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  • Eyes on Trade is a blog by the staff of Public Citizen's Global Trade Watch (GTW) division. GTW aims to promote democracy by challenging corporate globalization, arguing that the current globalization model is neither a random inevitability nor "free trade." Eyes on Trade is a space for interested parties to share information about globalization and trade issues, and in particular for us to share our watchdogging insights with you! GTW director Lori Wallach's initial post explains it all.

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July 22, 2014

Administration Flooded with 26,000 Comments Opposing Proposal to Disguise Offshoring of U.S. Manufacturing

Broad Reclassification Plan Would Count iPhones Made in China as U.S. Exports; Data Tricks Would Artificially Inflate U.S. Manufacturing Jobs, Deflate Manufacturing Trade Deficits

More than 26,000 people nationwide have submitted comments opposing Obama administration proposals that would severely distort U.S. job and trade data by reclassifying U.S. corporations that offshore American jobs as “factoryless goods” manufacturers. Under a broad data reclassification plan, much of the value of U.S. brand-name goods assembled by foreign workers and imported here for sale would no longer be counted as imported goods, but rather as manufacturing “services” imports. This would deceptively deflate the U.S. manufacturing trade deficit.

The “factoryless goods” proposal, designed by the administration’s Economic Classification Policy Committee (ECPC), also would, overnight, falsely increase the reported number of U.S. manufacturing jobs as white-collar employees in firms like Apple – now rebranded as “factoryless goods producers” – would suddenly be counted as “manufacturing” workers. This shift also would create a false increase in U.S. manufacturing wages and output.

“The only reason you would classify an iPhone made in China as a U.S. export is to hide the size of our massive trade deficit,” said James P. Hoffa, Teamsters general president.

“To revive American manufacturing jobs and production, we need to change our policies, not cook the data,” said Brad Markell, executive director of the AFL-CIO Industrial Union Council. “We need to reform the trade policies that have incentivized offshoring and resulted in decades of trade deficits and millions of U.S. manufacturing jobs offshored, not cover up the evidence that our current trade policy is not working.”

One element of the proposed economic data reclassification plan would rebrand U.S. imports of goods manufactured abroad, such as Apple’s iPhone (which is assembled in China by a firm called Foxconn) as “services” imports rather than imports of manufactured goods. And if Foxconn exported iPhones to other countries, the proposed reclassifications would count the iPhones manufactured in China as U.S. manufactured goods exports, further belying the real U.S. manufacturing trade deficit. 

The economic data reclassification initiative, if implemented, could further undermine efforts to bolster U.S. manufacturing by producing a fabricated reduction of the U.S. manufacturing trade deficit.

“These Orwellian data rebranding proposals would hide the damage wrought by past trade pacts like the North American Free Trade Agreement, greasing the way for more-of-the-same, job-killing, deficit-boosting trade deals,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.

The comments submitted by concerned individuals include:

  • “Reclassifying jobs that have been and continue to be shipped overseas under the euphemism ‘factoryless goods’ is an insult to the citizens of the United States who want real manufacturing jobs, and know that the TPP and other NAFTA-style trade deals are not in our best interest.” – Susan Marie Frontczak, Boulder, Colorado
  • “Put the tricks aside. It's time to address the bad trade policies that have led to incentivized offshoring, rather than play with rebranding.” – Merill Cole, Macomb, Illinois
  • “NAFTA and GATT were a really bad idea ... TPP is worse ... and ECPC as a cover-up for unfair trade policies is just ridiculous. Bring manufacturing back to the US and stop this unfair trading with other countries.” – Aaron McGee, Madison, Wisconsin

This month, 14 members of the U.S. House of Representatives wrote to U.S. Trade Representative (USTR) Michael Froman, demanding that he immediately begin to provide Congress with accurate U.S. trade data. The letter followed an admission by USTR staff that the agency was providing Congress with uncorrected raw data collected by the U.S. Census Bureau. That data includes “re-exports,” which are goods produced in foreign countries that pass through the United States without alteration before being sold abroad.

Each month, the U.S. International Trade Commission provides corrected trade data that removes the foreign re-exports, but USTR has chosen not to use this data. By using the uncorrected data, the USTR can misleadingly appear to make more than half the $177 billion 2013 NAFTA goods trade deficit “disappear.” The USTR does this by, for instance, counting goods that are imported from China, that are not altered in the United States and that are then “re-exported” to Mexico as “U.S. exports” to Mexico.

Congress’ demand for accurate trade data from the USTR and the administration’s distortionary data reclassification proposals come as administration officials seek support for two controversial trade and investment pacts now under negotiation: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Free Trade Agreement (TAFTA). The administration’s push to obtain Fast Track authority for those pacts has met strong opposition from both parties in Congress and from more than 60 percent of the U.S. voting public. 

July 10, 2014

Civil Society Organizations Oppose U.S.-EU ‘Trade’ Pact Proposals That Would Undermine Chemical Safety Protections

111 Consumer, Health, Environmental, Labor Groups Warn Trade Ministers About TTIP Proposals That Would Endanger Public Health

In a letter today, a broad array of major U.S. and European chemical safety, health, environmental, labor, consumer and other organizations expressed strong opposition to proposed rules for the Transatlantic Trade and Investment Partnership (TTIP) that could chill or roll back robust chemical safety standards on both sides of the Atlantic. 

The letter was sent to U.S. Trade Representative Michael Froman and EU Commissioner for Trade Karel de Gucht, in advance of the sixth round of TTIP negotiations, which are to begin in Brussels next week.

“EU and U.S. trade policy should not be geared toward advancing the chemical industry’s agenda at the expense of public health and the environment – but that appears to be exactly what is currently underway with TTIP,” the letter states. “The presence of toxic chemicals in our food, our homes, our workplaces, and our bodies is a threat to present and future generations, with staggering cost for society and individuals.”  

“U.S. and EU negotiators appear to have bought the chemical corporations’ argument that this so-called ‘trade’ deal should go well beyond trade and target our safeguards from toxic chemicals as ‘barriers to trade,’ which could continue public exposure to hazardous substances in unsafe workplaces, toxic lakes and rivers, and tainted food and toys” said Lori Wallach, director of Public Citizen’s Global Trade Watch and one of the letter’s signatories. “If the U.S. and EU governments want to have any hope of stemming the controversy surrounding this proposed pact, they must reverse course and keep our chemical safety protections out of their closed-door “trade” negotiations.” 

At next week’s TTIP negotiations, draft text will be presented for the first time for several of the proposed pact’s chapters that could directly undermine strong chemical safety rules. The texts will be kept secret from the public during negotiations, but the rules that would be established would be binding on the United States and EU member nations, with trade sanctions or cash fines ordered against domestic policies that do not comply with TTIP rules.

The letter highlights specific TTIP proposals that the U.S. and EU governments and industry interests have put forward that could chill U.S. efforts to strengthen chemical regulations while weakening tighter EU chemical protections. This includes a U.S. proposal for regulatory coherence that could “thwart the timely promulgation of important regulations” and an EU Regulatory Cooperation Council proposal that would require regulators to calculate “chemical regulations’ costs to transatlantic trade, not the benefits of such protective laws for society.” 

The letter also rejects a controversial proposal – opposed by U.S. state legislators, some EU member states and a transpartisan array of U.S. and EU civil society groups – to include “investor-state dispute settlement” terms in the TTIP. Already inclusion of such terms in other pacts has empowered corporations to circumvent domestic courts and directly challenge controls for the use of hazardous substances, pollution cleanup requirements and other chemical protections before extrajudicial tribunals authorized to order unlimited taxpayer compensation for violations of broad foreign investor “rights.” Such extraordinary provisions, according to the letter, “would force the public and their representatives to decide between compensating corporate polluters for lost profits due to stronger laws, or continuing to bear the health, economic and social burdens of pollution.”

The letter concludes by criticizing the negotiations’ lack of transparency: “In a deal where fundamental changes to sub-national, national and regional policies and lawmaking processes are being proposed and negotiated, the non-disclosure of TTIP negotiating positions or texts is inexcusable and inconsistent with the principles of a modern democracy.” 

July 09, 2014

Proposed U.S.-China Treaty Would Expose U.S. Laws to Extrajudicial Attacks by Chinese Corporations, Incentivize More U.S. Job Offshoring

Chinese Acquisitions, Establishment of U.S. Subsidiaries Growing at 80 Percent Annual Rate with 820 Major Deals Totaling More Than $37 Billion Since 2000

At a time of rapid growth in Chinese acquisition of U.S. firms, establishing the U.S.-China Bilateral Investment Treaty (BIT) discussed during this week’s U.S.-China Strategic and Economic Dialogue is an especially terrible idea, said Public Citizen.

The treaty’s investor-state dispute settlement provisions (ISDS) would empower Chinese corporations invested here to directly challenge U.S. public interest safeguards before extra-judicial tribunals that could order payment of U.S. Treasury dollars to compensate the firms for U.S. laws that they claim violate their new treaty rights.

Over the past five years, there has been a surge in Chinese corporations acquiring or creating U.S.-based subsidiaries, with such deals growing at an annual rate of 80 percent. Since 2000, Chinese corporations have acquired or installed about 820 U.S.-based firms in deals totaling more than $37 billion. Nearly 90 percent of these deals, by value, were Chinese takeovers of existing U.S. companies. Not included in these numbers are many instances of Chinese firms purchasing controlling shares of U.S. companies’ stock.

“How could it be in our interest to empower the ever-greater number of Chinese firms operating here – many owned by the Chinese government – to circumvent U.S. courts and challenge our financial, environmental, health and other public interest policies before foreign tribunals empowered to order payment of our tax dollars to these Chinese firms?” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “A U.S.-China BIT would invite a wave of attacks on our domestic laws by Chinese corporations through a system of private foreign tribunals that are a threat to our sovereignty and solvency.”

By providing new special protections and rights for U.S. firms that relocate to China, the treaty would remove many of the costs and risks of relocating and incentivize another wave of American job offshoring to China.

Under a U.S.-China BIT’s investor state dispute settlement provisions, Chinese corporations with U.S.-based operations and firms with significant Chinese investment would be empowered to drag the U.S. government before extrajudicial tribunals and demand taxpayer compensation for a broad array of non-trade-related policies. These tribunals, composed of three private attorneys, would be authorized to order unlimited U.S. taxpayer compensation for alleged losses to the Chinese firms’ “expected future profits” on the basis of claims that U.S. policies violated the firms’ sweeping, BIT-granted foreign investor “rights” not available to U.S. firms.

For example, thanks to its purchase last year of Virginia-based Smithfield Foods, the largest pork producer in the world, the Chinese corporation Shuanghui International could take advantage of a U.S.-China BIT’s investor privileges to challenge new U.S. food safety standards before a foreign tribunal. And Sinopec, a Chinese corporation that acquired a 50 percent stake in 850,000 acres of oil and natural gas leases owned by Chesapeake Energy last year, could use a U.S.-China BIT to skirt U.S. domestic courts and directly challenge future climate or fracking regulations.

Corporations directly controlled by the Chinese government have been responsible for about half of the Chinese acquisitions and other investments in U.S.-based firms to date. Experts have testified before Congress that expanded Chinese control of U.S.-based companies is guided not only by market forces, but also by Chinese government strategy. Under a U.S.-China BIT, the Chinese government would be able to use state-owned enterprises doing business in the United States to directly challenge U.S. domestic laws on the basis of substantive investor “rights” that are even more expansive, and more threatening to domestic regulations, than those found at the World Trade Organization. 

July 03, 2014

Let’s Just Pretend We Didn’t Offshore Manufacturing

Is an iPhone made in China and exported to Europe a U.S. export?

Is an Apple executive a manufacturing worker?

Yes, and yes.  At least those could become the answers if a new proposal afoot among some in the administration is allowed to take effect.  Federal agencies grouped under the bland-sounding Economic Classification Policy Committee (ECPC) are proposing to radically redefine U.S. manufacturing and trade statistics. 

Under the proposal, U.S. firms that have offshored their production abroad – like Apple – would become “factoryless goods” manufacturers.  The foreign factories that actually manufacture the goods – like the notorious iPhone-producing Foxconn factories in China – would no longer be manufacturers, but “service” providers for the rebranded “manufacturing” firms like Apple.

It appears the administration has been reading Orwell

But the problem with this proposed redefinition is not merely that it offends common sense.  The “factoryless goods” proposal would deceptively deflate the size of reported, but not actual, U.S. manufacturing trade deficits, while artificially inflating the number of U.S. manufacturing jobs overnight.

While some details of the proposal remain open-ended, one thing is clear: this maneuver would obscure the erosion of U.S. manufacturing.  It would disguise the mass-offshoring of U.S. middle-class factory jobs incentivized by NAFTA-style trade deals.  It would undermine efforts to change the unfair trade and other policies that have led to such decline.  

To boost U.S. manufacturing jobs and production, we need to switch our policies, not our numbers.

The ECPC is accepting comments on their “factoryless goods” proposal until July 21.  If you’d care to offer your thoughts, click here.
  

The 3 Big Distortions of the "Factoryless Goods" Proposal
  

1.  The proposal would result in a fabricated reduction of the U.S. manufacturing trade deficit by rebranding imports of U.S. manufactured goods as “services” imports, according to recent explanations offered by officials of ECPC member agencies.  The redefinition would not affect all U.S. trade statistics, but it would distort some of the most widely-reported numbers (those calculated on a balance of payments basis), misleading the public and policymakers alike.

Take, for example, a scenario in which Apple ships iPhone parts to China to be assembled in a Foxconn factory and then sent back to the United States to be sold here.  Currently, the value of the imported iPhone minus the lesser value of the exported parts counts as a net U.S. import of a manufactured good.  This reflects the fact that Apple offshored its iPhone manufacturing to China.

But under the ECPC proposal, Foxconn, now called a “manufacturing services provider,” would not be described as having manufactured the iPhones but as having provided services to Apple.  As a result, the net U.S. import of manufactured goods resulting from Apple’s decision to offshore would be reduced. In its place would be an import of Foxconn’s factory “services.”
  

2.  The proposal would treat some goods exported by foreign factories as U.S. manufactured exports.  Take a scenario in which Apple ships iPhone parts to China that are assembled by Foxconn and then shipped to the European Union (EU).  Currently, Apple’s export of parts to China counts as the only U.S. export in this scenario. 

But the ECPC proposal, according to officials of ECPC member agencies, would instead count China’s export of the fully-assembled iPhones to the EU, less the cost of any imported parts, as a “U.S. manufactured goods export.”

The absurd logic of this rebranding is that while China manufactured and exported the iPhones, they count as U.S. manufactured exports because they were under the control of a U.S. brand.  This Orwellian proposal would spell an artificial increase in U.S. manufactured exports (on a balance of payments basis), further belying the real U.S. manufacturing trade deficit.
  

 3.  The proposal would spur a disingenuous, overnight increase in the number of U.S. “manufacturing” jobs as white-collar employees in firms like Apple – now rebranded as “factoryless goods producers” – would suddenly be counted as “manufacturing” workers. 

This change would also create a false increase in manufacturing wages, as many of the newly-counted “manufacturing” jobs would be designers, programmers and brand managers at “factoryless goods producers” like Apple. 

Reported U.S. manufacturing output would also abruptly and errantly jump, as revenues from firms like Apple would be lumped in with the output of actual manufacturers. 
  

This proposal defies common sense.  It would dramatically distort U.S. trade, labor and gross domestic product statistics.  Goods manufactured abroad and imported into the United States are not something other than manufactured goods imports.  Goods exported from foreign factories do not become “U.S. exports” when they are produced for U.S. brands.  And jobs in which workers spend zero time actually manufacturing anything are not “manufacturing jobs.”  

The offshoring of U.S. manufacturing under years of unfair trade policies cannot be undone with a data trick.  The hoped-for “renaissance” of U.S. manufacturing will come through new policymaking informed by accurate data, not politically convenient distortions.  

June 25, 2014

Corporate America’s Mysterious Affinity for the Number 700,000

The Chamber is at it again.  As negotiations drag and support flags for the controversial Trans-Pacific Partnership (TPP), the U.S. Chamber of Commerce has come up with a new number to sell the controversial deal to a skeptical Congress and U.S. public: 700,000. 

That’s the number of U.S. jobs that the corporate alliance claims could be created by the sweeping pact opposed by a diverse array of members of Congress, small businesses, and labor organizations for its threats to, well, U.S. jobs. 

How did the Chamber get this number?  They don’t say. 

The Chamber blog post proclaiming the six-digit figure simply says it is “based on the methodology and outcomes” of a Peterson Institute study that used outsized assumptions to produce miniscule projections for the TPP’s economic impact.  Under the most optimistic scenario the authors could envision, the study projected a 0.13 percent increase in U.S. GDP under the deal –- a fraction of the estimated GDP contribution of the latest version of the iPhone. 

But the Peterson Institute study did not project what this tiny economic impact would mean for jobs.  It is unclear how the Chamber pulled a jobs number from a study that did not produce a jobs number. 

We called them to ask.  We were told that no one was there who could answer our question.  Multiple calls and emails later, and we still have no response from the Chamber to solve the mystery of the unsubstantiated statistic.

Here’s one theory on the steps the Chamber took to derive its estimate of the TPP’s prospective impact:

  1. Copy
  2. Paste

This is not the first time the Chamber has used the number 700,000. Indeed, the Chamber appears to have an uncanny affinity for the number when pushing a retrograde, anti-worker agenda. 

When some states raised their minimum wage laws and increased workers’ benefits after the Great Recession, the Chamber commissioned a study finding that such labor laws had cost U.S. jobs.  How many?  700,000

When the Obama administration proposed a tax increase on the wealthy in 2012, the Chamber commissioned a study finding that the proposal would eliminate U.S. jobs…700,000 jobs, to be precise. 

Perhaps it should not come as a surprise that the Chamber is using its lucky number once again to push a regressive deal like the TPP. 

But hey, if the copy/paste method works…

Maybe we should take a cue from the Chamber and start using whatever numbers we have lying around.  Let’s see…how many U.S. jobs have been lost under NAFTA to Mexico alone?  Well I’ll be -– the answer is 700,000

Borrowing a card from the Chamber, we hereby project that the TPP will cost U.S. workers 700,000 jobs. 

Okay, obviously it would be ridiculous to pull such projections out of thin air.  And let’s hope that’s not what the Chamber is doing to arrive at its unsubstantiated claim. 

But without an explanation from the Chamber, we are left to speculate.  Maybe they somehow converted Peterson’s miniscule projected GDP gain projection into a much larger jobs gain, errantly ignoring the impact of TPP-spurred inequality.  (The Center for Economic and Policy Research found that the likely increase in inequality resulting from the TPP would swamp the small gains projected by the Peterson Institute, spelling a pay cut for 90 percent of U.S. workers.)  

Or maybe the Chamber extrapolated a jobs figure from the study’s export calculations, errantly ignoring the impact of TPP-spurred imports.  (Any study claiming to evaluate the net impact of trade deals must deal with both sides of the trade equation –- in the same way that exports are associated with job opportunities, imports are associated with lost job opportunities when they outstrip exports, as dramatically seen under existing U.S. pacts.) 

In the end, we don’t know how the corporate alliance generated the mystery number behind its TPP cheerleading.  Until we see some evidence, we’re going to take the Chamber’s statistic with about 700,000 grains of salt.  

June 18, 2014

Nixon Hatched Fast Track, Not FDR

By Lori Wallach, director of Public Citizen’s Global Trade Watch and author of The Rise and Fall of Fast Track Trade Authority

Amidst the distorted trade data and counterfactual foreign policy claims, U.S. Trade Representative Michael Froman offered up a bit of revisionist U.S. trade policy history on Monday that must have left the folks listening to his Council on Foreign Relations speech scratching their heads.

No, FDR did not create Fast Track trade authority. And, JFK did not celebrate its renewal.

Invoking those Democratic icons is an interesting strategy, given that a sizable bloc of House GOP members oppose giving President Obama Fast Track.  The extraordinary authority, which Congress has refused to delegate for 15 of the past 20 years, let a president negotiate and sign a “trade” pact before Congress approved it and guaranteed a no-amendments vote in 90 days regardless of whether the pact met Congress’ objectives.

But maybe the target audience was House Democrats, given that only seven of the Democratic representatives have announced support for legislation introduced  early this year to revive the old Fast Track mechanism.

In his speech, Froman noted the 80th anniversary of the Reciprocal Trade Agreement Act (RTAA) of 1934 and declared that the trade authority it established was an antecedent of Fast Track, and that it was used by the Roosevelt administration, renewed 11 times by 1962 and toasted by President Kennedy.

House Ways and Means Committee Chairman Dave Camp echoed Froman’s insinuations about   Fast Track: “every president, until now, has partnered with Congress to have this powerful tool to negotiate the best possible trade deals for America.” The talking point is also favored by the Business Roundtable and other corporate groups of the Trade Benefits America Coalition: “Trade Promotion Authority is a partnership between the President and Congress…Since the 1930's, such authority has been critical to the opening of new markets…”

Except, in fact, Fast Track was first hatched by Richard Nixon, not FDR. And it only went into effect in the 1970s, not the 1930s.

Due to its unpopularity, Fast Track was only in effect for five of the last 20 years. But that hasn’t stopped U.S. trade growth. Fast Track was only used on 16 of the hundreds of U.S. trade and commercial pacts that have gone into effect since the 1970s. Trade-expansion-focused President Clinton only had Fast Track for two of his eight years in office, after the House voted down his request for the extraordinary authority in 1998. Yet, Clinton’s administration completed more than 200 trade and commercial agreements with diverse countries.

And, that gets us to the TPA sleight of hand. The “TPA” that was established in the Reciprocal Trade Agreement Act of 1934 is “Tariff Proclamation Authority.” It has allowed presidents to declare cuts to tariffs – border taxes on goods – within parameters set by Congress. And yes, presidents have had that authority since the 1930s, including Fast-Trackless Clinton.

In contrast, Fast Track – for which “TPA” was not coincidentally chosen as the preferred rebranding – may be Nixon’s most under-appreciated power grab. For the first time in 200 years of U.S. history, Fast Track empowered the executive branch to “diplomatically legislate” changes to non-trade U.S. domestic policy via “trade” negotiations. Until Fast Track, Congress used five different forms of trade authority over the course of the nation’s history to direct executive branch trade negotiators. None of them granted executive authority beyond tariffs.

In contrast, Fast Track turned “trade” pacts into backdoor means for executive branch officials to set policy on an array of matters otherwise under Congress’ or state legislatures’ constitutional authority: patent and copyright laws; immigration policies; food and product safety standards; financial, health and energy service sector rules; and even government procurement terms. U.S. domestic law must be altered to conform to such “trade” pact terms. Failure to do so can result in indefinite trade sanctions against U.S. exports.

For all the focus on Fast Track’s end-game legislative luge-run of a guaranteed no-amendments, limited-debate vote in 90 days, it was the invasion of Congress’ core policymaking prerogatives that has made Fast Track so toxic. Under Fast Track, the executive branch could ignore – and did so under both Democratic and Republican presidents – Congress’ “trade” pact negotiating objectives and still get the expedited approval processes for whatever it negotiated and signed. That’s why the talking point now being passed around that somehow Fast Track is a means for Congress to exercise its constitutional authority is just silly. 

A member of Congress can love free trade and seek new trade agreements and still find unacceptable the concentration of power in the executive branch that is at the core of the Fast Track form of trade authority. The expansive scope of the Trans-Pacific Partnership (TPP) agreement now under negotiation spotlights this reality. Of its 29 chapters, only five pertain to traditional trade matters. Most of the rest of the TPP chapters would set policies on subjects otherwise under the authority of Congress and state legislatures, which would be binding on the United States and not subject to amendment absent approval by all signatory countries.

It is not surprising that the prospects for reestablishment of the expansive old Fast Track delegation of Congress’ constitutional trade and legislative authorities are remote. And that is the case whether or not it is conflated with the old TPA, the new TPA or falsely associated with any beloved president.

The real question is whether the old Fast Track process will be replaced by a new trade authority mechanism that is appropriate for the reality of today’s expansive international commercial negotiations. A modern approach would require an expanded role for Congress from start to finish and much more accountability over executive branch negotiators. 

June 09, 2014

On Fifth Anniversary of Peru FTA Bagua Massacre of Indigenous Protestors, State Department Cables Published on Wikileaks Reveal U.S. Role

Now, Obama Administration Seeks to Further Expand the Foreign Investor Privileges That Led to Amazon Standoff Via the Trans-Pacific Partnership Pact

On the fifth anniversary of a deadly confrontation in Peru spurred by controversial policies enacted to comply with the U.S.-Peru Free Trade Agreement (FTA), Amazon Watch and Public Citizen expressed extreme concern over recently revealed U.S. diplomatic cables showing the U.S. government’s role in the violence that resulted in the deaths of at least 32 people.

On June 5, 2009, Peruvian security forces attacked several thousand indigenous Awajun and Wambis protestors, including many women and children, who were blocking the “Devil's Curve,” a jungle highway near Bagua, 600 miles north of Lima. The protestors were demanding revocation of decrees providing new access to exploit their Amazonian lands for oil, gas and logging that had been enacted to conform Peruvian law to FTA requirements.

“The Bagua massacre is emblematic of how so-called free trade agreements enable an environment in which governments trample the basic rights of grassroots communities while promoting the destruction of natural resources,” said Atossa Soltani, founder and executive director of Amazon Watch. “Instead of defending the constitutional rights of Peru’s indigenous peoples, the U.S. government apparently encouraged the Peruvian government to steamroll the people protecting their land from exploitation.”

Public Citizen received only heavily redacted diplomatic cables in response to a Freedom of Information Act request regarding the U.S. role in the 2009 Peruvian crisis over FTA implementation. But now WikiLeaks has published the full text of messages between the State Department and the embassy in Lima.

Four days before the killings, a cable addressed the growing indigenous protests, stating, “Should Congress and [Peruvian] President Garcia give in to the pressure, there would be implications for the recently implemented Peru-US Free Trade Agreement.” This mirrored public comment by Peruvian government officials who argued that acceding to indigenous demands to annul controversial new laws would doom the entire FTA.

U.S. officials argued that the Peruvian government was being too lenient by allowing the indigenous roadblocks to continue. “The government's reluctance to use force to clear roads and blockades is contributing to the impression that the communities have broader support than they actually do,” the cable read.

On the day of the killings, the U.S. Embassy in Lima sought to justify the government’s actions, stating in another cable that the security forces in Bagua had “reluctantly chosen to enforce the rule of law.” Unacknowledged was the fact that the groups blocking the road at the “Devil’s Curve” had expressed their intention to demobilize on June 5 starting around midday. The Peruvian riot police went in that morning at the break of dawn.

In a letter sent on June 12, 2009, 15 nongovernmental organizations urged the Obama administration to speak out publicly against the violent repression and to state that repeal or reform of the controversial laws would not conflict with Peru’s obligations under the FTA. No public statement was issued.

What has become known as the “Amazon’s Tiananmen” brought the realities of the U.S.-Peru FTA into sharp relief. Rather than being a new trade agreement model, as it was sold, at the FTA’s heart were the same extreme investor rights that animated the North American Free Trade Agreement (NAFTA).

“The fifth anniversary of the Peru FTA Bagua massacre is a most appropriate time to reconsider the U.S. approach to the Trans-Pacific Partnership (TPP),” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “The U.S.-Peru FTA makes clear even improved labor and environmental chapters cannot overcome the NAFTA-style investor protections at the core of the Peru FTA and now TPP.”

When Congress passed the U.S.-Peru FTA in late 2007, a majority of House Democrats opposed the deal. And no labor, environmental, consumer, family farm or faith group supported it. While Democratic House trade committee leaders had forced some improvements with respect to access to medicine and the FTA’s labor and environmental chapters, the pact included an expansion of NAFTA-style investor privileges.

The FTA’s foreign investor privileges were demonstrated when a U.S. firm pressured Peru’s government to reopen a smelter that had severely poisoned hundreds of children in La Oroya, Peru with lead – a story revealed in a Bloomberg exposé.

Now the Obama administration is pushing for inclusion of the same extreme foreign investor privileges in the TPP it is negotiating with Peru and 10 other Pacific Rim countries.

May 30, 2014

Chamber Resorts to Cartoonish Analogies to Defend Corporations’ ‘Right’ to Attack Policies

What do you do when you lose an argument on the basis of, you know, facts?  

You use fantastical analogies to substantiate your battered claims.  At least, that appears to be the game plan of the U.S. Chamber of Commerce. 

In a blog post yesterday, the corporate conglomerate tried once again to defend a system that empowers foreign corporations to bypass our courts, go before three private lawyers unaccountable to any electorate, and demand that the U.S. Treasury hand over our tax dollars for policies ranging from Wall Street reforms to climate change initiatives.  “Trade” deals currently under negotiation, such as the Trans-Pacific Partnership (TPP) and Trans-Atlantic Free Trade Agreement (TAFTA), would vastly expand this extraordinary “investor-state” system. 

How did the Chamber address widespread concerns over the proposed empowerment of tens of thousands of foreign corporations to have a go at our domestic laws?  By comparing them to childhood fears of a monster in the closet. 

(See, there are no monsters in your closet.  By the rule of analogies, there is therefore no problem with enabling corporations to more easily attack our health and environmental protections.  Got it?)  

The Chamber’s post concludes with this kicker: “The next time someone comes peddling fear of ISDS [investor-state dispute settlement], ask this simple question: ‘Can you cite an ISDS case where the investor won but didn’t deserve compensation?’ Expect to hear silence in return.” 

“Silence” is a creative way to characterize academics’ and advocates’ years of detailed analysis of case after case in which corporations have extracted taxpayer compensation for public interest policies.  On the basis of such cases, voices ranging from former NYC mayor Michael Bloomberg to the National Council of State Legislatures to the CATO Institute to thousands of concerned citizens have warned of the threats that expansion of the extreme investor-state regime via the TPP and TAFTA would pose to public health, a clean environment, rule of law, and taxpayers’ wallets.  (Oh, and the nation’s largest labor, environmental, health, privacy, Internet freedom, financial, development, family farmer, faith and consumer groups have also spotlighted the record of investor-state damage.)  Chamber’s claim of “silence” is deaf to these warnings from across the political spectrum.

To answer Chamber’s question –- whether we can cite an “investor-state” case where a three-person tribunal unjustly ordered a government to pay a foreign corporation for a policy enacted in the public’s interest –- indeed, we can.  The main difficulty is choosing from the panoply of available cases

What about the case where a tribunal ordered Canadian taxpayers to pay millions to a waste treatment corporation for preventing the firm from exporting to Ohio a hazardous waste that the U.S. Environmental Protection Agency has found to be harmful to humans and toxic to the environment?

Or the one where an investor-state tribunal ordered Mexico to pay a corporation more than $16 million for not allowing the firm to build a toxic waste facility until it cleaned up existing toxic waste problems?

Or take the case that Occidental Petroleum won against Ecuador in 2012. The tribunal in that case acknowledged that the oil corporation had broken an Ecuadorian law governing oil exploration in the Amazon.  But then the tribunal concocted a new governmental obligation to Occidental, decided the government had violated this unwritten obligation despite adhering to Ecuadorian law, and ordered Ecuador’s taxpayers to hand $2.3 billion to the oil company.  One of the three lawyers in the tribunal dissented, describing the decision as “egregious.”  That didn’t remove the penalty imposed on Ecuador by her two colleagues. 

The Chamber tries to downplay the amounts that taxpayers have to shell out to foreign firms when governments lose investor-state cases, arguing that the corporations often get “a fraction” of what they ask for.  But when corporations ask for billions, a “fraction” is no chump change.  In the Occidental case, the $2.3 billion penalty imposed on Ecuador’s taxpayers is equivalent to the amount the government spends on health care each year for half the population. 

The Chamber’s post also tried to minimize the investor-state system’s costly legacy by wrongly stating that “governments comfortably win in the vast majority of [investor-state] cases.”  The U.N. Conference on Trade and Development (UNCTAD) reports that in 57 percent of all public, concluded investor-state cases, the government has either lost the case to the investor or has been pushed to settle with the investor, typically resulting in the extraction of millions of taxpayer dollars and/or the overturning of the policy that the corporation challenged.  In recent cases, governments have been outright losing most of the time.  In seven out of eight public decisions handed down by investor-state tribunals last year, the government lost.  That’s hardly a “comfortable” record.

And those are only the cases that have already been decided.  Investor-state claims have surged in recent years, resulting in pending cases that target everything from Australia’s anti-smoking policies to Germany’s decision to phase out nuclear power after the Fukushima nuclear disaster.  While the Chamber tries to claim that “relatively few” cases have been launched in the “nearly half a century” of the investor-state regime, that argument requires closing one’s eyes to the recent wave of cases.  While no more than 15 cases were launched in any given year in the first four decades of the “nearly half a century” of investor-state treaties, more than 50 cases have been launched in each of the last three years.  Pending cases include:

  • Chevron v. Ecuador: in response to Chevron’s attempt to evade a $9.5 billion domestic ruling for Amazon pollution, an investor-state tribunal has directed Ecuador’s government to violate its Constitution, has cast aside two decades of court rulings, and has declared that rights granted to Ecuadorians no longer exist.
  • Eli Lilly v. Canada: a U.S. pharmaceutical corporation has challenged Canada’s legal standard for patents and pushed for greater monopoly patent protections, which increase the cost of medicines for consumers and governments. 
  • Renco v. Peru: a U.S. corporation has tried to evade its contractual commitment to clean up its metal smelter contamination in one of the world’s most polluted towns.

The flood of recent investor-state attacks on domestic safeguards owes largely to the fact that tribunals are interpreting ever more broadly the vague investor-state “rights” granted to foreign corporations.  Contrary to the Chamber’s assertions, these rights extend beyond those afforded to domestic firms.  Under U.S. law, a coal corporation, for example, could not invoke a right to government compensation for new carbon emissions controls –- such as those the administration plans to roll out on Monday –- on the basis that the new policy frustrated the firm’s “expectations.”  But investor-state tribunals have repeatedly decided that foreign firms, under investor-state pacts, indeed enjoy a “right” to a static regulatory framework that does not thwart their expectations.  

And of course, if a U.S. firm takes issue with a new U.S. environmental or financial or health regulation, the corporation cannot skirt the entire U.S. domestic legal system and take its case to a private three-person extrajudicial tribunal empowered to order the U.S. Treasury to compensate the firm, with limited option for appeal.  But that is precisely the privilege granted to foreign corporations under the investor-state system’s extraordinary terms. 

Comparing this system to fictitious beasts inhabiting one’s closet will not make it go away.  To highlight the dangers posed by this regime and its proposed expansion via the TPP and TAFTA, we need not resort to far-fetched analogies.  The damage already wrought will suffice. 

May 22, 2014

WTO Final Ruling: European Ban on Products from Inhumane Seal Harvest Violates WTO Rules

Statement of Lori Wallach, Director of Public Citizen’s Global Trade Watch

The WTO today added fuzzy white baby seals clubbed to death on bloody ice flows to dolphins and sea turtles as animals that the WTO has declared cannot be protected by domestic laws because they  violate “trade” rules, which will just fuel public and policymaker skepticism about these so-called trade deals. 

As a technical matter, today’s ruling confirms the uselessness of the WTO exceptions, allegedly designed to protect countries’ domestic public interest laws, that are now being touted as the way to safeguard environmental, health and safety policies in proposed pacts such as the Trans-Pacific Partnership (TPP). This is the 39th time out of 40 attempted uses that the exception has been rejected by WTO tribunals when raised to safeguard a domestic public interest law.

BACKGROUND: In this final ruling, the WTO Appellate Body acknowledged that the European Union’s ban on the importation and sale of seal products resulted from concerns about “inhumane” hunts with “inherent animal welfare risks,” but concluded the EU failed to satisfy the litany of conditions required to defend public interest policies under the WTO’s “general exception” provisions. Specifically, the Appellate Body ruled against use of the WTO exception for policies “necessary” to protect public morals. Only one out of 40 government attempts to use the the WTO General Exceptionse, found in Article XX of the WTO’s General Agreement on Tariffs and Trade (GATT) and Article XIV of the General Agreement on Trade in Services (GATS), has ever succeeded.

In its ruling today, the Appellate Body also rebuffed arguments made by the U.S. government as a third party observer to the case demanding that the WTO evaluate whether policies that appear to have a discriminatory effect stem from a “legitimate regulatory distinction.” The Appellate Body ruled against this U.S. government position, concluding that WTO panels do not need to consider under GATT whether a challenged domestic policy stems from a legitimate policy objective.

Today’s ruling follows a string of WTO rulings against popular U.S. environmental and consumer policies. In May 2012, for example, the WTO ruled against voluntary “dolphin-safe” tuna labels that, by allowing consumers to choose to buy tuna caught without dolphin-killing fishing practices, have helped to dramatically reduce dolphin deaths. Today’s decision will again spur public ire over WTO rules that extend beyond “trade” to target domestic environmental and consumer safeguards.

May 19, 2014

On Eve of ‘Check In’ Ministerial, Top 10 Signs That Obama Administration Should Call It Quits on TPP Negotiations

Twenty-one Multilateral TPP Meetings Since ‘Final’ August 2013 Brunei Negotiating Round, All Without Even a Facade of Stakeholder Input Process 

The office of the U.S. Trade Representative (USTR) worked to spin down expectations for a May 19-20 ministerial-level meeting on the Trans-Pacific Partnership (TPP) even before last week’s TPP chief negotiators meeting in Vietnam that failed to resolve deadlocks on the myriad outstanding TPP issues.

While 600 official U.S. trade advisors, mainly comprised of corporate representatives, have continued to obtain information and give input on TPP negotiations, the last opportunity for official “stakeholder” input into the TPP took place August 24–31, 2013, during the 19th round of negotiations in Brunei. However, heads of state, negotiators and ministers have continued to meet in an attempt to finalize a TPP. Without even the pretense of providing opportunities for civil society to engage in the process, in the past nine months, TPP countries have had at least one heads-of-state summit, two ministerials, four meetings of chief negotiators, 14 so-called “intersessionals,” four Obama bilateral heads of state meetings and endless U.S.-Japan bilateral negotiations and ministerials. And these are only the meetings that have been reported.

Meanwhile, the U.S. government continues to use large sums of taxpayer money to push negotiations to obtain a TPP agenda favored by corporate interests that remains stalled in the face of growing opposition in the United States and throughout TPP countries. The U.S. government was the official host of the Vietnam meeting this week and will be the official host of the upcoming ministerial meeting in Singapore.

Following are the top 10 indicators of why the USTR has decided to tamp down expectations once again for a negotiation that has supposedly been in an “end game” since last year:

1)     U.S. and Japanese officials have offered conflicting versions of the outcomes of their bilateral “breakthrough”-but-not-a-deal non-deal from Obama’s Japan visit when briefing their TPP colleagues. Indeed, Japan was among the countries arguing that the state of U.S.-Japan market access negotiations was not sufficiently advanced to merit another TPP ministerial meeting.

2)     An LDP bloc in Japan’s Diet adopted another resolution last week, while TPP chief negotiators met in Vietnam, reiterating the ruling party’s requirement that the TPP must protect a list of “sacred” agricultural commodities. The Japanese parliamentary action by Prime Minister Shinzo Abe’s own political party, making clear it will not support a TPP that zeroes out agricultural tariffs, is seen as a direct response to U.S. congressional and agribusiness statements that only a TPP that does so is politically acceptable.

3)     Vietnam’s former trade minister, who is a current senior advisor on TPP negotiations, recently declared that Vietnam would not accept a TPP requirement that workers be allowed to establish independent labor unions.Former MinisterTruong Dinh Tuyen said Vietnam instead would accept a compromise that devolved some power to local unions.

4)     U.S. trade officials announced that Japan would advance market access talks with other TPP nations at the Vietnam lead negotiators meeting and that this was a sign of a new stage in negotiations – except that is not what Japan intended or did. Other countries are unlikely to even consider high-stakes tradeoffs relating to U.S. demands that could raise drug prices, extend the scope of investor-state dispute liability, limit financial regulation, discipline state-owned enterprises, and enforce labor and environmental standards without knowing what prospective market access opportunities might be forthcoming.

5)     On May 1, the Sultan of Brunei implemented a new Sharia-law-based penal code that calls for jail terms for the wearing of immodest clothing, pregnancies outside marriage and abortion, with death by stoning for adulterers, gays and lesbians to be phased in later. The move prompted new U.S. constituencies to join the anti-TPP effort.

6)     The USTR’s concern that the optics of not having a TPP ministerial when all of the countries’ trade ministers are together for a pre-scheduled APEC meeting overcomes opposition by other TPP nations to meeting when there is nothing ready for ministers to decide. Thus, the announcement of a “check-in” ministerial, which ministers from at least three TPP nations do not plan to attend.

7)     Japanese officials or press are creating a series of red herring stories. Reports of near-deals on intellectual property, new U.S. proposals and more do not relate to what happened on the ground in Vietnam. Indeed, the Japanese press has run a series of follow-up stories speculating about who is generating the misdirects and why. There is no indication that key areas of controversy that existed in previous ministerials in the areas of intellectual property, investment, environment, labor, state-owned enterprises and more are much closer to resolution, even after the expense of the past months of negotiations. The U.S. ambassador to Malaysia recently expressed hope that the deal might be concluded by 2017.

8)     The USTR continues to avoid raising currency issues at chiefs or ministerial levels, even though it is increasingly clear that a TPP without enforceable currency rules is dead on arrival in the U.S. Congress. If negotiations were nearing a final deal, this issue would have to be raised; Congress’ outspoken position has made clear to the other TPP nations that either this issue will be raised in negotiations or it will be raised later as an additional demand after ‘final’ concessions have been made, as was seen in the Korea Free Trade Agreement renegotiation four years after signing.

9)     The prospect of passage of any form of trade authority in 2014 is dimming. Indeed, some congressional Fast Track proponents are already talking about the prospect that President Barack Obama may never obtain trade authority, so they are setting their sights on 2017.As the other TPP countries recognize the lack of congressional support for Fast Track and TPP, their willingness to make U.S.-negotiator-demanded concessions on issues with high political costs at home also dims.

10)  In April, Chile’s Trade Ministry under recently elected President Michelle Bachelet confirmed that it is conducting a comprehensive review of the scope of the TPP and what its impact could be for Chile, noting that it is initiating a process of transparency and openness in the negotiations to include civil society input into their review. The website states, “We consider that there are many issues that are still open, the negotiation still has a ways to go.”

For more information about the TPP, please visit http://citizen.org/tpp

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