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The US is driving the Trans-Pacific Partnership Agreement (TPPA). The demands it makes on behalf of its corporations have dominated the negotiations. US officials now chair many of the more controversial negotiating groups. The US has even bankrolled recent ministers’ and officials’ meetings in other countries.
Some people will know that the US House of Representatives has constitutional authority over trade agreements. That means US politicians can pick apart any deal, cherry-picking what they want, rejecting what they don’t, and demanding the negotiators go back for more.
There is an alternative known as Fast Track or Trade Promotion Authority. If Congress grants the President Fast Track, Congress has to accept or reject the TPPA as a whole – but to get Fast Track, Obama would need to agree to a raft of conditions. Even with Fast Track, members of Congress could still upset the final vote once it hits the floor of the House. Two weeks ago the 23 Republican members of the crucial Ways and means committee of the House of Representatives said they would not let the TPPA go to a vote unless President has obtained Fast Track authority from them first.
What very few people know is that the US has another, extraordinary weapon that could blow the TPPA out of the water. It goes by the benign name of ‘certification’. Negotiators have been aware that it is lurking in the background. But few of them know how it operates, or how to neutralise its effects.
A new website TPPnocertification.org, launched today, exposes how ‘certification’ has been used by the US in recent years. It is a terrifying story.
Assume the twelve governments negotiating the TPPA reach what they believe is a final deal, after the US has turned the screws as far as it can. Then the Congress will turn the screws even tighter with the legislation to implement the TPPA, with or without Fast Track.
Certification cuts in after that. Congress will include, in either the Fast Track authorisation or the implementing legislation, a legal obligation on the President that says he cannot bring the TPPA into force with another party to the TPPA until that country satisfies what the US says are its obligations.
The draft Fast Track legislation that was introduced to Congress several months ago already contains a provision that says:
CONSULTATIONS PRIOR TO ENTRY INTO FORCE – Prior to exchanging notes providing for the entry into force of a trade agreement, the United States Trade Representative shall consult closely and on a timely basis with Members of Congress and committees as specified in paragraph (1), and keep them fully apprised of the measures a trading partner has taken to comply with those provisions of the agreement that are to take effect on the date that the agreement enters into force.
The new website has identified what each of the 11 non-US countries in the negotiation might expect the US Congress to demand, based on letters they have issued and reports prepared by the USTR on the barriers it wants countries to remove.
For New Zealand that would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra’s ‘anti-competitive monopoly’.
The formal certification process works like this. United States officials transmit the list of the changes they require to the other country’s domestic laws and regulations. Then they monitor compliance and maintain pressure on the other country’s government until the US is satisfied.
How this has played out in practice is a total outrage against sovereignty and the democratic process. US officials have become directly involved in drafting another country’s relevant laws and regulations to ensure they satisfy US demands. This includes reviewing, amending and approving proposed laws before they are presented to the other country’s legislature. The USTR even demanded that Guatemala implement new pharmaceutical laws that were not in the formal text, and which the government had strenuously resisted during the negotiations.
Most detail is known about the US Peru FTA, because the communications within the Office of the USTR were released under the US Freedom of Information Act. One internal email said: ‘We have to redraft the regs and the law – Peru needs to accept them without changes’. Another said, ‘if the Peruvians accept our language as we [USTR] propose it we still have the possibility of wrapping everything up the week of November 10. If the Peruvians try to negotiate then all bets are off’.
They were talking about a controversial legislative decree that Peru adopted to comply with USTR’s interpretations of the FTA’s requirements. That Forestry and Wildlife Law (LD 1090) had tragic consequences. On 5 June 2009 Peruvian security forces attacked several thousand indigenous Awajun and Wambis protestors, including many women and children; more than 30 people were killed in what became known as the Bagua massacre. They were blocking the highway to support demands for revoking the decrees that implemented the laws. Cables published by Wikileaks show warnings from the US four days before the massacre that Peru’s government was being too lenient and giving into indigenous pressures would have ‘implications’ for the FTA.
Comparable communications that would show the interference of the US in drafting New Zealand laws or regulations might never be released under New Zealand’s Official Information Act, because they involve information entrusted to the government in confidence from another government. In other words New Zealanders, including Members of Parliament, might never know the US was involved in writing our laws and demanding the right to sign them off even before Parliament gets to see them.