New Year’s Revolutions: Trading Away Our National Sovereignty

Cargo ShipThat was a nice vacation!  The only sticky part was watching too much cable broadcasting, which is almost sufficient to render a person capable of believing that THE most important feature of any news story is “how it will affect the 2014, — or even the 2016 U.S. elections.”   Not. So. Fast.  There are some stories worth watching because they have implications for our economy — whether they determine election outcomes or not.   Here’s one to watch in 2014.

The Trans Pacific Partnership Treaty.  “The Trans-Pacific Partnership Agreement (“TPP”) is a free trade agreement currently being negotiated by nine countries: The United States, Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. Although the TPP covers a wide range of issues, this site focuses on the TPP’s intellectual property (IP) chapter.”  [TPP]  There are some serious issues involved in this agreement, not the least of which is the secrecy in which it is wrapped.

There is every appearance that the trade negotiators don’t want the proposed elements discussed in the press, because if people found out about them then opposition would increase.  As it is, the TPP is being referred to as a Corporate Wish List.   [Alternet]

One question which as defied explication is the extent of corporate control over sovereign nations.  For example, under a current trade agreement British-American Tobacco is suing to prevent the implementation of Australia’s anti-smoking campaign, contending that the regulations are impinging on its trademark rights.  [ModestoB] Americans have every right to know if the provisions of the TPP would make the enforcement of American regulations on environmental impact, public health, labor relations, and other state and local statutes, impossible in the face of corporate opposition.

There’s ample reason for more public discussion of these provisions because:

“The 95-page, 30,000-word IP Chapter lays out provisions for instituting a far-reaching, transnational legal and enforcement regime, modifying or replacing existing laws in TPP member states. The Chapter’s subsections include agreements relating to patents (who may produce goods or drugs), copyright (who may transmit information), trademarks (who may describe information or goods as authentic) and industrial design.

The longest section of the Chapter – ’Enforcement’ – is devoted to detailing new policing measures, with far-reaching implications for individual rights, civil liberties, publishers, internet service providers and internet privacy, as well as for the creative, intellectual, biological and environmental commons. Particular measures proposed include supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards. The TPP IP Chapter states that these courts can conduct hearings with secret evidence. The IP Chapter also replicates many of the surveillance and enforcement provisions from the shelved SOPA and ACTA treaties.”  [Salem]

There’s one sentence in there which ought to attract far more notice than it has received thus far: “…supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards.”   We might indulge in a bit of imagination — If the Behemoth Corporation subcontracts the production of a line of children’s clothing to its subsidiaries in a member country, and if the fabric used doesn’t meet the standards established by the Consumer Products Safety Commission, can the Corporation sue to have the CPSC standards declared an infringement on its trademark or industrial design rights?  And, must the “supranational” court’s secret ruling be the Law of the Land in the United States of America?

The draft of the intellectual property provisions have been leaked and are available here.   Among those elements are some suggestions which would have an impact on public health, and on the cost of health care in the U.S.

The draft contains features which would (a) expand the scope of pharmaceutical patents; (b) lengthen the drug monopolies; (c) require the enforceability of patents, even those which should not have been granted, such that generic medications are frozen out; and (d) give the pharmaceutical manufacturer’s five years of “exclusivity,” or commercial control over regulatory information.  [pdf Citizen.Org]

In short the U.S. would be signing away its sovereignty to the multi-national pharmaceutical corporations.   The  multi-national pharmaceutical manufacturing corporations — backed by that secret Supranational Tribunal — could control the regulation of prescription drugs in the U.S. very possibly at the expense of the generic prescription manufacturers.   This situation isn’t some ethereal trade calculation, it would have some very real ramifications for the elderly.  The AARP has weighed in:

“AARP, which represents Americans 50 and older and their families, sent a letter to U.S. Trade Representative Michael Froman saying the U.S. should not sign onto a TPP agreement that binds it to a 12-year market exclusivity period for branded biologic medicines, which can be used to treat diseases like cancer and rheumatoid arthritis.

Biologics — medicines developed through biological processes — tend to be more expensive than so-called “small molecule” drugs, something AARP attributes, at least in part, to the long market exclusivity period, which prevents generic drug makers from entering with follow-on biologic drugs, also known as “biosimilars.” [Law 360]

So, if the pharmaceutical manufacturers now have a seven year “exclusivity” period, the TPP would bestow upon them another five years…to the betterment of their bottom lines, but to the detriment of seniors trying to purchase generic versions of the medication.  What the AARP fears is that the TPP would simply lock in higher drug prices. [TheHill]

No wonder the trade negotiations have been conducted secretly.  The Investor State provisions have already been problematic.  Witness NAFTA and high fructose corn syrup —

“If implemented, the “investor-state” provision laid out in Section B would grant investors broad rights to challenge public policy decisions and to receive millions of dollars in compensation for the loss of expected profits.

This kind of provision has already been used under NAFTA to challenge Mexico’s implementation of trade barriers to High Fructose Corn Syrup (HFCS) in favor of domestically produced sugar. Three firms in three separate cases—Corn Products International, ADM/Tate & Lyle and Cargill—sued the Mexican government over this protection. In each case, the dispute panel ruled against Mexico, awarding a total of $169.18 million USD to the firms in compensation.   The arguments in this case were about whether the Mexican government’s actions constituted unfair limits on investors’ expected profits, not about possible public health concerns over HFCS versus sugar. But even if the government had wanted to raise that issue, under the rules in NAFTA, they would have been simply deemed irrelevant.”  [IATP]  (emphasis added)

Thus, IF the United States of America decided that flame resistant fabric be used in all infant-wear, and SweatShop Inc. determined that this statute or related regulation “constituted an unfair limit on investor’s expected profits,” then the Supranational Tribunal could fine us for daring to enforce child safety regulations?

IF the U.S. continued to provide subsidy payments to dairy farmers in the Farm Bill (should it ever be passed) could the dairy producers in New Zealand file litigation with the Supranational Tribunal to contest the subsidy?

And, even more egregious — let’s talk about food safety standards.  Do we really want a system in which the “lowest common denominator” is the standard for the production, packaging, and sale of food products designed for human consumption?  Or for livestock consumption?  Or for pet consumption?  If we assume that the EU has higher standards than those proposed in the TPP, then do we risk the loss of exports to those nations? Or, risk exports to China? [IATP]

Proponents of the treaty squeal that the opposition has been based on Leaks and Lies, however this objection could have been resolved by the public release of draft provisions and a call for public commentary.  That the process remains secretive calls the content into question.

This proposed agreement shouldn’t be “fast-tracked” it ought to be derailed.  Contacting Senator Harry Reid,  and/or Senator Dean Heller would be helpful in this regard.

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