Counter Punch | 17 January 2020
Claims that the ‘NAFTA 2’ agreement is better are a macabre joke
by Pete Dolack
Democratic Party House representatives have voted by a wide margin to approve version 2 of the North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement. Even Rose DeLauro of Connecticut, in the past a strong leader within Congress in the fight against so-called “free trade” agreements, is on board with this one.
Representative DeLauro and other congressional Democrats claim they forced the Trump administration to strengthen the agreement by compelling the insertion of language that allegedly creates “effective and meaningful labor standards and protect[s] worker rights”; supports environmental standards; and “protect[s] access to affordable medicine.” Can this really be true? Or have congressional Democrats reverted to normal form, rolling in the dirt at the feet of Republicans yet again?
Although Democrats and public pressure forced through some improvements, the United States-Mexico-Canada Agreement (USMCA), or NAFTA 2, isn’t substantially different and remains a document of corporate domination. It would appear that appearances, not substance, drove Democrats in the House of Representatives to approve the deal. That was signaled by House Speaker Nancy Pelosi, who said she wanted to show United Statesians that her party can get things done and is not simply opposing President Donald Trump for the sake of opposing him. That was understood to be a gesture to buttress the re-election chances of Democrats who won seats in districts previously held by Republicans.
So Democrats went along to get along, much as they did in approving the massive $738 billion Pentagon budget. In other words, they once again demonstrated that cringing and cowering is their default position. One can imagine the discussion behind closed doors: Yes, that will show Donald Trump we mean business — we’ll support his most desired policy initiative.
Unfortunately, the Mexican and Canadian governments have not shown much more resistance. Mexico President Andrés Manuel López Obrador, despite being elected on a Left wave and promising significant change, has so far tended to give in to President Trump’s demands. That tendency was underscored by the almost unanimous approval given the USMCA by the Mexican Senate. Meanwhile, Canada Prime Minister Justin Trudeau has been a willing participant in bringing NAFTA 2 to fruition, even going so far as to be a voice for retaining the ability of corporations to use unaccountable tribunals to sue governments, including his own and despite Canada’s regulations being the most frequent target.
What the document says isn’t what it means
So what is really in the USMCA text? Interpretation is what really matters here, as the text, like all “free trade” agreements, is written in dry, technical language that appears to be neutral at first glance. But what the words mean in practice, and how they will be interpreted by tribunals, is not necessarily the same as what the words might appear to say.
A key portion of the document is Chapter 14, the chapter on investment. The chapter’s first page, Article 14.1, defines an “investment” with the standard broad brush — not only is any capital outlay covered but so are all forms of financial speculation, including derivatives. Intellectual property rights and intangible property are explicitly named as well. So the expectation of a profit across the spectrum of business activities is well covered here, and of course the expectation of a profit — in actual practice, the demand for the biggest possible profit regardless of cost to others — is what the owners of capital expect these agreements to help deliver. The secret tribunals used to adjudicate disputes, frequently presided over by corporate lawyers who in their day job specialize in representing the corporations who sue in the tribunals, consistently interpret the language of “free trade” agreements to mean corporations are guaranteed maximum profits above all other considerations.
So is the language of Chapter 14 substantially different? Asking that question is important because Article 14.3 states that in the event of any inconsistency between Article 14 and any any other chapter, Article 14 prevails. The one exception is financial services, covered by Chapter 17, to which we will return. Article 14.4 begins with this passage: “Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.”
That dry language may sound neutral, but it is the exact language that is standard in “free trade” agreements. This is the language that is invoked by multi-national corporations to demand “damages” anytime any law or regulation that upholds health, safety, worker or environmental standards prevents them from extracting the biggest possible profit. This is the language invoked in the secret tribunals that adjudicate these cases to rule in favor of corporate plunder and against regulations.
When you hear “customary international law,” be afraid
That is followed up by Article 14.6, which states “Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.” On the surface, that passage seems neutral, even innocuous. But what is “customary international law”? It is whatever the tribunals that have adjudicated disputes between multi-national corporations and governments say it is. In practice, the many outrageous decisions overturning reasonable health, safety, worker or environmental standards and making corporate profit paramount establishes precedent and thus constitutes “customary” law.
The article goes on to state: “The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.” Again, what sounds neutral has to been read in context. What need for “additional rights” would be needed when the profits of multi-national corporations are elevated above all other considerations?
We then come to Article 14.8, which states: “No Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation).” The word “indirectly” is crucial here. Not a reference to a nationalization, which would be a verboten act, an “indirect expropriation” can be any government act that, regardless of intention or general applicability, has the effect of preventing a multi-national corporation from extracting the biggest possible profit. An environmental regulation or a regulation imposing standards protecting human health are two examples of “indirect expropriation,” and under the rules established here would mean that the government being sued would be obligated to strike such regulations from its law and pay “compensation” to the corporation. The article explicitly states that “compensation shall be paid without delay.” (A “Party” is a government that is a signatory to the agreement.)
And what of requiring corporations to act in a socially responsible manner? Here’s Article 14.17 in full: “The Parties reaffirm the importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines, and principles of corporate social responsibility that have been endorsed or are supported by that Party, which may include the OECD Guidelines for Multinational Enterprises. These standards, guidelines, and principles may address areas such as labor, environment, gender equality, human rights, indigenous and aboriginal peoples’ rights, and corruption” (emphasis added).
Note the provisional language, quite unlike the many articles addressing what governments must do for multi-national corporations. In the standard language of trade agreements, rules benefiting capital and erasing the ability of governments to regulate are implemented in trade-agreement texts with words like “shall” and “must” while the few rules that purport to protect labor, health, safety and environmental standards use words like “may” and “can.” The USMCA is no different. It’s the same sleight of hand.
Regulations on banks and Internet giants? Forget about it
Chapter 17, covering financial services, contains the same standard language requiring “treatment no less favorable than that it accords to its own financial institutions … with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments.” Again, what appears to be bland language actually means something stronger: In this case, a prohibition against restrictions on predatory banks. Article 17.5 explicitly bans any limitations on the activities of financial institutions and Article 17.6 prohibits any restrictions on taking capital out of a country.
Among other rules, Article 19.11 prohibits any restrictions on “cross-border transfer of information,” which effectively means, for example, that neither Canada or Mexico can protect personal information from U.S. internet companies, a cohort not known for responsible use of personal information. Similar language can be found in Chapter 15, covering cross-border trade in services. This section appears to be modeled on the Trade In Services Agreement (TISA), a notorious “free trade” agreement negotiated in secret among 50 countries, among them all three NAFTA countries, the European Union, Australia, New Zealand and Japan, and purporting to liberalize professional services.
The cover story for why TISA is being negotiated is that it would uphold the right to hire the accountant or engineer of your choice, but in reality is intended to enable the financial industry and Internet companies to run roughshod over countries around the world. The text of TISA expanded the definition of “services” to encompass manufacturing and could potentially encompass technology companies like Google and Facebook as providers of “communications services.” The text of USMCA’s Chapter 15 may not necessarily be stretched as far it is in TISA, but a reasonable reading is that this chapter will provide another weapon that predatory banks can leverage to take over financial systems and halt attempts at bringing them under meaningful regulatory control. Citigroup, Microsoft and Google are among the many corporate entities celebrating the USMCA.
Another area of concern is Chapter 11, covering “technical barriers to trade.” This chapter adopts numerous articles from the World Trade Organization’s Agreement on Technical Barriers to Trade, and makes WTO standards obligatory. There is also a clause in Article 11.7 that requires equal participation by citizens of other countries when technical regulations or standards are developed. Might this be an invitation for executives and lobbyists for multi-national corporations to demand the ability to shape new regulations? What might be ruled an “unnecessary technical barrier to trade”? Such “barriers” are intended to be eliminated as stated in Article 11.9.
Ending secret tribunals appears to be an empty promise
In “free trade” lingo, when a corporation sues a government, the dispute is to be adjudicated in a mechanism known as an “investor-state dispute settlement.” That bland-sounding bureaucratic phrase means that a tribunal decides the issue. Under NAFTA, and many other “free trade” agreements, the tribunal is the International Centre for Settlement of Investment Disputes (ICSID), an arm of the World Bank. One of President Trump’s empty promises was to put an end to the use of these tribunals. Surprise! It’s ain’t so. OK, it’s not a surprise that he lied.
In disputes between the U.S. and Mexico, Article 14.D.3 states that disputes will be settled in the ICSID, but the two sides can agree to have it heard in another forum. Given the one-sided rulings ICSID hands down, suing corporations have little incentive to use another forum. More generally, Chapter 31 sets the rules for settling disputes. There we find Article 31.3, which states, “If a dispute regarding a matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.” Can a corporation suing a government dragoon the government into the ICSID or one of the other two similarly one-sided secret tribunals? The text later in the chapter is ambiguous on that, but does not preclude use of those fora.
Later in the chapter, the text speaks of “panels” without specifying a forum and also mandates, in Article 31.8, that a “roster of up to 30 individuals who are willing to serve as panelists” be created. The panelists are to “have expertise or experience in international law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements.” The exact same “expertise” required under NAFTA and virtually all other “free trade” agreements! In other words, corporate lawyers who specialize in representing corporations in these kinds of disputes are those who have the “expertise” and “experience” to sit in judgment. The same hat-switching will be in force.
So even if ICSID, or the other two secret tribunals, are not used and instead a new panel specific to the USMCA becomes the new forum, the same conditions and same cast of characters, using the same precedents, will be in force. There is no reason to expect any effective difference from NAFTA.
Some better language but that is not necessarily meaningful
As to what potential improvements from NAFTA exist, there are three. One is that hearings will be conducted in public (Article 14.D.8) (although there does not appear to be a requirement that a public notice be made). The second is that a side agreement in force only between Mexico and the U.S. that purports to uphold workers’ rights by prohibiting denial of free association or the right to collective bargaining to the extent that doing so impacts the other country (Annex 31-A). A panel is supposed to adjudicate this issue should it arise, and apply International Labor Organization standards. The U.S. government can sue to enforce this annex, but can anybody imagine the Trump or any other Republican administration suing to enforce the right of workers? For that matter, would a Democratic administration seek to enforce collective-bargaining standards or the right to form a union if a Mexican government, acting on behalf of its industrialists, discourages it from filing?
Democratic supporters of USCMA are taking this provision on faith, but it remains to be seen if there will be any use of this annex or if it can be meaningfully enforced even if a future administration does seek to apply it.
The third improvement is that there is language on the environment that is stronger than in past agreements. Article 24.2 declares that “The Parties recognize that a healthy environment is an integral element of sustainable development” and are encouraged to “promote high levels of environmental protection and effective enforcement of environmental laws.” There are several articles in Chapter 24 discussing various specific environmental concerns. But seemingly pro-environment language has not been absent from existing “free trade” agreements and that language has proved to be meaningless window dressing.
Further, Article 24.2 also says “The Parties further recognize that it is inappropriate to establish or use their environmental laws or other measures in a manner which would constitute a disguised restriction on trade or investment between the Parties.” Here we find a potential giant loophole. Might environmental laws be interpreted to be such a restriction? Unfortunately, there is ample precedent here. A series of rulings culminated in the World Trade Organization ruling that U.S. dolphin-safe labeling is an unfair “technical barrier to trade,” even though the U.S. had weakened its laws in response to the earlier WTO rulings.
Among rulings handed down under NAFTA — rulings that are considered precedents when similar cases are heard — Canada had to reverse its ban on a gasoline additive known as MMT, a chemical long believed to be dangerous to health, because the tribunal ruled the ban a violation of the principal of “equal treatment” even though, had a Canadian producer of MMT existed, it would have had the same standard applied. Canada was also successfully sued over its ban on the transportation of PCBs that conformed with both a Canada-United States and a multi-lateral environmental treaty. The tribunal ruled that, when formulating an environmental rule, a government “is obliged to adopt the alternative that is most consistent with open trade.”
Not only are these types of rulings precedents, but recall, as noted above, that Article 14, which elevates expectations of profits above any conflicting consideration, supersedes all other articles. And to repeat a point made earlier, WTO standards are obligatory. “Technical barriers” to trade as the WTO defines them won’t be exceptions.
A billionaires’ club masquerading as a government
So what can we really expect if the USMCA goes into effect? Given not only the history of “free trade” agreements and the mendacity of the Trump administration, probably the same as experienced under NAFTA. Consider the evidence the Trump administration has offered. Its April 2018 “National Trade Estimate Report on Foreign Trade Barriers,” a document laying out its trade goals, no less than 137 countries were cited for raising alleged “trade barriers” to be attacked, barriers that include items like laws requiring food imported to be safe.
In July 2017, the Trump administration quietly published its “Summary of Objectives for the NAFTA Renegotiation,” which features boilerplate language that in some cases appears to be lifted word for word from the Trans-Pacific Partnership. And, not least, is the Trump gang’s infrastructure plan, a macabre joke that mostly consists of massive corporate subsidies and intends the creation of “public-private partnerships,” which are scams under which services are privatized for guaranteed corporate profit while becoming more expensive and less subject to public accountability.
We’re supposed to trust this government? NAFTA has been a “lose-lose-lose” proposition for working people and farmers in Canada, Mexico and the United States. That formula won’t be changing. The Council of Canadians has issued a strong warning about what can be expected:
“Regulatory cooperation in the new NAFTA takes away our ability to set standards and regulations to protect our health, safety and well-being. … [R]egulations cannot be prescribed for ethical or social reasons. The emphasis is on the regulator to prove that a regulation is backed by science, and not on the corporation to prove that their product does no harm. … Regulators have to vigorously defend proposed regulations and are even required to suggest alternatives that don’t involve regulating. They have to provide extensive analysis, including cost-benefits to industry. The new NAFTA encourages the three countries to harmonize, or have similar regulations. This is not about raising standards, but bringing standards down to the lowest common denominator.”
The National Family Farm Coalition, representing organizations in more than 40 U.S. states, said the USMCA “offers little” for family farmers. Coalition President Jim Goodman, a retired Wisconsin dairy farmer, said:
“Climate change is not mentioned and the new treaty does nothing to curb the environmental damage that was part of the original NAFTA. [Coalition] dairy producers do not support dumping excess US milk on the Canadian or Mexican markets, as that will force family dairy farmers out of business in those countries.”
The Sierra Club, League of Conservation Voters and National Resources Defense Council also recommended against the agreement being approved:
“The deal that the Trump administration produced … would encourage further outsourcing of pollution and jobs, offer handouts to notorious corporate polluters, and prolong Trump’s polluting legacy for years. The deal not only fails to mention, acknowledge, or address the climate crisis, but would actually contribute to it.”
The Institute for Agriculture & Trade Policy similarly gave a thumbs-down to the deal:
“[The USMCA] locks in a system of agribusiness exploitation of farmers and workers in the three participating nations, while worsening the climate crisis. … Nothing in the New NAFTA addresses urgent issues plaguing our farm economy: low prices, rising debt and increased bankruptcy. … Measures in New NAFTA that open Canada’s dairy market to increased exports from the U.S. will not significantly reduce the vast oversupply of U.S. milk or raise prices paid to U.S. dairy farmers. Instead, the opening will weaken Canada’s successful supply management program, which has achieved market-based prosperity for its farmers. Added regulatory-focused sections will delay and impede the development, enactment and enforcement of protections for consumers, workers and the environment.”
Sadly, the main union federation in the U.S., the AFL-CIO, has chosen to endorse the USMCA despite its fatal flaws. The largest Canadian federation, the Canadian Labour Congress, does not seem to have taken a position, although it did issue an ambiguous statement in October 2018 saying the deal had “some points of progress.” The Congress specifically cited the eliminating of NAFTA’s notorious Chapter 11 that elevated “investor rights” above all other considerations, but that optimism proved erroneous as it is now clear that provision remains in less direct language.
The governments of Canada, Mexico and the United States have once again put a gun to their own heads. “Free trade” agreements continue to have little to do with trade and much to do with imposing a corporate dictatorship, a lesson once again being imposed.
Pete Dolack writes the Systemic Disorder blog and has been an activist with several groups. His book, It’s Not Over: Learning From the Socialist Experiment, is available from Zero Books.