Why The European Commission's Consultation On Corporate Sovereignty Is A Sham (And How To Respond To It Anyway)
from the make-your-voice-heard dept
One measure of the resistance to the inclusion of corporate sovereignty provisions in TAFTA/TTIP is that the European Commission unexpectedly announced that it would be holding a three-month public consultation on this aspect in an attempt to defuse public anger. Here's the consultation's home page:
The European Commission is consulting the public in the EU on a possible approach to investment protection and ISDS in the TTIP. The proposed approach contains a series of innovative elements that the EU proposes using as the basis for the TTIP negotiations. The key issue on which we are consulting is whether the EU's proposed approach for TTIP achieves the right balance between protecting investors and safeguarding the EU's right and ability to regulate in the public interest.
As that shows, at the heart of the exercise is the misguided belief that protecting investors is somehow comparable to protecting the public interest and national sovereignty, and that a "balance" has to be struck between the two. No wonder, then, that the consultation itself is a sham: it does not seek people's views on whether investor-state dispute settlement (ISDS) is needed at all, only what form it should take, down to extremely technical details that will be incomprehensible to anyone not an expert in international trade law.
The structure of the consultation document (pdf) reflects this: 12 highly-specific questions about aspects such as "Scope of the substantive investment protection provisions" and "Appellate mechanism and consistency of rulings", and only one more general one: "What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US?" On top of that, you must answer all 13 questions in 90 minutes, and it's not possible to save your answers and return to them later (but the digital rights group EDRi has created an online tool that lets you do that.) A cynic might almost think the European Commission is trying to make it hard for the public to participate.
As the closing date of the consultation (6 July 2014) approaches, a number of organizations have put together handy guides to filling it in -- it's open to everyone, not just EU citizens. Here, for example, is the Answering Guide from EDRi (pdf), which helpfully explains what exactly the often opaque questions mean, then suggests a number of points you might like to mention in your reply. A new site with the self-explanatory name of "No 2 ISDS!" also runs through each question in turn, but offers rather more forthright suggestions. Here's a typical sample:
Question 5: Ensuring the right to regulate and investment protection
Naturally, the open-ended last question provides the people behind the No 2 ISDS! site with more scope for expressing their views on the consultation:
I fundamentally oppose the fact that investment protection is placed above the sovereign right to regulate because:
Rules emerging from a democratic voting process (democratic and parliamentary decision-making process), which reflect the public interest and the will of millions of people, must always be weighted more heavily than private sector vested interests.
Fundamental social rights and human rights must not be limited by economic freedoms.
Are there any other issues related to the topics covered by the questionnaire that you would like to address?
A similarly robust reply is offered by the Trade Justice Movement, whose answer to Question 13 begins as follows (Microsoft Word document):
First of all I would like to express my deep concerns with this highly complicated and technical questionnaire. If a consultation asks for the contribution of civil society/the public, then an honest attempt should be made whereby non experts should be able enabled to contribute. This is definitely not the case with this consultation, especially because, up until this question, there has been no possibility to state that I do not want any investor-state dispute settlements at all -- in TTIP, or in any other trade agreement. Furthermore, technical obstacles that prevent me from only filling in one part of the form, or to respond through email or fax fundamentally alter the "public" character of this consultation.
There are serious flaws in this consultation process. First: it fails to give European communities the possibility of responding to the proposed TTIP in its entirety. The EU should provide this opportunity, particularly in light of the controversy regarding issues such as the secrecy surrounding the negotiations and the undermining of basic democratic processes, regulatory harmonisation and the impact on standards, the impact on jobs and on the economies of non-Party countries.
It makes an important point about one of the serious knock-on effects of the questions' opacity:
Second, the consultation is written in such a technical (and occasionally obscure) language that it excludes everyone but investment law experts. As most of these are arbitration practitioners, the questionnaire in effect invites ISDS-friendly responses by design.
And continues with these excellent points:
Third, the consultation is not in fact a consultation on the TTIP text but on a CETA text that was valid in March but has since progressed further in the CETA negotiations. In addition, the Commission says that it wants to build on CETA but also refer back to existing treaty practice. It is therefore a consultation on a non-existent text; given the significance of the details, this renders the consultation all but useless.
This gives an indication of the quality and thoughtfulness of the responses that are currently being made to the corporate sovereignty consultation, and of the rich materials that citizens can draw upon in making their own comments. The European Commission certainly won't be able to claim that no one cares whether ISDS is included in TAFTA/TTIP -- the level of public interest in this previously obscure aspect of international trade law is unprecedented. Whether Karel De Gucht, the European Commissioner responsible for the negotiations on the EU side, is willing to take note of all the important points raised above and act on them, is quite another matter, though.
Fourth, the consultation starts from the assumption that ISDS should be in the agreement. This is despite the fact that in the negotiating mandate it states that "the inclusion of investment protection and investor-to-state dispute settlement (ISDS) will depend on whether a satisfactory solution, meeting the EU interests concerning the issues covered by paragraph 23 is achieved".