EFF: Why Wyden Has It Wrong on Fast Track and the TPP

[villager]

<snip>


#3: TPP Will Impact U.S. Law

Possibly the most misleading assertion made by proponents of Fast Track and the TPP is that trade agreements will not prevent lawmakers from passing or amending laws in ways that are inconsistent with those secretive deals. Sen. Wyden makes a similar claim, saying that TPP will "in no way inhibit American voters and their representatives from changing laws we see as outdated or simply wrong." They say this pointing to a particular set of provisions in the Fast Track legislation that purport to absolve the U.S. government from obligations to conform their rules to signed trade deals.

But regardless of these provisions, Congress does not have the power to determine when or if international law is binding on the U.S. government. While trade agreements do not directly determine what lawmakers can and cannot do, there can be hefty international consequences when a government does not follow obligations from a trade agreement. Sean Flynn of American University's Program on Information Justice and Intellectual Property program has picked apart the underlying assumptions behind the legislation's provisions and explains how agreements like the TPP would impact U.S. law in practice:

Some other party of the treaty, or a private investor under investor-state dispute settlement (ISDS), could (depending on the enforcement language in the treaty) sue the U.S. for damages or to authorize trade sanctions. That dispute settlement process would bind the U.S. government—and have effect—even though it would not change U.S. law.

The most recent leak was of the TPP's Investment Chapter, which revealed how such investor-state courts could be used to undermine fair use and other user protections in U.S. law. That's because the ISDS system is specifically intended to be a strong deterrent to countries passing laws inconsistent with the underlying agreement. A big content company like a motion picture studio or a major publisher could very well go after any kind of public interest policy claiming that the rule harms their "expected future profits". The threat of a massive monetary settlement could be enough to discourage officials from passing rules—so while the TPP would not in itself be a fixed rulebook that lawmakers must abide by, there are other kinds of international legal mechanisms that can be used to penalize America for enacting public interest policies.

Beyond those legal remedies, the existence of binding trade agreements—even ones that, like TPP, were negotiated in secret and without public impact—can be invoked by legislators avoiding reform, or even sometimes by judges to justify certain legal interpretations. Defenders of TPP are trying to have it both ways: they claim it won't affect U.S. law when it would be inconvenient, but count on the weight of the agreement to freeze the current state of law, or nudge a more favorable view.

<snip>

https://www.eff.org/deeplinks/2015/04/why-wyden-has-it-wrong-fast-track-and-tpp

[merrily]

1. I don't know why we can't admit that this is the wet dream of the likes of Koch, the Chamber of

Commerce, ALEC, etc.

[villager]

4. Because of the cognitive dissidence for many, such an admission would entail?

It's like the Democrats' version of GOP Climate Denial: "We can't dare acknowledge we might be wrong this.. because it implies we could be wrong about other things, too!"

[cali]

2. EFF has done yeoman's work on the tpp for years

Great piece. Thanks for posting it

[villager]

5. Yup -- EFF has brought a lot of behind-the-scenes skullduggery to light

And you are welcome!

[Hoyt]

3. Can anyone provide an example of this comment in the link?

". A big content company like a motion picture studio or a major publisher could very well go after any kind of public interest policy claiming that the rule harms their "expected future profits""