Background & Issues for Trans-Pacific Partnership Meeting on November 15

November 11, 2015 by David Dehlendorf


Rep. Rick Larsen of Washington Congressional District 2 will hold a public meeting this weekend in Friday Harbor to answer audience questions about the Trans-Pacific Partnership Trade Agreement (TPP). The meeting will be at 11:15 am on Sunday, November 15 at the Grange Hall.

The TPP has been discussed frequently in the national press over the last few years, mostly by those in opposition, without the public actually having access to its text. That all changed last week when the full text was released to the public by the U.S. Government for the first time. Those interested can read it in whole, or in part, at the following link. Be warned, it is quite lengthy.

In his article below, David Turnoy of Orcas Island provides his interpretation, and that of various publications, of several of the provisions of the TPP of concern to him. Based upon his interpretation and other sources of information available to the public, it is suggested that readers ask Rep. Larsen questions about their concerns at the November 15 meeting. You can also email them to his office, and to our senators, at a later date. All comments are due to Rep. Larsen and to Senators Murray and Cantwell by February 4, 2016.

Readers are also encouraged to read articles in other publications so as to become as informed as possible in anticipation of next Sunday’s meeting.

Sunday’s meeting will be video recorded for those unable to attend.

TPP Information and Questions by David Turnoy, Orcas Island

The Trans-Pacific Partnership (TPP) trade agreement, developed in secrecy over the last several years by its 12 proposed members, finally saw the light of day last week when its full text became available for the first time. After a 90-day comment period ending February 4, 2016, the agreement will be debated and voted upon by both the U.S. House of Representatives and the Senate. Under previously established rules, the House and Senate will only be able to take an up or down vote on the agreement, i.e. approve it or not. A simple majority is needed to pass it. Congress does not have the authority to amend the agreement. The final vote on the agreement is expected sometime during the beginning of 2016.

The countries involved in TPP treaty negotiations are the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam; they represent 40 percent of the world’s economy. The TPP will set common standards in areas including employment, food safety, the Internet, corporate governance, and intellectual property.

The government website maintains that the “TPP will make it easier for American entrepreneurs, farmers, and small business owners to sell Made-In-America products abroad by eliminating more than 18,000 taxes & other trade barriers on American products across the 11 other countries in the TPP—barriers that put American products at an unfair disadvantage today.”  The TPP includes the elimination of 98 percent of tariffs between the 12 members.

Activists around the world have opposed the TPP, warning it will benefit corporations at the expense of public health, the environment, free speech and labor rights. Public Citizen said, “The text shows that the TPP would offshore more American jobs, lower our wages, flood us with unsafe imported food, and expose our laws to attack in foreign tribunals.” The decision to be made is whether the benefits justify the costs.

This article is organized into different sections about the TPP, though there can be more than one section in a broad area like the environment. Based upon the information contained in each section, readers are encouraged to formulate their own questions to ask their Representative and Senators. These can be directed to your Representative and Senators either during a local visit such as by Rep. Larsen on November 15, or in a subsequent comment on their websites or via email or letter. You may instead decide to forward this whole article to your Representative and Senators, editing it as you see fit. Whatever you do, please register your opinion so that Congress can make the right decision.

Health Care
A major area of concern is health care. Doctors Without Borders (abbreviated MSF), a major humanitarian nonprofit, says, “Generic competition has proven to be the best way to reduce drug prices and improve access to treatment. MSF began providing antiretroviral (ARV) treatment for HIV/AIDS in 2000 when the cost of treatment was more than $10,000 per patient per year. MSF now treats 285,000 people in HIV/AIDS projects in 21 countries, mostly with generic drugs produced in Asia. These generics have reduced the cost of treatment by nearly 99% to less than $140 per patient per year. Ministries of health, humanitarian medical treatment providers like MSF, and donors routinely rely on affordable quality generic medicines to treat a variety of health needs.” The TPP will extend monopoly protection for medicines, keeping prices sky high for longer and blocking generic drugs from entering the market. For example, one rule would allow patents to be extended beyond 20 years. This means that patients will have to wait longer for access to affordable medicines. And this wait is potentially indefinite, because another TPP rule would allow new 20-year patents to be granted for modifications of existing drugs, for a new dosage, for new formulations, even when there is no real improvement in efficacy for patients, so people must wait longer for affordable, generic medicines to become available. The TPP would also require surgical methods to be patentable—for example, how a doctor operates on a patient. All of this means that medicines and treatments will remain unaffordable longer, and more people will die.

Related to health care is how the TPP threatens health systems designed to serve the public interest like Medicare, Medicaid, and single payer systems in other countries. It does so by giving greater power to pharmaceutical companies to influence the reimbursement costs for purchase of pharmaceutical drugs when even their advertising is included in the cost of the drug. The TPP “recognize[s] the value” of pharmaceutical products or medical devices through their “objectively demonstrated therapeutic significance,” regardless of whether there are effective, affordable alternatives. The TPP makes it much more difficult for Medicare to negotiate lower prices.

Food Safety Standards
Another area of concern is access to healthy food. Lori Wallach, director of Public Citizen’s Global Trade Watch, says that the TPP rolls back food safety protections as regards foods we import. Malaysia and Vietnam are two of the TPP countries, and they are major exporters of seafood and shrimp. Currently, a lot of their food products get stopped now for being unsafe. But the TPP would give them new rights to basically attack our stopping their products for food safety purposes and flood us with unsafe imports. The agribusiness industry is enthusiastic about the TPP’s text because they would have ways to stop attacks on the food they ship to other countries, including GMO foods. But the same rules could allow imports, from Vietnam particularly, where there’s a huge issue of farmed shrimp being farmed in pools that, among other things, are fertilized with human poop, and this is followed with lots of antibiotics being poured into the ponds before the harvest to deal with the diseases that come from the human waste. Right now we over-inspect for countries like Vietnam because we know there are big problems. But one of the new rules allows you to challenge the inspection, both the way you sample, i.e., how you decide to pick out a particular country because they have problems, and also the limits on how long you can hold products to do testing. Food & Water Watch says that TPP will allow corporations “to attack sensible food safety rules, weaken the inspection of imported food, and block efforts to strengthen U.S. food safety standards.” The Center for Food Safety says, “any U.S. food safety rules on labeling, pesticides, or additives that [are] higher than international standards could be subject to challenge as ‘illegal trade barriers’.”

[The following info comes from * Center for Biological Diversity * Center for International Environmental Law * Earthjustice * Food & Water Watch * Friends of the Earth * Green America * Greenpeace USA * Institute for Agriculture and Trade Policy * Natural Resources Defense Council * Oil Change International * Sierra Club * SustainUS]

NRDC, one of the country’s biggest environmental groups—and an environmental group that supported NAFTA—came out against the TPP, joining the Sierra Club, Greenpeace, Friends of the Earth, and the vast majority of environmental groups. George Bush’s trade agreements were certainly not the best, but they had agreements enforcing seven specific multilateral environmental agreements (MEAs), so that countries signing these trade agreements had to adopt, maintain, and enforce these seven standards in their laws. The TPP wipes out six of the seven agreed-upon standards. Article 20.4 on MEAs marks a clear step backwards from the May 10, 2007 bipartisan agreement on trade. It also fails to meet the standard set in the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (i.e. “fast track”). The only one retained is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (Art. 20.17.2). Even so, it is important to note that with respect to CITES, countries are only called on to “endeavor to implement, as appropriate, CITES resolutions that aim to protect and conserve species whose survival is threatened by international trade”; this is a lesser standard than enforcement of such measures.

Of the other six MEAs listed in the “May 10” agreement and in the fast track law, the final TPP text merely requires each TPP country to “maintain” specific existing domestic policies that adhere to the Montreal Protocol on Substances that Deplete the Ozone Layer (footnote 4) and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (MARPOL) (footnote 7). This means that for these two critical MEAs, TPP countries are simply required to keep domestic policies named by the TPP on the books. The provision fails to require countries to effectively implement such policies, or to adopt new policies if the existing ones have proven insufficient for a country to actually fulfill its MEA obligations.

The environment chapter does not even mention the four remaining MEAs – a clear violation of the “May 10” standard and the fast track negotiating objective. The text omits, for example, the International Convention for the Regulation of Whaling (ICRW) – a critical agreement to regulate whale trade and to ensure the conservation of whale stocks. Since the ICRW established a moratorium on commercial whaling in 1985, TPP member Japan has been issuing itself “scientific” whaling permits to kill hundreds of whales each year. In 2014, the International Court of Justice ruled that Japan’s whaling program was commercial, not scientific, in nature and should therefore be cancelled under the terms of the ICRW. After a brief suspension of whaling activities, Japan announced in late 2014 that it would continue issuing itself scientific whaling permits under revised criteria. Given the TPP environment chapter’s failure to even mention the ICRW, and its non-existent provisions on commercial whaling, the final TPP text cannot be expected to have any impact on Japan’s whaling practices.

Also excluded is the Inter-American Tropical Tuna Convention (IATTC), another “May 10” MEA included in recent U.S. FTAs. The IATTC is a regional fisheries management organization (RFMO) that seeks to ensure the long-term conservation of tunas and other marine species in the eastern Pacific via sustainable fishing quotas, fishing bans, data on catch and bycatch quantities, and other measures. In its 2015 report to Congress, the U.S. National Oceanic and Atmospheric Administration (NOAA) cited TPP member Mexico for violations of the IATTC. Mexico’s IATTC violations, according to NOAA, include Mexico-flagged boats killing sharks for their fins, dumping trash at sea, and ensnaring sea turtles in fishing operations. The TPP would fail to curb such abuses not only because it omits any mention of IATTC obligations, but also because it fails to require countries to adhere to trade-related RFMO provisions. Worse still, by failing to require implementation of six out of seven core MEAs, the TPP could actually spur an increase in the environmental degradation that the MEAs aim to reduce. For example, the United Nations reports that ships operating along TPP member Vietnam’s coastline are annually dumping “thousands of cubic meters of waste oil” into the seawater, which has reportedly resulted in environmentally toxic and illegal levels of pollution. Such dumping could be a violation of Vietnam’s obligations under MARPOL, a “May 10” MEA that restricts the disposal of oil from ships. By facilitating increased shipping to and from Vietnam without requiring the country to implement its obligations under MARPOL, the TPP could actually exacerbate oil pollution levels off the coast of Vietnam, further threatening marine life.

The two other MEAs not mentioned in the TPP are the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (The Ramsar Convention) and the Convention on the Conservation of Antarctic Marine Living Resources. And interestingly, in several cases, a TPP country is not only party to an MEA omitted by the TPP, but also one of the world’s most notorious violators of that MEA, as seen above with Japan, Vietnam, and Mexico.

Climate Change
One of our most serious problems today is the threat from climate change. The TPP would hand corporate polluters new tools for attacking future climate policies, including controversial investor-state dispute settlement (ISDS) provisions that enable them to challenge U.S. laws, regulations, and court decisions as “regulatory takings” in international tribunals that circumvent the U.S. and any other country’s judicial system. For example, more than 600 corporations have used investor-state dispute settlement (ISDS) to challenge government policies including a moratorium on fracking in Quebec, a nuclear energy phase-out and new coal-fired power plant standards in Germany, a requirement for an environmental remediation in Peru, and an environmental impact assessment in Canada.

The TPP would undermine climate change legislation and policy by encouraging more extreme extraction and export of oil and gas. It will give big oil the power to sue in corporate tribunals to prevent any laws written to prevent extraction in order to protect the Earth from climate change. And, corporate trade agreements will undermine any climate solutions that come out of the UN meeting in Paris. The TPP will be law and any climate agreement will not be able to be inconsistent with the rights of oil and gas to extract, export and profit from carbon polluting products. Friends of the Earth (FOE) says the agreement “is designed to protect ‘free trade’ in dirty energy products such as tar sands oil, coal from the Powder River Basin, and liquefied natural gas shipped out of West Coast ports.” The result, FOE warned, will be “more climate change from carbon emissions across the Pacific.”

Strong obligations with weak or no enforcement would render the environmental chapter meaningless. Language that encourages “striving” or “endeavoring” will not do. Environmental organizations are extremely concerned that the provisions agreed to in the environment chapter will not be enforced. The United States has never once brought a trade dispute against another country for failing to live up to its environmental obligations in trade deals even when there has been documented evidence of non-compliance with environmental obligations.

According to Popular Resistance, a US corporation, Sun Belt Water, is suing Canada for $10.5 billion for banning the export of water. Under the TPP, water becomes by law a commodity that can be traded, and if a corporation wants to export it, governments can’t stand in their way.

Internet Service and Privacy
Under the TPP, Internet service providers become copyright police enforcing expanded copyright laws with the power to take down websites that violate copyright or ISPs will face high fines. But this section does not require countries to have a system for counter-notices, so a U.S company could order a website to be taken down in another country, and there would be no way for the person running that website to refute their claims if, say, it was a political criticism website using copyrighted content in a manner consistent with fair use. Section J makes it so ISPs are not liable for any wrongdoing when they take down content, incentivizing them to err on the side of copyright holders rather than on the side of free speech. Copyrights are expanded until 70 years after the death of the creator, keeping information, art, and more out of the public domain. The TPP does not include the “fair use” provisions of current copyright law. The TPP attacks whistle blowers by broadly criminalizing “trade secrets” and expands trade tribunals to allow corporations to sue for intellectual property damage. The TPP poses a grave threat to our basic right to information and free speech on the web, and it could easily be abused to criminalize common online activities and enforce widespread internet censorship.

In this era of concern over government overreach in obtaining our personal information, Chapter 14 of the agreement on ‘electronic commerce’ reads, “Each Party shall allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.” The wording raises fears that the TTP may be used to override laws in individual countries which keep government data on individuals, such as health information, on servers inside their borders countries. In other words, the personal information of individuals can be transferred out of the country.

Labor, Legal, and Miscellaneous Topics
According to Tikkun Magazine, the TPP is so poorly written that it would enable products assembled from parts made in “third party” countries that aren’t subject to any TPP obligations to enter the U.S. duty free. It also includes language that effectively bans “Buy American” and “Buy Local” preferences in many types of government purchasing.

The Council on Foreign Relations is quoted as saying, “The TPP deal has the potential to reshape an important part of the U.S. economy, strengthen American diplomacy, and launch a new generation of international economic cooperation.” The Council on Foreign Relations tends to be a cheerleader for trade agreements. They’re going to make the argument that somehow this will help us contain China. It’s unclear what the strategy is here. That’s the usual argument you hear when actually the argument about creating more jobs fails, because the TPP will make it easier to offshore American jobs, and it will push down our wages by putting Americans into competition with folks in Vietnam who make less than 65 cents an hour.

Are we willing to give up the sovereignty of our courts? The TPP replaces federal courts with what are basically kangaroo trade tribunals that are designed by and for foreign corporations and under which corporations can sue governments for laws that affect their profits. The legal mechanism is called the investor-state dispute settlement, or ISDS. These trade tribunals will have no standards for transparency or due process common in federal courts and courts in TPP countries. The “judges” will be three corporate lawyers who can also serve as advocates for corporations suing in the tribunals. This conflict of interest would not be ethical in federal courts. Thus there is an incentive for a “judge” to expand the power of corporations in their decisions, so they can then sue on behalf of corporations they represent. There is no appeal, so these “judges” will not have their decisions reviewed. The tribunal has full discretion in determining how much governments must pay in damages, which can include “expected future profits.” Even when governments win, under TPP rules they can be ordered to pay for the tribunal’s costs and legal fees. It does not matter why a government put in place a new law, e.g. an environmental crisis, financial crisis or new health discovery; this is not relevant. The TPP also provides a two-tier playing field, with foreign firms provided greater rights than domestic firms. Foreign firms are empowered to skirt domestic courts and laws to directly sue governments in foreign tribunals, whereas domestic corporations cannot use the TPP tribunals but must go through the courts of their country.

The Obama administration is claiming that this is the most progressive trade agreement in history, but it is actually weaker in multiple ways than many of the Bush-era agreements of 2007. As has already been documented above, the TPP has rolled back some of the progress activists made during that era on issues like limiting monopolies to ensure access to medicines and protection of the environment. Trade pacts had also importantly included a security exception at ports that allowed governments to decide how to protect their countries’ security. The TPP removes that exception to trade tribunal investor-state dispute settlement.

Under Chapter 10 of the TPP, foreign corporations can come to the United States to compete with US companies. These foreign corporations can bring their employees with them; they do not have to hire US workers or pay US wages. They will compete with US workers who are providing the same service, thereby displacing US workers and causing a downward spiral in wages. If the US does not allow foreign corporations entry into the US, they can sue in the corporate trade tribunals and be forced to do so.

The more one reads about the actions that will result from the TPP, the more concerned one becomes. While we live in a country and world that seem to believe in a capitalist system where innovators, entrepreneurs, and investors are entitled to a return on their investment, shouldn’t a fair or reasonable return be enough? Shouldn’t the inventor or patent holder of a new medicine that saves lives be satisfied with a reasonable profit plus the satisfaction that s/he is saving many lives? Must we have more environmental destruction, disease, and death so that innovators, entrepreneurs, and investors make unlimited profits? Will there even be a habitable world left in which to spend those profits if the TPP goes through?

The views expressed in this article are those of the author. They do not necessarily represent the views of the San Juan County Democrats.

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