Newly leaked classified documents show that the secretive Trans-Pacific Partnership deal, if it goes through as written, will dramatically expand the power of corporations to use closed-door tribunals to challenge—and supersede—domestic laws, including environmental, labor, and public health, and other protections.
"The TPP has developed in secret an unaccountable supranational court for multinationals to sue states," said Julian Assange, WikiLeaks editor. "This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies."
Responding to the leak, Lori Wallach, director of Public Citizen’s Global Trade Watch, declared: "With the veil of secrecy ripped back, finally everyone can see for themselves that the TPP would give multinational corporations extraordinary new powers that undermine our sovereignty, expose U.S. taxpayers to billions in new liability, and privilege foreign firms operating here with special rights not available to U.S. firms under U.S. law."
The document reveals that negotiators plan to recycle language from past trade agreements to create the controversial "investor-state dispute settlement" system (ISDS). Under this framework, multinationals would be granted a parallel legal system in which they can sue governments, and therefore taxpayers, for loss of "expected future profit," with the power to overrule national laws and judicial systems.
The language included in this draft is even worse than previously thought, because it excludes a minor safeguard included in a version leaked in 2012.
Public Citizen noted in a press statement that the latest draft "abandons a safeguard proposed in the 2012 leaked TPP investment text, which excluded public interest regulations from indirect expropriation claims, stating, 'non-discriminatory regulatory actions... that are designed and applied to achieve legitimate public welfare objectives, such as the protection of public health, safety and the environment do not constitute indirect expropriation.'"
Such ISDS tribunals have become a cornerstone of so-called "free trade" deals and are included in 3,000 accords world-wide, according to The New York Times. They have been used to attack toxic bans, environmental regulations, access to medicines, and safety laws.
However, their inclusion in the TPP is expected to have an even greater impact, given the number of countries involved in the pact and the size of their economies.
Under negotiation since at least 2008, the deal includes the U.S. and 11 Pacific Rim countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. These nations together represent 40 percent of the world's GDP, making this the largest trade deal yet.
Analysts say the new revelations have broad implications.
"The TPP would empower companies from New Zealand, Australia and Japan with new rights to attack our federal and local laws," said Patrick Woodall, Research director and senior policy advocate for Food & Water Watch, in a statement released Thursday. "For example, one natural gas company has already challenged a fracking moratorium in the Canadian province of Quebec under NAFTA’s investment provisions."
Woodall added, "These corporate lawsuits have a chilling effect on communities that want to protect their citizenry but lack the resources to defend against a colossal corporate lawsuit, including the more than 250 localities (including New York state) that have banned or imposed moratoriums on fracking."
Furthermore, Sean Flynn, associate director of the Program on Information Justice and Intellectual Property at American University, warned that the TPP "would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights."
"The text contains the same provisions that are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s," wrote Flynn. "The same language is also being used by Philip Morris to challenge Uruguay’s regulation of advertising on cigarette packages as an 'expropriation” of their trademarks.'"
"But the TPP language goes farther," Flynn added. "It includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text—clarifying that private expropriation actions can be brought to challenge 'the cancellation or nullification of such [intellectual property] rights,' as well as 'exceptions to such rights.'"
The leaked chapter is dated January 20, 2015, meaning the text was drafted before the last two negotiation sessions in February and March. Nonetheless, experts say this and other leaks provide the best—and only—public information about what the deal holds in store, given the intense secrecy of the talks.
The cover of the chapter stipulates it must remain classified "four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations"—in what the Times says is likely an acknowledgement of the "sensitivity" of the secret tribunals.
Global civil societies had already mounted vigorous opposition to the deal for years, with unions, environmental groups, anti-militarist movements, and feminist organizations from New Zealand to the Japan voicing concern that the agreement will harm ordinary people. Groups across the U.S. have staged mounting protests against an ongoing attempt by the administration of President Barack Obama to fast track the accord to completion.
Wednesday's revelations are likely to add to controversy over the deal.