Sessions’ TPP Misconceptions

There are probably a wide range of reasons to object to Senator Jeff Sessions as President-elect Trump’s choice for Attorney-General. I’ll leave it to others to explain the concerns with Sessions in that role, but there is an issue with his understanding of trade agreements that I think is worth highlighting. Sessions has been repeating an objection to the Trans Pacific Partnership (TPP) that completely misunderstands the text of that agreement, and it is worth correcting the record.

The issue relates to the governance of the TPP. Sessions believes there will be a TPP Commission that acts as a supra-national governing entity and can override domestic laws. Here’s something he said last year: 

Among the TPP’s endless pages are rules for labor, environment, immigration and every aspect of global commerce – and a new international regulatory structure to promulgate, implement, and enforce these rules.  This new structure is known as the Trans-Pacific Partnership Commission – a Pacific Union – which meets, appoints unelected bureaucrats, adopts rules, and changes the agreement after adoption.

The text of the TPP confirms our fears, plainly asserting: ‘The Parties hereby establish a Trans-Pacific Partnership Commission which shall meet at the level of Ministers or senior officials, as mutually determined by the Parties,’ and that ‘the Commission shall’:

  • ‘consider any matter relating to the implementation or operation of this Agreement’;
  • ‘consider any proposal to amend or modify this Agreement’;
  • ‘supervise the work of all committees and working groups established under this Agreement’;
  • ‘merge or dissolve any subsidiary bodies established under this Agreement in order to improve the functioning of this Agreement’;
  • ‘seek the advice of non-governmental persons or groups on any matter falling within the Commission’s functions’; and
  • ‘take such other action as the Parties may agree’.

Further, the text explains that ‘the Commission shall take into account’:

  • ‘the work of all committees, working groups and any other subsidiary bodies established under this Agreement’;
  • ‘relevant developments in international fora’; and
  • ‘input from non-governmental persons or groups of the Parties’.

This global governance authority is open-ended: ‘The Commission and any subsidiary body established under this Agreement may establish rules of procedures for the conduct of its work.’  It covers everything from the movement of foreign nationals: ‘No Party shall adopt or maintain…measures that impose limitations on the total number of natural persons that may be employed in a particular service sector… in the form of numerical quotas or the requirement of an economic needs test’; to climate regulation: ‘The Parties acknowledge that transition to a low emissions economy requires collective action.’

These 5,554 pages are like the Lilliputians binding down Gulliver.  They will enmesh our great country, and economy, in a global commission where bureaucrats from Brunei have the same vote as the United States.

At bottom, this is not a mere trade agreement.  It bears the hallmarks of a nascent European Union. … 

In August of this year, he said something similar:  

The TPP permanently alters the landscape. The 5,554-page accord, disguised as a simple trade agreement, commits the American people to an international commission with the power to act around Congress. It allows 12 nations, some with less than 1 percent of the GDP of the United States, an equal vote in the TPP Commission. Actions by this commission separate the American people from the policy decisions that affect their lives. The TPP Commission is a direct threat to representative democracy and accountability. 

The reality is very different. To be clear, there is in fact something called a TPP Commission, established in Chapter 27 of the agreement, which is titled Administrative and Institutional Provisions. Article 27.1 says: “The Parties hereby establish a Trans-Pacific Partnership Commission (Commission), composed of government representatives of each Party at the level of Ministers or senior officials. Each Party shall be responsible for the composition of its delegation.” And it does have the tasks he mentions, as set out in Article 27.2.

But if you just read down one more provision, to Article 27.3, you can see why this Commission is no threat to anyone’s sovereignty or democracy:

Article 27.3: Decision-Making

1. The Commission and all subsidiary bodies established under this Agreement shall take all decisions by consensus, except as otherwise provided in this Agreement, or as otherwise decided by the Parties.2  Except as otherwise provided in this Agreement, the Commission or any subsidiary body shall be deemed to have taken a decision by consensus if no Party present at any meeting when a decision is taken objects to the proposed decision.

——————–

FN. 2 For greater certainty, any such decision on alternative decision-making by the Parties shall itself be taken by consensus.

2. For the purposes of Article 27.2.2(f) (Functions of the Commission), a decision of the Commission shall be taken by agreement of all Parties. A decision shall be deemed to be reached if a Party which does not indicate agreement when the Commission considers the issue does not object in writing to the interpretation considered by the Commission within five days of that consideration. 

Basically, this provision says that all decisions of the Commission have to be by consensus of all the governments who are parties to the TPP, one of which is the United States. In other words, no decision can be made unless the U.S. government agrees to it. And while the provision mentions that the parties can decide to take decisions in a manner other than consensus, note that footnote 2 says that the decision to do so must itself be taken by consensus, so the U.S. would have a veto here as well. (There is also a clause that says “except as otherwise provided in this Agreement,” but that applies to a very limited number of situations, such as the special decision-making procedures for accession of new countries to the agreement.) 

Furthermore, when it comes to the only provision that envisions the Commission actually modifying the TPP, Article 27.2.2(c), the provision requires both consensus among parties and the “completion of any necessary legal procedures by each Party.” In the United States, this would mean implementation of the relevant TPP modification pursuant to the TPP Implementation Act passed by the U.S. Congress or new congressional legislation. This provision thus underscores the Commission’s—and the TPP’s more broadly—deference to the sovereignty of each TPP party, including the United States.

What this all means is that there will be no “Pacific Union,” no “nascent European Union,” and no “unelected bureaucrats” adopting rules and changing the agreement after it has been concluded. 

And just to be clear, this Commission is not some nefarious innovation created by the Obama administration as part of the TPP negotiations. Rather, similar bodies have been part of U.S. free trade agreements for a long time. (Examples from Bush-era trade agreements are here and here.) Practically speaking, based on how the same thing works in other trade agreements, what the Commission means is this: if the TPP comes into force, the governments would meet occassionally and talk about how the agreement is working. They will offer diplomatic statements, express concerns, and have long discussions. Every now and then they will actually have to make a decision. But again, unless all the governments—including the U.S.—agree, no decision will be made. 

There may be other reasons Sessions opposes free trade or trade agreements, but we should not let the real debate get thrown off course by misconceptions about how these agreements operate.

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