Cross Border Law: The Trans-Pacific Trade Agreement & the Objections to “Free Trade Agreements”

Presently, the United States is debating entry into the Trans-Pacific Partnership.  This multi-national
agreement is — according to its advocates — intended to enhance economic growth among member nations and its respective populations.  Yet, the TPP is veiled in secrecy within the negotiation process.  Those leaks that have come from secretive sources raise serious concerns over the labour, environment, Internet and intellectual property aspects of this Agreement — one being pushed in the United States by President Obama and Senate Republicans, the essential equivalent of an unholy alliance.  Similarly, the Harper Government in Canada is also pushing its Nation’s entry into the TPP.

Are the concerns legitimate, whether looking at the actual provisions (which the population is not afforded an access — no transparency), or with enforcement mechanisms, or with the reality of whether or not even enforcement that bears upon violations of labour or environmental or other provisions will be subject to any real enforcement?  According to U.S. Senator Elizabeth Warren, the answer is “yes.”  Just over the past several hours, Warren issued a detailed report reflecting twenty-years of failed promises on free trade agreements:  http://big.assets.huffingtonpost.com/WarrenReport.pdf.  It bears careful reading.

As someone practice cross-border work, I can comment upon some of these pitfalls.  For instance, with NAFTA, there is always the direct threat of an actual country being directly sued by a corporation or individual for treaty violations.  In Nova Scotia, we recently saw one such ruling addressing a quarry conflict:  http://www.theglobeandmail.com/report-on-business/nafta-ruling-against-canada-sparks-fears-over-future-dispute-settlements/article23603613/.  Further, Finance Minister Joe Oliver recently threatened action versus the U.S. under NAFTA based upon the U.S.’s efforts to reel in financial regulatory fraud via the “Volcker Rule.”  See http://www.huffingtonpost.com/2015/05/14/canada-volcker-rule_n_7285098.html.

So, should a multi-national economic treaty permit for the overriding of laws supported by the vast majority of a country’s population:  labour protections, environmental regulation, intellectual property safeguards, etc.?  Constitutionally, the answer may be “yes,” as treaties — both in Canada and the U.S. — normally hold status that thrusts it higher than simple laws — whether federal or state/provincial.  However, realistically, should corporations or individuals be provided with an opportunity to override fundamental health, safety, welfare protections in the name of “free trade?”  I saw this first-hand, as I once advised an industry that I represented that there were NAFTA-based remedies for U.S. violations of something that fell outside the core areas I mention, above.  At the very least, there should be exemptions written into such treaties to protect these national interests.

However, we cannot hope to fathom whether such safeguards exist.  We do not really know what is being negotiated, nor the identities of the negotiators, public or private.  A complete lack of transparency rationally raises fears that any signatory nation to the TPP will also be shelving the interests of the vast majority of its people.  After all, “free trade” is not necessarily “fair trade.”

The bottom line is that the assessment of the effects of a treaty needs to be careful and considerate.  The TPP is going through, regardless of the notable, honourable efforts being demonstrated by Senator Warren.  So, once we get to see ‘what we got,’ we will need to figure out the implications — tax, commercial, environmental, labour, intellectual property, etc.