by Michele Nash-Hoff
March 01, 2013
In his State of the Union address, President
Obama declared in his intent to complete
negotiations for a Trans-Pacific
Obama administration has pursued the TPP
through the offices of U.S. Trade Representative Ron Kirk instead of under
the auspices of the Department of State.
This was the first time negotiations to create a
free trade zone with Pacific Rim countries were made public although 15
rounds have been concluded. Eleven nations are participating:
the United States
Although Japan and China are not presently
participating in TPP negotiations, "docking provisions" being written into
the TPP draft agreement would permit either Japan or China to join the TPP
at a later date without suffering any disadvantage.
To implement the TPP free-trade agreement,
Congress will be asked to surrender its responsibility under Section 1,
Article 8 of the Constitution to regulate commerce with foreign nations, and
grant President Obama extra-constitutional "Trade Promotion Authority" to
negotiate the final TPP agreement.
The administration seeks to gain "fast-track
authority," a provision under the Trade Promotion Authority that requires
Congress to review an FTA under limited debate, in an accelerated time frame
subject to a yes-or-no vote by a simple majority vote rather than a
two-thirds vote, as required for the ratification of a formal treaty.
Under fast-track authority, there is no
provision for Congress to modify the agreement by submitting amendments.
Fast-track authority also treats the FTA as if it were trade legislation
being negotiated by the executive branch. The purpose is to assure foreign
partners that the FTA, once signed, will not be changed during the
A report released Jan. 24 by the Congressional
Research Service, "The
Trans-Pacific Partnership Negotiations and Issues for Congress,"
makes clear that the present negotiations are not being conducted under the
auspices of formal trade promotion authority as the latest TPA expired July
However, the Obama administration is acting as if fact-track
authority were in effect already.
The report states that the TPP is being
negotiated as a regional free-trade agreement that U.S. negotiators describe
as a "comprehensive and high-standard" FTA.
The U.S. hopes the agreement,
"will liberalize trade in nearly all goods
and services and include commitments beyond those currently established
in the World Trade Organization (WTO.)"
Opposition to the TPP ranges from one end of the
political spectrum to the other - from the liberal
Citizen non-profit, consumer rights advocacy group founded by Ralph
Nader in 1971 to the far-right, conservative news organization,
World Net Daily founded in 1997 by Joseph Farah.
Lori Wallach of Public Citizen has written
several articles warning about the dangers of the Trans-Pacific
According to her review of TPP, foreign firms
would gain the follow privileges:
Risks and costs of offshoring to low
wage countries eliminated
Special guaranteed "minimum standard of
treatment" for relocating firms
Compensation for loss of "expected
future profits" from health, labor environmental, laws (indirect or
"regulatory" takings compensation)
Right to move capital without limits
New rights cover vast definition of
investment: intellectual property, permits, derivatives
Ban performance requirements, domestic
content rules. Absolute ban, not only when applied to investors from
opines that U.S. multinational corporations have the goal of imposing on
more countries a set of extreme foreign investor privileges and rights and
their private enforcement through the notorious "investor-state" system.
"This system elevates individual
corporations and investors to equal standing with each TPP signatory
country's government- and above all of us citizens."
This would enable,
"foreign investors to skirt domestic courts
and laws, and sue governments directly before tribunals of three private
sector lawyers operating under World Bank and UN rules to demand
taxpayer compensation for any domestic law that investors believe will
diminish their 'expected future profits.'
Over $3 billion has been paid to foreign
investors under U.S. trade and investment pacts, while over $14 billion
in claims are pending under such deals, primarily targeting
environmental, energy and public health policies."
This opinion was confirmed by Jerome Corsi
article last week on World Net Daily, in which he reported that a,
"leaked copy of the TPP draft (Intellectual
Property Chapter of Trans Pacific Partnership) makes clear in
Chapter 15, 'Dispute Settlement,' that the Obama administration intends
to surrender U.S. sovereignty to an international tribunal to adjudicate
disputes arising under the TPP.
Disputes concerning interpretation and
application of the TPP agreement, according to Article 15.7, will be
adjudicated by an "arbitral tribunal" composed of three TPP members."
Because the TPP agreement places arbitral
tribunals created under TPP to be above U.S. law, the Obama
administration's negotiation of the Trans-Pacific pact without specific
consultation with Congress appears aimed at creating a judicial
authority higher than the U.S. Supreme Court.
The judicial entity could overrule decisions
U.S. Federal District and Circuit courts make to apply U.S. laws and
regulations to foreign corporations doing business within the United
The result appears to allow foreign
companies doing business within the United States to operate in a legal
and regulatory environment that would give the foreign companies decided
economic advantages over U.S. companies that remain subject to U.S. laws
Another group opposing the TPP is
Americans for Limited
Government , a lobbying group and advocacy organization which describes
itself as a non-partisan, nationwide network committed to advancing
free-market reforms, private property rights and core American liberties.
In a recent
statement they pointed out:
This new trade agreement will place domestic
U.S. firms that do not do business overseas at a competitive
disadvantage. Foreign firms under this trade pact could conceivably
appeal federal regulatory and court rulings against them to an
international tribunal with the apparent authority to overrule our
If foreign companies want to do business in
America, they should have to follow the same rules as everyone else.
Obama is negotiating a trade pact that would constitute a judicial
authority higher than even the U.S. Supreme Court that could overrule
federal court rulings applying U.S. law to foreign companies.
That is unconstitutional. The U.S. cannot be
allowed to enter a treaty that would abrogate our Constitution.
As a director on the board of the American
Jobs Alliance, an independent, non-partisan, non-profit organization, I
wish to point out some of the additional problems with the TPP that are
cited on our website:
Undermines Our Sovereignty and Democracy
It is misleadingly called a trade
agreement when in fact it is an expansive system of enforceable
Only two of its 26 chapters actually
cover trade issues, like cutting border taxes ("tariffs") or lifting
quotas that limit consumer choice. In reality, most of the deal
would impose one-size-fits all international rules to which U.S.
federal, state and local law must conform. This includes limits on
the U.S. government's right to regulate foreign investors operating
here and control our natural resources and land use.
TPP also would provide preferential
treatment to foreign banks and other firms operating here. The pact
would subject the U.S. to the jurisdiction of two systems of foreign
tribunals, including World Bank and United Nations tribunals.
These foreign tribunals would be
empowered to order payment of U.S. tax dollars to foreign firms if
U.S. laws undermined the foreign firms' new special TPP privileges.
The agreement undermines the critical
checks and balances and freedoms established by the U.S.
Constitution, which reserves many rights to the people or state
TPP would obligate the federal
government to force U.S. states to conform state laws to 1,000 pages
of rules, regulations and constraints unrelated to trade - from land
use to whether foreign firms operating in a state can be required to
meet the same laws as domestic firms.
The U.S. federal government would be
required to use all possible means - including law suits, and
cutting off federal funds for states - to force states to comply
with TPP rules.
Already a foreign tribunal related to
the World Trade Organization has issued a ruling explicitly stating
that such tactics must be employed against U.S. states or the U.S.
would face indefinite trade sanctions until state laws were brought
UN and World
Bank Tribunals Would Replace U.S. Courts
The "Investment" chapter would submit
the U.S. to the jurisdiction of international tribunals established
under the auspices of the United Nations or World Bank.
It would shift decisions over the
payment of U.S. tax dollars away from Congress and outside of the
federal court system established by Article III of the Constitution
to the authority of international tribunals.
These UN and World Bank tribunals do not
apply U.S. law, but rather international law set in the agreement.
These tribunals would judge whether foreign investors operating
within the U.S. are being provided the proper property rights
The standard for property rights
protection would not be those established by the U.S. Constitution
as interpreted by the U.S. Supreme Court, but rather international
property rights standards, as interpreted by an international
TPP Cedes a
Quarter of All U.S. Land to Foreign Control (544 million
acres of public land)
It would subject to the foreign
tribunals' judgment all contracts between the U.S. federal
government and investors from TPP nations - including subsidiaries
of Chinese firms,
"with respect to natural resources
that a national authority controls, such as for their
exploration, extraction, refining, transportation, distribution,
or sale; to supply services to the public on behalf of the
Party, such as power generation or distribution, water treatment
or distribution, or telecommunications; or to undertake
infrastructure projects, such as the construction of roads,
bridges, canals, dams, or pipelines, that are not for the
exclusive or predominant use and benefit of the government."
In conclusion, the TPP is a direct threat to
American national sovereignty, the U.S. Constitution and American-owned
TPP would destroy American jobs and our
independence. It would have a negative impact on jobs, the safety of our
food, Internet freedom, our right to "Buy American" and our laws.
We must make sure Congress rejects any
fast-track authority the Obama administration seeks to invoke when it comes
time to get final congressional approval.