The Trans Pacific Partnership
Kieran Jairath, Michael Johnstone and Kat Moore
On April 27 Friends of the Earth's Economic Justice Collective co-organised a Union- Communities Trans Pacific Partnership (TPP) Roundtable event at the Australian Council of Trade Unions (ACTU) National Congress.
Union delegates, environmental organisations, lawyers, health professionals, consumer advocacy groups, religious groups, food sovereignty alliances, and politicians came together to sign off on a declaration denouncing the secrecy of Trans Pacific Partnership (TPP) negotiations. The representatives of the Roundtable called on the Australian government to immediately release the secret TPP text for independent legal review and public debate or failing that for the government to withdraw Australia from the negotiations. The Roundtable further called for the removal of the Investor State Dispute Settlement (ISDS) clause from the TPP and for the banning of ISDS clauses from all trade agreements.
The TPP is a secret 'trade deal' being negotiated between 12 countries, covering 40% of the global economy and impacting 800 million people. The contents of this deal are being kept secret from both the public and our elected representatives, until after the Cabinet has signed on. Leaked drafts of the Environment, Intellectual Property and ISDS chapters demonstrate that the TPP is in essence a 'trade deal' by corporations for corporations.
Talks around the TPP have been ongoing for over five years; the proposed trade agreement will be the broadest and most comprehensive 'free trade' deal in history. The TPP has been described by US academics as 'NAFTA on steroids'1 with the monolithic proposal affecting everything from the price of medicines, indigenous rights, workers' rights, internet freedoms and agriculture to concepts such as the legal framework surrounding fracking. It is, for all intents and purposes, a global corporate coup d'état.
Naomi Klein comments on some of the ramifications of the North American Free Trade Agreement (NAFTA) in This Changes Everything, stating:
"The significance of the NAFTA signing was indeed historic, tragically so. Because if the environmental movement had not been so agreeable, NAFTA might have been blocked or renegotiated to set a different kind of precedent. A new trade architecture could have been built that did not actively sabotage the fragile global climate change consensus … The errors of this period cannot be undone, but it is not too late for a new kind of climate movement to take up the fight against so-called free trade and build this needed architecture now. That doesn't − and never did − mean an end to economic exchange across borders. It does, however, mean a far more thoughtful and deliberate approach to why we trade and whom it serves."2
Negotiations have been conducted in secrecy and as a result have drawn widespread criticism from all sides of the Pacific, with people incensed by the clandestine nature of such an extensive trade agreement. What we do know from content disclosed by WikiLeaks3 is best described as sinister. Drawing on information from those leaks, as well as case studies and evidence from other treaties such as NAFTA, it is understood that the consequences of signing on to the TPP will be innumerable.
Included in the TPP are the highly controversial ISDS provisions that give foreign corporations the ability to sue our government if they believe environmental, public health and other policies affect their expected future profits or are a barrier to trade. The subversive effects of these provisions ties the hands of those who are in charge of creating such restrictions; if the threat of a multimillion, or billion dollar lawsuit looms overhead, the creation of such important policy will be constrained.
The ISDS clause excels at disregarding lessons from centuries of domestic law, and is instead a system that has no appeals and no precedents. It lets the parties involved select the judges for the court case who (unlike our domestic legal system) come from a pool of lawyers often employed by the very corporations mounting the cases. The arbitrators in these cases have been described as 'not public servants but private arbitrators … there is a revolving door between serving on ISDS arbitration panels and representing corporations bringing ISDS claims'.4 The broken nature of this tribunal system has meant that the United Nations and legal communities around the world are continually calling for reform.
Already we have seen the effects of ISDS lawsuits by way of the highly publicised Philip Morris tobacco case, but with the number of ISDS litigations increasing exponentially around the globe, signing on to the TPP will open the floodgates to a tide of claims that have consistently been seen to favour the corporations involved over the State.
Sadly, one of the most frequent casualties of this corporate tribunal system is the environment. ISDS cases can range from relating to 'legislative reforms in the renewable energy sector' and 'failure to protect investments' as a UN report shows.5
A recent report investigating ISDS conducted by several organisations including Friends of the Earth Europe and the Sierra Club in the US found: "The current battle over fracking regulation provides a clear example of what is at stake. International investment tribunals are already being used to challenge a moratorium on fracking in Québec. There is little doubt that, if included in the EU−US and EU−Canada trade deals, investor protection will be used again and again to challenge further fracking bans and regulation at the national and at local level."6
These provisions undermine the ability of our government to regulate and impose bans on highly controversial and risky activities such as horizontal drilling and fracking (hydraulic fracturing), or use of toxic chemicals by the food and agriculture industries, as well as any number of other regulations for the benefit of the community that may impact the potential future profits of the corporation in question.
At what point did the community decide to sit back and bow out of any meaningful input on matters that will detrimentally impact our future for time immemorial? This is what is happening when it comes to the process of negotiating and implementing international treaties such as the TPP. This 'free trade' agreement appears to have very little to do with trade and there is nothing free about it for the community, when the only partnership being represented is the secret love affair between governments and multinational corporations.
In the lead-up to the Unions-Communities TPP Roundtable, ACTU President Ged Kearney stated:
"How can the community have confidence that the Government is not trading away the interests of Australians when there is a lack of available detail and stakeholders are reliant on leaks to gain a better understanding? This isn't about opposing trade or trade agreements. It's about ensuring significant concerns are addressed. We do not trust they that workers' rights will be recognised and protected, environmental standards upheld and access to quality public services maintained. We do not have confidence that these principles are being upheld in this secret process."
US Fast Track legislation
The international movement has recently suffered a blow, with the Fast Track legislation being passed through the United States Senate on June 23, 2015. Fast Track removes the ability to debate or amend the TPP agreement in the House of Representatives or the Senate and limits their input to a simple yes or no vote on the agreement as a whole. This diminishes the treaty process in the US to the same low level that we have in Australia, where there is no parliamentary debate on the specific details of an agreement until after it has been signed. After signing the TPP and the ratification process is complete, this agreement not only cannot be changed, it has no end date or 'sundown clause'.
This makes it much harder for politicians to reject the TPP agreement and functions as a back door for corporations to exploit people and the planet. For instance ACTA (Anti-Counterfeiting Trade Agreement), which was seen by community groups as an open attack on the internet and its users, was so flawed that it failed to get ratified in all the signatory countries bar Japan. From the leaked chapters, we can see that much of the same content that was rejected in ACTA is rearing its head again in the TPP.
With the implementation of fast track in the US and with Australia effectively already being fast tracked, it will be extremely difficult for our respective parliamentarians to challenge such draconian legislation without exposing our respective countries to ISDS tribunals.
There is good news though here in Australia; the community campaign is surging forward, with a cross community-union working group being formed on the back of the ACTU Unions and Communities TPP Roundtable, and proactive push back strategies are being formulated from all sides.
The fight against the corporate takeover of our democracy can be won. It starts with grassroots community coming together in unity and strength; the proponents of the TPP are starting to realise our power and it's terrifying them. So let's give them nightmares.
1. Wallach, L,. NAFTA on Steroids, The Nation, 27/06/2012, www.thenation.com/article/168627/nafta-steroids
2. Klein, N., This Changes Everything, 2014, p.85
6. No fracking way: how the EU-US trade agreement risks expanding fracking, by ATTAC, the Blue Planet Project, Corporate Europe Observatory, Friends of the Earth Europe, Powershift, Sierra Club and the Transnational Institute.
Published in Chain Reaction, national magazine of Friends of the Earth, Australia, edition #124, September 2015, www.foe.org.au/chain-reaction