2016-06-06

More on ISDS in TPP and Other So-Called Free Trade Agreements

Canadians have been asked for our thoughts on the Trans Pacific Partnership and I submitted the following:

“O Canada,
We Stand on Guard for Thee,”
To Keep Our Sovereign Right to Democratically Govern Ourselves, Free from Attack Through ISDS in TPP.
A personal submission to the House of Commons Standing Committee on International Trade as it studies the Trans-Pacific Partnership (TPP) agreement to assess the extent to which the agreement, if implemented, would be in the best interests of Canadians.
I write to call on our new government to reject the TPP – it is a legacy of former Prime Minister, Steven Harper, that will block real change for which Canadians voted. Canadians can do better than this dangerous, costly, and outdated bad deal. It will kill jobs, undermine environmental protections, restrict free expression online, and, most seriously, erode our democratic rights, permitting international corporations to attack our sovereign right to govern ourselves. I was dismayed when Minister Freeland signed TPP on February 4th without free and open consultation with Canadians as Mr. Trudeau promised.
During last Fall’s election, at the announcement of successfully completed TPP negotiations, no one within the Liberal Party of Canada raised Canada’s participation in this agreement with its sovereignty attacking investor/state dispute settlement (ISDS) provision as the fundamental issue it should have been. I really do not understand why our sovereignty did not take front and centre as THE issue through the election campaign. I asked my local candidates on more than one occasion to address the issue and subsequently also asked my new MP, now a Cabinet Minister. After all, if international corporations can sue Canada in SECRET when the new government takes action to correct the damage inflicted by the previous government, we will find ourselves impotent to act. Nobody has ever responded to my requests. I have no problem with free trade, as such; I do see that betraying Canada's sovereignty as entirely another matter.
Our previous government negotiated in secret, then signed the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and secretly negotiated the Trans-Pacific Partnership (TPP) which Minister Freeland has now signed. Both now await ratification. It had also signed other so-called free trade agreements and brought Canada into the Trans-Atlantic Trade and Investment Partnership (TTIP), and the Trade in Services Agreement (TiSA) secret negotiations, all of which include provisions for ISDS by which international corporations can turn to the International Centre for Settlement of Investor Disputes (ICSID) and sue Canada in SECRET TRIALS by tribunal outside of any national judiciary to overturn new law enacted out of our sovereign right to govern ourselves. Thus, Canada will have to clear such new laws, regulations, and court judgements with corporate head offices in order to bring them into effect and hope to remain safe from attack.
As I understand it, the evil of ISDS lies in its capacity to defeat the sovereign right of nations to govern themselves through secret trials without recourse to appeal. Thus, ISDS detaches international corporations from being subjects of nations to, in effect, non-territorial kingdoms equal with, or masters of, no longer fully sovereign nations while reducing participating nations, Canada included, to resource and labour colonies of those corporations. For suborning Canada’s sovereignty to international corporations through ICSID, former Prime Minister Harper and those of his ministers involved in these negotiations should be called to answer to the charge of treason.
If my understanding of this fundamental issue is not sound, please educate me and all Canadians as to just how it is that:
  • Negotiations towards TPP and similar so-called free trade treaties have not been, and are not being, conducted in secret with the only people granted access to Canada’s government trade negotiators being representatives of international corporations but rather, the Canadian public is openly kept informed of progress through these negotiations and that:
  1. wholly domestic Canadian businesses with interest in how international trade may affect their own business operations,
  2. organizations concerned about environmental issues and how international trade may impact the Canadian and worldwide environment,
  3. labour organizations with concerns about how international trade may affect working Canadians,
  4. Canadian agricultural organizations with concerns about Canadians’ capacity to feed ourselves while also trading internationally,
  5. organizations attentive to health and safety issues and concerned with the effect of international trade on those issues, and
  6. others with interest in the effect of international trade on Canadian society
           all also have the same access to Canada’s government trade negotiators;
  • Canada submitting to ICSID and its ISDS secret trials may not constitute suborning of our sovereign right to govern ourselves;
  • ISDS proceedings may not raise international corporations from being subjects of nations to, in effect, non-territorial kingdoms, equal with, or even masters of, nations;
  • ISDS proceedings may not actually be SECRET TRIALS, utter anathema to a free and democratic society, but be open and public;
  • Decisions by ICSID tribunals in ISDS suits may be appealed to a higher court;
  • ISDS suits may be in either direction to allow nations to sue corporations, not just corporations to sue nations; and
  • ICSID tribunals made up of corporate lawyers (one selected by the suing corporation, one by the defending nation, and one so-called neutral, but all drawn from corporate legal practice and vested in corporate interests) may actually be fair and impartial judges of ISDS suits.
If committee members cannot satisfy yourselves on every point above nor educate me and Canadians across the country on each point, and the government does actually ratify TPP to confirm the previous government’s abrogation of Canada’s national sovereignty, may I respectfully suggest that Liberal members cross the floor of the House of Commons to sit as independent MPs or with the one caucus that seriously strives to  retain our sovereignty.
I can only hope that this committee and Parliament will advise Mr. Trudeau and the government to do the right thing and refuse to ratify TPP and CETA as each comes up for ratification unless the sovereignty-destroying ISDS provision gets stripped from these agreements and that he withdraws Canada from the secret TTIP and TiSA negotiations as long as they remain secret (after all he promises to be open with Canadians) and also contain the sovereignty deleting ISDS provision.
Please share your thoughts on this vitally fundamental issue in Parliament and publicly with voters all across Canada.
Respectfully submitted by,
Edwin M. Hopkins,
4340 49th Street,
Delta, BC V4K 2S7,

2016, April 18.

I made my submission as a brochure, with text box items added:

First text box:
The now departed so-called loyal Conservative government secretly negotiated, then signed, and eventually ratified the Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA) which goes far beyond simply providing for freer trade but, in effect, diminishes Canada to a resource colony of the Communist dictatorship in Beijing for the next thirty years. With the inclusion of the ISDS provision, Chinese firms (which are merely arms of the Chinese Communist dictatorship) with investments in Canadian business now have the right to sue Canadian federal, provincial, and municipal governments in SECRET TRIALS if new environmental, labour, health and safety, business practice, etc. law impinges on their investment. That is to say, Canada now has to clear such new laws, regulations, and court judgements with Beijing in order to bring them into effect.

Second text box:
Although the ICSID with its ISDS has existed for quite some time, I, along with most of the Canadian public, was not aware of this danger to Canada's sovereignty. This may, in part, result from international corporations only recently taking to exploiting ISDS to their advantage, challenging national governments more frequently than through previous decades. I did not recognize the danger back when NAFTA was negotiated, signed, and ratified.  Recently, I learned that, as a consequence of ISDS in NAFTA, Canada is already the developed nation most frequently attacked with ICSID suits. Only with publicity of controversies at the time of the Canada-China FIPPA announcement and eventual ratification did I came to understand the threat Canada faces. ISDS forms part of very many modern so-called free trade agreements and through that provision international corporations now seek to detach themselves as subjects of nations and hold themselves as equals with, or masters of, nations and attack nations' sovereign right to democratically govern themselves.
This establishes a dangerous trend by which Capitalism degenerates toward Capital Feudalism:
  • Capital replaces land as the feu;
  • International banking replaces the Church as the outside power;
  • Non-territorial international corporations replace kingdoms as the fundamental holders of the feu;
  • Corporate CEOs replace kings as the authorities by which the feu gets distributed and to whom loyal attachment must return;
  • Major corporate internal divisions and subsidiaries replace baronies, earldoms, dukedoms, counties, etc. as subordinate holders of the feu;
  • Corporate vice presidents, very senior managers, and subsidiary CEOs replace the various Lords of the Realm;
  • Corporate managers and highly skilled technical professionals replace knights;
  • Contractors replace the freeman peasantry; and
  • Ordinary common working people are reduced to the new serfs;
  • All while the role of sovereign nations and democratic decision making diminishes into insignificance.
This trend must not be permitted.

This included a positive suggestion:

Third text box:
Instead of ISDS, Canadian operations of international corporations that find themselves at issue with our governments at any level should bring the matter to an open and public Canadian court within the Canadian judicial system for decision under Canadian law in the same way as Canadian corporations and Canadian citizens must do. If an issue exceeds the competence of Canadian courts, an international corporation should publicly request its home nation government (by home nation, I do not mean that nation within which an international corporation locates its corporate head office, I mean that nation in which the plurality of the corporation's equity capital ownership resides) to pursue the matter in an open and public international court on a sovereign nation versus sovereign nation basis that clearly holds international corporations as subjects of sovereign nations and not as equals with, nor as masters of, sovereign nations.