Trojan horses, The Transatlantic Trade and investment Partnership and the Rule of Law

I am worried by the possibility that the Transatlantic Trade and Investment Partnership, (TTIP for short) will become a binding treaty.  It’s negotiations are shrouded in secrecy, which should alert every citizen on the grounds that when our legislators, be it local councils or national governments, want to keep things quiet this is because they know we won’t like it or want it and they hope to slide it in under the radar.

The name resonates with worthy dullness, just another bureaucratic regulation of trade between the EU and USA, nothing could be further from the truth.   TTIP is different, because tariffs are already very low between the EU and US, it will focus on “non-tariff” barriers, which essentially means regulations that get in the way of trade and investment.

There are as usual  a number of disparate strands bound up in the negotiations but the one that concerns me most and should set every citizen’s alarm bells ringing wildly is the part that deals with Investor State Dispute Settlement.   This is an assault the fundamental principle of the rule of law on which our democracies on both sides of the Atlantic are based.   ISDS in effect grants multinationals the same legal position as a nation-state itself, and allows them to sue sovereign governments in so-called arbitration tribunals on the grounds that their profits are threatened by government policies.  Corporations are legal entities they are not nation states and to conflate the two is a dangerous and suicidal path for any democracy.

I read law and as part of my degree I studied Roman law.  In particular Cicero, a great Roman Jurist writing in the dying days of the Roman Republic who said ‘Omnes legum servi sumus ut liberi esse possumus’, which translates as ‘We are all servants of the laws in order that we may be free’.   Often paraphrased and understood by all of us as ‘no-one is above the law’.  The rule of law protects the individual from the overweening might of the state, from the exercise of arbitrary power.  Laws do not exist in a vacuum; law is a social institution as it relates to the larger political and social situation in which it exists.  We frame the laws we perceive as needed to create the society we want, in turn those laws inculcate in us a way of thinking about the world.

What characterises our view of a fair and just society?  Why do we invoke ideals such as Liberty, Equality, Justice?   I would be the first to admit that there is no uniformity within us as a society; individuals range across a spectrum of opinions as to what these concepts actually mean but the fact that we ask these questions, that we have some common frame of reference is the result of growing up and developing as part of a democratic society whose laws are framed to reflect the concept that no-one is above the law, that we are all entitled to vote, that we can hold public officials to account for misuse of power.   Corporations are legal entities; they are and should be subject to the same laws as the rest of us.  TTIP will enable companies to sue a government if it does something that threatens their revenues, such as banning a product on health grounds, or repealing laws allowing marketisation of a public service.  The banking sector is remarkably keen on this provision which would make it almost impossible to regulate financial services.  That alone should make all of us shudder.  The point of democracy is that we the people vote for the politicians.  They represent us and are accountable to us, so if we vote for a government that for example requires GMO ingredients in food to be clearly labelled because that is what we want, then all of us must abide by that law.  There are no exceptions, no-one should be above that law but the TTIP will put corporations in the privileged position of being able to sue the nation state for unlimited compensation for loss of their future profit not in the Courts like the rest of us but in a special non judicial tribunal organised under World Bank rules with no appeal mechanism.

We protest about many things and rightly so, freedom of speech, freedom of assembly and the ability of citizens to get together and say we don’t like or want this is fundamental to our democracy.  Often it is the sheer number of people who turn out or who sign petitions that lets the politicians know that pushing this piece of legislation through Parliament is very likely to lose them the next election and then they row back from it at least in the short term.   The Treaty of Lisbon introduced the European Citizens Initiative to increase direct democracy.  This allows petitions to be presented to the European parliament and the matter debated once a million signatures have been collected.  The procedure for registering the initiative is straight forward and most initiatives that fulfil the requirements are registered, (this does not necessarily mean that the initiative will succeed it merely enables the collection of the necessary signatures) interestingly registration of the ECI against the TTIP has been rejected despite already having collected 750,000 signatures in more than the minimum number of countries.   Protests and efforts to get the ECI registered continue and we shall see what the outcome will be.  Not registering it is a way of shutting the door to the citizen’s voice being heard in this matter.

Trojan Horses have become a by word for winning by stealth and this agreement is definitely a Trojan horse placed at the gates of democracy.  We need to hog tie it and remove it not drag it in through the gates and then sit in the ashes and ruins bewailing our fate.

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