Now that we can see the TPP text, we know why it’s been secret

The text of the Trans-Pacific Partnership can now be viewed by the public, thanks to the New Zealand government, and it is every bit as bad as activists have been warning.

The TPP, if enacted, promises a race to the bottom: An acceleration of jobs to the countries with the lowest wages, the right of multi-national corporations to veto any law or regulation their executives do not like, the end of your right to know what is in your food, higher prices for medicines, and the subordination of Internet privacy to corporate interests. There is a reason it has been negotiated in secret, with only corporate executives and industry lobbyists consulted and allowed to see the text as it took shape.

The threat from the TPP extends beyond the 12 negotiating countries, however — the TPP is intended to be a “docking” agreement whereby other countries can join at any time, provided they accept the text as it has been previously negotiated. Moreover, the TPP is a model for two other deals: the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union, and the Trade In Services Agreement (TISA), an even more secret “free trade” deal being negotiated among 50 countries that would eliminate any controls on the financial industry.

Activists celebrate after the New York City Council declares the city a "TPP-free zone."

Activists celebrate after the New York City Council declares the city a “TPP-free zone.”

The elimination of protections is precisely what U.S. multi-national corporations intend for Europe by replicating the terms of the TPP in the TTIP, a process made easier by the anti-democratic nature of the European Commission, which is negotiating for European governments. Already, higher Canadian standards in health, the environment and consumer protections are under sustained assault under the North American Free Trade Agreement. The TPP is an unprecedented corporate giveaway, going well beyond even NAFTA, which has hurt working people and farmers in Canada, the U.S. and Mexico.

More than 300,000 manufacturing jobs in the U.S. alone may be eliminated by the passage of the TPP. The Wall Street Journal, in an article celebrating victory for multi-national capital, nonetheless estimates that losses in manufacturing and automobiles would add an estimated US$56 billion to the national trade deficit. The international president of United Steelworkers, Leo Gerard, using a U.S. Department of Commerce estimate that 6,000 jobs are lost for every $1 billion of added trade deficit, calculates that would lead to the loss of 330,000 manufacturing jobs.*

Bad news on both sides of the Pacific

The Canadian union Unifor estimates that 20,000 Canadian jobs in auto manufacturing alone are at risk from TPP. Canada will also be forced to open its dairy and poultry industries. There is fear that Canadian dairy farming may collapse and the outgoing Harper régime promised $4.3 billion to compensate farmers from expected losses.

The Australian Fair Trade and Investment Network, while acknowledging that community pressure forced governments to resist some of the most extreme measures, worries that the U.S. concession to Australia that the extension of monopolies on biological medications will be five years rather than eight will prove ephemeral. The group reports that the text “refers to eight years and to ‘other measures’ which would ‘deliver a comparable market outcome,’ and to a future review. It is not clear how this will be applied in Australia.” The U.S. will retain its 12-year exclusivity period, while other countries can choose five or eight years, so there will likely be continued pressure from pharmaceutical companies for all to adopt a longer period.

A product would not have to be produced locally to qualify as a locally made product. As much as two-thirds of an automobile’s components could be manufactured in China, for example, and it would still qualify for preferential treatment if one-third is made in any TPP signatory country. But “buy local” rules would become illegal, including for government procurement.

There are no enforceable provisions for environmental, health, safety or labor protection. Public Citizen, in its analysis of the TPP text, reports:

“The language touted as an ‘exception’ to defend countries’ health, environmental and other public-interest safeguards from TPP challenges is nothing more than a carbon copy of past U.S. free trade language that ‘reads in’ to the TPP several World Trade Organization (WTO) provisions that have already been proven ineffective in more than 97 percent of its attempted uses in the past 20 years to defend policies challenged at the WTO. In two decades of WTO rulings, [the articles purporting to protect laws necessary to protect human, animal or plant life or health] have only been successfully employed to actually defend a challenged measure in one of 44 attempts.”

The ratio under TPP is likely to be even lower as the TPP promises the most extreme rules in favor of corporations of any “free trade” deal. Even the extremely weak “exception” does not apply to the entire investment chapter of the TPP. Precedent here is bad — as the secret tribunals that decide cases brought by corporations against governments hand down their one-sided agreements, these decisions become a floor for the next decision, pushing the interpretation further in favor of corporate domination.

Democracy canceled by corporate power

Under the TPP, corporations are elevated to the level of national governments and, in practice, could be said to be elevated above governments. The TPP text mandates that “customary international law” be applied for the benefit of an “investor” — that law is not found in any statutes, but rather has been established by previous decisions of secret tribunals interpreting NAFTA and other “free trade” deals. Worse, the TPP places essentially no limits on who qualifies as an “investor” eligible to be compensated for potential profits that may not materialize due to a regulation or safety rule.

Although the rules codifying benefits for multi-national capital are written in firm language, there is no such language for protections. The Sierra Club reports that the TPP mandates that only one of the seven environmental agreements found in previous “free trade” deals be fulfilled, an alarming development as previous environmental requirements have been routinely ignored. Among the many deficiencies in the TPP, the Sierra Club said:

“Rather than prohibiting trade in illegally taken timber and wildlife — major issues in TPP countries like Peru and Vietnam — the TPP only asks countries ‘to combat’ such trade. To comply, the text only requires weak measures, such as ‘exchanging information and experiences,’ while stronger measures like sanctions are listed as options. … Rather than obligating countries to abide by [rules to] prevent illegally caught fish from entering international trade, the TPP merely calls on countries to ‘endeavor not to undermine’ [fisheries-management protocols] — a non-binding provision.”

The TPP fails to even mention the words “climate change”! More than 9,000 corporations would be newly empowered to sue governments because a law or regulation hurt their profits. Worse, the TPP would mandate that the U.S. Department of Energy automatically approve all exports of liquified natural gas to all TPP countries. This would guarantee more fracking; already under NAFTA the province of Québec has been sued in an effort to overturn its fracking moratorium. That may only be the beginning, according to

“The agreement would give fossil fuel companies the extraordinary ability to sue local governments that try and keep fossil fuels in the ground. If a province puts a moratorium on fracking, corporations can sue; if a community tries to stop a coal mine, corporations can overrule them. In short, these rules undermine countries’ ability to do what scientists say is the single most important thing we can do to combat the climate crisis: keep fossil fuels in the ground.”

You’ll have no right know what you eat

Food safety would fare no better. The TPP’s race to the bottom would require that the lowest inspection standards of any country be applied, forcing a lowering of other countries’ standards, and end protections against untested genetically modified organisms (GMOs) in your food. Food & Water Watch reports:

“The TPP includes a new provision designed to second-guess the government inspectors who monitor food imports. … The food and agribusiness industry demanded — and received — stronger [rules] that make it harder to defend domestic food safety standards from international trade disputes. … Agribusiness and biotech seed companies can now more easily use trade rules to challenge countries that ban GMO imports, test for GMO contamination, do not promptly approve new GMO crops or even require GMO labeling. The TPP gives the food industry a powerful new weapon to wield against the nationwide movement to label GMO foods. The language in the TPP is more powerful and expansive than other trade deals that have already been used to weaken or eliminate dolphin safe tuna and country of origin labels.”

Health care will also come under direct assault, forcing other countries more toward the U.S. system, under which health care is a privilege for those who can afford it rather than a human right. Government programs to hold down the cost of medications are targeted for elimination in the TPP. Doctors Without Borders/Médecins Sans Frontières, which has been sounding the alarm for years, said:

“TPP countries have agreed to United States government and multinational drug company demands that will raise the price of medicines for millions by unnecessarily extending monopolies and further delaying price-lowering generic competition. … [T]he TPP will still go down in history as the worst trade agreement for access to medicines in developing countries, which will be forced to change their laws to incorporate abusive intellectual property protections for pharmaceutical companies. For example, the additional monopoly protection provided for biologic drugs will be a new regime for all TPP developing countries. These countries will pay a heavy price in the decades to come that will be measured in the impact it has on patients.”

The text of the TPP is subject to approval by legislative bodies in various countries, and while time is limited and the approval process is streamlined to facilitate approval in several of them, the Trans-Pacific Partnership can be defeated. This is not a national issue. Working people will be hurt everywhere, with jobs disappearing in developed countries and sweatshop misery for other countries — this is why multi-national capital, where ever it is based, is pushing for the TPP. If it is to be stopped, it will be through the combined activity of activists on both sides of the Pacific. We have no time to lose.

* This paragraph has been revised to better reflect the source of the job-loss estimate.

There is still time to defeat the Trans-Pacific Partnership

The task may be difficult but it is not impossible — there is still time to defeat the Trans-Pacific Partnership. Activists on both sides of the Pacific Ocean forced a couple of concessions in the final TPP text, agreed to earlier this week after years of negotiation, so we are not without hope.

More hard work by activists is the only power that can stop the TPP from becoming law in 12 countries. If we fail to stop it, the TPP promises to tighten further the dominance of the world’s biggest multi-national corporations with the implementation of nearly unlimited rights of corporations to overturn health, safety, labor and environmental laws through secret tribunals that bypass and override national legal systems.

Although the Obama administration, which had consistently pushed for the most draconian rules, yielded some ground on pharmaceutical-industry profiteering, the TPP is a thoroughly anti-democratic deal. Just how awful won’t be fully known until the text is published on the Internet in coming weeks. In the United States, there is a 60-day period after the text is published before President Barack Obama can send it to Congress for approval. Congress must act within 90 days, voting either yes or no with no amendments allowed (not even a comma can be changed) and limited debate. And even this “fast-track” process, voted into being by Congress earlier this year, represents concessions to persistent public opposition to the TPP — the text has been held as a state secret, hidden for years from members of Congress until public outcries embarrassed the Obama administration into letting elected representatives have a peak.

TPP cartoonParliamentarians in Canada, Australia, New Zealand and elsewhere have also not been allowed to see the text. The Canadian Parliament can’t take up the TPP until after the October 19 elections. The Harper régime is intent on passing the TPP, but if the Liberals or New Democrats unseat the Conservatives, there would be uncertainty. Neither opposition party, however, has openly opposed it, instead reserving judgment before seeing the final text.

In Australia, the Parliament doesn’t get to vote on the TPP, only on legislation necessary to implement its provisions once agreed to by the cabinet ministers. A committee of senators from parties in government and in opposition issued a report in June strongly condemning the TPP and the secrecy of it, but it remains to be seen what, if anything, opponents can do to block it. One glimmer of hope is that two small parties, Palmer United and the Greens, hold the balance of power in the Australian Senate, and the Greens are opposed to the TPP.

New Zealand parliamentary debate will be limited and no text may be changed; the Parliament would have to change national laws to conform with the TPP if passed.

The biggest compromise concerned biologic medications. This had been one of the main areas of contention, with the U.S. wanting to impose a 12-year period of exclusivity to pharmaceutical companies that originate biologics before other manufacturers could introduce generic versions (“biosimilars”) of the drugs. Other countries, including Australia, wanted that period cut to five years.

It is still not clear what agreement was reached, but reports indicate that the period will remain 12 years for the U.S., and either five or eight years for other countries. The longer period is seen as a means to guarantee pharmaceutical companies, especially those in the U.S., super-profits for a longer period of time and thus driving up the costs of medicines for public health systems in other counties, including Australia and New Zealand.

Activist work forces concessions but still a bad deal

Sustained public opposition to the longer period pushed the Australian and New Zealand governments to hold out against intense U.S. pressure on this issue, so activists can take credit for whatever better terms were attained. But that does not mean the TPP is a good deal for health care. Far from it.

Peter Maybarduk, the director of Public Citizen’s Access to Medicines Program, had this to say:

“The deal … fell short of Big Pharma’s most extreme demands but will contribute to preventable suffering and death. … [T]he deal includes mechanisms that would help the [U.S. trade representative] browbeat countries, now and in the future, to get what Big Pharma wants, and pull countries toward longer monopoly periods.”

Doctors Without Borders/Médecins Sans Frontières is no more optimistic:

“TPP countries have agreed to United States government and multinational drug company demands that will raise the price of medicines for millions by unnecessarily extending monopolies and further delaying price-lowering generic competition. The big losers in the TPP are patients and treatment providers in developing countries. Although the text has improved over the initial demands, the TPP will still go down in history as the worst trade agreement for access to medicines in developing countries, which will be forced to change their laws to incorporate abusive intellectual property protections for pharmaceutical companies.”

New Zealand’s Pharmaceutical Management Agency, which provides thousands of medicines, medical devices and related products available at subsidized costs, is a particular target of the U.S. pharmaceutical industry because it is an example that drug companies do not wish to be emulated elsewhere. The agency says it has saved about NZ$5 billion in the past 10 years.

Don’t buy the snake oil proponents are selling

Although the U.S. trade representative is trumpeting the TPP as the “most progressive trade deal ever,” don’t buy that snake oil. To provide one example, the U.S. trade representative claims that “A Party may elect to deny the benefits of Investor-State dispute settlement with respect to a claim challenging a tobacco control measure of the Party.” This is a claim that corporations can no longer challenge government regulations on tobacco, as has happened to Australia, Uruguay and other countries. (“Party” means a government in the TPP text.)

Another snake oil salesperson, U.S. Senator Ron Wyden, who has been perhaps the senator most responsible for the advancement of the TPP in the Senate and a consistent liar on “free trade” agreements, packed quite a lot of misinformation into one paragraph this week:

“I’m pleased to hear reports that the deal reached today includes, for the first time, an agreement to curb currency manipulation and new and enforceable obligations on countries like Vietnam and Malaysia to uphold labor rights, including in the case of Malaysia enforceable commitments to address human trafficking. I also understand that the agreement will include commitments to stop trade in illegal wildlife and first-ever commitments on conservation. Importantly, I understand that this deal will ensure that countries that are part of it can regulate tobacco without fearing intimidation and litigation by Big Tobacco.”

Don’t be fooled. The Center for Policy Analysis on Trade and Health issued this correction:

“The precise effects of this ambiguously worded compromise are unclear. … Tobacco companies could still file charges [in secret tribunals] if they assert the regulation is ‘discriminatory’ to the trade interests of a particular country. For example, when the U.S. banned clove cigarettes, which are important in hooking kids, Indonesia filed a successful trade charge, as the main producer of clove cigarettes.”

Stop TPPSenator Wyden’s words are hollow, coming after the Obama administration cynically removed Malaysia from the State Department’s list of worst countries for human trafficking to keep the developing country eligible. People without hope of work at home or who are refugees are recruited to work in Malaysia, where they are subject to forced labor and sex trafficking. Jamie Kemmerer, regional organizer for MoveOn NYC, said:

“The TPP is a terrible deal for workers, but is even worse for those who are subject to forced labor and human trafficking. Granting favorable trade access to nations engaging in these barbaric practices would be a huge step back for humanity in the name of commerce.”

Language in the TPP that purports to provide protection for environmental and health laws are meaningless boilerplate without effect, just as such language has been in existing “free trade” deals. The real-world effect is that any corporate entity can move to overturn any government action, simply on the basis that its “right” to the maximum possible profit, regardless of cost to a community, has been “breached.” The TPP places no limits on who or what corporate entity or individual is eligible to sue for the “loss” of “expected profits,” and only corporations can sue, not governments.

In effect, corporations are raised to the level of national governments, and it might be more properly argued that corporations are raised above national governments. This is the future that awaits all of us, and only the united actions of activists in countries on both sides of the Pacific can stop it. And, once we do, we need to go on the offensive and begin to roll back existing deals. Democracy or corporate dictatorship: The choice we now face is that stark.

TPP promises health care for profits, not patients

Health care will take a large step toward becoming a privilege for those who can afford it rather than a human right under the Trans-Pacific Partnership. Government programs to hold down the cost of medications are targeted for elimination in the TPP, which, if adopted, would grant pharmaceutical companies new powers over health care.

This has implications around the globe, as such rules could become precedents for the Transatlantic Trade and Investment Partnership and Trade In Services Agreement, two other deals being negotiated in secret.

The U.S. Congress’ difficulties in passing “fast-track” authority has thrown a roadblock in the path of the Trans-Pacific Partnership, but by no means has this most audacious corporate power grab been defeated. The latest leak of TPP text, the annex on pharmaceutical products and medical devices published by WikiLeaks earlier this month, makes clear that the U.S. pharmaceutical industry is taking aim at health care systems that put accessibility above corporate profiteering.

Craters of the Moon Geothermal Area, New Zealand (photo by Pseudopanax)

Craters of the Moon Geothermal Area, New Zealand (photo by Pseudopanax)

People in other countries should be extremely wary of any attempt to make their health care systems more like that of the United States. The U.S. health care system is designed to produce profits for pharmaceutical, insurance and other health care industry corporations, not to provide health care. Because of this, health care in the U.S. is by far the world’s most expensive while delivering mediocre results. How expensive? During the decade of 2001 to 2010, U.S. health care spending was $1.15 trillion higher per year than it would have been otherwise.

As always with the TPP, bland-sounding text written in stilted, bureaucratic language contains more danger than initially meets the eye. New Zealand’s Pharmaceutical Management Agency, which makes thousands of medicines, medical devices and related products available at subsidized costs, is a particular target of TPP and the U.S. pharmaceutical lobby because it is an example that drug companies do not wish to be emulated elsewhere. Agencies of other governments will also be under threat.

U.S. government targets New Zealand subsidies

A “Special 301 Report” issued in April 2015 by the U.S. government under the name of U.S. Trade Representative Michael Froman specifically names no less than 17 countries in which it seeks to undo health-system protections. Taking direct aim at New Zealand, the report said:

“With respect to New Zealand, U.S. industry has expressed serious concerns about the policies and operation of New Zealand’s Pharmaceutical Management Agency (PhARMAC), including, among other things, the lack of transparency, fairness, and predictability of the PhARMAC pricing and reimbursement regime, as well as the negative aspects of the overall climate for innovative medicines in New Zealand.” [page 25]

Note that the wishes of “U.S. industry” are presented as the only possible point of view. This is consistent with the fact that 605 corporate lobbyists have access to the TPP text as “advisers,” while the public is shut out. The real issue is that the New Zealand agency holds down the price of medicines, cutting down the industry’s exorbitant profit-gouging. A 2011 submission to the U.S. government by corporate lobby group Pharmaceutical Research and Manufacturers of America, called the New Zealand agency an “egregious example” because of its “focus on driving down costs.”

Professor Jane Kelsey of New Zealand’s University of Auckland, who has closely followed TPP issues for years, leaves little doubt that New Zealanders will pay more for medications if TPP comes into force. In an analysis of the leaked health care annex text, she writes:

“This leaked text shows the [TPP] will severely erode Pharmac’s ability to continue to deliver affordable medicines and medical devices as it has for the past two decades. That will mean fewer medicines are subsidised, or people will pay more as co-payments, or more of the health budget will go to pay for medicines instead of other activities, or the health budget will have to expand beyond the cap. Whatever the outcome, the big global pharmaceutical companies will win, and the poorest and most vulnerable New Zealanders will lose.” [page 2]

But other countries are in the cross hairs

The Pharmaceutical Management Agency estimates it has created savings of more than NZ$5 billion since 2000. The language of the TPP health care annex specifically targets “national health care programs” that make pricing decisions and not direct government procurement of medicines and medical devices. Professor Kelsey sees a nationalist agenda behind this specific wording, writing:

“ ‘National’ is presumably chosen to preclude such programmes that are run by states and provinces, which are politically sensitive in the US and Canada. In effect, the US has excluded almost all its own programmes, while targeting New Zealand, as it did with the [Australia-U.S. Free Trade Agreement].” [page 3]

But U.S. Medicare and Canadian provincial programs will certainly be targets as well. Medicare is prohibited under U.S. law from from negotiating prescription prices with drug makers, and the same language that would undermine New Zealand’s program would block any attempt to allow Medicare, or any other agency, from instituting a similar pricing program. Per-capita spending on drugs is far higher in the U.S. than elsewhere, in part thanks to this prohibition, which would become irreversible under the TPP.

The advocacy group National Committee to Preserve Social Security and Medicare notes:

“The fact that Medicare is forbidden in the law that created Medicare Part D to negotiate lower prices is no accident. The drug lobby worked hard to ensure Medicare wouldn’t be allowed to cut into the profits which would flow to big Pharma thanks to millions of new customers delivered to them by Part D.”

“Part D” is a program that shifted millions of people from Medicaid, which pays much less for drugs, to Medicare, a boon to pharmaceutical companies.

The TPP health care annex also contains language that the annex’s provisions are exempted from the “investor-state dispute mechanism,” the secret tribunals in which corporate lawyers sit as judges when corporations sue governments under so-called “free trade” agreements. The annex’s text is misleading, however. Language elsewhere in the TPP that requires “fair and equitable treatment” of foreign “investors” would still enable challenges to New Zealand’s program or any other. Thus, governments could be sued using provisions other than the annex, Professor Kelsey writes:

“The biggest risk is the obligation to provide ‘fair and equitable treatment’, which investors may claim includes a legitimate expectation that governments will comply with their obligations in making regulatory and administrative decisions. They could launch a claim for many millions of dollars compensation, including expected future profits, if they believed New Zealand’s process in general, or in specific cases, violated their expectations under the Transparency Annex and adversely affected the value or profitability of their investment.” [page 6]

Who gets to “consult”?

Deborah Gleeson, a lecturer at La Trobe University in Australia, points out another danger. A “consultation” mechanism that requires governments to consider corporate objections in pricing decisions could be used to apply pressure to make changes to benefit pharmaceutical and medical-device corporations. She writes:

“The inclusion of the Healthcare Transparency Annex in the TPP serves no useful public interest purpose. It sets a terrible precedent for using regional trade deals to tamper with other countries’ health systems and could circumscribe the options available to developing countries seeking to introduce pharmaceutical coverage programs in future.” [page 2]

As elsewhere in the TPP, the U.S. government is taking the most hard-line approach, and has been opposing efforts to exempt the poorest countries from attacks on health care subsidies. Judit Rius Sanjuan of Médecins Sans Frontières/Doctors Without Borders said:

“If the US proposal is accepted, the poorest countries would be forced to limit access to affordable medicines long before their public health needs are under control. The fact remains that no country, rich or poor, should accept limitations on its sovereign ability to ensure medicine is accessible and affordable for all those who need it.”

It’s not as if pharmaceutical companies are not already hugely profitable. They like to whine that they have high research and development costs, and while that is true, the prices they charge are well beyond reasonable expenses. They enjoy one of the highest, if not the highest, profit margin of any industry — nearly 20 percent for 2013. The world’s 10 largest pharmaceutical corporations racked up a composite US$90 billion in profits for 2013, according to a BBC analysis. As to their expenses, these 10 firms spent far more on sales and marketing than they did on research and development.

“Free trade” agreements have very little to do with trade. The Trans-Pacific Partnership, and the similar Transatlantic Trade and Investment Partnership and the Trade In Services Agreement, are nothing more than initiatives to cement corporate control over all aspects of society, in which governments lock themselves into binding agreements that elevate corporate profits above all other human considerations. Don’t get sick.

Trans-Pacific Partnership says if a corporation claims it’s true, it must be true

Corporations are elevated to the same status as national governments under “free trade” agreements, but if the Trans-Pacific Partnership is approved, corporations will be elevated above governments. New language inserted into the text of the TPP declares that, in certain circumstances, arbitrators hearing a suit by a corporation must assume the corporation’s claim is true.

We know this thanks to WikiLeaks, which has published another section of the TPP, the investment chapter that spells out the enforcement mechanism — the muscle — that will codify corporate dominance over democratic processes and governments. There is this tidbit, found within Article II.22 (“conduct of the arbitration”), which specifies what an arbitration panel is to do if a government objects that a complaint brought by a corporation does not qualify for a hearing:

“In deciding an objection under this paragraph, the tribunal shall assume to be true the claimant’s factual allegations in support of any claim in the notice of arbitration (or any amendment thereof).”

Thus, there is no basis on which a government can block the most frivolous of claims. TPP apologists might object that only a “technical” issue is being addressed in the above passage. But given the context, it is not a large step to go from a presumption that a corporation’s argument is true on its face for eligibility to be heard to presumptions in the hearing itself. The corporate lawyers who double as the arbitrators in the secret, unappealable tribunals in which cases are adjudicated under “free trade” agreements have interpreted the text of past agreements to strike down safety, health and environmental laws, and that “investors” should be guaranteed the highest possible profit. These are rulings that governments obligate themselves to carry out.

Protest at TPP negotiations in New York on January 26. (Photo by Cindy Trinh; puppet by Elliot Crown)

Protest at TPP negotiations in New York on January 26. (Photo by Cindy Trinh; puppet by Elliot Crown)

All the elements of agreements like the North American Free Trade Agreement and the many bilateral “free trade” agreements that mandate arbitration in secret, unappealable tribunals are in the Trans-Pacific Partnership. In fact, TPP mandates the same arbitration body, the International Centre for Settlement of Investor Disputes — an arm of the World Bank. ICSID is no friend of regulation.

No limitations on eligibility to sue for ‘lost profits’

Who will be eligible to sue under TPP? No, not the governments that wish to sign the agreement. Only “investors” are eligible to sue. There is no limitation on who or what is an “investor” — any person or entity that has “an expectation of gain or profit” in any form of participation in any enterprise, holds any financial instrument, possess any intellectual property right or has a “tangible or intangible” right in any “movable or immovable property,” even liens, is qualified to sue. Any decision, regulation or law by any level of government can be challenged, regardless of the democratic procedures used to promulgate it.

The real-world effect is that any corporate entity can move to overturn any government action, simply on the basis that its “right” to the maximum possible profit, regardless of cost to a community, has been “breached.”

Worse still, the expansive language of the TPP means that even more corporations will be eligible to sue governments, a Public Citizen analysis of the leaked investment chapter reports:

“Existing ISDS-enforced agreements of … developed TPP countries have been almost exclusively with developing countries whose firms have few investments in the developed nations. However, the enactment of the leaked chapter would dramatically expand each TPP government’s ISDS liability. The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government, while empowering more than 18,000 additional U.S.-owned firms to launch ISDS cases against other signatory governments.”

Corporations not based in a TPP country but which operate in a TPP country, even when they have no real investment in a TPP country, will be eligible to sue. (The “ISDS” in the above passage refers to “investor-state dispute settlement,” the technical term used to refer to rules that mandate the use of the secret arbitration bodies.) Additionally, previous language that purported to provide support for health, safety and environmental rules is missing from the latest text, according to Public Citizen.

That does not mean that the boilerplate language in past “free trade” deals concerning health, safety and the environment has any meaning. The most recent ruling on a complaint brought under the North American Free Trade Agreement, handed down on March 17, put Canada and the province of Nova Scotia on the hook for a minimum of C$300 million because a U.S. concrete company was denied a permit to turn an environmentally sensitive beach into a quarry.

Health and environment laws swept away

The list of decisions (which become precedents for future disputes) under NAFTA alone is infamous. Here is a sampling:

  • Ethyl Corporation sued Canada for $250 million because of a ban on a gasoline additive known as MMT, a chemical long believed to be dangerous to health. Ethyl claimed the Canadian ban was an “expropriation” of its “investment” and a violation of the principal of “equal treatment” of foreign capital even though had a Canadian producer of MMT existed, it would have been subject to the same standard. Canada settled to avoid a total defeat, paying Ethyl a smaller amount and reversing its ban.
  • A U.S. company, Metalclad, sued Mexico because a city government refused to grant it a permit for a waste dump (similarly denied to a Mexican company that previously wanted to use the site). Mexico lost, and had to grant the permit despite the environmental dangers and pay $15.6 million to Metalclad.
  • Another U.S. company, S.D. Myers, sued Canada because of a ban on the transportation of PCBs that conformed with both a Canada-United States and a multi-lateral environmental treaty. A tribunal ordered Canada to pay $5.6 million and reverse the ban, negating the two environmental treaties and ignoring the fact that PCBs are known carcinogens banned since 1979 in the U.S. The tribunal 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!

In another infamous case, the tobacco company Philip Morris moved some of its assets to Hong Kong so it could declare itself a Hong Kong company eligible to sue Australia under the Australia-Hong Kong bilateral investment treaty, which, unlike some Australian trade pacts, allows corporations to sue one or the other government. Philip Morris seeks to overturn Australia’s rules limiting tobacco advertising and packaging, enacted in the interests of public health, which were found to be legal by Australia’s supreme court, the High Court. (This case is still pending.)

That case is shocking enough in itself, but there is an extra twist — the lawyer for Philip Morris, David A.R. Williams, is one of the judges appointed by New Zealand to the arbitration body hearing the case, ICSID. That is far from an isolated case as many ICSID judges are lawyers who specialize in representing multi-national corporations in front of these arbitration bodies. In another example, a judge ruled in favor of Vivendi Universal against Argentina in a failed water-privatization scheme, and her ruling was allowed to stand even though the judge served on the board of a bank that was a major investor in Vivendi. The TPP is completely silent on conflicts of interest. The leaked TPP chapter reveals for the first time that ICSID would hear disputes brought under TPP.

You won’t be able to buy local anymore

Those corporate lawyers, and especially the multi-national capital they represent, have had their wish lists brought to life in the leaked TPP text. No capital controls of any kind are allowed, “buy local” rules would be prohibited, “investors” can sue for large damages even when their claim has been covered by insurance, and the arbitration body hearing a case should apply “customary international law.”

That last item may sound bland, but in practice it means that rulings declaring reasonable laws and regulations to be illegal impediments to corporate profits are precedents that must be followed. Consider, for example, a London Court of International Arbitration panel, ruling in July 2005 for a unit of the Occidental Petroleum Corp. in a case heard under the U.S.-Ecuador bilateral investment treaty, which declared that any change in business conditions constitutes a violation of “investor rights.” If such a ruling is accepted as precedent, any attempt at regulation is at risk of being ruled an illegal “expropriation” of future profits.

The TPP, along with the Transatlantic Trade and Investment Partnership and the Trade In Services Agreement, are not done deals. The TPP is much closer to the conclusion of negotiations than the others, but can be stopped. Grassroots opposition across the 12 countries currently engaged in TPP talks continues. Militant opposition is critical in all countries, but perhaps the single most important factor at the moment is what the U.S. Congress will do.

Reports consistently say that several governments will not commit themselves to passing TPP until the U.S. Congress passes what it is commonly called “fast-track authority.” Officially known as “trade promotion authority,” fast-track is a method of sneaking unpopular bills into law. Under fast-track, Congress has a limited time to debate a bill and can not make amendments or change so much as a comma, only vote yes or no. The Obama administration is pushing hard for Congress to re-authorize fast-track because that is the only way the TPP, which can not stand the light of day, can be passed into law.

Because of opposition from most Democrats and some tea party Republicans, fast-track passage is not assured. The introduction of fast-track into the Senate depends on a Democrat from Oregon, Ron Wyden, who is being heavily pressured by his constituents not to introduce a fast-track bill he has been negotiating with a conservative Republican from Utah, Orrin Hatch. One of several groups pressuring Senator Wyden, the Oregon Fair Trade Campaign, has rented a recreational vehicle to shadow him across the state.

Where ever you are, voicing your opposition to the TPP to your elected officials, and joining a local or national group in opposition, is critical. The U.S. government is pushing the hardest, and attempting to insert the most draconian rules, to cement the control of U.S.-based multi-national corporations over the world’s resources and markets, and the other governments are willing to throw overboard what sovereignty remains to them so that their multi-national corporations get a slice of the pie.

Allowing the TPP to pass means nothing less than an end to democracy and a world where corporate power and money becomes more dominant than ever, where corporate profits are codified in law to be above all other human concerns.

Goodbye privacy, hello censorship if secret TISA pact is approved

Internet privacy and net neutrality would become things of the past if the secret Trade In Services Agreement comes to fruition. And on this one, the secrecy exceeds even that shrouding the two better-known corporate giveaways, the Trans-Pacific and Transatlantic partnerships.

Yet another tentacle in the octopus of multi-national corporations’ attempt to achieve dictatorial control, the Trade In Services Agreement (TISA) is intended to eliminate government regulations in the “professional services” such as accounting and engineering but goes well beyond that, proposing sweeping de-regulation of the Internet and the financial industry.

Geneva Fountain (photo by Lional Rajappa

Geneva Fountain (photo by Lional Rajappa

Another snippet of TISA’s text has been leaked, this time by the freedom-of-information organization Associated Whistleblowing Press. Without this leak, and an earlier leak published by WikiLeaks in June 2014, we would know absolutely nothing about TISA and its various annexes. No matter what a negotiating government might claim about it, should one actually deign to discuss it, TISA is not about your right to hire your accountant of choice. Here is Article X.4 on “movement of information”:

“No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party’s territory, where such activity is carried out in connection with the conduct of the service supplier’s business.”

What that proposal means is that any regulation safeguarding online privacy would be deemed illegal. (“Party” in the quoted text refers to national governments.) European rules on privacy, much stronger than those found in the United States, for example, would be eliminated. Further, any rule that in any way mandates local content (Article X.2) or provides any advantage to a local technology (Article X.3) would also be illegal. Thus the domination of U.S.-based Internet companies, such as Google or Facebook, would be locked in, along with their vacuuming of your personal data. A French anti-dumping law intended to help bookstores withstand predatory practices by is the type of law likely to come under attack.

What this has to do with the provision of “professional services” is not clear. TISA seems intended to be a catch-all to eliminate regulation and allow multi-national corporations to muscle their way into as many areas as possible unimpeded, and the benign-sounding surface purpose of liberalizing access to foreign engineers may be intended as a wedge to force open all barriers to corporate profiteering.

Taking aim at net neutrality

The text is written in sufficiently ambiguous language that net neutrality seems strongly at risk. A reference to “open networks” contains the caveat that Internet usage is “subject to reasonable network management.” An analysis prepared by Professor Jane Kelsey of the University of Auckland and Burcu Kilic of Public Citizen in Washington says:

“ ‘Reasonable network management’ is code for an exception to ‘net neutrality,’ whereby everything on the Internet is treated the same. There is no guidance on the meaning of ‘reasonable network management.’ The concept has been highly controversial when the US Federal Communications Commission (FCC) proposed it in the US. The FCC says it ‘consists of practices which are reasonable,’ which is a vague and circular meaning that could be a rubber stamp for anything the network operator wants to do.” [page 22]

U.S. telecommunications corporations bitterly oppose net neutrality because, under this principle, they can’t speed up or slow down online content according to who pays them, or doesn’t, for special treatment. And any dilution of net neutrality opens the floodgates to censorship of the Internet, whether government or corporate.

The analysis by Professor Kelsey and Dr. Kilic discerns three broad goals of TISA on the part of the U.S. government, which is pushing hardest for it, as it does with other “free trade” agreements:

  • To advance the commercial interests of its services industry that supplies services across the border. There would be particular gains to the information telecommunications and technology sector, but would protect U.S. competitive advantage and monopoly rights over intellectual property and technology.
  • To serve “a range of ‘national security’ and commercial purposes” by consolidating data repositories to the benefit of the U.S. government, transnational companies and third-party commercial interests.
  • To prevent or restrict government regulation that impedes the activities and profits of the major global services industries, and guarantees unrestricted cross-border movement of data.

A letter sent to TISA negotiators by 342 civil society groups based in Europe and elsewhere in 2013 asking that the negotiations be immediately halted, states:

“The proposed TISA is an assault on the public interest as it fails to ensure that foreign investments in service sectors actually promote public goals and sustainable economies. We are particularly wary of further undermining of essential services such as health care and insurance, water and energy provision, postal distribution, education, public transportation, sanitation, and others if they are handed over to private and foreign corporations motivated only by profits and available only to those who can pay market rates.”

Restrictions on the financial industry would be illegal

TISA, as revealed by WikiLeaks in June, also would require signatory governments to allow any corporation that offers a “financial service” — that includes insurance as well as all forms of trading and speculation — to expand operations at will and would prohibit new financial regulations. These offensives are incorporated in TISA’s Financial Services Annex, which would:

  • Require countries to change their laws to conform to the annex’s text (Annex Article 3).
  • Require countries to “eliminate … or reduce [the] scope” of state enterprises (Article 5).
  • Prohibit any “buy local” rules for government agencies (Article 6).
  • Prohibit any limitations on foreign financial firms’ activity (articles 7 and 10).
  • Prohibit restrictions on the transfer of any data collected, including across borders (articles 8 and 11).
  • Prohibit any restrictions on the size or expansion of financial companies and a ban on new regulations (Article 15).
  • Require any government that offers financial products through its postal service to lessen the quality of its products so that those are no better than what private corporations offer (Article 22).

The ninth, and most recent, round of TISA negotiations took place on December 1 to 5 in Australia. In a typically bland statement providing no actual information, the Australian government said:

“Good progress was made in advancing the enhanced disciplines (trade rules) for e-commerce and telecommunications, domestic regulation and transparency, financial services, temporary entry of business persons, professional services, maritime and air transport services and delivery services. There was also further discussion of proposals on government procurement, environmental and energy services, and the facilitation of patient mobility. Parties reported on progress in bilateral market access discussions held since the September Round and committed to advance these further in 2015.”

Canberra’s likely overstating of “progress” is nonetheless more than is offered by other governments. The office of the United States Trade Representative, for example, last issued a public update about TISA negotiations in November 2013, and then merely said that the then-latest round of talks “was positive and productive.”

Tightening secrecy of “free trade” agreements

The next round of TISA negotiations are scheduled for Geneva February 9 to 13, 2015. Fifty countries are negotiating TISA, including the 28 countries of the European Union, which are collectively represented by the unelected and unaccountable European Commission. Among other countries are Canada, the United States, Australia, New Zealand, Japan, Norway and Switzerland. The negotiating countries, with perhaps more transparency than intended, refer to themselves as the “Really Good Friends of Services.” Good friends of working people they are not.

Although any sections detailing enforcement have yet to be leaked, TISA would likely depend on the “investor-state dispute mechanism” generally mandated in “free trade” agreements. Deceptively bland sounding, the mechanism is a secret tribunal to which a “dispute” is sent when a corporation wants a safety or environmental regulation or law changed so as to increase its profits. One of the most frequently used of these tribunals is an arm of the World Bank.

Many of the judges who sit on these tribunals are corporate lawyers who otherwise represent corporations in similar disputes with governments, and there is no appeal to their decisions. These rulings become a benchmark for subsequent disputes, thereby pushing the interpretations further in favor of multi-national capital.

That the Trade In Services Agreement, or the Trans-Pacific Partnership, or the Transatlantic Trade and Investment Partnership, or the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), have to be negotiated in total secrecy, with only corporate lobbyists having access to texts or meaningful input, speaks for itself. The empty shell of formal democracy under capitalism gets ever emptier.

The ‘medicine’ of the Trans-Pacific Partnership as bitter as ever

The Trans-Pacific Partnership is as dangerous as ever. Denying access to medicines, increased surveillance of Internet usage and mandatory patents at the behest of multi-national corporations are some of the corporate goodies stashed in the TPP’s intellectual property chapter, revealed by WikiLeaks this month. Journalism could even be criminalized.

The more we know about the TPP, the worse it gets, which is why the governments of the 12 countries involved, led by the Obama administration, continue to negotiate in unprecedented secrecy. The latest text of the TPP’s intellectual property chapter shows very little change from an earlier draft also published by WikiLeaks. In a press release accompanying this month’s publication of the revised text, WikiLeaks says:

“[T]here are significant industry-favouring additions within the areas of pharmaceuticals and patents. These additions are likely to affect access to important medicines such as cancer drugs and will also weaken the requirements needed to patent genes in plants, which will impact small farmers and boost the dominance of large agricultural corporations like Monsanto.”

An analysis by Public Citizen explains:

“A rule [would] require the patenting of plant-related inventions, such as the genes inserted into genetically modified plants, putting farmers in developing countries at the mercy of the agriculture industry, including seed manufacturers such as Monsanto, and threatening food security in these countries more broadly.”

The architecture of Melbourne

The architecture of Melbourne

Monsanto, already attempting to gain a stranglehold over the world’s food supply, is hardly in need of yet more favorable treatment. Proprietary seeds and genetically modified organisms are Monsanto’s routes to control what you eat and what farmers grow. Once under contract, farmers are required to buy new genetically engineered seeds from the company every year and the Monsanto herbicide to which the seed has been engineered to be resistant.

Stealth ‘fast-track’ process needed to sneak TPP through Congress

Concomitant to the secrecy shrouding the TPP is the stealth needed to pass the “free trade” treaty. The Obama administration is seeking to be given “fast-track” authority by Congress. Under the fast-track process, Congress cedes its right to make any changes, limits its time to debate, and must schedule a straight yes-or-no vote (no amendments allowed) in a short period of time. Some of the worst “free trade” deals have been approved in this manner, and the importance of fast-track is shown in that the last U.S. trade pact approved, with South Korea, was approved in 2007 — literally one minute before fast-track authority expired!

A fast-track bill, known as Camp-Baucus for its two sponsors, was essentially dead on arrival early this year due to widespread opposition in Congress, mostly by Democrats but also some Republicans. That this arose was because of organized activist work by groups across the United States. But Democratic Senator Ron Wyden, last April, signaled his intention to introduce a new fast-track bill, which he rebranded “smart track.” U.S. activists widely speculate that either Senator Wyden’s thinly disguised “smart track” bill or a more openly fast-track bill, perhaps written by Republicans in the House of Representatives, will be introduced in Congress following the November election with the intention of ramming it through a lame-duck session.

U.S. activists for the past year and a half have focused on stopping fast-track in Congress because it will be virtually impossible to pass the TPP otherwise. Other countries have signaled their reluctance to agree to a final TPP text unless Congress grants the Obama administration fast-track authority. Without such authority, Congress would retain the right to make changes to an agreed-upon treaty, potentially unraveling any deal. The Canadian government, in late September, made this reluctance explicit.

Washington Trade Daily recently reported that the Canadian ambassador to the U.S., Gary Doer, said Canada and other negotiating countries won’t conclude negotiations until the Obama administration has the “political muscle” of trade-promotion authority (the formal name for fast-track). Thus, activists advocate no lessening of vigilance against new attempts to introduce fast-track legislation. A Week of Action Against Fast Track is being organized for November 8 to 14 in the U.S. In Australia, a series of rallies opposing the TPP are taking place this week in Sydney and Canberra.

These efforts come against a renewed push for a completed deal; negotiators are meeting this week, to be immediately followed on October 25 by a ministerial-level meeting in Sydney.

Criminalizing your right to know

There is much to oppose in the Trans-Pacific Partnership itself. A trade-secrets provision in the leaked intellectual property chapter is written in a way that makes it possible for reporting the contents of a future trade deal to be prosecuted. The article in question states:

“In the course of ensuring effective protection against unfair competition … each Party shall ensure that natural and legal persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state commercial enterprises) without their consent in a manner contrary to honest commercial practices.”

Criminal penalties would be mandatory for:

“the unauthorized, willful access to a trade secret held in a computer system; the unauthorized, willful misappropriation of a trade secret, including by means of a computer system; or the fraudulent (or unauthorized) disclosure of a trade secret, including by means of a computer system.”

WikiLeaks’ publication of this text would be a criminal matter under this provision. This provision would make it mandatory for signatory governments to enact strict laws protecting undefined “trade secrets.” The text of the TPP itself is classified as a secret! Legislators and the public are excluded from seeing the text. In the United States, the only people other than negotiators to have access to the text are 605 “advisers,” who are almost all executives of multi-national corporations or corporate lobbyists.

The Age newspaper of Melbourne summarizes the threat to journalism this way:

“The leaked treaty text shows that in an effort to deal with ‘unfair competition,’ largely from Chinese industrial espionage, the United States has pushed ahead with proposals to criminalise disclosure of trade secrets across the Pacific Rim. The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system.  …

There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the ‘economic interests’ of any TPP country.”

Barriers to cheaper generic medications

Other rules in the TPP intellectual property text would raise barriers to generic medications becoming available and mandating that the terms of patents be extended on demand by patent holders. The United States and Japan even propose language that would require intellectual property enforcement to be elevated above any other legal consideration! The U.S. is also seeking the criminalization of copyright infringement, even in cases where there is no attempt to gain financially, such as a fan posting a work, and would also mandate that Internet service providers remove content upon a corporation’s demand to avoid legal penalties.

The linchpin to enforcement of draconian rules — the worst of which are put forth by the United States with Japan often seconding — is the “investor-state dispute mechanism.” That is a requirement that governments submit to binding arbitration in secret tribunals when an “investor” wants a law changed; the judges in these tribunals are corporate lawyers.

The dispute mechanism is not directly mentioned in the intellectual property chapter, but the one article that purports to uphold national sovereignty is contradicted by another article that mandates that multi-national corporations be given the same rights as national corporations. That clause, standard in “free trade” agreements, is a battering ram used by the secret tribunals to order the withdrawal of laws safeguarding environmental, safety, health or labor standards. These rulings, in turn, become precedents that are used to hand down future harsher decisions.

The Trans-Pacific Partnership, however, is far from the only danger to working people. There is also the Transatlantic Trade and Investment Partnership between the U.S. and the E.U.; the Trade In Services Agreement that would eliminate the ability of governments to regulate the financial industry (50 countries are in on this one); and the Canada-European Union Comprehensive Economic and Trade Agreement. Each of these are designed to elevate corporations to the level of a country, although in practice, because of tribunal precedents, they would elevate corporations above national governments.

“Free trade” agreements have little to do with trade, and much to do with imposing the domination of capital in as many spheres of life as possible. They are massive failures for working people in all countries. They offer, and can offer, nothing but a race to the bottom. Attempting to reform a race to the bottom is a fool’s errand. The TPP and its equally vile cousins must be defeated, and a complete re-conceptualization of trade and who should benefit from trade, substituted. That in turn requires directly challenging prevailing economic systems, otherwise we will be shoveling against the tide.

Please make your comment after we make our decision

Taking a page from their United States counterparts, European Union trade negotiators apparently interpret the word “consultation” as a synonym for “ignore.” Fresh evidence for this attitude toward the public was provided thanks to a leak of the final text of the proposed “free trade” agreement between Canada and the EU.

Although the E.U. trade office, the European Commission Directorate General for Trade, promotes a process of public consultation on its web site, it isn’t the public who gets listened to. The final text of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) includes language mirroring corporate wish lists unchanged from previous drafts despite the fact that the E.U. trade office has not had time to analyze comments submitted by the public.

This farce of a “consultation” process mirrors the secretive negotiations in the better known Trans-Pacific and Transatlantic trade agreements. Corporate lobbyists are well represented in these talks, but the public, watchdog groups and even parliamentarians and legislators are barred from seeing the text. The CETA text is also secret, but was leaked by the German television news program Tagesschau, which published the entire 521-page document on its web site. Yep, 521 pages.

The Rideau Canal in Ottawa (photo by John Talbot)

The Rideau Canal in Ottawa (photo by John Talbot)

Critical to understanding the CETA text is Section 33, the portion simply labeled “dispute settlement.” Under that bland heading a reader finds the muscle — what is known as an “investor-state dispute mechanism.” These “mechanisms,” found in many bilateral and multilateral trade deals, are corporate-dominated secret tribunals that hand down one-sided decisions with no oversight, no public notice and no appeals. Governments that agree to these mechanisms legally bind themselves to mandatory arbitration with “investors” in these secret tribunals on which most of the judges are corporate lawyers who represent the “investors” in other legal proceedings.

Kenneth Haar, a spokesman for the watchdog group Corporate Europe Observatory, in an interview with the EurActiv news site, called the dispute mechanism “an outright danger to democracy,” and said:

“The Commission is not really serious about its own consultation. It’s more about image than substance. … I think those who chose to respond to the Commission’s consultation are being ridiculed.”

Decisions will be final and unaccountable

Employing the standard sweeping language, CETA’s Article 14.2 (the articles here are numbered “14” even though they are found in Section 33) states: “[T]his Chapter applies to any dispute concerning the interpretation or application of the provisions of this Agreement” [page 472]. Article 14.10 goes on to declare, “The ruling of the arbitration panel shall be binding on the Parties. … The panel shall interpret the provisions referred to in Article 14.2 in accordance with customary rules of interpretation of public international law” [page 476].

“Customary” international law is whatever one of these secret tribunals says it is. Environmental regulations, “buy local” laws or any other government action that a corporation claims will hurt its profits can be, and frequently are, ruled illegal by these tribunals when adjudicating disputes under existing trade agreements. Such rulings set precedents that become “customary” international law.

In case these “customary” laws are not clear, on page 480 of the CETA text is Article 14.16, which would supersede national law:

“No Party may provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.”

Your law was passed in a democratic process? Too bad — it will be overruled if an “investor” doesn’t like it.

CETA’s proposed rules are consistent with what is being secretly negotiated in the Transatlantic Trade and Investment Partnership between the U.S. and E.U., and in the Trans-Pacific Partnership being negotiated among 12 Pacific Rim countries. A majority of the world’s economy would be removed from any possibility of democratic control should these three trade deals come into effect.

The watchdog group Council of Canadians warns:

“The Harper government has thrown Canadian municipalities under the bus, forever banning ‘buy local’ and other sustainable purchasing policies that help create jobs, protect the environment and support local farmers and businesses. The Harper government has also agreed to lengthen patents and give new monopoly protections to already profitable brand name drug companies, which will needlessly add hundreds of millions to the cost of prescription drugs in Canada.”

Not even water would be exempt. If a water system is privatized and a local government chooses to re-municipalize it because rates have risen while service declines (as has routinely occurred on both sides of the Atlantic), the investor would be able to hold out for an extra windfall under the terms of the trade deal.

Only corporate lobbyists need apply

Although the public, and public-interest groups, are not heard, corporate lobbyists are. For example, there are 605 “advisers” with access to the text of the Trans-Pacific Partnership and who shape U.S. negotiating positions. Virtually every one is an executive of a multi-national corporation or a corporate lobbyist working for an industry association.

It is little different in Europe. Corporate Europe Observatory reports that 92 percent of the closed-doors meetings of the E.U. trade office have been with corporate lobbyists, while only four percent have been with public-interest groups. The trade office has gone so far as to actively solicit the involvement of corporate lobbyists. That perspectives other than those of multi-national capital are not considered can be inferred from the very way public input is solicited, the Observatory said:

“How would the average citizen respond to questions such as: ‘If you are concerned by barriers to investment, what are the estimated additional costs for your business (in percentage of the investment) resulting from the barriers?’ So, clearly, the close involvement of business lobbyists in drawing up the EU’s position for the [Transatlantic Trade and Investment Partnership] talks is a result of the privileged access granted to them.”

It’s no different for CETA, and the same dynamic exists across the Atlantic. Former U.S. Trade Representative Ron Kirk once admitted that if people knew what was in the Trans-Pacific Partnership, it would never pass. It is important to remember that these massive “free trade” deals are not simply business as usual — they go well beyond even the draconian rules of the North American Free Trade Agreement.

So although the competitive pressures of each country attempting to give an advantage to its multi-national corporations does mean that maneuvering through differing interests requires lengthy negotiations — not to mention the sometimes conflicting interests of various industries — at bottom there is a unifying class interest in the overall project. It is true that the U.S. adopts the hardest line in the trade negotiations it participates in (before we even get to the military muscle it applies to force open Southern countries), yet the absence of the U.S. from a Canada-European Union trade deal has made no practical difference to its outcome.

That different countries, different administrations, reach similar one-sided “free trade” agreements in which “investors” are allowed to overrule national laws, and labor, safety and environmental regulations are “harmonized” at the lowest level, is a product of capitalist competition. The rigors of that structural competition mandate expansion and growth — as local markets mature, capital has no choice, if it is to survive relentless pressure from competitors, other than opening new markets and relentlessly cutting costs to maintain profit levels. “Free trade” agreements represent one of the most effective ways to accomplish that.

Popular revolts against these agreements must be continued, and strengthened, but there will be no end to them as long as economic and social decisions are allowed to be made by “markets,” which are not disembodied entities sitting dispassionately on an Olympian throne but rather are the aggregate interests of the most powerful industrialists and financiers.