Trans Pacific Partnership: A new Constitution

Daniel Becker | March 10, 2013 12:39 am

Politics
US/Global Economics
Update: Application, clarification of “New world Order”.
I have put this update at the beginning of the post for I believe it is an aspect of my post on the Trans Pacific Partnership (TPP)  that should not be dismissed by myself nor by a reader of the post.
Now that I have had the day to contemplate J. Goodwin’s comment and after googling “new world order” 
I can appreciate his concern and response. I assure everyone, that last thing on my mind with the writing of that phrase was: a conspiracy theory in which a secret elite is conspiring to rule the world via world government and globalization.
The TPP is not being written by a secret elite looking to rule the world. On the contrary, the document is being written in secret such that we do not know the specific persons involved, but everyone knows the class or groups represented. The authors/parties feeling of need for secrecy only speaks to their understanding of the potential opposition and not to a devious plot of mad scientist. It’s not a James Bond story.
This TPP is not about ruling the world. I very much doubt those involved want such a responsibility. This document is about reducing the regulation a sovereign entity may apply to an investment to the point that any investment is almost certain to pay out whether by actually carrying out the investment or through reimbursement for not being able to carryout the investment. Heads you lose, tails I win. This is accomplished in many ways (kind of covering all bases) but mostly by giving a representative of an investment equality to a nation in the eyes of the “law”. It is the elevation of an entity created solely for the purpose of profit (though there is some language toward nonprofit) all the rights and liberties that a nation of people reserve for themselves. There is one thing the investment entity receives that the nation entity (“party” as used in the document) does not: A guarantee against loss. This guarantee comes in the form of insurance. The insurance is the full faith and credit of the nation…it is the ability to tax it’s citizens.
That is a new world order as in: any period of history evidencing a dramatic change in world political thought and the balance of power.
Thank you for reading. 

This past week the Trans Pacific Partnership agreement has been post worthy on a couple of the more read blogs. There are specific groups working to get the public up to speed on this treaty. One is the Citizens Trade Campaign.  Crooks and Liars posted Lee Camps Moment of Clarity episode regarding the treaty.  Common Dreams posted a video by Friends of the Earth.  This potential treaty has direct bearing on the subject of innovation, production and infrastructure as discussed in the posts regarding Richard Elkus’s thesis in his book Winner Take All and MIT’s latest report on the subject.

Basically this is being referred to as NAFTA on steroids. It is an agreement being negotiated in complete secrecy with only those considered to be a direct player called “clear trade advisers”(600 in the US) having access. Direct players are not you and me, nor congress (you thought the drone unitary executive stuff is tough to get? Ha!) nor that fourth branch known as the press. Yes, Obama is up on this in that he is pushing it.
I’ll let Citizens Trade Campaign sum it up: 
“The TPP is poised to become the largest free trade agreement in the world, potentially impacting jobs, wages, agriculture, migration, the environment, consumer safety, financial regulations, Internet protocols, government procurement and more.
The pact is currently under negotiation between the United States, Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam, but is being specifically written as a “docking agreement” that other countries can join over time. Canada, Japan and Mexico are currently pressing to do so. The thirteenth major round of TPP negotiations will be held at the Hilton San Diego Bayfront Hotel from July 2 – 10.”
Recently a portion of this document was leaked. It is called the “Investment Chapter”. Public Citizens has a review of it here.
I have read the first 17 pages of the Investment Chapter. It is these pages that provide the definitions and the cans and can nots for the signatories. The remainder of the document provides the means for achieving satisfaction. (Do read at least the definitions of what is considered “investment”.)
What struck me in Public Citizens review was that the system being setup as the arbiter of the trade agreement is following the US’ fascination with “extra judicial” proceedings as a viable means of following the ideals of our Constitution. It’s those same thought processes that gave us rendition, enhanced interrogation, military tribunals, unitary executive. You can’t help but see our past 35 years of leadership in the realm of pioneering new concepts in equality, fairness, justice, and processes to achieve such. Concepts of “free market”, “invisible hand”, and process of deregulation, economies of scale, etc. How else do you explain the use of rotating corporate tied lawyers as judges? Where is the separation of the judge and the plaintiff? This is right out of the current US play book on how to better your nation with the social institution known as “revolving door”?
You can see in this document the culmination of work performed over the last 40 years (yes Carter started the deregulation) by the conservative (internationally known as neoliberal) ideology merged with Milton Friedman’s economics and Ayn Rand’s objectivism. Dare I say, the TPP is to capitalism what our Constitution was to democracy?
And that is where I really started thinking. This document is not just about the particulars. It’s not just about how trade will or will not happen, or whether a company will be able to privatize the gains and socialize the risks and losses, or whether people will be harmed. All those things will be the result of the document.
Nope, this document is much more. 

This document is the constitution of a new world order. It is an order that has been the dream of many for ages upon ages that until this time in humanity was not possible do to the limits of the technology of the time. This is the document of what I coined a few years ago as The United Corporations of Global. It is this aspect of the document that the people of the world should be most fearful of. It is not a trade agreement as I believe the common man (as in the court concept of the “common man”) would think of the phrase “trade agreement”. This is a constitution that is coming prepackaged with the rules and regulations already written. Only, there is no need for ratification to be a part of the creative process. This document comes pre-ratified in that all a nation has to do is say “I’m in”. It does not take a majority of the worlds nations or a super majority like the original 13 colonies for this document to have power. It has power because those writing it already agree to follow it. Passing it in the US? Can you say “fast track”?
The documents greatest power is what I alluded to when I mentioned rendition, unitary executive, enhanced interrogation, military tribunals. Rationalization. This document codifies the use of rationalization as a viable thought process for achieving the advancement of humanity. It reinstates the fallibility of human thinking, turning on it’s head the enlightenment age because this document believes it is of enlightened thought. It rationalizes as enlightenment the freeing of people to trade to the greatest level of monetary efficiency. Such a thought is putting a human creation ahead of humanity. It is totally antithetical to the goal of enlightenment. ( I have to say, at this point our fellow Angry Bear Bruce Webb I hope will add to the discussion as our resident historian.)
What follows below are specific excerpts from the document. It is legal speak. But it is not hard to understand. I feel it is important that people read these excerpts as this is how you will know the thinking and overall goal of the document beyond the obvious selfish power grab by any particular player or industry. This is a document written by people who envision the world structured far differently than how we are taught to view our social organization based on the US Constitution and it’s meaning to the world. It does not matter if you believe our national identity is a lot of myth, that we don’t hold up well to our constitutional ideals. The fact is, the myths and ideals have influence and they are not the myths and ideals held by those writing the TPP at worst or are considered not applicable nor appropriate for their desired structure at least.
This document is not just about how nations will relate to each other, it also gives the same rights and privileges to individual investor entities as representative of a nation. Thus, keep in mind that anything you read here also means a rich person or a business entity is treated as if they are the nation. However, citizens are not at anytime mentioned as being a “party” of any type other than when it comes to citizens potentially creating a loss for a “party” or it’s investor representative. In other words, “citizens” are at all times considered to have lesser status such that citizens have no claim to inalienable rights and the resultant rule of law. It is less than slavery for in this document, the only recognized covered entities are “party” which means a nation of signature and it’s participants in the sector of said parties social interaction referred to as “investment”. In fact, there is a defined party entity specifically that is not of the party:
investor of a non-Party means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of a Party
There is nothing in the list of definitions that suggest or implies “citizen”. The only entities covered and regulated by the TPP are those entities that are creations of man.  Man is of no consideration regarding the benefits of the relationships developed in this new constitution. Man is only mentioned as a consequence of potential harm to the “parties” in the form of financial loss. That’s it.
WE HAVE TO COME TO KNOW THE MIND OF THE DOCUMENT! Even if we can prevent this document from taking effect, we will not put an end to the ideology behind the document if we only defeat the document based on it’s ability to do material harm. We have to come to know the mind of this document so that we can be certain to identify the thought within the new words that will be written and spoken when those behind this document make their new attempt at forming the world according to their ideology. We need to know the mind so that we can educate those who will certainly face the next attempt to implement such an ideology. This is why the document is being created in such secrecy. We have learned from NAFTA et al and those that are the mind of the document are aware of our knowledge.
Thus I present the sections as they relate to what I believe is the thinking of this new constitution so that we can be aware of the overriding concepts that ultimately reorder societies and would require a new thinking regarding who and what we are, what our purpose is and where we are going as a species on this planet. The TPP is presenting a new ideal of social order. It is one I that find represents the worst of humanity.
This is where the sovereignty breaks down and the new social order is created:
Article 12.4: National Treatment
1. Each Party shall accord to investors of another Party treatment no less favourable 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.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
The treatment to be accorded by a Party under paragraphs 1 and 2 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that regional level of government to investors, and to investments of investors, of the Party of which it forms a part.]
Article 12.5: Most-Favoured Nation Treatment
1. Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to investors of any other Party or of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any other Party or of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
This is where the responsibility is defined for achieving “favorable treatment”. The “Party” is obliged to:
Article 12.6: Minimum Standard of Treatmentll
1. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.
2. For greater certainty, paragraph 1 prescribes the [applicable rules of] customary international law [minimum] standard of treatment of aliens as the [minimum] [general] standard of treatment to be afforded to covered investments. 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. The obligations in paragraph 1 to provide:
(a) “Fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world; and
(b) “Full protection and security” requires each Party to provide the level of police protection required under customary international law.
Who determines which party’s law is part of the “principle legal systems of the world”? What is “customary”. These are the phrases of those who are trying to hedge. People agree to such language when they believe they have a hidden advantage. This is not language of certainty.
Here is where the citizens of the world become hog tied:
Article 12.6bis: Treatment in Case of Armed Conflict or Civil Strife
1. Notwithstanding Article 12.9.5(b) (Non-Conforming Measures, subsidies and grants carveout), each Party shall accord to investors of another Party, and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
2. Notwithstanding paragraph 1, if an investor of a Party, in the situations referred to in paragraph 1, suffers a loss in the territory of another Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latter’s forces or authorities; or
(b) destruction of its covered investment or part thereof by the latter’s forces or authorities, which was not required by the necessity of the situation, the latter Party shall provide the investor restitution, compensation, or both, as appropriate, for such loss. Any compensation shall be prompt, adequate, and effective in accordance with Article 12.12.2 through 12.12.4 (Expropriation and Compensation, paragraphs 2 through 4), mutatis mutandis.)
Consider the XL pipe line protests. With this agreement, the protestors will have put the citizens of our nation in jeopardy of having to pay for the losses. In other words, a nations taxing apparatus is now bound as insurance against an investor’s loss. Capitalism? Read about Excelaron and San LuisObispo County’s Huasna Valley. 
This clause also pits a nation’s government against it’s people and pits it’s people against each other in that civil protest, maybe even strikes become compensatory offenses if a loss in incurred by an investor.  So, just how will a nation respond to assure it’s citizens “behave themselves” such that the other Party’s investor does not suffer a loss by means of social unrest?
This is where loss of sovereignty is further accomplished as it relates to a nation determining how best to structure it’s economy.
Article 12.7: Performance Requirements
1. No Party may, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party [or of a non-Party] in its territory, impose or enforce any requirement or enforce any commitment or undertaking: 12
(a) to export a given level or percentage of goods [or services] ;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
( e) to restrict sales of goods [or services] in its territory that such investment produces [or supplies] by relating such sales in any way to the volume or value of its exports or foreign exchange earnings; [
(f) to transfer a particular technology, a production process or other proprietary knowledge to a person in its territory;] [or]
(g) to supply exclusively from the territory of the Party the goods that such investment procedures [or the services that it supplies] to a specific regional market or to the world market [; or
(h) (i) to purchase, use, or accord a preference to, in its territory, technology of the Party or persons of the Party13 ; or
(ii) that prevents the purchase or use of, or the according of a preference to, in its territory, particular technology, so as to afford protection on the basis of nationality to its own investors or investments or to technology of the Party or of persons of the Party] .
2. No Party may condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of a Party [or of a non-Party,] on compliance with any requirement:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods [or services] in its territory that such investment produces [or supplies] by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.
3. (a) Nothing in paragraph 2 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party [or of a non-Party,] on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
Again in the above section 12:7 we see the continuation of the individual/citizen carved out from the money. Sure, a nation can make some demands, but those only refer to the citizen as work done within the investment and not as a beneficiary of the work done. The benefits and results of the work done shall not be restricted by the host party of the investment.
Section 12:7 does allow a nation to protect it’s natural resources and the environment by adopting laws however, they cannot be inconsistent with the TPP: (i) necessary to secure compliance with laws and regulations that are not inconsistent with this Agreement;
Understand that what is consistent with the agreement is that the investment is protected at all times against not being fulfilled.
Lastly we see the final severing of a nations sovereignty; the loss of the right to have the host party represented within the investment entity.
Article 12.8: Senior Management and Boards of Directors
1. No Party may require that an enterprise of that Party that is a covered investment appoint to senior management positions natural persons of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
Thus, you can put some people in positions that theoretically may have power to prevent the investing entity from harming your nation, but not so much as the hedge phrase is: materially impair. This is another example of using “common man” language to hide the uncommon results. Personally, this language sounds like a ripe area has been created for the allowance of corruption.
Consequently, what we have here is an agreement that the investing entity is protected via insurance in the form of the host nation’s taxing ability that becomes a mechanism for “encouraging” shall we say, a host nation to take measures to assure it’s citizens remain compliant. This is the new social order. This is the corporate model of relationships.
Yes, there is a section concerning the protection of the environment and in general — health.
Article 12.15: Investment and Environment] [ ,Health Safety and Labour] [ Article 12.15: Health Safety and Environmental Measures][
1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental [ , health, safety, or labour] [ , health or safety] concerns.]
2. The Parties recognize that it is inappropriate to encourage investment by relaxing its health safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion, or retention in its territory of an investment of an investor.]
It even talks about “Social Responsibility”. But…it’s voluntary.
Article 12.15 his: Corporate Social Responsibility
[ Each Party should encourage][ nothing in this Chapter shall be construed to prevent a Party from encouraging] enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their internal policies, such as statements of principle that have been endorsed or are supported by the Parties. [ These principles address issues such as labor, the environment, human rights, community relations and anti-corruption. The Parties remind those enterprises of the importance of incorporating such corporate social responsibility standards in their internal policies.]]
Well isn’t that a fine one. How do you encourage social responsibility when a nation can not dictate what is to happen to the resultant product of it’s citizens’ work nor can their representatives on the board of the investment entity effect the management of the investment. Most importantly how do you encourage such voluntary “responsible” activity when the host nation is on the hook for any loss of money that may result from the investment entity’s not so socially responsible actions that result in civil protest? Remember, “civil strife” is specifically stated as a compensable event if it produces a loss for the investor.
What will this agreement do to the effort to get this world to wake up to the planet warming up? How does this agreement prevent the furtherance of a naturally human trend of selfishness resulting in further policies of exclusivity and extraction of wealth (see: Why Nations Fail)? It doesn’t.
That is what the ideals of our Constitution are supposedly about. The recognition of the human mind’s frailties and a governance structure to assure such frailties do the least amount of harm.
The further we go with implementing these types of agreements the further removed we are from the enlightenment concepts that resulted in a group of people writing prose such as our Constitution. You can forget about the ideal bound in our Declaration of Independence. And, the further we are moved toward the model of business organization as the dominate model for structuring a society. It is too accepted that the purpose of business is to make money. There is no longer any talk of “social responsibility” within today’s business model. Business no longer is a means for creating wealth that society then puts to work in reducing life’s risks. Business is simply about making money…stop. The declaration for the TTP would simply read: We hold this truth to be self-evident, the purpose of business is to make money.
Isn’t it ironic that in science fiction, a common theme is the threat of man creating an artificial entity that ultimately comes to dominate it’s creator. It’s a robot, a computer, some kind of machine even biological or any combination or all 3. We obtained the power of the creator only to realize our ignorance toward the full potential of all there is to know. The theme is always dismissed as artistic fun. One thing always is consistent with such stories and dreams. At no time is this entity ever not recognized as nonhuman.
Yet, in truth we have created and are willingly moving our self into such a living situation: the corporate structure for managing human relationships. The corporate structure is a creation of man (I don’t think a woman is credited with this considering the position of women in centuries past). It is a creation that we have been investing with human social stature and traits. We made this thing. We have given it “personhood”. (Personhood is the status of being a person.)  With that birth we have also given it standing within the circle of human relations. It is the physics of two entities occupying the same space in that the corporation is both human in action and representative of human action. And, we have given it one thing that humans do not have and the one thing that is the singular moment of all human endeavor: the real potential of eternal life. The corporation has the ability to do what we can’t: defy death.
The science fiction writers had it correct as to our drive, they were just looking at the wrong sciences. It’s not the material life that will do us in. It is the cognitive life that has the most potential to do us in.
The Trans Pacific Partnership agreement is the realization of our self destruction potential.
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