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The TPP agreement just recently released is a document of 5,554 pages. There are 30 separate chapters, not counting special ‘annexes’ and schedules. Then there’s a ‘secret guidance’ document, not yet released, which apparently even members of the US Senate still haven’t seen, according to US Senator, Jeff Sessions.
Of course, there are official executive summaries of the 5,554 pages, notably by the U.S. Trade Representative’s Office, and statements by President Obama. But readers won’t find out what the TPP is really about in these documents, which are designed to ‘market’ TPP to the public. In fact, these ‘for public consumption’ puff pieces are replete with misrepresentations, ‘spin’, and outright lies.
However, one statement by Obama is correct. He calls TPP “a new type of trade agreement”. It’s a new type all right.
The TPP is not simply an economic document, about trade in goods, services and, investor money capital flows. TPP is first and foremost a political document. TPP is the latest salvo fired by global corporations against national and popular sovereignty, against Democracy itself. The key to understanding how TPP is about global corporations setting up their own global government is contained in its Chapters 27 and 28.
In chapter 27, TPP provides for a new executive-legislative body whose decisions will usurp national and state-local legislative functions and representative democracy — already under serious attack everywhere by corporate money and other initiatives. And in chapter 28, TPP provides for a new kind of global corporate court system, run by corporate-friendly lawyers and hirelings who will make decisions which cannot be reviewed, appealed or challenged in existing court systems of any TPP member country. TPP ‘courts’ will take precedence over US and other national court systems, already under heavy attack by corporate forces vigorously promoting arbitration as a means by which to bypass the formal judicial system in the US.
TPP ‘Commission’ As Global Corporate Legislature-Executive Institution
Chapter 27 establishes a TPP Commission, composed of ministers or officials who oversee the operation of TPP and its future evolution. For the TPP is being called a ‘living agreement’, meaning it will change as new members join. What is not explained, however, is whether once it is ratified by Congress, will representatives get to ‘ratify’ each time it is changed? Or just once at the outset, thereafter allowing corporate lawyers, CEOs, and corporate-owned bureaucrats to change it anyway they please later?
According to TPP, the Commission members function as a kind of corporate global ‘Politburo’, a legislative committee of the Multinational Corporations of the TPP members, with yet to be defined accompanying executive powers. No separation of powers here.
More important, TPP is totally silent on questions like how will the Commission be determined? What are the terms of office of its members? Who chooses them and how? Can they be relieved and, if so, by whom and according to what process? To whom are they accountable? Can they meet in secret? What are the rules for decision making under which they’ll operate? The TPP is silent on all these questions. How convenient. Perhaps something addressing these questions exists in the mysterious ‘guidance document’ no one has seen yet. But don’t bet on it.
Most important, it appears the decisions by the Commission are not subject to review, let alone reversal, by Congress or any other existing government legislature. According to the US Congressional Record of November, 10, 2015 at least one US Senator has raised the warning that “we are empowering the TPP countries to create a new Congress of sorts” and a supra-national Commission that “will not be answerable to voters anywhere.”
TPP Korporate Kangaroo Kourts
But TPP proposes not only to negate existing government legislative and executive functions. It even more directly attacks existing judicial institutions and functions. Chapter 28 sets up an independent court system, or tribunals, which will make decisions that existing national Judicial systems cannot review or overturn. These tribunals are officially called ISDS panels, for ‘Investor-State Dispute System’, each of which is composed of three ‘trade’ and expert representatives. But once again, as in the case of the Commission, Investor-Corporate representatives selected by whom? How? For what terms? Representing whose interests? Etc.
Let’s call them what they are: ‘Korporate Kangaroo Kourts’, that will do most of their work in secret. TPP language allows them to conduct public hearings in public, but it also allows them the option to conduct hearings in total secrecy as well. Guess which they’ll prefer? TPP indicates KKKs may ‘consider’ requests from the public to provide written views—but consider does not mean ‘must’. It also says final reports will be available to the public—but that’s after their final decisions have been made. Furthermore, “the initial report will be confidential,” while the final report to the public is “subject to the protection of any confidential information in the report.” What’s finally released to the public will no doubt look like extensive ‘black outs’ in a typical US Freedom of Information Act request.
Here’s another problem: The ISDS-KKK courts allow corporations and investors to sue national governments—i.e. legislatures or executive regulatory agencies—that may try to pass laws or establish rules to protect workers, the environment, or whatever investors and corporations consider interfere with their ability to make profits under the TPP. The TPP suits will claim the US government violated the TPP treaty, even though the corporation’s dispute may in fact be between the Investor-Corporation and a state or local government.
This means technically that a corporation-investor that owns farmland in California, for example, can sue the state for imposing water rationing in the drought. That rationing would of course interfere with their profit making under TPP. Or how about a foreign owned restaurant chain in Los Angeles, which just passed a city ordnance calling for a $15 minimum wage? Under TPP, moreover, neither the state of California nor Los Angeles will be able to appear as a direct party to the TPP suit to defend itself, since disputes under TPP are restricted to the Corporation-Investor vs. the national government. So much for local democracy as well under TPP.
Corporate ‘Dual Power’ vs. Democracy
All governments exercise legislative, judicial, and executive functions. The TPP establishes on behalf of global corporations all the above. But TPP establishes those functions at the direct expense of existing government institutions, popular sovereignty, and the very idea of democratic representation. TPP’s Commission establishes a corporate pan-global legislature by corporate committee with unknown executive powers as well. Its KKKs clearly violate Article III of the US Constitution establishing an independent judiciary.
The signing of the TPP agreement in Atlanta, Georgia, on Oct. 4, 2015, represents in a sense the founding “Constitutional Convention” of global corporate government. For the economic Corporate Form has clearly ‘outrun’ the political Government Forms with which it has coexisted for the past two centuries.
All forms of revolution, they say, occur based on the emergence of ‘dual power’ and new sets of institutions attempting to replace the old. Chapters 27 and 28 of the TPP represent the seed of that emerging corporate dual power. So maybe its time for some new popular forms of ‘dual power’ to stop them as well.
Jack Rasmus is author of ’The Scourge of Neoliberalism: US Economic Policy from Reagan to Trump, Clarity Press, January 2020. He blogs at jackrasmus.com and hosts the weekly radio show, Alternative Visions on the Progressive Radio Network on Fridays at 2pm est. His twitter handle is @drjackrasmus.