All the versions of this article: [English] [Español]
Translated by Anoosha Boralessa (February 2016). Not reviewed by bilaterals.org or any other person or institution.
TTIP and the Architecture of Impunity
Juan Hernández Zubizarreta, 12-12-14
More than a million people in Europe have already signed the call to halt the negotiations of the Transatlantic Trade and Investment Treaty) (the English acronym for which is TTIP) that the European Union and the United States are currently working through. This is a trade agreement with which they claim to eliminate custom barriers between both partners as well as regulatory obstacles – fundamental regulation on social and environmental matters — that limit big companies accumulating wealth.
The legal principles on which the TTIP is based form part of the legal suit of arms that limits the exercise of democracy and people’sovereignty. The normative legacy of global capitalism —contracts, multilateral, regional and bilateral trade and investment laws, and arbitral tribunal rulings (the new lex mercatoria) — determines the development of social majorities. The TTIP is not only a trade agreement; it is a new foundational treaty that serves transnational business.
The TTIP does not apply a neutral legal technique. We would call it the architecture of impunity, constructed in favour of multinational companies and capital. Inequality and asymmetry are the Treaty’s cornerstones; furthermore, its opacity, lack of transparency and reinterpretation of formal elements that constitute the Rule of Law must be known, dismantled and appropriated once again by social majorities.
The legal context: the rights of transnational companies are protected by a global legal order based on trade and investment rules which have the following characteristics: they are mandatory, backed up by a sanction and enforceable (Hard Law). In contrast, their obligations are rooted in national legal orders that are subject to neoliberal logic, International Law of Human Rights that is patently fragile and Corporate Social Responsibility (CSR) - voluntary, unilateral and deprived of legal force (Soft law). The TTIP forms part of this legal-political framework of domination.
The absence of democratic legitimacy: secrecy and opacity are the building blocks of the TTIP, given that trade and investment norms are drafted outside parliamentary scrutiny and the citizens’ scrutiny. We don’t know the negotiators, the criteria used or the decisions adopted … and the entire proceeding involves technical assessments that “require confidence” and “discretion between negotiators”; decisions are taken behind citizens’ backs and at the side-lines of parliamentary procedures; the texts under discussion are hidden even from those who represent the public.
The Normative Journey: the entire process of the TTIP rocks the fundamental principles of the Rule of Law, namely, the procedural safeguards of all citizens (transparency, separation of powers, parliamentary debates etc). So now, the final result is regulation with a high degree of legal certainty and mandatory compliance. This is the complete opposite of human rights norms, the evolutionary process or normative journey of which is very open to proposals and to debate but the final product is very fragile legal certainty.
Deregulation of obligations: it claims to eliminate all barriers – customs or otherwise – that hinder the development of free trade and investment. To accomplish this, it proceeds to normative harmonization from the bottom. So, if financial regulation is stricter in the US, harmonization takes place taking into account European regulation. If labour law provides greater protection in the European Union, then US laws, that deregulate the rights of both male and female workers, are applied. Thus, harmonization takes place, deregulating the rights of social majorities, in all subjects that are capable of being bought and sold.
The re-regulation of rights: the deregulation of the duties imposed on transnationals, a classic technique of the neoliberal model, is combined with the re-regulation of their rights. If in the nineties neoliberalism suggested reducing the State to clear the way for the markets, now with the TTIP a strong State is sought that guarantees European and US transnationals their profits. The State is a sine qua non for the accumulation of capital resources and to direct and reform society so as to serve big companies.
Investor state dispute resolution: this is a system that runs in parallel to the court system. It favours transnational businesses that remain at the side-lines of national and international courts. It is justice for the rich. Only companies commence proceedings against States and there is no formal provision to enable a Host State to commence proceedings against a foreign investor. Transnationals choose the jurisdiction, there are difficulties with holding hearings open to the public and there is no requirement to exhaust national internal remedies. Furthermore, there may even be an appeal mechanism for ordinary court rulings and no appeal with respect to arbitral rulings.
To reinterpret this judicial suit of arms: Faced with all this, it is necessary to re-establish the territorial jurisdiction of national courts, to recover the role of parliaments and to implement popular legislative initiatives. And to promote international norms that do not reinforce the marked asymmetry between lex mercatoria and International Law of Human Rights but, on the contrary, are able to serve as a means of placing the rights of people and nations, as a minimum, on an equal footing with big companies.
*Juan Hernández Zubizarreta, Professor at Universidad del País Vasco (UPV/EHU).