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.
The Ken Burns/Lynn Novick television series on the Vietnam War provides yet another example of the narrowness of “acceptable” political discourse in the United States. More than four decades past the end of that imperialist adventure, having a serious discussion about it remains taboo.
The series also provides a fresh example of how the narrowness of acceptable discourse is disguised through the appearance of a vigorous debate. I will confess here I have not watched Burns and Novick’s The Vietnam War, but the consistency of the many discussions of it I have read confirm what would have been expected: The liberal side of the “debate” on the Vietnam War, that an “honorable” effort was tragically miscarried because of “mistakes.”
The series has a long list of corporate sponsors, typical for a Public Broadcasting System production. One of the Koch Brothers, David H. Koch, provided funding, as did the Andrew W. Mellon Foundation, the Rockefeller Brothers Fund and Bank of America. Such blue-chip sponsors are not going to associate themselves with any organization that has the slightest potential of providing any challenging critique.
Rice paddies in Vietnam (photo by Simon Gurney)
But let us not reverse cart and horse. This is the sort of case where corporate sponsors, including fiercely anti-democratic ones like the Koch Brothers, provide funding because they are confident of what they will be getting. There is no need for any formal censorship because corporate control of the media will see to it that viewpoints challenging the mythologies of capitalism are deemed out of bounds.
Most large, influential broadcast stations and print publications are owned by large corporations, and a typical small-city newspaper is owned by a prominent local businessperson if it is not owned by a large corporation. Powerful corporate interests appoint the top editors and managers of their media properties — these mass media decision-makers are men and women who already see the world through the prism of dominant ideologies, and those ideologies will be reflected in the way that news stories are covered. Those ideologies are also reflected in indirect ways — pressure to increase readership or viewership easily leads to pandering to perceived (and sometimes manufactured) consumer interests such as wall-to-wall coverage of celebrity gossip and exhaustive coverage of sports teams simultaneous with the shrinking of news sections.
The press isn’t free if you don’t own one
Many folks on the Left have the idea that there is some sort of organized conspiracy among owners and managers of major media outlets to make sure that ideologically inconvenient perspectives are shut out. That simply isn’t so. Competition alone would prevent any such collusion; within “acceptable parameters” reporters and editors want to be the first to report news. It is enough that corporate-inspired ideologies pervade a society and that corporate ownership ensures that decision-making positions are filled with those who hold to some variant of prevailing ideologies or are inclined to “play it safe” by cautiously remaining within “acceptable” boundaries.
The mass media will then simply reflect these dominant ideologies, and continual repetition through multiple mass media outlets reinforces the ideologies, making them more pervasive until the emergence of a significant countervailing pressure. The very competitive nature of mass media ownership helps dominant ideologies prevail — if so many different outlets report the same news item in a nearly identical way, that “spin” can easily gain wide acceptance. Or if stories are reported differently by competing media outlets, but with the same dominant set of presumptions underlying them, those dominant presumptions, products of ideologies widely propagated by elite institutions, similarly serve as ideological reinforcement.
Editors can reign in reporters with independent mindsets by not running unacceptable stories, or revising them so that dominate ideologies and mythologies are not challenged. When a reporter is fearless enough to follow the trail until some semblance of the truth can be published, even if in watered-down fashion, an exemplary punishment can be made of him or her (such as was done to Gary Webb after his reporting on the CIA). But even when that is not the case, a simple ignoring of a story can make it disappear.
The persistence with which stories are reported is another reinforcement — stories that serve, or can be manipulated, to uphold dominant ideologies can be covered for long periods of time with small developments creating opportunities to create fresh reports at the same time that stories that are ideologically inconvenient are reported briefly, often without context, then quickly dropped. An inconvenient story run once, then ignored, can even misleadingly be pointed to as “proof” that news is being reported no matter what interests are at stake.
One well-documented example will provide an illustration — coverage by elite media of Jerzy Popieluszko, a pro-Solidarity priest in Poland murdered in 1984 by Polish secret policemen in contrast to coverage of priests and other church personnel murdered in U.S.-backed Latin American dictatorships.
Human rights depends on if the U.S. supports the régime
In their classic book, Manufacturing Consent, Noam Chomsky and Edward Herman analyzed four U.S. media outlets that then often set the tone for the press — the most influential newspaper (The New York Times), the two main news magazines (Time and Newsweek) and the most authoritative television news broadcaster (CBS). Their study found 140 articles/broadcasts on Popieluszko and eleven articles/broadcasts on 23 victims in Guatemala during a period that overlapped with Popieluszko’s murder; the Times ran ten front-page articles on Popieluszko, none on the others.
The articles on Popieluszko routinely featured graphic descriptions of the details of his murder and consistently tied his murder to Polish communist authorities despite the fact that the murderers were swiftly arrested and found guilty in an open trial. By contrast, only four of the 23 Guatemalan victims had their names mentioned in any news account, little detail was offered for any of these murders, no remark was made concerning the fact that no arrests were made in any of these cases, nor was U.S. material support of the Guatemalan government that was behind the murders once mentioned.
None of the prevailing situation precludes energetic debate in capitalist mass media within the parameters set by prevailing ideological interpretations. Ideas that directly challenge corporate orthodoxy can be excluded at the same time that a debate among two or more “acceptable” ideas rages. This brings us back to interpretations of the Vietnam War. At the end of the 1990s a strong debate played out in the mass media outlets of the United States concerning the Vietnam War (one in which the Times was a significant participant).
A U.S. Air Force plane drops a white phosphorus bomb on Vietnam in 1966.
This debate had all the appearances of a serious dissection of a bloody, deeply divisive blot on U.S. history. But although the debate was heated and lively, it was only between two “acceptable” viewpoints — an honorable effort that tragically failed or a well-intentioned but flawed effort that should not have been undertaken if the U.S. was not going to be “serious” about fighting. Left out were the widely held views that the war should never have been fought because it was a war to extend U.S. hegemony or that the U.S. simply had no business fighting in someone else’s civil war.
Further, the first “acceptable” viewpoint implied, and the second explicitly stated, that the U.S. didn’t really fight hard to win the war, ignoring the actual intensive level of the U.S. war effort in which most of North Vietnam’s larger cities were reduced to rubble, much of the farming lands were destroyed and three million Vietnamese were killed. The total tonnage of bombs dropped by the U.S. in Vietnam exceeded that of all bombing by all countries during World War II. Reports of the countryside at the end of the war spoke of entire regions as “bare, gray and lifeless.”
So much for the proverbial “fighting with one hand tied behind the back.” And let’s not forget that the Vietnamese had already spent years freeing themselves from the grip of France, only to have the U.S. sabotage elections and resume the fight. That the Vietnamese have the right to decide for themselves how their economy will be structured, or even be allowed independent development at all, and that the U.S. used the full might of the world’s biggest military machine to prevent that, is still outside “acceptable” discussion.
Debate in the service of obfuscation
The liberal conception of an honorable effort that tragically failed is every bit an obfuscation as the conservative perspective that a well-intentioned but flawed effort that should not have been undertaken if the U.S. was not going to be “serious” about fighting. But that these two narrow perspective were allowed to fight it out provided the appearance of a free and open media at the same time that the media obscured.
To return briefly to Guatemala, there has only rarely been any effort in the U.S. to discuss Washington’s bloody role (and elsewhere in Latin America). The Eisenhower administration overthrew Guatemala’s democratically elected government, after a 1952 “national intelligence estimate” (a joint document put together by the CIA and other U.S. intelligence agencies) declared that the United Fruit Company’s massive profits there were a “U.S. interest” requiring intervention.
Allen Dulles, then the CIA director, met with a United Fruit official, promising that whomever the CIA would select as the next Guatemalan leader would not touch the company. The overthrow would institute a 40-year nightmare of state-organized mass murder. A series of military leaders, each more brutal than the last and fortified with U.S. aid, unleashed a reign of terror that ultimately cost 200,000 lives, 93 percent of whom were murdered by the state through its army and its death squads.
The worst of these dictators was General Efraín Ríos Montt, whose régime murdered more than 1,000 people a month during 1982. Ríos Montt was an evangelical Protestant preacher who declared that his presidency was the will of God. Ronald Reagan responded by paying a visit to Ríos Montt, declaring him “totally dedicated to democracy” and claiming that reports of human rights abuses were a “bum rap.”
Do you ever see of this (only one of dozens of examples that could be cited) discussed in the U.S. corporate media? I don’t, either.
In countries in which the media is controlled by the government, it is easy for people to disregard what they read or hear because it is all coming from the same source, even when there is room for different opinions. A system in which the mass media is believed to be independent is far more effective at suffusing a society with an ideology. Such a system is not the result of some sort of conspiracy or a conscious plan, it is simply a natural outgrowth of corporate institutions growing so powerful at the expense of all other institutions.
And when a particularly skilled team of producers is able to uphold the interests of elite institutions, corporate and otherwise, the red carpet will be rolled out. Slick, beautifully presented work beats ham-fisted propaganda every time.
Forty years after the long Vietnamese struggle for independence concluded with the capture of Saigon, the mythologies surrounding the war on the other side of the Pacific Ocean have not loosened their grip. The “debate” surrounding the war is a textbook example of corporate media obfuscation.
A strong debate played out in the corporate media outlets of the United States concerning the Vietnam War at the end of the 1990s, and that same debate, with the same parameters, continues today. This debate, however, is only between two “acceptable” viewpoints — an honorable effort that tragically failed or a well-intentioned but flawed effort that should not have been undertaken if the U.S. was not going to be “serious” about fighting.
A U.S. Air Force plane drops a white phosphorus bomb on Vietnam in 1966.
Left out are the widely held views that the war should never have been fought because it was a war to extend U.S. hegemony or that the U.S. simply had no business fighting in another country’s civil war. Further, the first “acceptable” viewpoint implies, and the second explicitly states, that the U.S. didn’t really fight hard to win the war, ignoring the actual intensive level of the U.S. war effort in which most of North Vietnam’s larger cities were reduced to rubble, much of the farming lands were destroyed and three million Vietnamese were killed.
Thus there was all the appearance of a free and open media at the same time that the media obscured.
Elections only when you do as we say
What were some of the messy things going on in Southeast Asia at the time? (Most of the following is taken from Manufacturing Consent by Noam Chomsky and Edward S. Herman, Pantheon Books, 1988.) The U.S. sabotaged the scheduled 1956 all-Vietnam election that was a cornerstone of the 1954 agreement that ended the French intervention; an election that was not allowed to occur precisely because Ho Chi Minh would have won. The U.S. set up South Vietnam as an artificial puppet state, overthrew and killed South Vietnam’s “leaders” and installed new “leaders,” who were invariably military thugs.
The U.S. invented the Gulf of Tonkin attack, a deliberate lie to create a cover for increasing the U.S. military role. By the time of the U.S. land intervention in 1965, American aerial bombing, napalming and gassing had already killed 15,000 Vietnamese. The U.S. carried out a policy of rural and urban terror. The military forced peasants in wide parts of the country off their land and into “strategic hamlets” — in reality, rural concentration camps — and killed peasants who refused to leave their homes. Tens of thousands were swept from their homes and sent to camps in single ground operations.
A writer in Foreign Affairs wrote that destroying the countryside and forcing rural residents into cities was necessary because the Viet Cong were “a powerful force which cannot be dislodged from its constituency so long as the constituency continues to exist.” The U.S. systematically destroyed by force any South Vietnamese grouping opposed to the installed military dictators, even non-Communist groups such as organized Buddhists.
The U.S. leveled major cities — 77% of the buildings in Hue, one of Vietnam’s biggest cities, were completely destroyed. Dams were blasted away, allowing salt water from the South China Sea to flood farmland, making the growing of food impossible. When North Vietnam agreed to the Paris Peace Agreements in 1972, Henry Kissinger decided not to accept the pact, began demanding major changes to an agreed-upon document, then launched the Christmas bombings of Hanoi and Haiphong when the North Vietnamese government insisted the agreement be signed.
In South Vietnam, 9,000 of 15,000 hamlets were damaged or destroyed, as were 25 million acres (100,000 square kilometers) of farmland and 12 million acres of forest. Killed were 1.5 million cattle. One million widows and 800,000 orphans were left behind.
In North Vietnam, 34 of the largest 36 cities suffered significant damage, with 15 completely razed, while 4,000 of about 5,800 communes were damaged. More than one million acres of farmland and 400,000 cattle were destroyed in the North. The Central Intelligence Agency admitted that at least 30,000 North Vietnamese were killed per year by 1967 by U.S. bombing, with these deaths primarily civilian. The total tonnage of bombs dropped by the U.S. in Vietnam exceeded that of all bombing by all countries during World War II. Reports of the countryside at the end of the war spoke of entire regions as “bare, gray and lifeless.”
No mercy in neighboring countries
Next door, in Laos, following a 1958 election in which a two-party Left coalition won 13 of 21 legislative seats, the U.S. swiftly overthrew the government, with the new government seated by the U.S. vowing to disband the Pathet Lao, which had won the most seats. Two years later, that new government was overthrown by the U.S., which installed a CIA-backed extreme Right-wing general.
In rural Laos, entire districts were wiped out by bombing. A series of articles in Le Monde reported on a district capital that had been deserted for three years because of repeated bombings. This capital was a portion of a 20-mile area stretching into the countryside in which not a single building was left standing and in which were found the remnants of American fragmentation bombs, which are dropped to maximize civilian casualties.
There were areas of Laos where villagers hid in nearby mountains, in caves or in ditches during daytime because of the ceaseless bombardment and who could conduct life only at night. Craters so saturated some areas that it was impossible to distinguish them, and all vegetation was destroyed. More than 350,000 Laotians — more than 10% of the country’s population — were killed and a similar number left homeless.
In Cambodia, bombing by the U.S. during the period 1969 to April 1975 resulted in 600,000 deaths and two million refugees, according to the same Finnish Inquiry Commission that concluded one million people died during the subsequent Khmer Rouge régime. As the bombing was ending in 1975, the U.S. government estimated that deaths from starvation in the Cambodian capital, Phnom Penh, were near 100,000 per year.
This horrific bombing is believed to have played a role in the rise of the Khmer Rouge, which the U.S. covertly sided with during its murderous four-year reign. A U.S. government report in 1975 said 75 percent of Cambodia’s draft animals had died and that it would likely be three years before the country could regain rice self-sufficiency.
The carnage inflicted on Vietnam reverberates still. An estimated 19 million tons of toxic herbicides were applied that has resulted in more than half a century of damage to health and birth defects.
Such is the price of empire, paid by those on the receiving end. If these are not war crimes, then what would be?
The secret Trans-Pacific Partnership is about to become even more secret, perhaps seen as a necessity in light of plans to make it easier for tobacco companies to sue while making health care more difficult to obtain.
The governments negotiating the draconian TPP still don’t want you to know what’s in it. Many of them issued cheery press releases congratulating themselves for the “progress” they made last week in Brunei. But you will search in vain for any information on what TPP negotiators are up to. They will now end their practice of “consultation” — the August 23 to 30 negotiations (the 19th round) are the last scheduled. Instead, negotiators will begin to meet in unannounced meetings.
In other words, not only is the text of the TPP to remain a secret, the negotiations themselves are to now be secret.
Formal negotiating rounds had occurred roughly every three months, but now negotiators henceforth will meet “intersessionally in the coming weeks” before meeting again at an Asia-Pacific Economic Cooperation (APEC) meeting in Bali, Indonesia, in early October. Although the good news is that, despite the efforts of several governments, most forcefully the Obama administration, it appears virtually certain there will be no deal to sign then.
The bad news is that obtaining details may become more difficult. The new, less formal format can reasonably be interpreted to mean that particularly harsh text is being discussed. Several of the 12 negotiating governments are balking at various proposals, but given that each remains inside the talks and issues content-free press releases, the secrecy shrouding the TPP text remains in place, with a stronger curtain apparently about to shut out any stray sunshine.
Yes to tobacco, no to medicine
The Obama administration has consistently pushed for the most draconian rules. Washington’s latest outrage concerns regulations on tobacco products, universally opposed by tobacco companies. Early drafts of the TPP included “safe harbor” provisions protecting national tobacco-control measures — such as package warnings and advertising and marketing restrictions — from corporate challenges. But the Obama administration has reversed course under tobacco industry and U.S. Chamber of Commerce pressure, intending to severely limit the ability of signatory governments to maintain their laws.
The Office of the U.S. Trade Representative said its counter-proposal would “contain a general exception for matters necessary to protect human life or health” and add a provision that a complaining “party” (that is, a corporation) must first meet with “health authorities … to discuss the measure.”
Note that there is nothing in the proposal that prevents a complaining “party” from suing to overturn a regulation following a discussion. And the “general exception” is meaningless as the arbitration boards that hear investor complaints (controlled by entities such as the World Bank) consistently rule that any environmental or safety rule that reduces a corporation’s profits be overturned. For example, Canada was forced to pay Ethyl Corporation $13 million and issue an apology because it had banned a gasoline additive that causes neurological damage and contributes to air pollution. This additive was already banned in the U.S., where Ethyl is based, but the chemical company claimed Canada’s ban “expropriated” its profits.
U.S. trade negotiators can write with a straight face that their proposals “work together to preserve the right to regulate tobacco products domestically,” but health advocates aren’t laughing. The Campaign for Tobacco-Free Kids and four other health care advocacy groups issued a joint statement condemning the cave-in to the tobacco industry:
“[T]his language is far weaker than [the] original proposal, would not cover lawsuits initiated by tobacco companies and would not provide nations that adopt strong tobacco control measures with the protection they need from tobacco industry challenges.”
Trade agreements wielded as battering rams
Already, tobacco companies, which must continually create new smokers to replace those who die, are not shy about using existing trade agreements to knock down regulations. The Campaign for Tobacco-Free Kids statement notes:
“The tobacco industry and its allies in government increasingly use trade and investment agreements to challenge legitimate tobacco control measures, and have done so specifically against laws adopted in the U.S., Australia, Uruguay, Ireland, Norway and Turkey. … Tobacco companies and several countries have filed trade challenges to Australia’s law requiring that cigarettes be sold in plain packaging, while Philip Morris International has used an investment agreement to challenge Uruguay’s tobacco control laws, including its requirement for large, graphic health warnings. These costly challenges are aimed not only at defeating tobacco control measures, but also at discouraging governments from enacting them in the first place.”
Philip Morris is also suing Australia for damages because of tobacco regulations, despite the country’s High Court ruling that it has no right to sue. Philip Morris moved assets to Hong Kong to be able to sue Australia under a bilateral trade agreement, and the TPP would open the floodgates to similar suits.
At the same time, U.S. intellectual-property proposals would make medicines more expensive through rules that would extend patents and data exclusivity periods for brand-name drugs, impeding trade in generic medicines, and putting new limits on how drug prices are set or regulated, according to the Council of Canadians. Already, Eli Lilly and Company, one of the world’s largest pharmaceutical companies, is suing Canada for C$500 million because Canada would not grant it two patents. Eli Lilly claims the denial is an illegal confiscation of profits under the North American Free Trade Agreement.
The Global Treatment Access Group, a coalition of Canadian civil society organizations, in a discussion of health issues, writes that the proposed TPP provisions concern public health policy and therefore do not belong in a trade agreement. These provisions would, inter alia:
“regulate countries’ drug pricing programs to the benefit of patented, brand-name pharmaceutical companies, undermining the ability of governments’ public insurance programs to negotiate reduced prices from manufacturers. … Undermining governments’ ability to manage costs of its public insurance schemes by ensuring value-for-money when it comes to pharmaceutical reimbursement is obviously of great concern.”
What you don’t know can hurt you
The more TPP negotiating governments proclaim their transparency, the more opaque the talks. Here’s a sampling of what governments had to say after last week’s Brunei round ended. The U.S. Office of the Trade Representative provided this happy talk:
“Buoyed by the ministerial engagement and their commitment to actively guide the negotiations, negotiators advanced their technical work this round on the texts covering market access, rules of origin, investment, financial services, intellectual property, competition, and environment. They also made progress on the packages providing access to each other’s markets for goods, services, investment, financial services, temporary entry, and government procurement.”
You’ll wait in vain for any details of said work. Apparently wishing to end any pretense of independence, the Australia Department of Foreign Affairs and Trade issued the same four-paragraph release, word for word. The New Zealand Ministry of Foreign Affairs & Trade couldn’t be bothered to issue a report at all, merely publishing the chief negotiators’ joint statement, which was similar pablum.
The Canada Ministry of Foreign Affairs, Trade and Development did manage its own statement, but, alas, is no more substantive than the others:
“During the 19th round, negotiators built on the progress made to date in several areas, including on goods market access, rules of origin, investment, services, financial services, temporary entry, intellectual property, government procurement and environment.”
Thus far, the only signs of resistance among TPP negotiators comes from Malaysia, which reportedly will not sign anything this year as it conducts a “cost-benefit analysis.” On August 27, Malaysia put forth a proposal to completely “carve out” tobacco regulations from the agreement. It is not known if any other countries have joined Malaysia in seeking to preserve tobacco regulations.
The Vietnamese newspaper Thanh Nien reports that the U.S. is the only TPP negotiating country not a signatory to the World Health Organization Framework Convention on Tobacco Control, which mandates policies to reduce tobacco usage. Passage of the U.S. tobacco proposal would put Vietnam and the other countries in violation of their WHO obligations. So much for the “rule of law.”
In the meantime, legislators around the Pacific Rim continue to demand access to the secret TPP text. Two years ago, in 2011, the New Zealand government denied a hearing on the TPP asked for by 13 organizations and there is no indication that any hearing will be held. A Canadian opposition member of parliament, Don Davies of the New Democratic Party, has asked the government of Stephen Harper “to give Canadian MPs the same information that US Members of Congress have about the ongoing Trans Pacific Partnership negotiations.”
Perhaps Mr. Davies should aim higher, as few members of the U.S. Congress have seen the TPP text, and then only because of loud demands and under condition that they not reveal any of the text in public. They haven’t.
Another development that could delay any agreement is if Barack Obama fails to goad the U.S. Congress into re-approving “fast track” trade authority. If such an authority is granted, Congress can only vote yes or no with no amendments allowed. But if Congress does not vote to give away its authority, the process is significantly slowed down because amendments can be made, which would require the text to go back to the negotiators. Activists believe Congress might vote on fast-track authority the first week of October.
Stopping the TPP will happen in the streets, however, not in legislative bodies. It is impossible to overstate the disaster that would occur from an implemented TPP: Labor and environmental laws would be outlawed as fetters on the right to maximum profits; national sovereignty would be a relic of the past; and smaller countries would have no control over the plunder of their resources by the larger countries’ multi-national corporations. Under the TPP, the task of governments, codified in law, would be to maximize corporate profits.
Such is the dystopia that awaits us unless there is a massive international movement against the TPP, and then to overturn existing “free trade” agreements.
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Systemic Disorder 