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NEW YORK – The Obama administration appears determined to ram through Congress a key part of a grandiose trade plan that transcends the vision for a “North American Union,” encompassing both Europe and Pacific Rim nations.
As WND reported, President Obama declared in his State of the Union address his intent to complete negotiations for a Trans-Pacific Partnership and announced the launch of talks “on a comprehensive Transatlantic Trade and Investment Partnership with the European Union.”
It was the first time a decision by the U.S. Trade Representative within the White House to expand negotiations to create a free trade zone with Pacific Rim countries was made public, along with a similar initiative with EU countries.
To implement the newly contemplated Trans-Pacific Partnership free-trade agreement, or FTA, the administration apparently plans to restrict congressional prerogatives to an up-or-down vote.
The issue centers on “fast-track authority,” a provision under the Trade Promotion Authority that requires Congress to review an FTA under limited debate, in an accelerated time frame subject to a yes-or-no vote.
Under fast-track authority, there is no provision for Congress to modify the agreement by submitting amendments. Fast-track authority also treats the FTA as if it were trade legislation being negotiated by the executive branch. The purpose is to assure foreign partners that the FTA, once signed, will not be changed during the legislative process.
A report released Jan. 24 by the Congressional Research Service, “The Trans-Pacific Partnership Negotiations and Issues for Congress,” makes clear the Obama administration does not have fast-track authority to negotiate the TPP, even though the office of the U.S. Trade Representative is acting as if fact-track authority is in effect.
The present negotiations are not being conducted under the auspices of formal trade promotion authority, or TPA, according to the CRS report. The latest TPA expired July 1, 2007. The administration, however, is informally following the procedures of the former TPA. If TPP implementing legislation is brought to Congress, TPA may need to be considered if the legislation is not to be subject to potentially debilitating amendments or rejection, the report says.
The CRS says Congress “may seek to weigh in on the addition of new members to the negotiations, before or after the negotiations conclude.”
The report makes clear that the TPP is being negotiated as a regional free-trade agreement that U.S. negotiators describe as a “comprehensive and high-standard” FTA. The U.S. hopes an agreement “will liberalize trade in nearly all goods and services and include commitments beyond those currently established in the World Trade Organization (WTO.)”
That the Obama administration is treating the TPP like a TPA and not a formal treaty obligation strongly suggests the Democrat majority in the Senate will seek passage of the TPP by a simple majority vote rather than a two-thirds vote, as required for the ratification of a formal treaty.
Still, the impact of the TPP will be equivalent to a formal treaty obligation, because certain agreements within the TPP will place regional authorities over U.S. law.
One of the few remaining strategies left to opponents of the TPP is to make sure Congress rejects any fast-track authority the Obama administration seeks to invoke when it comes time to get final congressional approval.
No formal steps have been taken to consult Congress as the agreement is being negotiated.
International tribunal dispute resolution
A leaked copy of the TPP draft makes clear in Chapter 15, “Dispute Settlement,” that the Obama administration intends to surrender U.S. sovereignty to an international tribunal to adjudicate disputes arising under the TPP.
Disputes concerning interpretation and application of the TPP agreement, according to Article 15.7, will be adjudicated by an “arbitral tribunal” composed of three TPP members. The purpose of the tribunal under Article 15.8 will be “to make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement, and make such other findings and rulings necessary for the resolution of the dispute referred to it as it thinks fits.”
The TPP draft agreement does not specify that the arbitral tribunals must render decisions in compliance with U.S. law.
Investment disputes under the TPP appear to be relegated for resolution to the International Center for Settlement of Investment Disputes, an international authority created by 158 nations that are signatories to the ICSID Convention created under the auspices of the World Bank.
The TPP draft agreement specifies that foreign firms from Trans-Pacific signatory countries that seek to do business in the U.S. may apply to the arbitral tribunals to obtain relief under the trade pact from complying with onerous U.S. laws and regulations. The firms would be exempt from certain environmental and financial disclosure regulations, for example, if such regulations are deemed overly burdensome.
Because the TPP agreement places arbitral tribunals created under TPP to be above U.S. law, the Obama administration’s negotiation of the Trans-Pacific pact without specific consultation with Congress appears aimed at creating a judicial authority higher than the U.S. Supreme Court. The judicial entity could overrule decisions U.S. Federal District and Circuit courts make to apply U.S. laws and regulations to foreign corporations doing business within the United States.
The result appears to allow foreign companies doing business within the United States to operate in a legal and regulatory environment that would give the foreign companies decided economic advantages over U.S. companies that remain subject to U.S. laws and regulations.
Ignored by Romney
In the 2012 presidential campaign, Republican challenger Mitt Romney never elevated the TPP into a major campaign issue by questioning the authority or intentions of the Obama administration.
The Romney campaign even declined to refute Obama charges that the Republican nominee was a “venture capitalist” who sought to outsource U.S. jobs to the detriment of U.S. workers.
Romney did not make the TPP an issue because his free-trade strategists enthusiastically supported the Obama administration’s pursuit of TPP negotiations, objecting only that Japan should not be permitted to join the discussions until it opens its markets more to U.S. competition.
The comments developed after the New York Times published in November 2012 speculations that the government of Prime Minister Yoshihiko Noda was considering a declaration that Japan intended to join “the ambitious pan-Pacific free trade agreement” as a prelude to calling a snap election and campaigning on the trade advantages to be gained by the move.
Although Japan and China are not presently participating in TPP negotiations, “docking provisions” being written into the TPP draft agreement would permit either Japan or China to join the TPP at a later date without suffering any disadvantage.
That was A left-leaning analysis by WePartyPatriots, published by the DailyKos.com in the final days of the 2012 presidential campaign suggested the TPP is being negotiated in a stealth manner.
The TTP “has been mentioned exactly zero times by the Presidential candidates as far as we can tell, but if/when it is secretly approved it will become the most significant foreign and domestic policy initiative to come out of the Obama administration,” or out of the Romney administration, the writer said, “since both parties support it.”