UNITED NATIONS – The fine print of the Trans-Pacific Partnership agreement, a reading has revealed, reverses policies put in place to prevent the foreign takeover of the United States’ ports and other crucial national infrastructure.
And it appears to undermine U.S. national security.
The release of the long-hidden Obamatrade text reveals it gives foreign interests the power to do an end-run around laws designed to protect crucial American infrastructure from national security threats – and the U.S. would be hard pressed to stop it.
Previous U.S. trade pacts stated in no uncertain terms that the national security interests of the United States are determined solely by the U.S. government and supersede any provisions of the pacts.
The U.S. government had unfettered power to protect its national security interests as it deemed necessary – even if its actions might violate the terms of a trade agreement.
But the Trans-Pacific Partnership agreement reverses this precedent. As a result, other countries could claim the U.S. national security interests violate the TPP agreement and they could then demand the U.S. pay billions of dollars in damages.
It’s telling that the Obama administration failed to safeguard the U.S. national security while other nations – Australia, Canada, Mexico and New Zealand – made sure they maintained their sole and sovereign authority to control their national security.
Chapter 11 of the TPP gives foreign investors special rights to acquire American land, natural resources, businesses, ports, infrastructure and other investments in the U.S.
Under Chapter 28 and Chapter 29, these foreign investors could do an end-run around U.S. courts and sue the U.S. before an international panel, known as an investor-state dispute tribunal, if they feel American law violates their “rights” under the TPP.
Currently, the Committee on Foreign Investment in the United States, or CFIUS, reviews pending foreign investments in the U.S. to determine if they pose a threat to national security and can recommend the president shut down investments deemed a threat. Under previous trade agreements, foreign investors would have no recourse.
But under the TPP, the sultan of Brunei, the billionaire autocrat who rules his TPP country under Shariah law, could sue for billions of dollars if CFIUS denied his bid to buy a company providing security to U.S. ports and airports.
He would bring his case before a foreign tribunal that could force taxpayers to award him compensation for “lost profits,” under the terms of the agreement.
The tribunal, staffed by three unelected lawyers hailing from anywhere in the world, would have the power to second-guess the U.S. government on what constitutes a threat to national security.
This is not an unheard of scenario.
In 2006, Dubai Ports World (DPW), a state owned enterprise of the United Arab Emirates, sought to buy a company that ran six major U.S. ports. Congress intervened to block the sale after Coast Guard officials raised the possibility of significant security risks.
That controversy came in the midst of congressional debate over the U.S.-Oman Free Trade Agreement. Like the TPP, the Oman pact gave foreign investors expansive rights to acquire and operate U.S. businesses – and to sue if they felt their rights were violated. After a huge public outcry, the sale was blocked.
Following the Dubai Ports World controversy, language was added in a footnote to all U.S. trade agreements to shut down any second-guessing of U.S. security interests by trade tribunals. The footnote makes clear the U.S. has sole discretion in determining its essential national security interests.
The critical footnote to the “Security Exception” Article 22.2 of the Peru Free Trade Agreement, Article 21.2 of the Panama FT, Article 22.2 of the Colombia FTA and Article 23.2 of the Korea-US FT read: ” For greater certainty, if a party invokes [the ‘Security Exception’] Article in an arbitral proceeding initiated under [Investment] Chapter or [Dispute Settlement] Chapter, the tribunal or panel hearing the matter shall find that the exception applies.”
In plain English, it says if the U.S. invokes national security, that’s final – no foreign “trade” tribunal could overrule it.
But this crucial stipulation was eliminated from Article 29.2 of the final TPP text.
As a result, any company operating in a TPP country could drag the U.S. before an extrajudicial foreign tribunal and demand taxpayer compensation if our government prevented it from buying a crucial American asset based on national security grounds.
Without this footnote to Article 29.2, one of the TPP’s trade dispute tribunals could substitute its judgment for that of the U.S. government with respect to what is considered an essential security interest of the U.S.
The TPP also includes an Annex 9-H, which states that a government’s decision on whether to approve a given foreign investment in its territory is not subject to challenges before an investor-state dispute tribunal. While Australia, Canada, Mexico and New Zealand listed their relevant foreign investment review laws, the United States failed to do so.
WND reported only weeks ago when the text of the TPP finally was released so lawmakers and taxpayers could read it.
Secretary of State John Kerry said the pact will merge the U.S. economy with Mexico and ten others nations, including Canada, Japan, Vietnam, Malaysia and the Islamic Sultanate of Brunei.