As production is moved to ever more distant locales, with ever lower labor and environmental standards, the corporations behind these moves want all barriers to the movement of raw materials and finished products removed. Thus the era of so-called “free trade” agreements. These agreements, which are written to elevate corporations to the level of national governments (and in practice, actually above governments), have become so unpopular thanks to the efforts of grassroots activists to expose them to public scrutiny that governments have become cautious about embracing new ones.
How to get around this impasse? The U.S. government has evidently believed it has found a solution: Claim a “free trade” agreement is not a “free trade” agreement. Not only as an attempt to avoid public scrutiny but to totally bypass Congress.
This latest offensive on behalf of multi-national corporations is the Indo-Pacific Economic Framework. Haven’t heard of it? That’s because the Biden administration, which has cooked up this scheme, would much prefer you didn’t. So far, the 13 other governments that have entered negotiations, including Australia, India, Japan and New Zealand, aren’t eager for their own citizens to know about it, either, and have agreed, whether explicitly or tacitly, to keeping quiet.
The countries negotiating the Indo-Pacific Economic Framework (graphic by JohnEditor132)
Make no mistake, however. The Indo-Pacific Economic Framework (IPEF) is a straightforward initiative to deepen U.S. domination in the Asia-Pacific and Indian Ocean regions. Activists across those regions have taken notice and have already spoken out against the IPEF. Interestingly, some of the governments of those countries, in particular Australia and New Zealand, are quite open in acknowledging the IPEF is a U.S. initiative designed to keep them firmly under the U.S. umbrella and away from China — and are supporting this in their limited public statements. So those social-movement groups sounding alarms are on firm ground, to which we will return below.
So what is this “free trade” deal that is allegedly not a “free trade” deal? A White House “fact sheet” issued by the Biden administration in May 2022, upon the announcement of the IPEF at the Quadrilateral Security Dialogue meeting in Tokyo, declared that the “IPEF will enable the United States and our allies to decide on rules of the road that ensure American workers, small businesses, and ranchers can compete in the Indo-Pacific.” And how might this stated goal be achieved? Negotiations are to focus on “four key pillars to establish high-standard commitments that will deepen our economic engagement in the region.”
Those four pillars announced by the Biden administration are a “connected economy” that will harmonize standards on cross-border data flows and data localization; a “resilient economy” that seeks to “better anticipate and prevent disruptions in supply chains … [and] guard against price spikes that increase costs for American families”; a “clean economy” that “will seek first-of-their-kind commitments on clean energy, decarbonization, and infrastructure that promote good-paying jobs”; and a “fair economy” under which “tax, anti-money laundering, and anti-bribery” standards are used “to promote a fair economy. “
The same lies packaged for new consumption
Does this list sound familiar? Perhaps it does, as these are the sort of goals repeatedly promised in “free trade” agreements of the past, goals that never materialize because the draconian rules designed to unilaterally overturn health, safety, labor and environmental regulations always have words like “must” and “shall” attached to them in trade agreement texts, but any language purporting to safeguard such standards use words like “may” and “can.” And as disputes are settled in secret tribunals in which the lawyers who represent corporations against governments in these tribunals on one day switch hats and sit as judges on another day, the interpretation of what appears to be dry, technical, neutral-sounding language almost invariably is adjudicated in favor of the complaining corporation, without any appeal being possible.
Attempting to sidestep this history, the U.S. government is trying to claim the IPEF is not a trade deal at all, and thus can be approved by the White House unilaterally with no input by Congress. The Biden administration asserts that IPEF talks do not cover tariff liberalization or provisions that would require changes to key U.S. laws that Congress would have to approve and therefore has no intention of submitting the agreement for approval. Senators disagree, with 21 members of the Senate’s Finance Committee, including its Democratic (Ron Wyden of Oregon) and Republican (Mike Crapo of Idaho) leaders, sending the White House a letter telling the administration it must submit IPEF to Congress for approval.
Discussions during Indo-Pacific Economic Framework negotiations (photo via Prime Minister’s Office of Japan)
Washington is far from the only seat of government slapping happy faces on this subterfuge. Let’s start our survey with Australia and New Zealand, where the governments seem quite pleased at this opportunity to be sidekicks to U.S. imperial designs. And perhaps believe a sub-imperialist slice of the action could come their way given there are several developing countries taking part in negotiations. The full list of countries taking part in IPEF talks are Australia, Brunei, India, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, the Philippines, Singapore, Thailand, the United States and Vietnam, although India is taking part in only some of the “pillars.”
The Australia Department of Foreign Affairs and Trade claims that the IPEF “Supports the promotion of clean energy technologies and renewables to help address climate change impacts and the region’s energy transition” and will “accelerate growth in the digital economy, unlock green trade and investment opportunities, and improve labour and environment standards across the region.” The department also said the IPEF “Improves regional trade and investment conditions.” Unfortunately, Canberra does not specify how the IPEF will miraculously bring about those results, and any text circulating or positions taken in negotiations are unknown because the entire process is being kept secret from the public and legislators.
That the IPEF is a back-door attempt to resurrect the Trans-Pacific Partnership was broadly hinted in December 2022, when Foreign Minister Penny Wong “praised Washington’s commitment to Indo-Pacific security but said its departure from a regional trade pact was still being felt and that enhanced U.S. economic engagement with the region should be a priority,” according to a Reuters report.
Corporate interests already lining up in support
A clue to who will benefit comes courtesy of the Australian Strategic Policy Institute, which claims to be an “independent, non-partisan think tank” despite being established by the government, receiving some of its funding from the Australian military and says it reflects the opinions of Australian government officials and industry leaders. A report the Institute published is, like corporate interests in general, favorable toward the proposed pact. “The IPEF is viewed as a potentially innovative way to boost regional investment rather than as a mechanism to strengthen the usual substance of trade agreements, such as market access into the US,” the report said. This corporate vision appears to be to position Australia as a regional assistant to U.S. corporations. The report’s first recommendation: “The US, as the convener of the IPEF, should lean into Australia’s capacity-building expertise in the region” because “Australia has a long history of organising capacity building and training exercises in Southeast Asia and the South Pacific.” In other words, Australia should position itself firmer as a junior imperialist country.
Canberra has been a good pupil, if you want to look at it that way, as symbolized in its decision earlier this year to spend up to $368 billion to buy nuclear submarines from the United States after the U.S. strong-armed the Australian government to cancel a previous cheaper deal to buy conventional submarines from France. The deal also will have U.S. and British submarines stationed on Australia’s Indian Ocean coast.
Much the same comes from Wellington. The New Zealand Foreign Affairs & Trade Ministry has declared, “The Indo-Pacific Economic Framework for Prosperity is an opportunity to strengthen economic cooperation with the United States and across our wider home region. The IPEF will provide an open and inclusive platform for the US to engage more deeply in the economic architecture of the Indo-Pacific, which we think is valuable for both New Zealand and the wider region.” Considering that when the Trans-Pacific Partnership was being negotiated, a key initiative for the United States was to weaken New Zealand’s health care system, it is reasonable to wonder why again negotiating a surrender to U.S. corporate interests would be a good idea.
The architecture of Melbourne (photo by Diliff)
U.S. government negotiators, on behalf of the pharmaceutical industry and its obscene profits, took direct aim at New Zealand’s Pharmaceutical Management Agency program that makes thousands of medicines, medical devices and related products available at subsidized costs in Trans-Pacific talks. The agency’s cutting down the industry’s exorbitant profit-gouging was openly called by the U.S. corporate lobby group Pharmaceutical Research and Manufacturers of America an “egregious example” to be eliminated because of its “focus on driving down costs.” Can New Zealand expect anything better this time?
Other participating governments have issued similar statements, with South Korea Trade Minister Ahn Duk-geun stating that “creating practical outcomes in areas like supply chain and clean energy is imperative.” Malaysian Trade Minister Mohamed Azmin Ali, discussing the supply chain talks, said “Malaysia believes that it is crucial to outline the tangible benefits of this trade and multilateral economic framework.”
With eyes open, grassroots opposition has already begun
Activist groups across the region and around the Pacific Ocean have already begun organizing opposition. This is a drill, after all, that groups organizing in opposition to always one-sided “free trade” agreements have had to repeatedly conduct.
A strong voice of opposition is that of Jane Kelsey, the University of Auckland law professor who long sounded the alarm on the Trans-Pacific Partnership from New Zealand.
Once again taking up the challenge, Professor Kelsey, in a May 2022 article in The Conversation, wrote, “[D]espite the high-profile launch, the IPEF remains an enigma, a high-level idea in search of substance.” She questions why the Australia and New Zealand governments are in these talks at all. “Realistically, the IPEF is a ‘pig in a poke’. Aotearoa New Zealand and Australia need to take a deep breath and realistically assess the opportunities and threats from such an arrangement. … Then they must weigh up the options: stand aside from the negotiations, pursue alternative arrangements, or establish a clear, public negotiating mandate that would truly maximise the nations’ interests for the century ahead.”
That commentary was written at the time of the IPEF’s creation. More recently, in December 2022, Professor Kelsey wrote more forcefully on the imperial nature of this trade deal, intended to reinforce U.S. dominance. Note that, in the U.S. government’s “fact sheet” quoted above that the purpose is to “ensure American workers, small businesses, and ranchers can compete in the Indo-Pacific.” Not even a pretense that working people in the other 13 negotiating countries might benefit. Writing in Bilaterals.org, Professor Kelsey said:
Lupin field, New Zealand (photo by Michael Button)
“It is extraordinary how quickly states across ‘the region’ (whatever we name it) have fallen into line. Old imperial powers have embraced the US’s re-assertion of its regional presence: Australia, with its increasingly strident anti-China stance; Canada, welcoming a new hybridised North-South version of the old Western hegemony; France, wary of its remaining colonies being seduced by China. … Predictably, New Zealand has also fallen into line.”
What we have here is a replay of the Trans-Pacific Partnership, and the TPP agenda of dismantling national protections against the depredations of U.S. multi-national capital. Professor Kelsey wrote:
“Barack Obama famously and unsuccessfully tried to sell the TPPA to the American people, and the US Congress, as the vehicle for America to write the rules and call the shots in the 21st century, not China. Those power politics remain the same. As with the TPPA, the US initiated the negotiation and will set the agenda, dictate the script and approve the outcome, with other states attempting to influence at margins. Even when Trump withdrew the US from the TPPA, many of the US-driven texts were retained by the remaining eleven countries. We also expect parts of the TPPA to form the starting point for US demands. …
‘The prosperity’ promised by IPEF is principally for the US on terms it can manage politically. The Biden administration is determined to bypass the messy problem of securing approval in the Congress. An ‘executive agreement’ that does not contain market access commitments and does not require the US to change any of its laws avoids that problem. So, unlike the TPPA, IPEF will not include negotiations for other parties to access the US market, removing the most obvious means for other countries to point to any commercial gains. The pro-corporate regulatory settings will reflect the status quo in the US. Add to that the penchant for the US to invoke ‘national security’ exceptions to justify breaching its trade obligations, which makes a mockery of an ‘open rules-based system’ and any pretence that IPEF will be a reciprocal exchange of benefits by all the participating countries.”
Opposing a policy of total subservience
Such goals have not gone unnoticed in Australia. Writing in Green Left Weekly, William Briggs noted how fast the new Labor government of Anthony Albanese fell in line. “The first action of a new government is always steeped in symbolism,” he wrote. “The Anthony Albanese Labor government’s reaffirmation of Australia’s unswerving loyalty to the United States at the Quadrilateral Security Dialogue (Quad) meeting was just so. … The new Labor government is facing almost impossible tasks. No capitalist economy can hope to overcome global crises. Any reform, any tinkering at the edges, is to be supported and welcomed, but a policy of total subservience to the interests of the US is hardly the way forward.”
The Indo-Pacific Economic Framework will be detrimental to the developing countries as well. The president of the Malaysian civil society organization Consumers’ Association of Penang, Mohideen Abdul Kader, said:
“US multinational companies are openly pushing for provisions that would prevent the Malaysian government from preferentially purchasing from our local companies. This undermines domestic manufacturing especially in current times. It also adversely affects the need for small and medium sized firms to recover from the effects of Covid-19. The US industry is also demanding stronger intellectual property protection that would, among others, make medicines, textbooks, agricultural and manufacturing inputs and climate change technology more expensive. The digital economy provisions sought by US big tech companies would undermine Malaysia’s privacy, consumer protection, health, environmental, financial, tax and other crucial regulations, while the privately held global food company Cargill wants provisions that allow foreign investors to sue the government in international tribunals.”
Tokyo at night (photo by Basile Morin)
And from the Philippines, Joms Salvador of Gabriela Philippines, in a statement issued through the Asia Pacific Forum on Women, Law and Development, a network of feminist organizations, sees through the attempt to promote the IPEF as benefiting women:
“The IPEF is not, and never will be, just about economic trade, but a link in the chain of US hegemonic dominance in Asia-Pacific, where it has maintained strategic military presence and client relations with its neocolonies in the region, often to the detriment of national sovereignty and the human rights of Asian women and peoples. Women must resist the IPEF and stand our ground in the face of intensifying US-China rivalry and its encroachment on our lives as sovereign peoples.”
Helping women? No, women have seen this movie before
Filipino women are far from alone in rejecting an attempt at whitewashing the corporate-oriented nature of the IPEF. In a statement titled “Statement Rejecting Pinkwashing in the Indo-Pacific Economic Framework,” more than 60 women’s rights organizations, labor unions and civil society organizations firmly rejected an “upskilling” program that is promoted as a way for young women to gain employment in technical fields but it seen as another initiative actually designed to deepen the dominance of U.S.-based Big Tech companies. The coalition of groups, in their statement, said:
“The Upskilling Initiative for Women and Girls promises training by fourteen US Big Tech companies to women in IPEF countries. However, it appears that much of the promise is simply re-packaged training that is already available, and primarily designed as a tool to increase market presence and profits. The initiative is designed to encourage developing countries to agree to ‘high-standard commitments’ on the ‘promotion of cross-border data flows’ which translates to the adoption of rules that have been included in other trade agreements at the behest of Big Tech. Rules that a) restrict governments being able to effectively regulate Big Tech, b) inhibit governments from implementing rights-enhancing data policies for political sovereignty and economic self-determination, c) enable algorithms to be kept secret, d) constrain governments from requiring tech companies to have a local presence, and e) stop governments from pro-actively developing digital industrial policies, including autonomous digital public infrastructure. All of these can be extremely harmful to women’s human rights.
The initiative involves companies that have undermined labour rights, refused to recognise workers as employees, have used tax havens to avoid making tax contributions to public services essential for gender equality. Previous trade agreements have included commitments to gender equality, but those agreements have instead harmed women’s human rights by liberalising services, promoting the privatisation of public services essential in addressing discrimination and exclusion, deregulating the labour market, and promoting a race to the bottom in wages and conditions, and denying governments the policy space required for people to progressively realise their economic rights.”
Opposition also arises in the imperial center
Opposition has begun to be organized across the Pacific, in the United States itself. A letter initiated by Citizens Trade Campaign, a national coalition including unions, community groups and other organizations, released on March 2023 a petition signed by more than 400 labor, environmental, community and religious groups calling for the Biden administration to include strong labor rights based on International Labour Organization standards, binding commitments to combat global warming and digital standards to protect consumer rights and privacy while reining in Big Tech abuses. The letter also asks for transparency during IPEF negotiations: “A more transparent and participatory negotiating process for IPEF would allow for a wider set of interests to provide informed input and ensure equitable treatment of communities which are not part of the official U.S. trade advisor system most representing corporations who now have access to U.S. proposals and other confidential IPEF texts.”
A separate U.S. effort, by a group of consumer advocates, calls on the Biden administration to eliminate IPEF language that they say could undermine efforts to hold Big Tech accountable for their privacy practices. The consumer advocates have not seen any IPEF text because it remains secret from the public, but in their letter they said they “understand from policymakers and others who have reviewed the draft” that its digital trade section could help let U.S. tech companies off the hook when it comes to privacy safeguards, The Washington Post reports. The letter adds that the IPEF contains “problematic terms” giving “Big Tech firms control of our personal data” while limiting other countries from applying regulations.
A third negotiating round is scheduled for May in Singapore. The first round of talks, in Brisbane in December 2022, ended without a status report by participants but reportedly negotiators set aside more challenging issues. The second round, in Bali, Indonesia, ended with a commitment “to an aggressive negotiating schedule throughout 2023,” with nothing of substance revealed.
Activists on both sides of the Pacific had to organize a years-long campaign to defeat the Trans-Pacific Partnership, an effort that can only be said, at best, to be partially successful because most of the countries involved did eventually sign it, albeit with somewhat less draconian rules because the most hard-line government, that of the United States, dropped out due to intense domestic pressure. As with the TPP, and the many other “free trade” agreements that have been implemented, the purported benefits for working people are illusions. Fanaticism and fantasy have long driven government propaganda in promoting these deals. Once the TPP text was released, it could readily be seen why it had been secret throughout the negotiations.
“Free trade” agreements — even when falsely advertised as something else — have very little to do with trade and much to do with imposing corporate wish lists, including sweeping away health, safety, labor and environmental standards that can’t be eliminated through democratic means. As with all “free trade” agreements, the fault lines are along class, not national, interests. Industrialists and financiers around the world understand their class interests and are united to promote their interests. Working people uniting across borders, in a broad movement, is the only path toward reversing corporate agendas that accelerate races to the bottom.
The Regional Comprehensive Economic Partnership is being called a new model of trade agreements. Such paeans appear to be premature, and we might better hold off on uncorking the champagne.
It is best to remember that so-called “free trade” agreements are products of neoliberal assaults on any and all efforts to protect people and the environment from the rapacious effort of corporations to profit to the maximum extent and without regard to external cost. “Free trade” agreements are not the cause of neoliberalism; they are a product of neoliberalism.
It is true that the RCEP is less draconian than recent trade deals, and less one-sided in advancing corporate profiteering above all other human concerns than the Trans-Pacific Partnership was when the United States was involved and pushing for the harshest rules. But is that the standard we wish to uphold? “It’s not as bad as the worst agreements out there” really shouldn’t be a cause for celebration.
Much of the same language commonly found in “free trade” agreements is in the RCEP, and what appears to be the most promising development, the lack of the usual “investor-state dispute settlement” process that uses corporate-dominated tribunals that consistently overturn health, safety and environmental regulations, is much less than it appears once we look into the details. And there are no labor or environmental provisions. What we have here is more capitalism as usual, including a dispute process still weighted toward corporate interests.
Tokyo at night (photo by Basile Morin)
For readers not familiar with the RCEP, it is a trade deal reached by 15 countries across East Asia and Oceania. Although some commentators believe that China has been the impetus behind the RCEP, in fact it is the 10 countries of the Association of Southeast Asian Nations (ASEAN) that were the driving force. Australia, New Zealand, Japan and South Korea join China and the ASEAN countries — Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam — in a deal that encompasses nearly one-third of the world’s economy. India was originally a negotiating country, but dropped out, expressing concerns that the RCEP would be dominated by China.
As would be expected, mainstream economists, who as a group act as cheerleaders for capitalism rather than seriously analyze capitalist economies, are cheering the agreement. The Financial Times, for example, breathlessly reported that the RCEP “could add almost $200bn annually to the global economy by 2030,” a number repeated by signatory governments. That despite the fact that Australia, China, New Zealand, Japan and South Korea each already has a trade agreement in place with ASEAN.
Signatory countries were also enthusiastic. China’s prime minister, Li Keqiang, said the agreement is “a victory of multilateralism and free trade.” The New Zealand Ministry of Foreign Affairs and Trade said, “The agreement will help ensure New Zealand is in the best possible position to recover from the impacts of COVID-19 and seize new opportunities for exports and investment.” The Australia Department of Foreign Affairs and Trade said, “Australian farmers and businesses are set to benefit from better export opportunities.”
Unions fear working people face a race to the bottom
Once we turn our attention to those not highly placed, a rather different picture emerges. A bloc of seven trade union federations strongly condemned the RCEP after its signing. Those federations, covering workers in construction, manufacturing, agriculture, transportation, services and education, said, “Instead of furthering a free trade project, countries should be collaborating on reviving their economies and expanding public goods. … RCEP and other trade agreements that protect intellectual property rights threaten the ability to secure a globally accessible [Covid-19] vaccine. … [W]hile [corporate executives] traveling for business will benefit from facilitation of procedures for entry and temporary stay, workers face deteriorating working conditions in a race to the bottom under heightened competition in which migrant workers are facing the worse consequences. Regional cooperation based on a collective intent to promote decent work, quality public services and sustainable and inclusive development are a better solution.”
The seven trade union federations also pointed out that RCEP was shrouded in secrecy throughout its eight years of negotiations, with the text released to the public only after the agreement was signed. (All 15 countries must still formally ratify it.) The intellectual property chapter was leaked in 2015, prompting the Electronic Frontier Foundation to characterize the IP text as “a carbon copy” of the Trans-Pacific Partnership then also in negotiation. “South Korea is channeling the [U.S. trade representative] at its worst here,” the Foundation said in its commentary, speculating that Seoul was pushing draconian IP rules because accepting unfavorable rules in its bilateral trade agreement with the U.S. would put it at a disadvantage otherwise. We’ll return to the intellectual property text, always a key chapter in any trade pact, below.
There are also fears that trade deficits for less developed countries will increase and pressures for privatizations will increase.
The skyline of Bangkok (photo by kallerna)
A senior economist with the United Nations Conference on Trade and Development, Rashmi Banga, expects that, assuming tariffs are removed on all products trading among RCEP countries, most ASEAN countries will see their imports rise faster than their exports, believing that those countries won’t be able to compete with China.
Kate Lappin, the Asia Pacific regional secretary of Public Services International, a federation of more than 700 trade unions representing 30 million workers in 154 countries, said “free trade” deals such as RCEP “also increase the pressure on governments to privatise, as public services need to be traded and compete on the market. This will have negative impacts on equality, including corrosive impacts on gender equality.” Noting that some measures governments are taking to combat the Covid-19 pandemic would be in violation of the RCEP or other trade agreements, Ms. Lappin said “RCEP will bind the hands of governments in taking measures in the public interest in crises to come, be it health or environmental.”
There could also be problems for manufacturers in small countries because “rules of origin” rules mandate that parts from any signatory country must be treated the same as domestic production.
Bad news for farmers, good news for agricultural multi-nationals
The ability of farmers to maintain control of their seeds is in peril, according to GRAIN, which describes itself as an “international non-profit organisation that works to support small farmers and social movements in their struggles for community-controlled and biodiversity-based food systems.” GRAIN, in analyzing a separate leak of RCEP chapters, said the agreement was in danger of requiring all signatory governments to adopt a seed law designed to provide private property rights over new crop varieties, giving corporations like Monsanto or Syngenta a legal monopoly over seeds, including farm-saved seeds, for at least 20 years; require adherence to the Budapest Treaty, which enforces patents on microorganisms; and make violations of these corporate-friendly rules criminal violations. Australia, Japan and South Korea were described as the “hard-line camp” on these issues.
Those fears remain in place. Article 11.9 of the final text indeed mandates that RCEP governments not already signed onto the Budapest Treaty do so. Adherence to several other international treaties are also mandated. Language concerning adoption of the seed law described in the preceding paragraph (the Act of International Convention for the Protection of New Varieties of Plants, amended in Geneva in 1991) is at Article 11.9, but the language is ambiguous, encouraging governments to sign the Convention and “cooperate” with other signatory governments “to support its ratification.” Also worrisome is Article 11.36, which mandates patents on plants: “[E]ach Party shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”
There is also concern about the availability of medicines. A key goal of the United States when it was negotiating the Trans-Pacific Partnership was to undermine government procurement of medicines that reduced the cost of health care and to extend patents and data exclusivity periods for brand-name drugs, impede trade in generic medicines, and place new limits on how drug prices are set or regulated, all in the service of pharmaceutical company profits.
Canberra at night (photo by Ryan Wick)
Croakey Health Media, an Australian “not-for-profit public interest journalism organisation,” in a commentary on the RCEP’s potential impact on medicines, feared some of those goals could find their way into the final text. “Early in the negotiations, leaked texts indicated that Japan and South Korea had proposed rules for the RCEP intellectual property chapter that would extend and expand monopolies on new medicines in countries like Cambodia, Indonesia and Thailand,” Croakey said. “These types of rules can delay the availability of generic medicines.”
It appears there is at least some backing off of the worst provisions that had been under discussion. Article 11.8 of the final RCEP text says “The Parties reaffirm the Doha Declaration on the TRIPS Agreement and Public Health” adopted in 2001. The Doha Declaration is an ambiguous document that “affirms” intellectual property rights but also “should not prevent members from taking measures to protect public health.” How the text will be interpreted will likely determine how far it will be possible to go in attacking government health care systems.
It should be stressed that grassroots organizations had no chance to affect any aspect of the RCEP text as the negotiations were secret throughout.
Lots of language customarily found in trade agreements
The text of “free trade” agreements is always dry and technical, even neutral-sounding. It is in the interpretation, and what certain phrases actually mean, that determine their outcome. So let’s take a very brief look at some of the text, and what it might mean.
Chapter 10, covering investments, is crucial to understanding the similarities to existing deals. Article 10.1 on “covered investments” contains the standard list of what is covered typically found in “free trade” agreements, including “claims to money or to any contractual performance related to a business and having financial value” and “intellectual property rights and goodwill.” There is an important exception, however — the chapter does not apply to government procurement, “subsidies or grants provided by a Party” or “services supplied in the exercise of governmental authority.” What that means is that the RCEP theoretically reduces the ability to attack or force privatization of government-owned enterprises, a consistent goal of U.S. trade negotiators in agreements the U.S. is involved in, and a goal generally shared by multi-national corporations seeking new markets. But this clause could potentially be negated by the heavier market pressures that could lead to privatizations, as discussed above, and once a government enterprise is privatized, the clause is no longer relevant.
The investment chapter contains the standard clause that “Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to investors of any other Party or non-Party.” Article 10.5 follows up with language that is also typical: “Each Party shall accord to covered investments fair and equitable treatment and full protection and security, in accordance with the customary international law minimum standard of treatment of aliens.” Although these passages are bland, neutral-sounding phrases, this language has often been used as key points of attack for multi-national corporations seeking to eliminate government health, safety, labor or environmental regulations. As always, “customary international law” has been established by a series of rulings by the corporate-dominated secret tribunals that hand down unappealable decisions, decisions that are used as precedent for further such decisions. The expectation of profits by a corporation as a “right” superseding health and environmental regulations has been repeatedly handed down.
The skyline of Beijing (photo by Picrazy2)
Further language routinely found in “free trade” agreements stipulate that capital controls are prohibited, and, in Article 10.13 of the RCEP, “No Party shall expropriate or nationalise a covered investment either directly or through measures equivalent to expropriation or nationalisation.” What will constitute an illegal “expropriation”? How this clause will be interpreted is crucial. In existing “free trade” agreements, government regulations protecting health or the environment are frequently overturned because complying with such regulations would reduce profits, and thus constitute “expropriation” because corporate profits are presumed to be an entitlement by the tribunals sitting in judgment. Will the repeated examples of such rulings in, inter alia, the North American Free Trade Agreement, be replicated here?
In Chapter 11, covering intellectual property rights, there is no mandatory schedule for when those rights expire; this constitutes a small victory. The chapter also states that signatory governments “may establish appropriate measures to protect genetic resources, traditional knowledge, and folklore,” a right not ordinarily granted in “free trade” agreements.
But in the Financial Services Annex of Chapter 8, language similar to that found in other trade pacts requires that foreign financial services firms be given free reign to operate, even to take over a country’s banking system. Specifically, “Each host Party shall endeavour to permit financial institutions of another Party established in the territory of the host Party to supply a new financial service in the territory of the host Party that the host Party would permit its own financial institutions, in like circumstances.” Again, what seems neutral-sounding on the surface has specific meanings when interpreted by a tribunal in the context of “customary international law.”
Corporations will continue to be elevated above governments
And that brings us to Chapter 19, covering dispute settlement. Article 19.4 leaves us little doubt, reiterating that “This Agreement shall be interpreted in accordance with the customary rules of interpretation of public international law” and that adjudicators “shall also consider relevant interpretations in reports of WTO [World Trade Organization] panels and the WTO Appellate Body, adopted by the WTO Dispute Settlement Body.” No specific tribunal for the settlement of disputes is mandated, and the intent appears to be to have ad hoc panels rather than panels seated by one of the tribunals ordinarily used in trade disputes in existing trade agreements. Nonetheless, Article 19.5 gives right of forum selection to the complaining party — i.e., the corporations that will be suing governments — so the use of the tribunals can’t necessarily be ruled out. When seating an ad hoc panel, the complaining corporation and the respondent government are supposed to mutually agree on the three members of a panel but if they can’t agree, the WTO director-general will complete the panel — given the role of the WTO in imposing draconian pro-corporate rules, this clause can hardly be considered neutral.
And so who will sit on the panel and adjudicate the case? Article 19.11 designates those who “have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements.” In other words, the same corporate lawyers who sit as judges on the tribunals that adjudicate cases brought under existing “free trade” agreements. If the WTO director-general seats panelists, those must not only meet the requirements stated above but additionally “be a well-qualified governmental or non-governmental individual including an individual who has served on a WTO panel or the WTO Appellate Body or in the WTO Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a WTO Member.”
Under most existing “free trade” agreements, one of three tribunals is used, most commonly the International Centre for Settlement of Investment Disputes (ICSID), an arm of the World Bank. ICSID is the forum that was used in NAFTA and is used to adjudicate disputes under dozens of bilateral trade agreements, and is responsible for a long list of outrages declaring environmental and health regulations illegal. Conflicts of interest are blatant in these tribunals — corporate lawyers who specialize in defending multinational corporations in trade disputes alternate between appearing as counsel for corporations and as judges handing down the decisions.
“In effect, ISDS creates a parallel business-friendly judicial system exclusively for transnational corporations. The power rests upon for-profit arbitrators who come from the corporate sector and face unverifiable conflicts of interest. They have no sovereign legitimacy and are not accountable to the public. The decisions they make can be inconsistent between one another and cannot be appealed. Plus, the arbitrators effectively serve as judge and party, because the same appointed arbitrators who plead the case for the parties make the decision. Imagine a football match where the referee plays for one of the teams! With ISDS, this becomes a possible scenario. So much for justice.”
RCEP rules not mandating ICSID or one of the other tribunals is a cosmetic change. Governments continue to tie themselves to rules and precedents that elevate multi-national corporations above national governments, and thus elevate corporate profiteering above all other human considerations. There will still be panels seated to adjudicate disputes, but instead of using ICSID or another permanent forum, there will be ad hoc panels, which will, as noted above, have the exact same criteria for seating judges. The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union pioneered this cosmetic change, intended to make the one-sidedness of ISDS appear somewhat less blatant, and will also be used in some disputes covered by NAFTA 2, the U.S.-Mexico-Canada agreement.
Thus the “investor-state dispute settlement” (ISDS) process is very much in place in the RCEP. That should not come as a surprise. “Free trade” agreements arise because multi-national corporations scour the globe searching for the places with the lowest wages and least regulations in order to maximize their profits over all other considerations. As capitalist competition intensifies, corporations must match the moves their competitors make in order to remain in business, and adopt still more harsh policies to stay ahead. Once production is moved overseas, and supply chains are spread into ever more locales, tariffs and rules protecting domestic production are barriers to be removed. Trade deals at first mainly dealt with technical issues or tariffs, but as the relentless grasping for profits becomes ever more intense, regulations safeguarding health, labor, the environment or safety are seen as barriers to profit-making, and corporations seek to sweep them away, too.
Later trade agreements had much more to do with erasing regulations than with actual trade rules, which was reflected in the draconian rules the U.S., often assisted by Japan, sought to impose in the Trans-Pacific Partnership. That the RCEP has less draconian rules is not a cause for celebration — the rules are still plenty tilted in favor of multi-national capital and will inevitably be wielded as a cudgel by those beneficiaries. A rational trading system requires a rational, democratic economic system, not the dictatorship of capital.
Democratic Party House representatives have voted by a wide margin to approve version 2 of the North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement. Even Rose DeLauro of Connecticut, in the past a strong leader within Congress in the fight against so-called “free trade” agreements, is on board with this one.
Representative DeLauro and other congressional Democrats claim they forced the Trump administration to strengthen the agreement by compelling the insertion of language that allegedly creates “effective and meaningful labor standards and protect[s] worker rights”; supports environmental standards; and “protect[s] access to affordable medicine.” Can this really be true? Or have congressional Democrats reverted to normal form, rolling in the dirt at the feet of Republicans yet again?
Although Democrats and public pressure forced through some improvements, the United States-Mexico-Canada Agreement (USMCA), or NAFTA 2, isn’t substantially different and remains a document of corporate domination. It would appear that appearances, not substance, drove Democrats in the House of Representatives to approve the deal. That was signaled by House Speaker Nancy Pelosi, who said she wanted to show United Statesians that her party can get things done and is not simply opposing President Donald Trump for the sake of opposing him. That was understood to be a gesture to buttress the re-election chances of Democrats who won seats in districts previously held by Republicans.
Factory farms won’t be going away under the USMCA (photo by Mercy for Animals)
So Democrats went along to get along, much as they did in approving the massive $738 billion Pentagon budget. In other words, they once again demonstrated that cringing and cowering is their default position. One can imagine the discussion behind closed doors: Yes, that will show Donald Trump we mean business — we’ll support his most desired policy initiative.
Unfortunately, the Mexican and Canadian governments have not shown much more resistance. Mexico President Andrés Manuel López Obrador, despite being elected on a Left wave and promising significant change, has so far tended to give in to President Trump’s demands. That tendency was underscored by the almost unanimous approval given the USMCA by the Mexican Senate. Meanwhile, Canada Prime Minister Justin Trudeau has been a willing participant in bringing NAFTA 2 to fruition, even going so far as to be a voice for retaining the ability of corporations to use unaccountable tribunals to sue governments, including his own and despite Canada’s regulations being the most frequent target.
What the document says isn’t what it means
So what is really in the USMCA text? Interpretation is what really matters here, as the text, like all “free trade” agreements, is written in dry, technical language that appears to be neutral at first glance. But what the words mean in practice, and how they will be interpreted by tribunals, is not necessarily the same as what the words might appear to say.
A key portion of the document is Chapter 14, the chapter on investment. The chapter’s first page, Article 14.1, defines an “investment” with the standard broad brush — not only is any capital outlay covered but so are all forms of financial speculation, including derivatives. Intellectual property rights and intangible property are explicitly named as well. So the expectation of a profit across the spectrum of business activities is well covered here, and of course the expectation of a profit — in actual practice, the demand for the biggest possible profit regardless of cost to others — is what the owners of capital expect these agreements to help deliver. The secret tribunals used to adjudicate disputes, frequently presided over by corporate lawyers who in their day job specialize in representing the corporations who sue in the tribunals, consistently interpret the language of “free trade” agreements to mean corporations are guaranteed maximum profits above all other considerations.
So is the language of Chapter 14 substantially different? Asking that question is important because Article 14.3 states that in the event of any inconsistency between Article 14 and any any other chapter, Article 14 prevails. The one exception is financial services, covered by Chapter 17, to which we will return. Article 14.4 begins with this passage: “Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.”
That dry language may sound neutral, but it is the exact language that is standard in “free trade” agreements. This is the language that is invoked by multi-national corporations to demand “damages” anytime any law or regulation that upholds health, safety, worker or environmental standards prevents them from extracting the biggest possible profit. This is the language invoked in the secret tribunals that adjudicate these cases to rule in favor of corporate plunder and against regulations.
When you hear “customary international law,” be afraid
That is followed up by Article 14.6, which states “Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.” On the surface, that passage seems neutral, even innocuous. But what is “customary international law”? It is whatever the tribunals that have adjudicated disputes between multi-national corporations and governments say it is. In practice, the many outrageous decisions overturning reasonable health, safety, worker or environmental standards and making corporate profit paramount establishes precedent and thus constitutes “customary” law.
The article goes on to state: “The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.” Again, what sounds neutral has to been read in context. What need for “additional rights” would be needed when the profits of multi-national corporations are elevated above all other considerations?
The vote in the Canadian Parliament will likely be the last chance to stop the USMCA (photo by Saffron Blaze)
We then come to Article 14.8, which states: “No Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation).” The word “indirectly” is crucial here. Not a reference to a nationalization, which would be a verboten act, an “indirect expropriation” can be any government act that, regardless of intention or general applicability, has the effect of preventing a multi-national corporation from extracting the biggest possible profit. An environmental regulation or a regulation imposing standards protecting human health are two examples of “indirect expropriation,” and under the rules established here would mean that the government being sued would be obligated to strike such regulations from its law and pay “compensation” to the corporation. The article explicitly states that “compensation shall be paid without delay.” (A “Party” is a government that is a signatory to the agreement.)
And what of requiring corporations to act in a socially responsible manner? Here’s Article 14.17 in full: “The Parties reaffirm the importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines, and principles of corporate social responsibility that have been endorsed or are supported by that Party, which may include the OECD Guidelines for Multinational Enterprises. These standards, guidelines, and principles may address areas such as labor, environment, gender equality, human rights, indigenous and aboriginal peoples’ rights, and corruption” (emphasis added).
Note the provisional language, quite unlike the many articles addressing what governments must do for multi-national corporations. In the standard language of trade agreements, rules benefiting capital and erasing the ability of governments to regulate are implemented in trade-agreement texts with words like “shall” and “must” while the few rules that purport to protect labor, health, safety and environmental standards use words like “may” and “can.” The USMCA is no different. It’s the same sleight of hand.
Regulations on banks and Internet giants? Forget about it
Chapter 17, covering financial services, contains the same standard language requiring “treatment no less favorable than that it accords to its own financial institutions … with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments.” Again, what appears to be bland language actually means something stronger: In this case, a prohibition against restrictions on predatory banks. Article 17.5 explicitly bans any limitations on the activities of financial institutions and Article 17.6 prohibits any restrictions on taking capital out of a country.
Among other rules, Article 19.11 prohibits any restrictions on “cross-border transfer of information,” which effectively means, for example, that neither Canada or Mexico can protect personal information from U.S. internet companies, a cohort not known for responsible use of personal information. Similar language can be found in Chapter 15, covering cross-border trade in services. This section appears to be modeled on the Trade In Services Agreement (TISA), a notorious “free trade” agreement negotiated in secret among 50 countries, among them all three NAFTA countries, the European Union, Australia, New Zealand and Japan, and purporting to liberalize professional services.
The cover story for why TISA is being negotiated is that it would uphold the right to hire the accountant or engineer of your choice, but in reality is intended to enable the financial industry and Internet companies to run roughshod over countries around the world. The text of TISA expanded the definition of “services” to encompass manufacturing and could potentially encompass technology companies like Google and Facebook as providers of “communications services.” The text of USMCA’s Chapter 15 may not necessarily be stretched as far it is in TISA, but a reasonable reading is that this chapter will provide another weapon that predatory banks can leverage to take over financial systems and halt attempts at bringing them under meaningful regulatory control. Citigroup, Microsoft and Google are among the many corporate entities celebrating the USMCA.
Another area of concern is Chapter 11, covering “technical barriers to trade.” This chapter adopts numerous articles from the World Trade Organization’s Agreement on Technical Barriers to Trade, and makes WTO standards obligatory. There is also a clause in Article 11.7 that requires equal participation by citizens of other countries when technical regulations or standards are developed. Might this be an invitation for executives and lobbyists for multi-national corporations to demand the ability to shape new regulations? What might be ruled an “unnecessary technical barrier to trade”? Such “barriers” are intended to be eliminated as stated in Article 11.9.
Ending secret tribunals appears to be an empty promise
In “free trade” lingo, when a corporation sues a government, the dispute is to be adjudicated in a mechanism known as an “investor-state dispute settlement.” That bland-sounding bureaucratic phrase means that a tribunal decides the issue. Under NAFTA, and many other “free trade” agreements, the tribunal is the International Centre for Settlement of Investment Disputes (ICSID), an arm of the World Bank. One of President Trump’s empty promises was to put an end to the use of these tribunals. Surprise! It’s ain’t so. OK, it’s not a surprise that he lied.
In disputes between the U.S. and Mexico, Article 14.D.3 states that disputes will be settled in the ICSID, but the two sides can agree to have it heard in another forum. Given the one-sided rulings ICSID hands down, suing corporations have little incentive to use another forum. More generally, Chapter 31 sets the rules for settling disputes. There we find Article 31.3, which states, “If a dispute regarding a matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.” Can a corporation suing a government dragoon the government into the ICSID or one of the other two similarly one-sided secret tribunals? The text later in the chapter is ambiguous on that, but does not preclude use of those fora.
Finance capital will be one of the winners from the USMCA (photo by Elisa Rolle)
Later in the chapter, the text speaks of “panels” without specifying a forum and also mandates, in Article 31.8, that a “roster of up to 30 individuals who are willing to serve as panelists” be created. The panelists are to “have expertise or experience in international law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements.” The exact same “expertise” required under NAFTA and virtually all other “free trade” agreements! In other words, corporate lawyers who specialize in representing corporations in these kinds of disputes are those who have the “expertise” and “experience” to sit in judgment. The same hat-switching will be in force.
So even if ICSID, or the other two secret tribunals, are not used and instead a new panel specific to the USMCA becomes the new forum, the same conditions and same cast of characters, using the same precedents, will be in force. There is no reason to expect any effective difference from NAFTA.
Some better language but that is not necessarily meaningful
As to what potential improvements from NAFTA exist, there are three. One is that hearings will be conducted in public (Article 14.D.8) (although there does not appear to be a requirement that a public notice be made). The second is that a side agreement in force only between Mexico and the U.S. that purports to uphold workers’ rights by prohibiting denial of free association or the right to collective bargaining to the extent that doing so impacts the other country (Annex 31-A). A panel is supposed to adjudicate this issue should it arise, and apply International Labor Organization standards. The U.S. government can sue to enforce this annex, but can anybody imagine the Trump or any other Republican administration suing to enforce the right of workers? For that matter, would a Democratic administration seek to enforce collective-bargaining standards or the right to form a union if a Mexican government, acting on behalf of its industrialists, discourages it from filing?
Democratic supporters of USCMA are taking this provision on faith, but it remains to be seen if there will be any use of this annex or if it can be meaningfully enforced even if a future administration does seek to apply it.
The third improvement is that there is language on the environment that is stronger than in past agreements. Article 24.2 declares that “The Parties recognize that a healthy environment is an integral element of sustainable development” and are encouraged to “promote high levels of environmental protection and effective enforcement of environmental laws.” There are several articles in Chapter 24 discussing various specific environmental concerns. But seemingly pro-environment language has not been absent from existing “free trade” agreements and that language has proved to be meaningless window dressing.
Further, Article 24.2 also says “The Parties further recognize that it is inappropriate to establish or use their environmental laws or other measures in a manner which would constitute a disguised restriction on trade or investment between the Parties.” Here we find a potential giant loophole. Might environmental laws be interpreted to be such a restriction? Unfortunately, there is ample precedent here. A series of rulings culminated in the World Trade Organization ruling that U.S. dolphin-safe labeling is an unfair “technical barrier to trade,” even though the U.S. had weakened its laws in response to the earlier WTO rulings.
Among rulings handed down under NAFTA — rulings that are considered precedents when similar cases are heard — Canada had to reverse its ban on a gasoline additive known as MMT, a chemical long believed to be dangerous to health, because the tribunal ruled the ban a violation of the principal of “equal treatment” even though, had a Canadian producer of MMT existed, it would have had the same standard applied. Canada was also successfully sued over its ban on the transportation of PCBs that conformed with both a Canada-United States and a multi-lateral environmental treaty. The tribunal ruled that, when formulating an environmental rule, a government “is obliged to adopt the alternative that is most consistent with open trade.”
Not only are these types of rulings precedents, but recall, as noted above, that Article 14, which elevates expectations of profits above any conflicting consideration, supersedes all other articles. And to repeat a point made earlier, WTO standards are obligatory. “Technical barriers” to trade as the WTO defines them won’t be exceptions.
A billionaires’ club masquerading as a government
So what can we really expect if the USMCA goes into effect? Given not only the history of “free trade” agreements and the mendacity of the Trump administration, probably the same as experienced under NAFTA. Consider the evidence the Trump administration has offered. Its April 2018 “National Trade Estimate Report on Foreign Trade Barriers,” a document laying out its trade goals, no less than 137 countries were cited for raising alleged “trade barriers” to be attacked, barriers that include items like laws requiring food imported to be safe.
In July 2017, the Trump administration quietly published its “Summary of Objectives for the NAFTA Renegotiation,” which features boilerplate language that in some cases appears to be lifted word for word from the Trans-Pacific Partnership. And, not least, is the Trump gang’s infrastructure plan, a macabre joke that mostly consists of massive corporate subsidies and intends the creation of “public-private partnerships,” which are scams under which services are privatized for guaranteed corporate profit while becoming more expensive and less subject to public accountability.
We’re supposed to trust this government? NAFTA has been a “lose-lose-lose” proposition for working people and farmers in Canada, Mexico and the United States. That formula won’t be changing. The Council of Canadians has issued a strong warning about what can be expected:
“Regulatory cooperation in the new NAFTA takes away our ability to set standards and regulations to protect our health, safety and well-being. … [R]egulations cannot be prescribed for ethical or social reasons. The emphasis is on the regulator to prove that a regulation is backed by science, and not on the corporation to prove that their product does no harm. … Regulators have to vigorously defend proposed regulations and are even required to suggest alternatives that don’t involve regulating. They have to provide extensive analysis, including cost-benefits to industry. The new NAFTA encourages the three countries to harmonize, or have similar regulations. This is not about raising standards, but bringing standards down to the lowest common denominator.”
The National Family Farm Coalition, representing organizations in more than 40 U.S. states, said the USMCA “offers little” for family farmers. Coalition President Jim Goodman, a retired Wisconsin dairy farmer, said:
“Climate change is not mentioned and the new treaty does nothing to curb the environmental damage that was part of the original NAFTA. [Coalition] dairy producers do not support dumping excess US milk on the Canadian or Mexican markets, as that will force family dairy farmers out of business in those countries.”
The Sierra Club, League of Conservation Voters and National Resources Defense Council also recommended against the agreement being approved:
“The deal that the Trump administration produced … would encourage further outsourcing of pollution and jobs, offer handouts to notorious corporate polluters, and prolong Trump’s polluting legacy for years. The deal not only fails to mention, acknowledge, or address the climate crisis, but would actually contribute to it.”
“[The USMCA] locks in a system of agribusiness exploitation of farmers and workers in the three participating nations, while worsening the climate crisis. … Nothing in the New NAFTA addresses urgent issues plaguing our farm economy: low prices, rising debt and increased bankruptcy. … Measures in New NAFTA that open Canada’s dairy market to increased exports from the U.S. will not significantly reduce the vast oversupply of U.S. milk or raise prices paid to U.S. dairy farmers. Instead, the opening will weaken Canada’s successful supply management program, which has achieved market-based prosperity for its farmers. Added regulatory-focused sections will delay and impede the development, enactment and enforcement of protections for consumers, workers and the environment.”
Sadly, the main union federation in the U.S., the AFL-CIO, has chosen to endorse the USMCA despite its fatal flaws. The largest Canadian federation, the Canadian Labour Congress, does not seem to have taken a position, although it did issue an ambiguous statement in October 2018 saying the deal had “some points of progress.” The Congress specifically cited the eliminating of NAFTA’s notorious Chapter 11 that elevated “investor rights” above all other considerations, but that optimism proved erroneous as it is now clear that provision remains in less direct language.
The governments of Canada, Mexico and the United States have once again put a gun to their own heads. “Free trade” agreements continue to have little to do with trade and much to do with imposing a corporate dictatorship, a lesson once again being imposed.
If the renegotiated North American Free Trade Agreement were good for working people, its content wouldn’t be hidden. Just what the Trump administration and the Mexican government of Enrique Peña Nieto have cooked up we do not know, but given the proclivities of both it is not likely to be good.
That the hurried-up deal appears to be intended to force Canada, which has the strongest regulations among the three NAFTA countries, into signing on disadvantageous terms, provides all the more reason to be skeptical. And, finally, a study of the United States Office of the Trade Representative’s “fact sheet” leaves no doubt that any new NAFTA will be a windfall for multi-national corporations, at our expense.
Let’s back up for a moment and remind ourselves that we should judge actions, not words. The contrast between Donald Trump’s empty campaign lies and his administration’s actual policies and actions are glaring, such as, for example, in infrastructure, where his plan is little more than a package of subsidies to connected corporations under the guise of “public-private partnerships,” which are scams to funnel public money into corporate pockets. So it is with so-called “free trade” agreements, especially NAFTA.
Jardin de la Conchita, Mexico City (photo by Percisco)
In July 2017, the Trump administration quietly published its “Summary of Objectives for the NAFTA Renegotiation.” The 18-page document contained almost nothing concrete but did feature boilerplate language that in some cases appears to be lifted word for word from the Trans-Pacific Partnership. The document purports to adopt standards for labor and for the environment, but the language used is very similar to the language proposed for the Trans-Pacific Partnership and in use in other “free trade” agreements. There is little at all in these stated goals that differs from the stated goals that Obama administration put forth for the Trans-Pacific Partnership. They are meaningless window dressing.
Lest we believe those objectives were some sort of aberration, the Trump administration followed up in April 2018 with its “National Trade Estimate Report on Foreign Trade Barriers,” in which it took direct aim at no less than 137 countries. In this document, “trade barriers” are defined as “government laws, regulations, policies, or practices that either protect domestic goods and services from foreign competition, artificially stimulate exports of particular domestic goods and services, or fail to provide adequate and effective protection of intellectual property rights.” Note the absence of labor, safety, health or environmental standards. Among the hundreds of pages of complaints, to provide one example, was that Norway expects food that it imports to be proven safe.
Quite clearly, the Trump administration, headed by a billionaire grifter who built his fortune on stiffing working people and stuffed with corporate raiders and Goldman Sachs executives, is wholly dedicated to furthering corporate plunder, as its tax “reform” amply demonstrates.
Corporate giveaways on financial services, IP
Although only corporate lobbyists have had access to the revised NAFTA text, the U.S. Office of the Trade Representative did provide some highlights of the agreement in its public “fact sheet.” These are not promising.
It appears that corporate wish lists for intellectual property, financial services and other areas were largely granted. New IP rules, if this agreement is passed into law, include stepped-up enforcement against “camcording of movies” and “cable signal theft,” as well as “Broad protection against trade secret theft.”
The IP rules would extend copyrights to 75 years, long a U.S. demand (and one opposed by the Canadian government); increase pressure on Internet service providers to take works alleged to infringe copyrights (in actuality a tool for censorship); and provide for “strong protection for pharmaceutical and agricultural innovators,” which can be presumed to be code for enabling further medicine price-gouging and crimping accessibility to generic and cheaper alternatives. The last of these was a prominent U.S. goal for the Trans-Pacific Partnership, which, inter alia, sought to eliminate the New Zealand government’s program to provide medicines in bulk at discounted prices at the behest of U.S. pharmaceutical companies. Related to this is a measure to include 10 years’ protection for biologic drugs and an expansion of products eligible for “protection.”
New York Stock Exchange (photo by Elisa Rolle)
Noting that the U.S. runs a surplus in financial services, the new NAFTA agreement would force Mexico wide open to U.S. financial companies. The agreement explicitly prohibits any regulations restricting foreign financial-services companies. This would be done under the guise of “national treatment,” and the Trade Office fact sheet flatly states that it is intended “to ensure that a Party does not discriminate against United States financial service suppliers.” That language is “trade speak” for allowing any predatory U.S. bank to run roughshod over other countries with no restrictions. And, as an added bonus, the IP rules also prohibit regulations against cross-border transfers of data. (Here U.S. negotiators likely have European Union privacy rules in their sights as this is a contentious point in the Transatlantic Trade and Partnership talks.)
There do appear, on paper, to be token gains for labor and the environment. But that assumes any such gains would be enforceable, which can not be taken for granted. A revised labor chapter calls on Mexico to commit to strengthening Mexican workers’ ability to collectively bargain, but this strongly clashes with the Trump administration’s unrelenting hostility to U.S. unions. In conjunction with raising the minimum North American content of automobiles, at least 40 percent of auto content must be made by workers earning at least US$16 per hour.
On the environment, the Trade Office claims there would be new protections for marine species including whales and sea turtles; “prohibitions on some of the most harmful fisheries subsidies”; and “articles to improve air quality.”
Don’t hold your breath for clean air
Unfortunately, such sentiments run 180 degrees opposite to the actual policies of the Trump administration. Nor is global warming even mentioned. Furthermore, it is necessary to pay close attention to the actual words used in various places of “free trade” agreements and, crucially, how those passages will be interpreted in the secret corporate tribunals that adjudicate disputes between governments and corporations. Those tribunals are held in secret, have no appeal process and hand down decisions by judges whose day jobs are as corporate lawyers for the corporations that bring these suits.
The U.S, Trade Office “fact sheet” makes no mention of the Investor-State Dispute Settlement (ISDS) provision. Inside US Trade reports that ISDS will remain intact for the oil and gas, infrastructure, energy generation and telecommunications industries, while for other industries, ISDS “will be limited to expropriation or failure to give national treatment or most-favored nation treatment.” Because suits by corporations against national governments seeking to eliminate regulations are almost always raised on just those issues, this “limitation” will likely prove to be of no consequence.
Spent shale from a Shale oil extraction process (photo by U.S. Argonne National Laboratory)
The announced tepid advances in labor and environmental rules aren’t likely to be enforceable. In the language of trade agreements, rules benefiting capital and erasing the ability of governments to regulate are implemented in trade-agreement texts with words like “shall” and “must” while the few rules that purport to protect labor, health, safety and environmental standards use words like “may” and “can.” It remains to be seen if there will be any change to that language, but it would be best not hold one’s breath. Promised breakthroughs in past “free trade” deals have consistently proven to be empty platitudes.
A Sierra Club analysis of the revised NAFTA text warns that environmental rules will be weakened. The analysis said:
“NAFTA negotiators have explicitly stated that they intend for NAFTA 2.0 to lock in the recent deregulation of oil and gas in Mexico, which has encouraged increased offshore drilling, fracking, and other fossil fuel extraction. A future Mexican government may want to restrict such activities to reduce climate, air, and water pollution. However, NAFTA 2.0 could bar such changes with a ‘standstill’ rule that requires the current oil and gas deregulation to persist indefinitely, even as the climate crisis worsens and demands for climate action crescendo.
NAFTA 2.0 includes expansive rules concerning ‘regulatory cooperation’ that could require Canada, the U.S., and Mexico to use burdensome and industry-dominated procedures for forming new regulations, which could delay, weaken, or halt new climate policies. These rules also could be used to pressure Canada and Mexico to adopt climate standards weakened by the Trump administration, making it harder to resume climate progress in the post-Trump era.”
Will the Canadian government allow itself to be bullied?
The Institute for Agriculture and Trade Policy, calling the rushed deal between Mexico and the U.S. a “transparent bullying tactic” intended to force Canada into a deal with unfavorable terms, also said that the deal would hurt family farmers in all three countries. The Institute said:
“Given the Trump administration’s lack of adherence to existing international agreements, a handshake deal can hardly be seen as credible. What little has been released on agriculture makes the dubious assertion that U.S. farmers have benefited from NAFTA and, even worse, promises new rules to lock in the spread of agricultural biotechnology, which would favor agribusiness interests over those of family farmers in each of the three countries.”
Food and Water Watch also threw cold water on the idea of an improved NAFTA, saying it had “no confidence” that the Trump administration would address NAFTA’s flaws. The group’s executive director, Wenonah Hauter, wrote:
“The devil resides in the details of these corporate-driven free trade deals, and we expect that the fine print will include the kind of pro-polluter, pro-fossil fuel industry, pro-Wall Street deregulation that has been a hallmark of Trump’s domestic agenda. These rumored trade provisions would codify the administration’s savage attacks on environmental protection, food safety and consumer rights into trade deals that enshrine and globalize deregulation, making it harder to restore U.S. environmental and consumer protections once this administration is shown the White House door.”
The Alberta tar sands (photo by Howl Arts Collective, Montréal)
The Canadian government has joined the NAFTA talks, although it is difficult to see how Canada can do other than concede, given that U.S. Treasury Secretary Steven Mnuchin has said that Canada has until August 31 — four days after the Mexico-U.S. agreement was announced — to come to terms or the White House will move to replace NAFTA with a Mexico-U.S. bilateral deal. On the other hand, President Trump does not have the authority to do that without congressional approval, and opinions expressed in the U.S. Senate have opposed a deal without Canada. And despite the many concessions made by Mexico, tariffs imposed on Mexico will remain in force until and unless further negotiations eliminate them.
The Council of Canadians, long a NAFTA critic, fears Canada will show weakness. The group’s honorary chair, Maude Barlow, wrote:
“Trump is threatening to push Canada out of the agreement, or making it a junior partner to the U.S. and Mexico. Our government must not give in to these tactics and hold the line on our public interest. When NAFTA was signed 30 years ago, we worried that Canada would be at the mercy of the U.S, and we were right. Now, Canada is going to have its auto workers and farmers pitted against each other.”
No reason for optimism in Mexico
There is no reason for optimism to the south, either. Mexican activist Manuel Pérez-Rocha, noting that it is “not surprising” that the NAFTA text is hidden from the public, wrote:
“Unfortunately, the public doesn’t have an idea of what the exact decisions on energy are, labor organizations have been kept completely aside from the negotiations and in terms of the settlement of disputes these mechanisms will only handcuff [President-elect Andrés Manuel López Obrador’s] government when it starts office on Dec. 1.”
Without question, NAFTA has been a disaster for working people in all three countries — a lose-lose-lose proposition that has gone on for more than two decades. Despite President Trump’s rhetoric, Mexican farmers have perhaps been hurt the most. Is an administration that is overturning every environmental regulation it can, that denies global warming, that puts industry executives in charge of regulatory agencies, that features cabinet officers such as Wilbur Ross, an investment banker who buys companies and then takes away pensions and medical benefits so he can flip his companies for a big short-term profit, really going to help working people?
Given the massive power imbalances of today, the policies of capitalist governments reflect the interests of the largest industrialists and financiers. The Trump administration is actually composed of large industrialists and financiers, to a degree perhaps unprecedented in modern times, so all the more are those interests promoted.
“Free trade” agreements are part of this process, which is why they have little to do with trade and much to do with bringing to life corporate wish lists. These agreements are an inevitable result of production being moved to places with the lowest wages and weakest regulation — with products assembled across oceans with parts delivered from yet more places, the multi-national corporations that benefit from these global production chains require ever more “free trade” deals to keep their cross-border profits coming and to maintain their sweatshop empires.
There remains no alternative to working people uniting across borders, in a broad movement, to reversing corporate agendas that accelerate races to the bottom. Opposing “free trade” deals on nationalist grounds is playing into the hands of corporate plunderers.
Given the Trump administration’s all-out war on working people, a government by billionaires and for billionaires considerably more blatant in its class warfare than the ordinary White House, it has long puzzled me that some activists insist on giving it the benefit of the doubt when it comes to trade issues.
The Trump administration’s previously stated goals on what it seeks to achieve in the North American Free Trade Agreement (NAFTA) negotiations should have been sufficient evidence. But with this month’s issuance of the “National Trade Estimate Report on Foreign Trade Barriers” it should be painfully obvious that the Trump régime’s intent is to extend the dominance of U.S.-based multinational corporations into every aspect of life in as many corners of the globe as possible.
Directly contrary to Donald Trump’s hollow promises on the campaign trail, his administration released in July 2017 its “Summary of Objectives for the NAFTA Renegotiation.” This 18-page paper was written with boilerplate language that reads as if it was lifted from the Trans-Pacific Partnership, and some of the language appears to be repeated word for word. The intention is to strengthen corporate power, not promote the interests of working people.
Bárrás mountain, Norway (photo by Ville Miettinen)
As Friends of the Earth said at the time in its analysis of the Trump administration’s NAFTA objectives:
“Trump’s statement indicates he plans to step up his war on public health and the planet by modeling NAFTA’s provisions related to environmental regulation on the TPP. These objectives appear to set the stage for a stealth attack on strong regulation of food, agriculture, chemicals, and biotechnology.”
I was thus quite surprised recently when discussing NAFTA on the Eco-Logic environmental program on WBAI radio in New York when, summarizing the Trump NAFTA paper, I was quite rudely interrupted and addressed in a most condescending manner by another guest, the head of a Washington non-governmental organization (NGO) who purported to “correct” me by claiming that Trump’s trade advisers say they want to do away with the secret tribunals that corporations use to overturn government laws and regulations.
I was appearing on Eco-Logic as a representative of a grassroots organization I have worked with for several years, Trade Justice New York Metro, but even I as a lowly community organizer and not the head of a connected NGO know that campaign promises are meaningless. The Trump administration has put its intentions in print, and it would be folly to ignore what administration officials themselves say is their policy. There has been no attempt to do away with the private tribunals (the “investor-state dispute system”) in the NAFTA talks, only a push to eliminate panels that decide anti-dumping cases. This is simply because the White House wants to make it easier for U.S. companies to be able to sell excess production on the cheap across the border.
Trump administration takes aim at the world
In its National Trade Estimate Report (prepared by the Office of the U.S. Trade Representative, headed by nationalist Robert Lighthizer), the Trump administration takes direct aim at no less than 137 countries. And, for the few that were missed, the report’s introduction warns “As always, the omission of particular countries and barriers does not imply that they are not of concern to the United States.”
The report defines “trade barriers” in this way: “government laws, regulations, policies, or practices that either protect domestic goods and services from foreign competition, artificially stimulate exports of particular domestic goods and services, or fail to provide adequate and effective protection of intellectual property rights.”
You’ll note the absence of labor, safety, health or environmental standards, and the concern for “intellectual property rights” contrasts with the complete lack of regard for what other countries might see as their right to protect their own economy. This concern only with corporate profits, at the expense of all other human considerations, is hardly new of course. U.S. negotiators during the Obama administration consistently pushed for the most draconian rules for the Trans-Pacific Partnership, particularly on intellectual property. Any “investor” — defined as 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 — would have eligible to sue governments under the rules of the TPP.
The Rideau Canal in Ottawa (photo by John Talbot)
Health care, and government policies to make medicines more affordable, such as those of New Zealand, was at direct risk under TPP.
Nothing has changed. Any attempt by any government to place health or environmental concerns at least level with corporate prerogatives is what actually constitutes a “trade barrier” in the eyes of the Trump administration, true to its composition of a cabinet stuffed with billionaires and its managerial ranks with a fleet of Goldman Sachs alumni.
No country too small to be a target of U.S. capital
Let’s take the example of Norway. Not a socialist paradise as some U.S. liberals of the Bernie Sanders persuasion imagine, but nonetheless a country that does make efforts to ameliorate the conditions of capitalism and certainly a much more civilized place than the United States. Norway has an interesting relationship with the European Union, formally outside but part of the EU common market. Thus it is required that Oslo implement EU law, which it dutifully does with the exception of a couple of areas, including fishery policy, where it maintains independence.
The U.S. enjoyed a small trade surplus with Norway in 2017. Given Norway’s small population of five million one might believe the White House has bigger targets at which to aim. But no country is too small to feel the wrath of U.S. multi-national capital. The National Trade Estimate Report complains that Norway expects food that it imports to be proven safe. The nerve! The report says:
“Norway has effectively banned the importation of agricultural biotechnology products by implementing extremely restrictive policies for crops derived from such technology. The restrictions include prohibiting farmers from cultivating biotech crops and using biotech feed for farm animals. The United States continues to press Norway to recognize the applicable science on the safety of such products and accordingly to open its market to U.S. exports of such products. … Norway applies regulations developed by the European Union that ban imports of beef from animals treated with hormones, despite the absence of scientific evidence demonstrating that this practice poses any risk to human health.” [page 347]
Scientists, and not only EU officials, would differ. Note that in the Trump régime’s conception it is not up to the producer of a new product to prove it is safe; it’s up to consumers, or agencies designed to protect consumers, to prove it’s not safe after the fact. This backward formulation, unfortunately, is consistent with U.S. regulatory practice regarding chemicals.
Consistent with its attitude toward Norway, the Trump administration alleges the European Union raises “a proliferation of technical barriers.” [page 155] By no means can the EU be said to be immune to corporate pressure. But the EU does not have a policy of favoring U.S. corporations and has limitations in how far it can lower regulatory standards due to grassroots mobilization despite its best efforts to insulate itself from public opinion.
European Union, Canada and Mexico aren’t forgotten
The Trump administration’s complaints about the European Union go on for 47 pages, covering a vast array of industrial and agricultural products. We get to the heart of the matter on page 157, where the trade report complains that “technical committees that draft the European standards generally exclude non-EU nationals” and thus “The opportunity for U.S. stakeholders to influence the technical content of EU legislation setting out essential requirements (i.e., technical regulations) is also limited.”
Yes, if only Brussels would allow U.S. corporations to dictate their standards. We can all imagine the shrieking that would be heard if Europeans were to demand they dictate regulatory practices to Washington. Nationalism, in the end, is always a one-way street.
Canada and Mexico, of late subject to U.S. demands in the NAFTA re-negotiations, are not spared in the trade report, either.
The U.S. enjoyed a trade surplus with Canada in 2017, contrary to the nonsense that President Trump routinely utters. As expected, the trade report dwells on Ottawa’s protective measures for its dairy farmers and does not fail to complain about aid to Québec’s Bombardier company while not mentioning the massive corporate welfare doled out to U.S. corporations at the federal, state and local levels. But we again get to the crux of the matter when we read the complaint that Canada dares to uphold food-safety standards.
The trade report complains that “Canada’s Seeds Act generally prohibits the sale or advertising for sale in Canada, or import into Canada, of any variety of seeds that is not registered with Canada’s Food Inspection Agency.” [page 80] This is alleged to be unfair because the Canadian agency “verify[s] claims made which contributes to a fair and accurate representation of varieties in the marketplace.” Quelle horreur! How dare those Canadian bureaucrats value the safety of food above corporate profits!
Despite U.S. corporations using Mexico as a low-wage haven with low environmental standards that can be ignored, several items that met the displeasure of the White House were listed, among them Mexico’s intention to set standards for energy efficiency, alcohol and plumbing fixtures. The trade report complains that Mexico requires licensing for companies that seek to export steel there, an irony considering the Trump administration’s imposition of steel tariffs.
Although the trade report goes on to complain about other countries enforcing health and safety standards, its authors, with a straight face, claim to be upholding higher standards, asserting that the report “highlights the increasingly critical nature of standards-related measures (including testing, labeling and certification requirements) and sanitary and phytosanitary (SPS) measures to U.S. trade policy.” Perhaps in an Orwellian sense. It would be more accurate to say that U.S. trade policy, as with foreign policy in general, is best defined as “he who has the gold gets to make the rules.”
Watch out, world: The Trump gang is coming for you. Trump trade policy is set by economic nationalists determined to deepen the dominance of U.S. corporate power at the expense of working people everywhere, U.S. working people not excepted. It is the height of naïveté to expect anything else.
As a candidate for president, Donald Trump claimed he wanted a better deal for U.S. workers. Surprise! Oh, okay, that he was lying really isn’t a surprise at all. Far from a “better deal,” the Trump administration is now offering a North American version of the Trans-Pacific Partnership.
Although it might have seemed that the TPP was dead and buried after several years of struggle by activists on both sides of the Pacific Ocean (President Trump had as much to do with TPP’s demise as a rooster does for the rise of the Sun), the TPP’s language is being used as a model for a re-negotiated North American Free Trade Agreement.
The Trump administration issued an 18-page document on July 17, announcing its “Summary of Objectives for the NAFTA Renegotiation.” Please try to contain your excitement. But to spoil the fun of actually reading the document, the net result, should these plans come to fruition, would be to strengthen corporate power, not promote the interests of working people. There is almost nothing concrete in the text’s 18 pages but much boilerplate language that reads as if it was lifted from the TPP. In fact some of the language appears to be repeated word for word.
The Sierra Club’s executive director, Michael Brune, summarized the “Summary of Objectives” document this way:
“In a blunt display of hypocrisy, Donald Trump appears to want to copy and paste the weak labor and environmental provisions of the TPP, a deal that Trump claimed to hate. Based on today’s ‘plan,’ one could be forgiven for concluding that Trump’s opposition to the TPP was merely political theater and this administration has no intent of fundamentally changing NAFTA.”
Friends of the Earth was no more inclined to give the benefit of the doubt:
“Trump’s statement indicates he plans to step up his war on public health and the planet by modeling NAFTA’s provisions related to environmental regulation on the TPP. These objectives appear to set the stage for a stealth attack on strong regulation of food, agriculture, chemicals, and biotechnology.”
It would be all too easy to say “We told you so,” but, really, was it realistic to expect a billionaire who built his empire on screwing working people and who has populated his cabinet with a rouge’s gallery of corporate plunderers to do otherwise?
Meet the bosses’ panel, same as the old panel
Any re-negotiation that doesn’t eliminate the investor-state dispute settlement (ISDS) provision isn’t a serious re-negotiation. The “Summary of Objectives” document doesn’t, and it isn’t. Instead, the document offers a few reforms that will not change the substance of ISDS. The key passage states: “Establish a dispute settlement mechanism that is effective, timely, and in which panel determinations are based on the provisions of the Agreement and the submissions of the parties and are provided in a reasoned manner.”
That is consistent with the sort of language one can find in most any so-called “free trade” agreement. And that is actually a part of the problem — the one-sided tribunal decisions repeatedly handed down that strike down environmental and health regulations are consistent with “provisions of the agreements.” So the Trump administration’s goal would change nothing.
The only specific changes proposed are that tribunal submissions and final decisions be made publicly available, and that hearings be open to the public. As these proposals are found on the last page they do not appear to be at all a priority. Measures to reduce the secrecy of the process are welcome, but these would have no practical effect on the inherent unfairness of this process.
The same tribunal that handles complaints by multi-national corporations against government regulation, an arm of the World Bank, will still handle these complaints. The same structure, under which corporate lawyers who specialize in representing these corporations in regulatory disputes alternate between being lawyers and judges, handing down decisions with no accountability and no appeal, would remain in place.
There is no mention of NAFTA’s Chapter 11, which is the agreement’s linchpin. Chapter 11 codifies “equal treatment” in accordance with international law and enables corporations to sue over any regulation or other government act that violates “investor rights,” which means any regulation or act that might prevent the corporation from earning the maximum possible profit regardless of harm to others.
The rulings that have previously been handed down will remain as precedents that will be used in future hearings. If an earlier tribunal ruling said that a ban on a known carcinogen is prohibited by NAFTA rules protecting “investor rights,” that precedent will remain in place and be used as a justification to knock down the next health or environmental rule. That the tribunal would have some of the veil of secrecy lifted from its decisions won’t change any of this. As long as Chapter 11 exists, the same one-sided decisions will be handed down. As long as the investor-state dispute settlement provision exists, the same one-sided decisions will be handed down.
There is no “reform” that can make this system fair. There is no alternative to eliminating completely the entire investor-state dispute settlement system. The Trump administration is offering cosmetic changes that leave untouched the ability of corporations to force the reversal of rules protecting health, safety, labor or environmental standards.
Capital beats people in trade language
The “Summary of Objectives” document purports to adopt standards for labor and for the environment, but the language used is very similar to the language proposed for the Trans-Pacific Partnership and in use in other so-called “free trade” agreements. There is little at all in these stated goals that differs from the stated goals that Obama administration put forth for the Trans-Pacific Partnership. They are meaningless window dressing.
In the language of trade agreements, rules benefiting capital and erasing the ability of governments to regulate are implemented in trade-agreement texts with words like “shall” and “must” while the few rules that purport to protect labor, health, safety and environmental standards use words like “may” and “can.” So although the Trans-Pacific Partnership was promoted as constituting a big advance in protections for labor, health, safety and the environment, those were empty platitudes.
The Trump administration’s supposed intentions here are even less sincere given its undisguised contempt for environmental concerns.
The only specific change proposed is the elimination of Chapter 19, which means the elimination of anti-dumping review panels. The Institute for Agriculture and Trade Policy said the elimination of Chapter 19 would ensure that dumping of commodities (illegal for industrial goods) will occur unchecked by countervailing duties. Agricultural dumping of subsidized U.S. crops under NAFTA has driven millions of Mexican farmers off their lands. As more are driven off the land, more Mexicans will be forced to migrate to the United States by whatever means necessary and Mexican agriculture will continue to be badly hurt.
As for employees in manufacturing, The “Summary of Objectives” document does not meaningfully address the offshoring of jobs, or NAFTA’s prohibition of “buy local” rules.
Nor does the above exhaust the list of proposals that will allow multi-national capital to run wild. The objectives concerning “trade in services, including telecommunications and financial services,” appear to be cut and pasted from the Trans-Pacific Partnership and the Trade In Services Agreement. The goal of prohibiting “discrimination against foreign services suppliers” and against “restrictions on the number of services suppliers in the markets” signal the intention to eliminate any meaningful restrictions regulating the financial industry.
One prominent goal of the Trade In Service Agreement was to enable giant financial companies, particularly those based in the U.S., to take over the banking and financial systems of small countries, and it appears the Trump administration seeks to retain this goal, whether to directly target Mexican or Canadian banking, or alternatively as a model to be imposed in future trade deals.
Health and environmental laws will still be “barriers to investment”
Consistent with the objectives of the Trans-Pacific Partnership, the Trump administration says it wants to “Establish rules that reduce or eliminate barriers to U.S. investment in all sectors in the NAFTA countries.” What that passage means is that, consistent with what is written above, the intention is for the elimination of as many restraints on corporate behavior as possible.
Multi-national corporations consider a “barrier” to profits any rules or laws that protect health, safety, labor standards or the environment. Thus eliminating “barriers to investment” means eliminating protective laws. This would reinforce the tendency of the tribunal that renders decisions on corporate complaints to rule against protective laws.
There is nothing to celebrate in this re-negotiation. The North American Free Trade Agreement has been disastrous for working people and farmers in all three countries. The United States had a net displacement of 850,000 jobs through 2010 directly attributable to NAFTA, according to Economic Policy Institute calculations. U.S. food prices have risen 67 percent since NAFTA took effect, despite an increase in food imported from Mexico and Canada.
In Canada, the social safety net has been weakened while corporate revenue has doubled and manufacturing jobs disappeared. Composite revenues of 40 of Canada’s biggest businesses increased 105 percent from 1988 to 2002, while their workforces shrank by 15 percent and unemployment benefits were cut. In Mexico, nearly five million family farmers have been been displaced, inflation-adjusted wages are barely above the 1980 level and an unrestrained increase in mining has devastated Mexico’s environment.
Is it really necessary to make this worse? Yet that is what the Trump administration is proposing for its re-negotiation — another bait and switch. This follows another project for corporate plunder, President Trump’s supposed $1 trillion infrastructure plan, which is actually a plan for new “public-private partnerships.” Public-private partnerships are nothing more than a variation on straightforward schemes to sell off public assets below cost, with working people having to pay more for reduced quality of service.
No actual money is being committed. Rather, senior Trump administration advisers call for handing out $137 billion in tax credits for private investors who underwrite infrastructure projects. These officials estimate that over 10 years the credits could spur $1 trillion in investment.
Trade policy is yet one more front on which a fight must be waged. “Free trade” agreements have very little to do with trade and much to do with imposing corporate wish lists. As with all “free trade” agreements, the fault lines are along class, not national, interests. Industrialists and financiers around the world understand their class interests and are united to promote their interests. Working people uniting across borders, in a broad movement, is only path toward reversing corporate agendas that accelerate races to the bottom.
One can hear the cry ringing through the boardrooms of capital: “Free trade is dead! Long live free trade!”
Think the ideas behind the Trans-Pacific Partnership or the so-called “free trade” regime are buried? Sadly, no. Definitely, no. Some of the countries involved in negotiating the TPP seeking to find ways to resurrect it in some new form — but that isn’t the most distressing news. What’s worse is the TPP remains alive in a new form with even worse rules. Meet the Trade In Services Agreement, even more secret than the Trans-Pacific Partnership. And more dangerous.
The Trade In Services Agreement (TISA), currently being negotiated among 50 countries, if passed would prohibit regulations on the financial industry, eliminate laws to safeguard online or digital privacy, render illegal any “buy local” rules at any level of government, effectively dismantle any public advantages to be derived from state-owned enterprises and eliminate net neutrality.
TISA negotiations began in April 2013 and have gone through 21 rounds. Silence has been the rule for these talks, and we only know what’s in it because of leaks, earlier ones published by WikiLeaks and now a new cache published January 29 by Bilaterals.org.
Earlier draft versions of TISA’s language would prohibit any restrictions on the size, expansion or entry of financial companies and a ban on new regulations, including a specific ban on any law that separates commercial and investment banking, such as the equivalent of the U.S. Glass-Steagall Act. It would also ban any restrictions on the transfer of any data collected, including across borders; place social security systems at risk of privatization or elimination; and put an end to Internet privacy and net neutrality. It hasn’t gotten any more acceptable.
Photo by Annette Dubois
TISA is the backup plan in case the TPP and the Transatlantic Trade and Investment Partnership don’t come to fruition. Perhaps fearful that the recent spotlight put on “free trade” deals might derail TISA as it derailed TPP, the governmental trade offices negotiating it have not announced the next negotiating date. The closest toward any meaningful information found was the Australian government’s bland statement that the “Parties agreed to reconvene in 2017.”
The cover story for why TISA is being negotiated is that it would uphold the right to hire the accountant or engineer of your choice, but in reality is intended to enable the financial industry and Internet companies to run roughshod over countries around the world. And while “liberalization” of professional services is being promoted, the definition of “services” is being expanded in order to stretch the category to encompass manufacturing. Deborah James of the Center for Economy and Policy Research laid out the breathtaking scope of this proposal:
“Corporations no longer consider setting up a plant and producing goods to be simply ‘manufacturing goods.’ This activity is now is broken down into research and development services, design services, legal services, real estate services, architecture services, engineering services, construction services, energy services, employment contracting services, consulting services, manufacturing services, adult education services, payroll services, maintenance services, refuse disposal services, warehousing services, data management services, telecommunications services, audiovisual services, banking services, accounting services, insurance services, transportation services, distribution services, marketing services, retail services, postal and expedited delivery services, and after-sales servicing, to name a few. Going further, a shoe or watch that measures steps or sleep could be a fitness monitoring service, not a good. A driverless car could be a transport service, not an automobile. Google and Facebook could be information services and communication services, respectively.”
Why is it you are kept in the dark?
Before we get to the details of the text itself, let’s take a quick look at how the world’s governments, on behalf of multi-national capital, are letting their citizens know what they are up to. Or, to be more accurate, what they are not telling you. Many governments have not bothered to update their official pages extolling TISA in months.
The European Union is negotiating TISA on behalf of its 28 member countries, along with, among others, the United States, Canada, Mexico, Australia, New Zealand, Japan, South Korea, Taiwan, Chile, Colombia, Peru, Norway, Switzerland, Pakistan and Turkey.
In the United States, the new Trump administration has yet to say a word about it. The Office of the U.S. Trade Representative web site’s page on TISA still says “TiSA is part of the Obama Administration’s ongoing effort to create economic opportunity for U.S. workers and businesses by expanding trade opportunities.” Uh-huh. President Donald Trump is not against “free trade” deals; he simply claims he can do it better. The Trump administration has issued blustery calls for “fair deals” and braggadocio puffing up Donald Trump’s supposed negotiating prowess. A typical White House passage reads, “To carry out his strategy, the President is appointing the toughest and smartest to his trade team, ensuring that Americans have the best negotiators possible. For too long, trade deals have been negotiated by, and for, members of the Washington establishment.”
More typical of the TISA negotiators is the latest report from the European Commission, which summarized the latest round, held last November, this way: “Parties made good progress in working towards an agreed text and finding pathways towards solving the most controversial outstanding issues at both Chief Negotiators and Heads of Delegation levels.” The Canadian government’s last update is from last June and declares “Parties conducted a stocktaking session to assess the level of progress on all issues.”
Traveling across the Pacific brings no more useful information. Australia’s government offers this information-free update: “Parties agreed to a comprehensive stocktake of the negotiations, identifying progress made and areas which require ongoing technical work.” New Zealand’s government can’t even be bothered to provide updates, instead offering only discredited, boilerplate public-relations puffery similar to other trade offices.
The one hint that TISA negotiations are experiencing difficulty that could be found through an extensive online search is this passage in a U.S. Congressional Research Service report dated January 3, 2017: “Recognizing that outstanding issues remain and the U.S. position under a new administration is unclear, the parties canceled the planned December 2016 meeting but are meeting to determine how best to move forward in 2017.” Given that the new administration is moving as fast as possible to eliminate the tepid Dodd-Frank Act financial-industry reforms, it would seem TISA’s provisions to dismantle financial regulation globally would not be a problem at all.
But that these talks are not progressing at the present time does not mean the world can relax. It took years of cross-border organizing and popular education to stop the TPP, and this effort will have to replicated if TISA is to be halted.
The details are the devils already known
Commentary accompanying Bilaterals.org’s publication of several TISA chapters stresses that the Trans-Pacific Partnership, despite its apparent defeat, is nonetheless being used as the model for the Trade In Services Agreement. Thus we are at risk of the TPP becoming the “new norm”:
“Several proposed texts from the failed Trans-Pacific Partnership (TPP) agreement have been transferred to TiSA — including state-owned enterprises; rights to hold data offshore (including financial data); e-commerce; and prohibitions on performance requirements for foreign investors. While these texts originated with the United States, they appear to be supported by other parties to the TPP, even though those governments were reluctant to agree to them in the TPP and will no longer be bound by that agreement. That suggests the TPP may become the new norm even though it has only been ratified in two of the 12 countries, and that was done on the basis of U.S. participation that no longer applies. TPP cannot be allowed to become the new ‘default’ position for these flawed agreements.”
Some of the most extreme measures have been dropped (at least for now) and much of the text is not agreed. Nonetheless, there is nothing to cheer about, Bilaterals.org reports.
“The effectiveness of opposition to TiSA has led governments to conclude that they cannot sell some of the more extreme proposals, which have thus been dropped from previous leaked texts. But the fetters on the rights and responsibilities of governments to regulate in the interests of their citizens from what remains would still go further than any single other agreement. There are no improvements on the inadequate protections for health, environment, privacy, workers, human rights, or economic development. And there is nothing to prevent developing countries becoming even more vulnerable and dependent in an already unequal and unfair global economy.”
Hypocritically, TISA would prohibit developing countries from adopting measures that countries like the United States used to facilitate its industrial development when it was an emerging country in the 19th century. In an analysis for WikiLeaks, Sanya Reid Smith of the Third World Network, an international coalition specializing in development issues, wrote:
“[T]he proposals in this text restrict the ability of developing countries to use the development paths taken by many of the developed TISA countries. Some experts call this developed countries ‘kicking away the ladder’ after they have climbed up, to prevent developing countries from developing the same way. … In TISA, the USA is proposing restrictions on host countries being able to require senior managers be citizens of the host country. Yet when it was a capital importer, the USA had the opposite law: its 1885 contract labour law prohibited the import of foreign workers, i.e. the USA required senior managers (and all other staff) be Americans, which increased the chances of skills being passed to locals.”
Letting banks decide what’s good for you
These proposals are more extreme than language in existing bilateral trade agreements. Many of TISA’s provisions are lifted from TPP, but some go beyond the latter’s already extreme proposals For example, not even the TPP contemplated the entire elimination of regulations of any kind against the financial industry. Article 14 of TISA’s annex on financial services, which had contained the most explicit language prohibiting regulation, has been removed, but Article 9 still contains language requiring no limitations beyond those applying to domestic financial firms. In other words, a smaller country would be required to allow a giant bank from a bigger country to take over its entire banking system.
Incredibly, regulations against financial derivatives yet to be invented would be illegal. A Public Citizen analysis states:
“TISA would require governments to allow any new financial products and services — including ones not yet invented — to be sold within their territories. The TISA Annex on Financial Services clearly states that TISA governments ‘shall permit’ foreign-owned firms to introduce any new financial product or service, so long as it does not require a new law or a change to an existing law.”
As another example, the financial-services annex (in article 21) would require that any government that offers financial products through its postal service lessen the quality of its products so that those are no better than what private corporations offer. Article 1 of the financial-services annex states that “activities forming part of a statutory system of social security or public retirement plans” are specifically covered by TISA, as are “activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange-rate policies.”
That social security or other public retirement systems are covered is cause for much alarm because they could be judged to be “illegally competing” with private financial enterprises. It is conceivable that central banks could be constrained from actions intended to shore up economies during a future financial crisis if banks decide such measures “constrain” their massive profiteering off the crisis.
The countries negotiating TISA.
Article 10 of the annex continues to explicitly ban restrictions on the transfer of information in “electronic or other form” of any “financial service supplier.” In other words, EU laws guarding privacy that stop U.S.-based Internet companies from taking data outside the EU to circumvent those privacy laws would be null and void. Laws instituting privacy protections would be verboten before they could be enacted. These rules, if enacted, could also provide a boon to companies like Uber whose modus operandi is to circumvent local laws. The Bilaterals.org analysis accompanying the leaks notes:
“The main thrust of TiSA comes through the e-commerce, telecommunications, financial services and localisation rules and countries’ commitments to allow unfettered cross-border supply of services. Together they would empower the global platforms who hold big data, like Google, without effective privacy protections, and tech companies like Uber, who have become notorious for evading national regulation, paying minimal tax and exploiting so-called self-employed workers. Given the backlash against global deals for global corporations TiSA will simply add fuel to the bonfire.”
Who interprets the rule is crucial
The language of TISA, like all “free trade” agreements, is dry and legalistic. How these rules are interpreted is what ultimately matters. TISA contains standard language requiring arbitration by judges possessing “requisite knowledge”; that language means that the usual lineup of corporate lawyers who represent corporations in these tribunals will switch hats to sit in judgment. The tribunals used to settle these “investor-state disputes” are held in secret with no accountability and no appeal.
The intention of “free trade” agreements is to elevate corporations to the level of governments. In reality, they raise corporations above the level of governments because only “investors” can sue; governments and people can’t. “Investors” can sue governments to overturn any law or regulation that they claim will hurt profits or even potential future profits. On top of this, a government ordinarily has to pay millions of dollars in costs even in the rare instances when they win one of these cases.
Each “free trade” agreement has a key provision elevating corporations above governments that codifies the “equal treatment” of business interests in accordance with international law and enables corporations to sue over any regulation or other government act that violates “investor rights,” which means any regulation or law that might prevent the corporation from extracting the maximum possible profit. Under these provisions, taxation and regulation constitute “indirect expropriation” mandating compensation — a reduction in the value of an asset is sufficient to establish expropriation rather than a physical taking of property as required under customary law. Tribunal decisions become precedents for further expansions of investor “rights” and thus constitute the “evolving standard of investor rights” required under “free trade” agreements. TISA contains the usual passages requiring “equal treatment.”
At bottom, “free trade” deals have little to do with trade and much to do with imposing corporate wish lists through undemocratic means, including the elimination of any meaningful regulations for labor, safety, health or the environment. TISA is another route to imposing more of this agenda. And the TPP itself isn’t necessarily dead — both Chile and New Zealand are holding discussions with other TPP countries to salvage some of the deal. Chile has invited TPP countries, plus China, to a March summit and the New Zealand trade minister is visiting Australia, Japan, Mexico and Singapore.
Working people around the world scored a major victory in stopping the TPP, at least in its current form. The activists who achieved this deserve much credit. But there is far more to do. Capital never rests; nor can we. Here we have class warfare in naked fashion, and there is no doubt on which side the capitalist world’s governments lie.
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Among rulings handed down under NAFTA — rulings that are considered precedents when similar cases are heard — Canada had to reverse its ban on a gasoline additive known as MMT, a chemical long believed to be dangerous to health, because the tribunal ruled the ban a violation of the principal of “equal treatment” even though, had a Canadian producer of MMT existed, it would have had the same standard applied. Canada was also successfully sued over its ban on the transportation of PCBs that conformed with both a Canada-United States and a multi-lateral environmental treaty. The tribunal ruled that, when formulating an environmental rule, a government “is obliged to adopt the alternative that is most consistent with open trade.”
Systemic Disorder 