Fact or Fiction: Does the Hatch-Wyden-Obama Trade Promotion Authority Bill Protect U.S. Sovereignty

[cali]

The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.” The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future. If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations. (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).

Here, I analyze Section 8’s promise using The Washington Post’s “Fact or Fiction” Pinocchio scale. For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.

Section 8 of the TPA bill states:

<snip>

Let’s take these in order. Section (a) is a repetition of the language in every free trade implementation act that has passed congress since NAFTA. In technical detail, it is mostly literally true. International trade agreements, like most international treaties in the U.S., are non-self-executing, meaning that they only become judicially cognizable as U.S. law through domestic legislation implementing their mandates. Section (a) can be seen as articulating that standard. Elsewhere, the bill makes clear that the President has to identify through draft implementing legislation all the changes in US law required by the treaty. Any changes in law required by the treaty that are not adopted by the Congress in that implementing legislation will have no effect on U.S. law.

It is not true, however, that a failure of Congress to implement changes a treaty requires renders those provisions has having “no effect” whatsoever. The non-implemented provisions will still bind the U.S. under international law. Some other party of the treaty, or a private investor under investor-state dispute settlement (ISDS), could (depending on the enforcement language in the treaty) sue the U.S. for damages or to authorize trade sanctions. That dispute settlement process would bind the U.S. government – and have effect – even though it would not change U.S. law.

<snip>

http://infojustice.org/archives/34298

This site is NOT connected to infowars. It is not some fringe site.

ntributors include

Sean Flynn, Associate Director of American University Washington College of Law, Program on Information Justice and Intellectual Property

[cali]

1. kick, kick and kick

[enough]

2. The last paragraphs of the article:

Snip>

Section (c) contains the biggest whopper. There, the bill claims to be able to render findings by dispute settlement panels with “no binding effect” on the law or “the Government” of the U.S. The key here is that international law, not U.S. law, decides the extent to which international treaties bind and the scope of remedies available. If a treaty has a dispute resolution process, then the nature of how that process binds an individual country is determined by the treaty, including any reservations made in the treaty itself, not by local trade authorization legislation.

Thus, an international tribunal, following the Vienna Convention on the Law of Treaties and the scope of customary international law, would ask: (1) Is there a treaty, i.e., did the president sign and Congress ratify? (Yes, yes.), and (2) Does the treaty have a reservation carving out the U.S. from dispute resolution? (No.) Then the dispute resolution process binds. That is it. They don’t have to look at the local legislation giving the president negotiating authority because, under international law, the president has the authority to bind the United States even where he exceeds his domestic constitutional authority.

Technically, clauses (a) and (b), and the statement in (c) about settlement panels binding the “law” of the U.S., can be true only if the concern is cabined to whether international law can directly change a U.S. statute by being self-executing. But the clear intent of the provision is to suggest that the legislation can render trade agreements that conflict with our laws as being without effect, including not binding the “U.S. government.”

This the statute cannot do. For stating that the legislation can prevent trade agreements from binding the U.S. in areas where the statute can have no such effect, Section 8 of the TPA gets a Four Pinocchio rating from me. Members of Congress and the public concerned about the ability of trade tribunals to find our domestic laws and regulations in violation of vague limits on regulatory authority should find little comfort in the “Sovereignty” section of the TPA bill.

{emphasis added}

End of article>

[cali]

3. thank you.

I wish everyone here would read this.

btw, that's a great site for analysis by those with expertise.

[pampango]

4. It is fascinating to me how "national sovereignty" competes with "enforceable standards"

in an agreement such as the TPP.

If anything good is to come from the TPP, many liberals (not conservatives of course) want high "enforceable standards" on labor rights and the environment. The presence of 'high standards' won't mean much if there is no effective enforcement mechanism.

But the presence of effective enforcement mechanisms requires the existence of a way to force national governments to do something they were not going to do otherwise, in essence limiting their 'national sovereignty'.

[cali]

5. yeah, that's an interesting point.

[cali]

6. this is important information:

[cali]

7. kick

By far the best analysis of the tpa

[Scuba]

8. The very appropriately named "Section 8."

http://en.wikipedia.org/wiki/Section_8_%28military%29

The term Section 8 refers to a former category of discharge from the United States military, that of a member judged mentally unfit for service. It also came to mean any service member given such a discharge or behaving as if deserving such a discharge, as in the expression, "he's a Section 8". The term comes from Section VIII of the World War II-era United States Army Regulation 615-360, which provided for the discharge of those deemed unfit for military service.

[HereSince1628]

9. So if why include such language in the bill at all?

Congress critters and their staff either understand no better than average Americans and/or they are looking to create illusions of protections from ISDS to make it salable.

That's not reassuring.

[cali]

10. yeah, either way, its not encouraging

[davidpdx]

11. Nice analysis

I'm flabbergasted that my own senator supports this. He's been a good senator the last 18 years, but this is a bridge he can not cross without consequences.

[cali]

12. I'm assuming your senator is Wyden

It is disappointing. Ironically, I wouldn't be surprised if he actually votes against the tpp if the tpa passes and it comes up for a vote.

I agree re the analysis. It's a very good site for analysis of these issues. I've been following it for a while now.

[davidpdx]

13. Yep

Wyden and Merkley

Since Merkley got elected in 2008, I have felt Oregon has great representation in the Senate. Now I'm beginning to think that is not so true.

[cali]

14. another kick for light, not heat

[neverforget]

15. thanks for this cali! k&r

[cali]

16. inform your argument against the claim

that this new version of the tpa fixes the tpp and future trade agreements

[cali]

17. kick

[fasttense]

18. Wow that is some convoluted language

I don't know which is worse, the round about legalese language of the "agreement" itself or trying to explain the language in the "agreement".

A wise man once told me that if a document is difficult to understand, and needs pages and pages to explain itself, then it is hiding something.

[Aerows]

19. Here is where

the daylight strikes the cockroaches and they scatter around mindlessly.

It's a bad deal, period. If it can fall apart with just a glint of daylight, there is no way in hell it needs to be enacted.

[cali]

20. I found that analysis quite enlightening

[Aerows]

21. We are on the same page! n/t

[smokey nj]

22. Thanks for this, cali.

What's telling is you posted this on Wednesday, yet none of the supporters of the trade agreements have chimed in. I wonder why.

[cali]

23. perhaps because it's specific and analysis of something we are able to access

And read, and it sharply contradicts President Obama's claims.