Lambert’s post on Sunday about the Trans-Pacific Partnership (TPP) looks at the deal from an important perspective: Its effect on popular sovereignty. He links to Dean Baker’s short post and highlights this: “The main thrust of the negotiations is to impose a regulator[y] structure in a wide range of areas — health, safety, environmental — which will override national and sub-national rules.” International agreements have always had that character, of course. Treaties, conventions like the Geneva Conventions and Convention Against Torture and so on also (theoretically) supersede national and sub-national rules. They would be worthless otherwise.
The idea that trade agreements weaken national laws is also not new. One of the sticking points in the NAFTA debate was that worker and environmental regulations would be degraded as part of a rush to the bottom. There’s a big difference between warning of a risk, though, and actually quantifying the impact afterwards. Perhaps the growing awareness of those real world consequences has helped many realize just how much those without a seat at the table stand to lose from capital-privileging acts like TPP.1
Unlike treaties and conventions, these agreements have a key third party: investors and corporations. Lambert notes (emph. in orig.) “the tribunal can order your government to pay an investor for damages to their investment which may, as we saw in the definition of investment, include expectations of a return” (lest you think he’s being alarmist, he also links to a couple of examples). A major trade agreement, negotiated in secret, in anticipation of being hustled through Congress does not smack of democratic process - even if all the forms are technically observed.
I realize many conservatives make a similar argument about loss of sovereignty - or freedom, their preferred term - through laws like Obamacare. Say what you will about Obamacare, though, it was passed by elected representatives over an extremely public, contentious and drawn out (remember the Gang of Six? Good times) process. It was challenged and upheld in court. One might reasonably believe it is not an accurate expression of popular will, but it is silly to believe it did not adhere to the spirit of democratic process.
The sovereignty angle of TPP resonates with me because it seems to be an emerging theme. I am seeing it on a topic I just happen to follow closely; it isn’t hard to imagine other areas having similar developments.
The resource extraction industry is trying to route around troublesome outbreaks of democracy, and the strategy seems to be a TPP-like subversion of citizens’ self-determination. For instance, last week three cities in Colorado voted to ban fracking within their city limits; they are now poised to be sued by oil and gas companies. The state’s Supreme Court has ruled in favor of the industry in the past, and if it does so again it will raise the question of just how much citizens may decide what they want in their neighborhoods.
Meanwhile here in Ohio, Sunoco is looking to use eminent domain to expand one of its pipelines. Pipelines have become a new issue this year because their perceived lack is seen as a drag on capacity. In fact, they have been in the news elsewhere quite a bit as well, usually for bad reasons. Like the ruptured one in North Dakota that was discovered by a farmer and not disclosed to the public for eleven days. (Not an isolated incident either. But it’s being contained and remediated!) Or the one in Arkansas that spilled so much oil homes now need to be demolished. And of course the Big Kahuna is still out there.
We know that pipelines stay in place for decades and are rarely inspected, and we know what to expect from that, so naturally residents of the affected areas are concerned. In addition, this particular item appears to be set up to carry more than just oil. Is it right to use eminent domain for unrestricted use by a for profit company? We aren’t talking about installing a municipal sewer system here. The purpose is not the common good but corporate enrichment; must citizens really have no say in the matter?
At both the macro and micro levels there appears to be a new enthusiasm for using public tools for private purposes, with the intention of circumventing democratic processes or subverting popular sentiment. No one expects government to work the way we were taught in civics class, but there are limits to the amount of cynical manipulation a polity will stand. Take away popular sovereignty and the consent of the governed will follow not too far behind. And at that point, things get ugly.