We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, . . .
This, of course, is from the Declaration of Independence, one of the sacred texts of American politics and political theory. When the consent of the governed is superceded, or is not given due to force or manipulation, then that is tyranny and illegitimate, because no powers of such a government are or can be just.
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So, let’s ask, based on what we know about the proposed Trans Pacific Partnership Agreement from leaks of current drafts, and also based on the proposed procedures for enacting it, and those for exiting the agreement, is it true that the TPP, if passed, would have the consent of the governed and hence be legitimate? Or would it be an instance of imposition of tyranny on the American people and also on the people of other signatory nations?
The TPP has no provision for sovereign review of Investor State Dispute Settlement (ISDS) tribunal decisions, or for later accountability of the judges serving in such tribunals to the people of the various nations they impact with their decisions. In other words, once passed, the ISDS tribunal system and its judges would not ever seek, or need to be granted, the consent of the governed in relation to decisions emanating from the ISDS. Yet ISDS activity involves both judicial and legislative functioning, which are certainly governmental activities.
It’s clear that the dispute settlement functions of ISDS tribunals are judicial in nature. But where does the legislative functioning of ISDS tribunals come in?
Answer: it comes in in these two ways. First, the ISDS tribunals can levy fines in disputes that would be great enough to make it impractical for the nation implicated in a suit to continue enforcement of the legislation that was in conflict with the profit “expectations” of multinational corporations. This possibility means that broad classes of legislation would be viewed as impractical to enact or as invalidated if already enacted. The ISDS tribunals would have a legislative veto over proposed or existing legislation at all levels of TPP member governments.
The constraints on sovereignty created by a systematic pattern of ISDS decisions would, in effect, impose a new constitutional order on TPP participant nations existing alongside their previous constitutional order. National legislatures and courts might make decisions in accord with the constitutions of their nations. But ISDS tribunals would make decisions in accord with the principal that national rule making must not interfere with the expectations of profits held by multinational private corporations. These decisions would be unaccountable and sovereign, in the sense that the rules defined by them would supercede the rules defined by national legislation and national constitutions.
Second, as Lambert_Strether and Public Citizen point out, the ISDS tribunals have so much discretion in arriving at settlements that they can actually “write rules as well as interpret them.” Attempts to write safeguards into trade treaties limiting this power have failed thus far, and tribunals under the Central America Free Trade Agreement (CAFTA) have ignored safeguards in the treaty and have created new obligations of governments to multinationals that were not contained in the treaty. There is every reason to believe that the same would happen under the TPP, since it contains no new safeguards against this other than those present in earlier trade agreements.
So, the ISDS tribunals in the TPP would have both extreme negative and positive legislative power to override rules designed to fulfill the constitutional and legal structure of participating nations and to raise up the sovereignty of multinational profit expectations over the constitutional and legal regimes of member nations. In democracies, judicial authorities are often insulated from direct accountability to the people. But there are always checks and balances that provide some accountability, and a ole for the consent of the governed.
For example, the legislative authority can define the jurisdiction of the judicial authority. In addition, the legislative authority appropriates the funding allowing functioning of the judges and the Courts.
Still further, legislatures often determine the length of the periods of service of the judges. Legislatures may also determine the size of the tribunals. Or, if worse comes to worst, then legislatures can impeach judges they believe are behaving badly, corruptly, or illegally.
Constraints like these on tribunals by legislatures who, in turn, are accountable to voters provides a basis for claiming that the tribunals and their members have the consent of the governed for their actions over a period of time. But in the TPP, where is the basis for such a claim? Answer: it is entirely absent.
ISDS tribunals are unaccountable to any voting public. They need not seek, or receive, any consent of the governed at all, once the tribunals are originated.
So, the governing functions of the TPP regime as embodied in the ISDS tribunals would not be exercised with the consent of the governed. And, further, the ISDS tribunals if in operation, would not exercise just powers, but only illegitimate power derived from the TPP agreement itself, negotiated in secret, passed without benefit of open debate based on the secret text of the TPP, and intended to remain secret for years after the TPP is signed. That makes TPP decision making tyranny, and makes those who want to pass the TPP guilty of conspiracy to create tyrannical rule of the few over the people of TPP member nations.
So, what shall we say to those legislators who propose to deliver the people of modern democracies to tyranny? What message shall we deliver to them?
A couple of days ago, Lambert_Strether made the case very well that the TPP would be a form of tyranny, from the point of view of James Madison. Here, I’ve made the same case from the viewpoint of Jefferson and the Declaration of Independence.
The slant is different. Instead of emphasizing the absolutism inherent in combining the judicial and legislative powers and emphasizing profits over all, a separation of powers argument, I’ve chosen to emphasize the unjust exercise of power due to failing to seek and acquire the consent of the governed, a democracy/arbitrary authority argument. Both of these are important aspects of the tyranny of the TPP.
But I’d argue further, that the failure to secure, or even seek, the free consent of the governed is first, the more fundamental of the two aspects and also second, is the aspect we are seeing more universally across the world where we see national democracies being superceded by neoliberal globalist regimes of one sort or another. In these various situations we see an assumption made by elites coming to the fore.
That assumption is that, in the end, the people will accept the elite decisions regimes that neither seek nor get their consent, no matter how outrageous in their behavior these elites become, because the people don’t really care about democracy, and are too cowed or sedated to do anything about the imposition of a global plutocracy transitioning to an oligarchy. Like the French, Russian, Chinese, Mexican, colonial, and other entrenched elites before them, our own elites cannot imagine, nor fully appreciate, the risks they are taking by pushing people too far, piling outrage upon outrage.
Certainly this describes the Eurozone elites and their behavior toward Greece and other Euro debtor nations right now. In their speech, their off-hand remarks, their gestures, and their body language, the Eurozone financial and political elites express their disrespect for the peoples of the Euro debtor nations and for the promise and power of democracy in the 21st century.
It remains to be seen, of course, whether democracy will have its day again and make them live to regret that. But I believe that they will learn, to their chagrin and consternation, soon enough, that the consent of the governed is essential in modern society, and that the hierarchical financial power of a small elite supplemented by the power of small, but technologically sophisticated, national military organizations creating chaos across the world is not enough on which to found a sustainable international political order.
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