As part of the congressional to-and-fro over the pending Fast Track bill, senators with concerns about the process and substance of trade negotiations have been putting forward some proposed amendments. None of these amendments would alter the substance of what Fast Track is—a bill to authorize the President to enter into binding trade agreements such as the Trans-Pacific Partnership (TPP) without proper congressional oversight over these secretive, industry-led deals. As such, even if they were to be adopted, the amendments do not address our most fundamental concerns with the bill.
Nevertheless, they do hone in on a couple of the most egregious problems with Fast Track and with the trade deals that it enables, including the TPP and Trans-Atlantic Trade and Investment Partnership (TTIP). Perhaps the issue that has received the most attention has been that of investor-state dispute settlement (ISDS); which gives foreign corporations a free pass to overturn or receive compensation for the effects of democratically-enacted laws that negatively affect their business.
Senators Elizabeth Warren and Heidi Heitkamp, with support of 13 other senators, have tabled an amendment that would exclude access to the Fast Track procedure [PDF] for any trade agreement that contains an ISDS clause. As things stand, that would include both the TPP and the TTIP, which means that both of those agreements would have to come before Congress before the United States signs them—which in turn would probably defeat the agreements.
A second amendment, from Sens. Blumenthal, Brown, Baldwin, and Udall, addresses the lack of transparency of the agreement, and would require “all formal proposals advanced by the United States in negotiations for a trade agreement” to be published on the Web within five days of those proposals being shared with other parties to the negotiations. This would bring the United States up to the same level as the European Commission, which has already begun publishing its own TTIP position papers and text proposals to the public.
Sooner or later, these sorts of reforms are inevitable, as pressure for the U.S. Trade Representative to adopt them is echoing from all sides. Apart from its own senators, multiple calls for the U.S. to improve the transparency of trade negotiations and to reject ISDS have issued from law professors [PDF], economists, pro-trade think tanks, businesses and users. EFF has also proposed that standards of transparency and participation in trade negotiations be incorporated into the next set of commitments that the United States adopts under the Open Government Partnership.
From Congress on down, there has never been such a broad consensus that secretive trade negotiations and ISDS processes must be condemned as illegitimate. Thus, we do not think it is a question of whether these will ultimately be rejected, but when. However, time is not on our side. With the TPP negotiations widely tipped to conclude this year (if they conclude at all), the time to take a stand against these undemocratic processes is now. And our best opportunity to do so is by not merely amending Fast Track, but rejecting it, and the TPP along with it. Tell your representative to do that now.
Read about all of our concerns with the TPP agreement:
- Anti-Circumvention of Digital Rights Management (DRM)
- Criminalization of Investigative Journalism, Security Research, and Whistleblowing
- ISP Liability: Internet Intermediaries as Copyright Cops
- Criminal Copyright Enforcement
- Expansion of Copyright Terms
- "Investor-State" Provisions Could Undermine User Protections in Copyright
- Restrictions on Fair Use