After eight years of secret negotiations, governments will sign the 12-nation Trans-Pacific Partnership Agreement in New Zealand on February 4. The treaty text, which was only made public last November, confirms what critics of the deal have been contending since leaked portions of the draft chapters became available, and even earlier, since corporations have never been shy about setting out their goals. The TPP in its final form shows that the corporations have gotten what they want: a trade deal which threatens democracy.
The TPP confirms sweeping new powers on transnational investors, codified in their “right” to sue governments in closed arbitration tribunals for any laws, regulations, court decisions or actions which fail to meet their “expectations” as investors – the notorious investor-to-state dispute settlement procedure (ISDS). TPP codifies the most toxic features of this mechanism and incorporates an elastic definition of “investment” which confers extra-legal power on transnational owners of stocks, bonds, speculative financial instruments like derivatives, licenses, franchises, permits and intellectual property. The treaty expands the scope for ISDS complaints to financial services, giving transnational investors the right to challenge regulatory measures which fail to meet their “expectations” or a “minimum standard of treatment”.
The treaty’s chapter on intellectual property extends the life and scope of existing copyright and patent protections and potentially allows for lawsuits to challenge government price and procurement policies on life-saving drugs. Signatory countries are obliged to sign a treaty, the 1991 International Convention for the Protection of New Varieties of Plants, which guarantees corporations the “right” to patent every plant species and prohibits farmers from exchanging these seeds.
The TPP goes far beyond the current WTO treaty rules, and even many provisions in regional and bilateral trade and investment treaties which are “WTO-plus” in areas which transnational investors have long sought to conquer, including intellectual property, financial services, food and agriculture, biotechnology and services. It undermines the democratic right of governments to legislate and to regulate in the public interest, and thereby undermines fundamental human rights, including the rights to food, healthcare and education. If ratified, it would seriously impede efforts to create quality employment, promote sustainable food production and tackle climate change, using the lever of public investment.
The corporate power grab is embedded in language which promises to protect the right of governments to regulate in the public interest – provided that regulation is subject to market disciplines, meets investor “expectations” and is “non-discriminatory”. With TPP, governments can indeed regulate, but only if they are prepared to pay millions to transnational companies and their legal squads.
Unions and their allies have a window of opportunity to stop the TPP. Signing must be followed by ratification by the signatory governments, although ratification by six countries representing at least 60% of the economic output of the twelve countries can bring the treaty into force for those six. Anti-TPP campaigners have succeeded in raising global awareness of the treaty’s destructive impact, and the US elections this year add to the controversy and uncertainty around the ratification process in the US and the other big economic players. The labour movement and our allies must make full use of the opportunity this provides.