Written By: Stephen Agwu, Labor & Trade Intern, Sierra Club Lone Star Chapter
The Corporate Coup
Systems of governance have always encountered entities which would create laws against/circumvent the will of the people. In grade school, we all learned that the Magna Carta started the proverbial wheel which eventually drove western society toward the height of democratic ideals, not seen since the time of ancient Greece. What is good to remember about these ideals is that the proverbial wheel goes both ways.
There has always been, and currently are, forces that would deny the people their democratic voice. At this time there are corporations vying for their private interest, which seeks to overthrow the autonomous control of the people and their governments. This corporate coup d’état is being driven by the Trans-Pacific Partnership (TPP) negotiations. The TPP is a set of secret negotiations being conducted between trans-pacific countries such as Brunei, Vietnam, Malaysia, Singapore, New Zealand, Australia, Chile, Peru, and other countries such as the USA, Mexico, and Canada.
The negotiations include 29 chapters (with only about five focused on trade) with known topics ranging from intellectual property to investor state arbitration. Because the negotiations only take input from 600 of USA’s top corporations and none from average citizens, it is the corporation’s interest that is negotiated in place of the people of the USA, and it is corporations that are achieving their goal at the expense of the consumer. The fact that corporations are using these negotiations to create a set of rules that would benefit themselves while being deleterious to the majority of the population is not the main problem (you can decide how deleterious these changes are as these changes are illuminated later). The problem is the fact that their means for creating these set of laws involves circumventing our democratic principles.
Establishing Corporate Rule as Government Law
The important thing to remember about TPP is that of its 29 chapters, only about 5 pertain to traditional trade law (tariffs, subsidies, etc). The main point of the TPP is to get all the participating countries to conform to a set of non-trade related regulatory policies. For example, lets do a more in depth analysis of the effect TPP would have on copyrights and patents on intellectual properties, and other protections investors would gain with the ratification of TPP (this example is used because it is one of the few chapters leaked to the public).
Investor State Arbitration is one of most far-reaching clauses of TPP. This provides the corporation investing in a foreign country investment protection that ranges from patents with pharmaceuticals and information technologies, to changes in the host countries laws and practices. Investor state arbitration provides the investing corporation a means to enforce TPP standards and protect any investment that company might make.
An example of what would call for a investor state arbitration can be found here, with a focus on the suit filed by the Swedish company on the German government. In summary, Germany made a move to phase out nuclear energy following the tragic nuclear explosion which took place in Japan, their reason being the safety of their citizens and the safety of the environment. The protections offered to investors, however, allow the Swedish corporation to sue the German government for potential loss of profits due to their change in policy.
The point is that the people of Germany, which its government represents, are now under the rule of the Swedish investing corporation. The German government has lost autonomous control over its policies and laws which conflict with foreign corporate interest.
Under the TPP, this would become the standard. An international tribunal would be created, with corporate lawyers presiding as judges in the hearings. These judges will be able to assess loss of profits and bring government and domestic policies under the watchful eye of domestic and foreign corporations.
The implications are far, and frankly, terrifying. Take the Keystone XL pipeline, for example. If a foreign investor, say China, were to invest in the pipeline in Canada, then Canadians would need Chinese permission to stop the pipeline from operating. What’s worse, the investor need not worry about environmental or health cost or externalities because any attempt the host government made to protect themselves, or internalize the cost to the investors could land them in the international tribunal court. Environmentally speaking, the use of “dirty” energy would be further ingrained in society because the people may be unable to monetarily afford to democratically change their laws under the pressure from foreign corporations (more on environmental impact here, and for investor state impact here).
Medicinal and Pharmaceutical copyrights and patents would be more uniform under TPP. Patents on pharmaceuticals would continue to last for 20 years, but even more extensive patent protections would be introduced onto the world stage. This would make the process of “evergreening” or the extensions of patents over a drug more frequent and longer lasting (very nearly indefinite). TPP would also require that surgical practices, treatments, and medical tests be patented, reducing its availability in less affluent nations.
If these TPP measures are enacted, a rise in the global cost of health would ensue as generic drugs became less available. At the same time, medical practices and innovations would not focus on the most prevalent diseases if the people afflicted came from a poorer nations, because they would not be able to afford rights to the patent, instead innovation would be monetarily driven to less prevalent diseases that afflicted more affluent people. Both these patent protections would drive the global medical industry towards one that is focused on making money from the consumer, not one which focused on making the consumer healthy, much like the one in the USA, which is considered highly inefficient when it comes to treatment cost per capita (more on Medical impact of TPP here and here )
The Intellectual Properties chapters would seem very familiar to anyone familiar with the Stop Internet Piracy Act (SOPA) of 2011-12. SOPA was an attempt to redefine copyright infringement so as to combat online piracy. The act was controversial in its redefinition of copyright infringement and ended up never being drafted as a bill due to widespread public protest against such legislation.
TPP seeks to not only bring back such copyright re-definitions, but to make them global. Similarities include the criminality of unauthorized streaming of copyright content (even if it is not for profit), blocking of sites which facilitate copyright infringement, and allowing copyright owners to interfere with a sites ability to host advertising. (For a full account of TPP chapter of information technology click here, for SOPA click here). The danger of this provision in TPP is that as a democracy we have already expressed our discontent at such changes. SOPA attempted to make these changes through the proper democratic processes and failed. TPP should not be able to force these changes upon a democratic body which has voted against it. (More here).
The secrecy in which the negotiations are being held can be identified as the main moral problems with TPP. The specific problems highlighted in the leaked chapters highlight other problems which all consumers would be subjected to at the hands of corporate investors, but they are moot points if these trade laws were to be debated in public.
The rub is that the negotiators know this. As it is, only a select 600 corporations and the United States Trade representatives are allowed to participate in the negotiation process. Other members of congress may view the document, but are forbidden to talk of it. When asked why the need for secrecy, US Trade Representative Ron Kirk claimed the secrecy was needed to preserve negotiation strength. He and all the business men of every country know that if this information reached the ears of the masses we would revolt. We would shoot these propositions down quickly, decisively, and most importantly, democratically. If that wasn’t enough, there are even talks of using fast track negotiation authority which would prevent the public from seeing the final TPP proposal, and our lawmakers from amending the document before it is ratified. (More here).
The Fight What we must realize is that more is at stake than the individual mandates which change copyright infringement laws, or the duration of patents. What is at stake is the ability for the people to be able to decide these changes themselves. What is at stake is the fundamental principle of democracy which we have established in our government; the ability to contribute the formation of laws and to have litigation contested by our peers; not to have laws decided and evaluated for us like commoners had done for them by nobles.
The time of the Magna Carta may have passed, but the fight for democratic control over the decisions made in society still wages. In our time the players are corporations and their personal interest using the vehicle called the Trans-Pacific Partnership as a means to create a new nobility system which supersedes the democratic body of the people represented by their government. To put it shortly, the TPP is corporations attempting to assume over governments, and through governments, the individual. We must fight back! As the dream of America has progressed it is believed that the democratic ideals for which this country was founded on has extended through demographics: to women, to the African American ethnicity and now the frontier of sexual orientation.
Though the United States practice of democracy has not always been perfect, we all would like to believe that each year, each generation, we come closer to achieving these ideals. In order to continue to move forward we must get the TPP to be discussed openly and with input from all demographics so as to achieve an end that benefits all those in society.
*Interested in this topic and want to get involved? Its as easy as getting in contact with your representative and demanding that they release the negotiations over TPP to the public. Or you can like or comment on this blog post. Comment on the blog and lets make change happen together!