still bound by the terms of it and there is no opt-out for free clause. The ISDS is not American and they could legally fine us the entire gross domestic product if we opted out and we’d be legally bound to pay for it. It’s a contract. If HRC gets in do you think if she signs it into “law” that we can just say we don’t want to play anymore? Think of all the ways this benefits corporations and hurts the 99% and then think of our bought Congress and in many ways, the bought SCOTUS.
Someone please prove me wrong on my take on this.
Maybe the reason we’ve all been so lazy about what is going on around us is that we think we can always opt of bad deals. When’s the last time that happened?
Yah, Ted, “it’s a contract,” and the post-supra-national corporations that plan to rule the rest of us via the strange chain of concession of sovereignty from individual and family and community to state and federal and then Trade Troika rulership also “enter into contracts and agreements” that they routinely and happily ignore, violate and walk away from. The US rulers have walked away from actual treaties, like the ABM treaty, and our rulers laugh at the notion of “international law.” Contracts work only where there is good faith and fair dealings on both sides, and where there is some means of enforcement of the terms. One wonders what the US Imperial military would do if the Trade Troika in an ISDS proceeding ordered that military to enforce a ruling saying your “government” owed a couple of trillion to some corporate interest, for saying Fokk You to NAFTA and the presumed TPPTTIPTISA New World Order…
How much have governments paid over the years since NAFTA for their blocking of aspects of the “treaty”? Why don’t we have COOL anymore? Why are the owners of the KXL suing American citizens for $15 Billion? What happened to blank cigarette packs in Australia? How much did Germany pay for getting rid of all it’s nuclear power plants? These countries are treating it as if it were law. It’s tied to everyday trade, not your everyday ballistic missile. It’s bad and don’t think Congress won’t think they have to pay the fines.
The way to look at this is through a framework of power dynamics. Trade agreements such as NAFTA and TPP shift power from people/governments to large multinational corporations (MNC’s.) As long as the MNC’s control the government, there won’t be any hope of getting out of TPP once it is approved.
All of the levers of government are currently controlled by MNC’s. Even assuming a Sanders presidency, he would face limits to his power such as career bureaucrats embedded in the US trade office and Department of Commerce. If he had enough of an LBJ personality type, he could still do some serious damage, maybe by appointing cabinet level heads willing to break some eggs and take on their own troops. Thinking more like Nixon, he could sic the FBI and DOJ on some of the CEO’s of the corporations pushing ISDS. That would of course risk the wrath of Congress who are themselves captured.
The key question that I don’t have the answer to is what is the enforcement mechanism for the TPP. I am assuming that it is entirely monetary/punitive – any country can defy the agreement but faces suits for damages in ISDS court jurisdiction. Where the penalty fines come from is another question – only the US House can appropriate funds, that is clear.
It’s still unenforceable. Fine all you want and you ignore it. There is zero force behind the agreement and no body on earth can force the US (or New Zealand or Australia) to pay anything. They have to agree to do so and if they don’t…oh well. The US is the BIG pig in the room with these agreements and if we opt out, it’s over and done with.
In any case, TPP IS unconstitutional and cannot be enforced.
“In any case, TPP IS unconstitutional and cannot be enforced.”
And yet they’re pushing it through Congress – our defenders of the Constitution who seem to have few qualms about it.
It sure is unenforceable. Doesn’t mean the oligarchs’ martinets, as they the government are bound by the agreement, won’t fall over themselves to create enforceable law after it, for which they are not answerable to anyone save the SCOTUS of their peers.
The U.S. has real weapons of mass destruction, so they would be justified if they invaded. After all, the U.S. invades countries with imaginary weapons of mass destruction.
The Geneva Conventions, which are treaties, didn’t slow us down at all.
We just changed the name of torture to enhanced interrogation and never looked back.
We could just think of another word for “trade” and we’re out.
Or we could just fast “track” a redefinition of “north america” Sykes-Picot style.
Exactly. We’re the biggest kids in the school. We made all the little kids (including the little kids on our own block) give their lunch money to the MIC, so if we want to stop collecting the little kid’s lunch money for “our” billionaires, we can stop (although “our” billionaires dont want us to stop).
They don’t need armies, they can use financial means, like not using the dollar as their reserve currency anymore. That would hurt us more than an invasion. There are other ways too I’m sure.
Doing it low-key, they have the freedom not to use our money…the citizens of this country don’t.
We do our patriotic best to give value to our money, while these foreigners can subtract it.
Or is it like all the bulbs on the Christmas tree wired in series. If one is pulled they all go out? Interconnectedness is what TPP is all about – global economic integration- a house of cards that cannot function without all its parts. How would the addition of other countrie(s) to the TPP work? Would all the members have to agree? Can any country be forced to join against its will?
Interconnectedness means more tolerance, more getting along, but also more alike thinking, when one popular idea can be repeated often enough.
Interconnectedness means more putting up with more of everybody elses crap and more risk of being taken down by everybody elses screw ups. Does the addition/subtract of a member of the TPP mean that the entire 5K pages of legalese goes into the circular file and reboot cold start from zero?
I just got a reply from citizen.org about whether we’re locked in once we join the TPP or not :
Article 30.6: Withdrawal
1.Any Party may withdraw from this Agreement by providing written notice of
withdrawal to the Depositary. A withdrawing Party shall simultaneously
notify the other Parties of its withdrawal through the contact points.
2. A withdrawal shall take effect six months after a Party provides written notice
to the Depositary under par agraph 1, unless the Parties agree on a different period. If a Party
withdraws, this Agreement shall remain in force for the remaining Parties
My sincere apologizes to those that were correct on this. It’s very good to know but I still wonder about the entanglements that will occur as time goes on and how we, if we withdraw, will get out of those.
Sitting in my Constitutional Law class and we’re looking at this issue (briefly) in Goldwater v. Carter (1979). The court (Renquist) said this was a foreign policy question for the president alone. I guess that the remedy for Congress would be to put the treaty provisions into force by passing laws. But barring this, it seems like the President could pull out unilaterally.
Just wanted to clarify that this was a plurality opinion, not a majority opinion about being able to pull out from treaties. So this isn’t binding or definitive.
We know with certainty that if any future president were to reject NAFTA, it would be litigated all the way to the Supreme Court. It is nice that Rehnquist was on our side, but he is no longer on the court. Constitutional or not, we have no idea how this court would rule since regularly they do not let the Constitution or precedents block the result they want.
“Laws are for the little people.” What monopoly on force backs up the Supremes, any more? what a delicious irony, that the kleptocorporates would try to hammer down their absolute “rights” to EVERYTHING, free from any “inconvenient regulations and laws,” by appealing to the courts of a nation-state the sovereign powers of which they are working so diligently and covertly and in-your-facedly to subsume into their New Flat World Order…
The “conservative (sic) balls and strikes/strikes to the balls majority” I guess is relying on Corporations to do the enforcement, kind of like what was laid out in that earlier NC 6-part series of posts, “Journey Into a Libertarian Future,” http://www.nakedcapitalism.com/2011/11/journey-into-a-libertarian-future-part-i-%E2%80%93the-vision.html Used to be that at least a plurality of The People believed in the “rule of law” the way it was packaged and sold. As a shield against Ragnarok, I guess. Any more? Maybe not so much. The rulers have decimated the former suspension of disbelief among the mope-ery, apparently believing that Skynet and FIRE will confirm them in absolute eternal power, and to me it looks like Ragnarok is maybe one of the likely future scenarios…
Just look at the fines already paid around the world and the ones coming against the US taxpayer for the KXL for instance. What makes you think Congress won’t pay when it’s not coming out of their own pockets? It’s so corrupt – it just might work, and that is my fear.
As Thomas Jefferson said, from time to time the tree of liberty must be watered with the blood of patriots and tyrants alike. Let’s not ever forget that the ultimate remedy of the people for too many laws and too many theories and too many obligations is often some kind of spasmodic and violent calamity where everything is wiped away in one clean sweep.
I wonder at people who still talk about these laws and codes and agreements as if they have some reality in and of themselves, as if they aren’t just a game of semantics that cloistered intellectuals are playing with each other. Every day the mood of the country turns more towards violence and dissolution, and when the mood takes the People, nothing–no law–no writ–no God-given commandment will have any force whatsoever. Whatever agreements we have now will be broken and dispensed with as needed. That’s all.
Aux Armes!
Seriously, how I tire of people talking about globalization as if it were something which just happened to us, like the weather. As if it were the inexorable march of history. This was a set of policy decisions, and they can be undone with the stoke of a pen. Or the stroke of a sword, if necessary.
When it comes to the favor of the common person they all talk the talk.
But they never do the right thing. Witness Ford Motors today. Their all scum bags. All of them.
ZIRP->MOAR CAPEX->MOAR YOBS!
What makes anyone think that :-
A) what candidates say will be anything other than electioneering
B) promises made will be kept
The should be obvious to all that what we are witnessing is a political crises alongside systemic and endemic corruption.
“Put simply, without GATT, the WTO, NAFTA and similar agreements, would the American auto industry and all of its supply chain and service companies have been decimated and shipped to Asia?” The answer I have to give is, “Yes, I think so.” You need to go back and read David Halberstam massive “The Reckoning,” in which he describes how the Japanese auto industry rose from the ashes of post-war Japan and became able to produce better cars than Detroit, and cheaper. It was published in 1986 and I remember well that for nearly twenty years before that there was an undercurrent of dissatisfaction among Americans who followed the auto industry. The people who ran the American auto companies at the time, not only the CEOs, but the whole executive echelons were incredibly arrogant and unresponsive to criticism. I think simple competition (which you wouldn’t expect to find in an industry with such high barriers to entry) can explain the subsequent collapse of the American auto industry. I think NAFTA must be renegotiated, and TPP must be stopped, but the auto industry is not a poster child of abuse of “free trade agreements.”
Japan and Germany competed on quality. But Mexico, China, etc compete on slavery, freedom to pollute, etc. So shipping the American car industry into exile in Mexico and China where cars are made no better than here is a poster child for Forced Free Trade Slavery. I am more tempted to vote for Trump all the time just to see if we can get the sort of megadeath riot civil war which might be the only way left to torture the system and its owners into permitting some change.