September, 07 2016, 12:00am EDT
As White House Spotlights Conflict With Democratic Presidential and Congressional Candidates by Escalating Toward TPP Lame-Duck Vote, Sen. Warren and Hundreds of Academics Urge Rejection
Economic and Legal Scholars Cite Multinational Corporate Rights to Unlimited Taxpayer Funds Via ISDS Tribunal System Named by VP Candidate Kaine as Basis for His Opposition
WASHINGTON
The investor-state dispute settlement (ISDS) regime at the heart of the Trans-Pacific Partnership (TPP) that would newly empower thousands of multinational corporations to challenge U.S. policies before panels of three private lawyersto demand taxpayer compensation is the target of a letter sent to Congress today by leading pro-free trade U.S. economics and law professors calling on Congress to reject the TPP.
The White House has escalated its efforts to pass the TPP in the lame-duck session, with Cabinet secretaries who are promoting the TPP crossing paths with Democratic presidential and congressional candidates campaigning against the TPP.
Last year, several dozen legal scholars joined congressional Democrats in raising concerns about the ISDS regime and demanding that a final TPP deal exclude the parallel legal system for multinational corporations. President Barack Obama scorned the critics, declaring they were "making this stuff up." Today's letter, signed by more than 200 prominent academics, including Obama's Harvard Law School mentor Professor Larry Tribe, warns that the ISDS regime threatens the rule of law and undermines our nation's democratic institutions. The academics call on Congress to reject the pact because the final deal would greatly expand the ISDS regime.
U.S. Sen. Elizabeth Warren (D-Mass.) praised the letter: "Today's letter from top legal experts makes clear: ISDS undermines the American judicial system and tilts the playing field further in favor of big multinational corporations," Warren said. "This provision empowers companies to challenge laws and regulations they don't like, with friendly corporate lawyers instead of judges deciding their disputes. Congress should not approve a TPP agreement that includes ISDS."
Tribe, Nobel laureate Joseph Stiglitz, former California Supreme Court Justice Cruz Reynoso, and Columbia University Professor and UN Senior Adviser Jeffrey Sachs are among the signers, many of whom have supported past U.S. trade agreements. The letter spotlights the danger of the ISDS provisions, which was the same reason Democratic vice presidential nominee Tim Kaine cited for opposing the final TPP deal.
The U.S. has dodged ISDS liability to date because past treaties have covered only a limited number offoreign investors operating here. Research conducted by Public Citizen shows that the TPP, which includes Japan, Australia and other nations with more than 9,000 corporate subsidiaries in the United States, would double U.S. ISDS exposure. Nearly $3 billion in ISDS awards has been paid to corporations under U.S. treaties alone and claims worth more than $70 billion are pending.
Recent investigative reports by a Pulitzer-Prize-winning journalist and a new Columbia Global Reports book reveal how critics have understated the threats posed by the ISDS regime, which - if the TPP is approved - would empower thousands more multinational corporations to challenge U.S. federal, state and local laws, court decisions and government actions before panels of three private lawyers. Under ISDS, the panel of lawyers can award the companies unlimited taxpayer money, including for loss of expected future profits. The decisions cannot be appealed.
"In recent years, corporations have challenged a wide range of environmental, health and safety regulations, fiscal policies, bans on toxins, denials of permits including for toxic waste dumps, moratoria on extraction of natural resources, measures taken in response to financial crises, court decisions on issues ranging from the scope of intellectual property rights to the resolution of bankruptcy claims, policy decisions on privatizations of prisons and health care, and efforts to combat tax evasion, among others," the letter notes.
The experts lament that despite the Obama administration's claims to have addressed growing concerns about the ISDS system, "the final TPP text simply replicates nearly word-for-word many of the problematic provisions from past agreements, and indeed would vastly expand the U.S. government's potential liability under the ISDS system." They fear that the expansion of ISDS in the TPP and in ongoing negotiations with Europe "threatens to dilute constitutional protections, weaken the judicial branch and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances."
This letter adds to a rising chorus of opposition to ISDS from prominent members of Congress such as Warren; the National Conference of State Legislatures; pro-free trade think tanks such as the Cato Institute; and hundreds of labor, environmental, consumer and faith organizations.
View the letter and list of signers.
What the signers are saying:
Jeffrey Sachs, professor of economics, Columbia University:
"We need trade agreements that protect worker rights and the environment. ISDS gravely threatens environmental protection and worker rights, and the rule of law more generally, as evidenced by the current lawsuit by TransCanada suing the U.S. government for $15 billion over the cancellation of the climate-wrecking Keystone XL Pipeline."
Cruz Reynoso, former California Supreme Court Justice andprofessor of law emeritus, University of California, Davis:
"The right of foreign corporations and investors to challenge U.S. policies which allegedly violate investor rights is a frontal attack on our judicial system."
Alan Morrison, associate dean, George Washington Law School:
"The United States Constitution simply does not allow Congress to assign the duty to assess the legality under the TPP of federal and state laws to the unreviewable discretion of three private individuals, instead of to our federal court system with full-time and unconflicted judges."
Lisa Sachs, professor of law, director of Columbia Center on Sustainable Investment:
"A multilateral agreement presents an opportunity to promote the rule of law, strengthen domestic judicial systems and ensure the rights of all, including the most vulnerable, are equally advanced. ISDS in its current form undermines each of those objectives. The whole system needs a rethink to better balance all stakeholders' interests and rights."
Kevin Gallagher, professor of economics, Boston University:
"ISDS accentuates the regulatory risks that characterize the latest trade and investment pacts by granting foreign investors far greater rights over national democratic decision-making. Putting governments and their citizens back in charge of settling disputes is the first step toward the comprehensive reform that is needed."
Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people - not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country.
(202) 588-1000LATEST NEWS
Cori Bush Demands Repeal of 'Zombie Statute' Weaponized by Anti-Abortion Zealots
"The Comstock Act must be repealed," said the Missouri Democrat.
Mar 27, 2024
Rep. Cori Bush on Tuesday called for the repeal of a long-obsolete law that anti-abortion activists, lawmakers, and judges have worked to revive as part of their nationwide assault on reproductive rights.
"The Comstock Act must be repealed," Bush (D-Mo.) wrote in a social media post on Tuesday as the U.S. Supreme Court heard oral arguments in a case brought by a group of anti-abortion doctors aiming to curtail access to mifepristone—a medication used in more than 60% of U.S. abortions.
"Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate," Bush warned. "The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch."
Bush's office said she was the first member of Congress to demand the law's repeal since the U.S. Supreme Court overturned the constitutional right to abortion in the summer of 2022.
The Comstock Act, which hasn't been applied in a century and was repeatedly narrowed following its enactment, prohibits the mailing of any "instrument, substance, drug, medicine, or thing" that "may, or can, be used or applied for producing abortion." Legal experts have described the dormant law as the "most significant national threat to reproductive rights."
Given that "virtually everything used for an abortion—from abortion pills, to the instruments for abortion procedures, to clinic supplies—gets mailed to providers in some form," a trio of experts wrote earlier this year, the anti-abortion movement's "interpretation of the Comstock Act could mean a nationwide ban on all abortions, even in states where it remains legal."
"Enforcing a Victorian-era law would be deeply unpopular and Democrats have a chance to sound the alarm, take action in both chambers, and run on it."
The Biden Justice Department has argued that the Comstock Act "does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully."
But the law has nevertheless been cited with growing frequency by far-right advocacy groups and judges following the overturning of Roe v. Wade.
In 2023, a Trump-appointed federal judge in Texas, Matthew Kacsmaryk, invoked the Comstock Act in a decision suspending the Food and Drug Administration's 2000 approval of mifepristone. In 2021, the FDA said it would allow patients to receive abortion medication by mail—which Kacsmaryk claimed the Comstock Act "plainly forecloses."
That case, which has massive implications for abortion rights nationwide, is now before the U.S. Supreme Court.
During oral arguments on Tuesday, Justices Justices Samuel Alito and Clarence Thomas "repeatedly invoked the Comstock Act," The Washington Postreported, "pressing lawyers about whether the 1873 federal law should apply to abortion drugs sent through the mail today."
The justices' comments raised concerns that they could try to resurrect the Comstock Act in their coming ruling in the mifepristone case.
"While the Biden administration has issued guidance saying that the federal government
will not enforce the laws," the Post noted, "a future administration seeking to restrict abortion could choose to do so."
Donald Trump, the former president and presumptive 2024 Republican nominee, has expressed support for a national abortion ban.
Jezebel's Susan Rinkunas wrote Tuesday that "enforcing a Victorian-era law would be deeply unpopular and Democrats have a chance to sound the alarm, take action in both chambers, and run on it."
"We definitively have one lawmaker on board," Rinkunas added, referring to Bush. "Who's next?"
Keep ReadingShow Less
Container Ship That Destroyed Baltimore Bridge Has Troubled History
The Maersk-chartered MV Dali—which lost propulsion just before the collision—not only was involved in a previous crash, but was also briefly detained last year over problems with its propulsion system.
Mar 26, 2024
The mega-container ship that lost propulsion before toppling Baltimore's Francis Scott Key Bridge in a Tuesday morning collision was involved in a previous crash, and was cited last year for propulsion-related problems.
Newsweekreported that the Maersk Line Limited-chartered MV Dali—which crashed into the Interstate 695 Patapsco River crossing just before 1:30 am, causing the span to collapse and sending a construction crew into the water—collided with a wall in the harbor at Antwerp, Belgium in 2016. The accident, which was reported by Vessel Finder and other outlets at the time, was attributed to errors made by the ship's master and pilot.
The 9-year-old Dali was also detained by port officials in San Antonio, Chile last June after inspectors discovered a problem related to the vessel's "propulsion and auxiliary machinery," according toThe Washington Post, which cited records from the intergovernmental shipping regulator Tokyo MOU.
The ship's owner, Grace Ocean Private Ltd., and operator, Synergy Marine, "have been sued at least four times in U.S. federal court on allegations of negligence and other claims tied to worker injuries on other ships owned and operated by the Singapore-based companies," according toThe Associated Press.
Maersk was also sanctioned last year by the U.S. Labor Department for allegedly stopping employees from reporting safety concerns, documents published by The Lever revealed.
According to a July 14, 2023 Labor Department letter to Maersk regarding an Occupational Safety and Health Administration investigation, the Danish company "suspended and then terminated" a worker "in retaliation for reporting unsafe conditions and contacting the U.S. Coast Guard."
The fired employee "engaged in numerous protected activities" including reporting a leak and the need for repairs to a ship's cargo hold bilge system, alcohol use aboard the vessel by crew members, and inoperable equipment including an emergency fire pump and lifeboat block and releasing gear.
The search for six construction workers who were on the bridge when it collapsed into the river was suspended until Wednesday, according toThe Associated Press. The workers are presumed dead by their employer, Brawner Builders. Local media reported that multiple vehicles plunged into the river and that two workers—one of whom was briefly hospitalized—were rescued from the water.
Keep ReadingShow Less
Pentagon Urged to Just Say No to AI-Powered Killer Robots
"The Department of Defense should declare its opposition to the development and deployment of autonomous weapons."
Mar 26, 2024
The watchdog group Public Citizen on Tuesday led a letter urging Pentagon leaders "to clarify that the Replicator Initiative will not involve the development and deployment of autonomous weapons systems," also known as "killer robots."
Last September, U.S. Deputy Secretary of Defense Kathleen Hicks "asserted that the development of all-domain, attributable autonomy systems (ADA2) is an essential way for the Pentagon to maintain its comparative cutting-edge and keep up with the technological advancements of other states," notes the letter, which was addressed to her and Defense Secretary Lloyd Austin.
"However, those comments failed to specify whether or not supporting autonomous weapons systems is one of the key focuses of this initiative," the letter stresses. "When addressing whether or not 'ADA2 means weapons systems,' Secretary Hicks stated: 'That's a serious question to be sure. They are not synonymous. There are many applications for ADA2 systems beyond delivering weapons effects.'"
"Autonomous weapons are inherently dehumanizing and unethical, no matter whether a human is 'ultimately' responsible for the use of force or not."
Public Citizen and the 13 other organizations argued that "this is no place for strategic ambiguity. Autonomous weapons are inherently dehumanizing and unethical, no matter whether a human is 'ultimately' responsible for the use of force or not."
Deploying lethal weapons that rely on artificial intelligence (AI) "in battlefield conditions necessarily means inserting them into novel conditions for which they have not been programmed, an invitation for disastrous outcomes," the groups warned. "'Swarms' of the sort envisioned by Replicator pose even heightened risks, because of the unpredictability of how autonomous systems will function in a network. And the mere ambiguity of the U.S. position on autonomous weapons risks spurring a catastrophic arms race."
"We believe the Department of Defense should declare its opposition to the development and deployment of autonomous weapons," the coalition concluded. "However, even if you are not prepared to make that declaration, we strongly urge you to clarify that the Replicator Initiative will not employ autonomous weapons."
In addition to Public Citizen, the coalition included the American Friends Service Committee, Autistic Women & Nonbinary Network, Backbone Campaign, Demand Progress Education Fund, Fight for the Future, Future of Life, National Priorities Project at the Institute for Policy Studies, RootsAction.org, United Church of Christ, the Value Alliance, Women's International League for Peace and Freedom U.S., Win Without War, and World Beyond War.
The letter comes on the heels of Public Citizen releasing a report about the rise of killer robots, AI Joe: The Dangers of Artificial Intelligence and the Military.
The February report addresses the Pentagon's AI policy, the dangers of killer robots, the need to ensure decisions about nuclear weapons aren't made by automated systems, how artificial intelligence can increase not diminish the use of violence, risks of using deepfakes on the battlefield, and how AI startups are seeking government contracts.
The publication concludes with recommendations that Public Citizen president Robert Weissman echoed in a statement Tuesday.
"The United States should state plainly that it will not create or deploy killer robots and should work to advance global treaty negotiations to ban such weapons," Weissman said. "At minimum, the United States should commit that the Replicator Initiative will not involve the use of autonomous weapons."
"Ambiguity about the Replicator program essentially ensures a catastrophic arms race over autonomous weapons," he added. "That's a race in which all of humanity is the loser."
Keep ReadingShow Less
Most Popular