Superficial changes to the investor-state dispute settlement will do little to protect our services from private claws, writes ADRIAN WEIR
THIS has been a month of mixed fortunes for labour and social movement campaigners against the new generation of free trade agreements.
In the Pacific Basin President Barack Obama has dragooned 12 countries, including former deadly enemy Vietnam, to sign the Trans Pacific Partnership (TPP) agreement. As he has already secured congressional approval to “fast-track” the treaty through Congress, the US business lobby must be feeling confident that this is a done deal.
No sooner was the ink dry though than there were mass public demonstrations against TPP in Peru and court action against the government in New Zealand. On that evidence, the deal is in fact far from done.
In Europe we still have time to further mobilise against the unholy trinity of TTIP (the EU-US deal), CETA (the EU-Canada deal) and TiSA (the plurinational deal on services). The recent demonstration of a quarter of million people on the streets in Berlin indicates that public opinion is moving swiftly in our direction.
The other remarkable European achievement has been the collection of over three million signatures on the self-organised European Citizens’ Initiative (ECI), a huge demonstration of public rejection of TTIP and CETA.
The ECI has generated three times the number of signatures required but the EU Commission remains seemingly unmoved. That’s hardly surprising, as when challenged by War on Want’s John Hilary over the extent of public opposition the EU trade commissioner Cecilia Malmstroem (pictured)said: “I do not take my mandate from the European people.”
Yet it is clear that public opposition is making Malmstroem wobble. Public opposition to TTIP and CETA is particularly focused on the Investor-State Dispute Settlement (ISDS) procedure that gives rights to corporations to sue national governments should a government act on its democratic mandate and change the terms of trade to the apparent detriment of the corporation.
Malmstroem proposes to take ISDS out of TTIP and replace it with an Investment Court System (ICS), the key elements of which are:
- Qualified judges, not corporate lawyers, will hear cases - Judges will not be able to act as lawyers in other ICS cases - There will be an appellate body of six judges.
However, despite the trapping of a proper court system, the ICS is fundamentally flawed. It still gives rights to corporations not granted to countries or citizens and it only covers TTIP, not CETA. Eighty per cent of US corporations have subsidiaries in Canada from where they could launch claims against European governments under the unreconstructed ISDS still in CETA.
But perhaps the killer blow to the ICS is that it has been rejected by US business. The American Chamber of Commerce says: “[We] cannot in any way endorse [ICS] … [the] proposal is deeply flawed.”
The European Trade Union Confederation in its four-year action plan adopted at its recent congress in Paris opposes both CETA and TTIP because of the ISDS provisions “which privilege foreign investors above all others and amounts to the privatisation of justice.”
The action plan also contained three further important points: to oppose the “negative list” approach and the inclusion of public services, to oppose “regulatory co-operation boards” and to “insist that all EU trade agreements must include enforceable labour protections.”
The free traders’ “negative list” means that all services are open to liberalisation unless specifically excluded, as the French have done with cinematography. A “positive list” would mean that all services were excluded from liberalisation unless a government specifically put the service up for inclusion.
Through a leak in March this year we know already that the European Commission is proposing a “regulatory exchange” or co-operation board under which new laws will be screened in advance for their potential impact on private business — a clear subversion of the democratic process in favour of multinational capital.
The question of enforceable labour rights could become an issue between the US and EU. The official European line is that the TTIP labour chapter must include the core ILO conventions, which would include conventions 87 and 98 on the right to join a union, to organise and to bargain collectively.
But can we really believe that the US, where 24 of the 50 US states are “right to work” states banning agreements between unions and employers; the European Commission that was party to dismantling standards in Greece, Portugal and Ireland as part of the troika bailout; and Britain’s David Cameron, who has just introduced the Trade Union Bill, would all sign up to enforceable labour rights?
The European TUC (ETUC) congress also carried an important emergency motion opposing TiSA as it believed it to be currently drafted. Like TTIP, TiSA is being negotiated in secret with almost no parliamentary oversight but WikiLeaks has exposed much of the secret text.
The ETUC is now committed to oppose the use of the “ratchet” in connection with the privatisation of public services — the “ratchet” in the treaty means that services can effectively move only one way. Public services can be privatised but privatised services can never be brought back to the public sector.
The leaked text suggests that rather than tightening regulation of the financial sector, the negotiators want greater liberalisation and freedom for the banks and hedge funds. There is concern that TiSA could introduce another ISDS procedure and of course there are fears about further “downward pressure on labour, social, environmental and consumer standards.”
The ETUC decisions show that the labour and social movements across Europe are united against the proposed trade deals. We must now make Malmstroem eat her words.
Adrian Weir is assistant chief of staff at Unite the union.