53 thoughts on “The TPP: an attack on our freedoms

  1. Thanks John,

    A great piece, though the way the Federal government seems to be deindustrializing and deregulating the country internally targeting every socially progressive policy there is, you have to wonder whether in the end it will matter that much.

    Being perversely optimistic I wonder if giving the tobacco companies open slather might even galvanize honorable creative civil disobedience like the 1970s of BUGA UP, and discredit capitalism as a credible handmaiden for achieving a ecologically sustainable future…..a bit like Abbott who currently seems to be doing his bit at the moment for discrediting neoliberalism by trying to impose it in a thugish clumsy manner while many of his smarter mates keep their chain mail fists clothed in velvet gloves e.g. the NSW coalition with its electricity sell off and of course warm and fuzzy Mr T.

    Then, thought, if there was a rise in activism, I guess we would then see laws against any aiding and abetting of the kind many doctors provided in the case of BUGA UP with their legal support, along the lines of the Tasmanian pulp mill machinations.

    Perhaps for your next piece you might explore for us why given the TPP/MAI processes and the associated bad faith we can ascribe any capacity for ethical behaviour to big business at all and hence whether carbon trading is as a result a dead end because it is premised on big business giving a damn about ethics and social issues more broadly and supporting sovereign governments rather than trying to whiteant them.

  2. Thanks JQ for this forthright assessment. And thanks Newtonian for the prior comment, with which I agree.

    Political economy, as JQ illustrates here, is at least as much about the ecological and human consequences of economic activity as it is about the dismal science’s measures of success. I like the rather angry tone of JQ’s essay. Quite justified, in my view.

  3. We should thank Julian Assange for setting up Wikileaks. As Professor Quiggin pointed out, by leaking the intellectual property and environment chapters of the TPP, Wikileaks blew the whistle on the TPP scam.

    Sadly, today marks the 1,000th day in which Julian Assange has been confined to the Ecuadorian embassy in London. He sought refuge in the Ecuadorian embassy on 19 June 2012 to avoid extradition to Sweden to face trumped up charges for rape. Given that, until very recently, the Swedish prosecutor refused Assange’s request to be interviewed about the charges inside the Ecuadorian embassy, the rape charges are clearly no more than a ploy to have Manning extradited from ‘neutral’ Sweden to the United States, where a fate similar to that of Iraq War whistleblower Chelsea Manning, locked away until 2048, awaits him.

    Given the the Australian government’s complicity in the TPP and its past complicity in the same illegal wars against Iraq, Afghanistan, Libya and Syria that Assange and Manning have blown the whistle on, it is hardly surprising that neither Prime Minister Tony Abbott nor Foreign Minister Julie Bishop have had anything to say about this outrageous treatment an Australian citizen by Britain and Sweden.

  4. @James

    If the US government were pursuing the objective of having Julian Assange extradited to the US, it would have been easier and simpler for them to have made a request for extradition by the UK directly to the US. Using Sweden as an intermediate stage could only made the process harder and more complicated for the US. Possibly there is a US plan to seek the extradition of Julian Assange (I wouldn’t know), but even if there is it is not a plausible explanation of Sweden’s extradition request.

  5. Excellent piece. We need much more debate about the TPP and how dangerous it is and will be to democracy, equality and human rights. The characterisation that it is all about corporate rights (and by implication oligarchic profits) is 100% correct.

    We have reached a fundamental divide where we must decide, within the next decade or so, whether we remain a democracy or we succumb to corporate dictatorship. Our democracy is rapidly slipping away. There is still time to save it but not much time. It’s the 11th hour.

  6. I have several friends who work or have worked at IBM. If they want to get rated more highly, they must write patents. Useless patents, but IBM is a patent troll, and will use their patents to extort money.

    So if big businesses like IBM have input into the TPP, then heaven help us.

  7. @John Brookes

    That’s amazing. I thought IBM had gone bust and disappeared! I look them up on Wikipedia and I find out how wrong I am. They have gone all “patent-troll” and “fabless”. Yes, “fabless”. Look it up. Well, maybe not “all” yet. They are still a big, rich company. It shows how much I know (very little). I would guess that IBM are into the TPP in a big, big way.

    As well as “Financialisation” and “Dematerialisation” we now have “the Fabless-isation” of the economy. In a sense, one can understand why a TPP becomes so important to the US at this stage in capitalist economic history. It’s the final drive to the point of designing everything, owning everything but making nothing. Making is the dirty work outsourced to the third world.

    Going fabless is only possible if someone, somewhere is still fabbing (fabricating). I would guess that China is very happy for the USA to go “fabless”. China just can’t wait until the US is totally fabless. 😉

  8. @James

    A quibble, probably ‘major’ rather than ‘minor’: there are no “charges”.

    Assange is wanted for QUESTIONING. He has not been charged.

  9. So what is the ALP’s view on all this?

    Do proposed Treaty’s have to go through Parliament?

    Or can the Senate intervene, on its own motion, for production of papers?

  10. @Ivor

    Do proposed Treaty’s have to go through Parliament?

    From Wikipedia:
    “In Australia, power to enter into treaties is an executive power within Section 61 of the Australian Constitution. Thus the Australian Federal Government may enter into a binding treaty without seeking parliamentary approval. However, implementation of treaties does require legislation by Federal parliament, following Section 51(xxix) of the Australian Constitution” (the external affairs power).

    Things are different in the U.S.. The executive branch through the President may conclude treaties with foreign powers, but a 2/3 vote by the Senate is required for approval, and then the President may ratify the treaty.

  11. J-D wrote on March 16th, 2015 at 18:52:

    If the US government were pursuing the objective of having Julian Assange extradited to the US, it would have been easier and simpler for them to have made a request for extradition by the UK directly to the US.

    In Britain, unlike in Sweden, there is a large anti-war movement, including independent member of the House of Commons, George Galloway. Given that that anti-war movement prevented the United Kingdom joining the United States’ planned military aggression against Syria in September 2014, thus preventing the planned invasion of Syria, I could well imagine there would be very serious domestic political repercussions for Prime Minister David Cameron had he attempted to extradite Julian Assange to the United States. Presumably that is one reason why the allegation that Julian Assange had raped two Swedish women in August 2010 was concocted. If he had been parcelled away to a country where fewer people spoke English and there is less public awareness of his case, he could have been far more easily extradited to the United States to face the same sort of ‘justice’ that Chelsea Manning is now receiving.

    J-D continued:

    Possibly there is a US plan to seek the extradition of Julian Assange … but even if there is it is not a plausible explanation of Sweden’s extradition request.

    ‘Neutral’ Sweden, like much of Eastern Europe, is, in fact clearly acting as an ally of the United States in its planned military aggression against Russia. The Swedish government has every interest in helping the United States to silence Julian Assange and Edward Snowden, who have revealed to the world, much damning evidence about the United States’ government.

  12. Interestingly, Ian Verrender has an article critical of the TPP up at the Drum..

    What is it with you economists and zombie politicians?

    Poor old Leventy got absolutely mauled by another one, John Daley, on QA last night, tsk.

  13. Prof. Quiggin, your last para bothers me: why on Earth would Labor NOT oppose it, given its likely rancid content?

    Please, this is a seriousquestion.

  14. @James

    You write about what you ‘could well imagine’. About that I don’t disagree: you can imagine a lot. But what you imagine does not change the facts. Political circumstances in the UK did not prevent the UK courts approving the Swedish extradition request, nor have they prevented the continuing UK government efforts to enforce the UK court decision (I mean, the continuing police presence around the Ecuadorian embassy). There is no reason (outside your imagination) to believe that political circumstances in the UK (of the kind you refer to) would have had any influence over the decision by the UK courts and the UK government on an extradition request from the US, if one were made.

    If Julian Assange or his lawyers had any evidence that the Swedish extradition request was made at the behest of the US in order to secure Assange’s transfer there, it would have been clearly in their interest to produce it during the UK court hearings; since they didn’t, the plausible conclusion is that there is no such evidence.

  15. @J-D

    I imagine the US would have a Plan A and a Plan B with respect to getting their hands on Julian Assange. But there I go just imagining things again!

  16. Paul Walter – while your question was directed at JQ I will have a crack because it is pretty obvious. Labor will not oppose the TPP because it has swallowed the cool aid of neoliberal globalization. Free trade delivers jobs and growth – that’s all you need to know. In an earlier era, Lenin referred to the ALP as the ‘capitalist labor party’, but it was Whitlam who cut tariffs by 25% across the board in 1973 and Keating/Hawke that instigated the wide-ranging ‘reforms’ to ‘integrate’ Australia into the global economy in order to drive competitiveness and productivity. It was under a Labor government that Australia entered the TPP negotiations in 2008. It was Labor who voted with the Coalition against Greens senator Peter Whish-Wilsons’s 2014 private members bill to prevent the signing treaties containing investor state dispute settlement provisions. And importantly it is Labor who are unable to sell the message to voters that they are as pro-capital as the Coalition – try as they might. Labor will not be wedged on this one although, as you allude, it is a bad deal. It does not help that (as JQ notes) the financial press is utterly uncritical and that opposing any deal would mean picking a fight with the ‘business community’ – the BCA ACCI etc.

    And on that note, Arthur Laffer is in Australia as a guest of the ACCI. He was on RN this morning (still) explaining that the way to increase government revenue is to cut taxes. While admitting his total ignorance of Australia’s fiscal (and general economic) situation he opined that the structural deficit was unlikely to have anything to do with Howard’s tax cuts – indeed the opposite is the case! Zombie economics?

  17. @John Brookes
    Your comments on IBM reminded me of the vulture funds trying to undermine penniless African countries (the Argentina case appears a bit messier). The corporate attitude sounds similar where economics is a tool for the rich to gain a larger slice of global wealth rather than a discipline designed to promote human wellbeing overall.

    Old Karl’s critiques of capitalism once contrasted more parasitic rentier capitalism where money came from just squeezing farm workers as compared to entrepreneurial innovation driven capitalism of the industrial revolution which he saw as more progressive.

    It appears based on the likes of the vulture funds, the TPP, IBM and of course the rise of modern finance capitalism that we are now entering a new golden age of rentier capitalism despite the 2008 crisis. Indeed this seems to have emboldened them that they can get away with any rubbish.

    Part of the source is clearly the Gordon Gecko’s of the world, like say Fred the Shred, but sadly we are part of the problem also. As superannuants or superannuation acquirers most of our investments are tied not to direct innovative investments but to interest earning cash and bonds, and shares only 20% of whose value lies in tangible assets, the other 80% being pure speculation/notional (I’m not sure of the precise primary basis of this percentage but this was a figure I heard from some PWC reps answering questions at an ecological sustainability workshop a year or so back).

    And then there is real estate much of whose value is tied up in land whose increase in value is notional/inflationary. But also even the solid bits and pieces have the economic rationalism embedded. Because they only need to last a limited period buildings now have a decreasing short half life where less sustainable materials are used because they are cheaper but are sufficient for a sale – a builder friend told me that the half life is about 20 years and separately I’ve had to do a literature review on building component half lives to understand their life cycles, whose figures more or less tally with this.

    It is an interesting feature of modern buildings that they are not designed to survive as long as bricks and mortar and hardwood of old irrespective of redevelopment. But who could tell from the outside. Still the issue is not hard to understand. In parts of Europe you have bridges that have lasted for hundreds of years. By contrast if you go to the US now you see the rust and other evidence of crumbling infrastructure built during their golden years of the 50s-70s.

    Overall this picture of our society suggests the future will be increasingly one of stagnation and humans fighting for control over a decreasing cake at small and large scales using a combination of legal machinations and coercive force. Thus sadly the TPP scam is just part of a larger trend which might be described as stagnation.

  18. @paul walter

    paul walter :
    Prof. Quiggin, your last para bothers me: why on Earth would Labor NOT oppose it, given its likely rancid content?
    Please, this is a seriousquestion.

    Sadly Paul Labor does not always base its policies on left libertarian principles .

    An illustration of this occurred 30 years ago when Hawke/Keating tried to impose the Australia Card on us on the excuse it was for our own protection – as we are currently seeing now recycled by Abbott. The population didnt want it but Hawke the supposed great union man tried very hard to get universal ID cards in place.

    The only opposition internally was from Senator George Georges who I understand was rapidly brought into line by his colleagues. I could not fathom it.

    I once thought that most of the Labor Party would have read Orwell, and be deeply suspicious of police state type policies after the anti-Communist purges and the behaviour of Bjelke Petersen with his police state corruption which illustrated how governments will periodically abuse power if they get half a chance – and hence been furiously opposed to such technology.

    But now with the experience of age I see that many people on the left as well as the right are antidemocratic as heart – authoritarian/born to rule/vanguard of the revolution/stalinist/crypto-fascist call them what you will.

  19. @Newtownian

    You analysis is correct. You wrote, “we are now entering a new golden age of rentier capitalism.” This very much tallies with Piketty’s conclusions. Of course, the much-maligned Karl M. predicted all this in broad terms.

    We are certainly entering stagnation. There are a number of over-lapping causes for it. I would nominate the main causes as;

    (a) limits to growth (including climate change)
    (b) limits to technology (yes, technology and Moore’s Law will hit limits too);
    (c) over-accumulation of capital (the crisis of capital accumulation);
    (d) the capitalist command and control system itself.*

    The capitalist command and control system means decisions on production are not made democratically. This is a key flaw as only the people en masse know what is best for the people and by implication the planet (only the poor and the middle hurt when the planet is hurt). The oligarchs are insulated and will be safe in artificial enclaves for quite a long time… unless radical changes occur.

  20. Newtonian – the TPP is part of a larger trend, or series of trends that may or may not be related. In addition to the ‘rentier capitalisim’ trend, we see the rise of China and other ‘emerging economies’ two decades after the reintegration of the global economy that occurred with the fall of the wall.

    The TPP and its Atlantic cousin, the TTIP are being pursued because of the inability of the big industrialized economies to push their agenda onto the ‘developing’ countries at the WTO. They have been trying to get TRIPS plus provision into the WTO since its early days (note that the US collects 40% of all global intellectual property rents). Trade economists (at Peterson Institute etc) see the WTO as dead, buried and cremated, so state of the art ‘trade liberalization’ is being done in these more exclusive fora that are something like a free trade ‘coalition of the willing’. The TPP includes an open accession clause meaning anyone can join. Joe Biden explained that the ‘goal is for the high standards [of] the Trans-Pacific Partnership to enter the bloodstream of the global system and improve the rules and norms’. It will either make the WTO a redundant forum or else the TTP/TTIP provisions will eventually migrate back to the WTO (to enjoy whatever legitimacy still attaches to it).

    Perhaps that’s the problem with the TPP. By Australia agreeing to get screwed we are facilitating a broad passing of authority from public to private actors – a trend with its own venerable history.

  21. @Dave Lisle
    I heard Laffer this morning. Every time he made some outrageous claim (and there were quite a few) he said, “It’s just common sense” rather than produce any actual evidence.

  22. @Ikonoclast

    Perhaps my response to that is clear from my earlier remarks, but in case it isn’t I shall expand the point. But in order to avoid prolonging what is a derail here, I shall do so in the Weekend Reflections (there being no Sandpit or Message Board open for comments at the moment).

  23. J-D wrote on March 17th, 2015 at 05:57:

    If Julian Assange or his lawyers had any evidence that the Swedish extradition request was made at the behest of the US in order to secure Assange’s transfer there, it would have been clearly in their interest to produce it during the UK court hearings; since they didn’t, the plausible conclusion is that there is no such evidence.

    So, where should Julian Assange’s lawyers have looked for this evidence, J-D?

    Could you have you shown them where the where the records of all communications between the UK and Swedish governments were kept? And while you’re there can you show me where LBJ kept his correspondences about the 1964 Gulf of Tonkin Incident that he used as a pretext to commence carpet bombing of North Vietnam? And can you show me where the US government kept it’s discussions about the 1990 Kuwaiti Incubator Babies incident of 1990? or the 2003 Iraqi WMDs?

    J-D wrote previously:

    There is no reason … to believe that political circumstances in the UK … would have had any influence over the decision by the UK courts and the UK government on an extradition request from the US, if one were made.

    Whilst I am unable to comment on whether or not the UK judiciary would be influenced by political pressure from the government, given the fate of fellow whistle-blower Chelsea Manning, I don’t see why Julian Assange should be expected to rely on that judiciary to prevent the government from extraditing him to the United States.

  24. John, one of your best essay.

    The further behind the border these agreements go, the more likely they will be a bad deal as they increase regulation

  25. @paul walter

    Hi Paul,

    I think that the deal will include some limited trade concessions for agriculture and that Labor will find it too hard to argue the case against, even if quite a few people within the party are opposed.

    However, we can but hope. A vote against the TPP would be one way of rejecting the “small target” tag.

  26. @James

    I agree. I am very glad that the Swedish legal authorities are (belatedly) to interview Assange in the Embassy of Ecuador.

    As you say, the shadow of US extradition (or perhaps as they tried in relation to Snowden) some sort of mid-air hijack hung over the extradition.

    The Swedes, pointedly, declined to give assurances on not extraditing to any country that could extradite to the US, and that’s really all one needs to know.

  27. @James

    As I’ve already responded to Ikonoclast on the Weekend Reflections thread in order to avoid prolonging what would be a derail here, I shall respond to you there as well.

  28. @John Quiggin
    Thanks John, thanks for your reply.

    You know I’m going ballistic here.. how on earth could any rational political party NOT oppose the MIA Investor/State dispute measures? They are a psychic rape of democracy and self determination based in part on utterly ridiculous US legal concepts claiming libertarian ancestry but representative of hidebound oligarchic conservatism.

    Why reintroduce feudalism, for this it what this does, two hundred years after it was tossed out in Europe? Definitely a 1938 moment for me, when coupled with surveillance legisaltion.

  29. Newtownian,

    “It is an interesting feature of modern buildings that they are not designed to survive as long as bricks and mortar and hardwood of old irrespective of redevelopment. But who could tell from the outside”

    I spoke to someone in construction a while ago and their opinion was that not only are contemporary Australian developments objectively not built to last as long as older buildings, but they are also not meeting the legal building standards.

    He was of the opinion that if some sort of U.S. style predatory law firm tried to find residents of new developments for a class action on being sold buildings not up to the building standards there would be a number of developer companies in trouble.

  30. On 7.30 (ABC TV) tonight (Tue) Trade Minister Robb said the TPP would be “ratified”.

    He seemed a bit rattled when asked about treats to Australian standards.

  31. Paul Malone adds to the sense of unreality concerning the issue, Ian Verrender at the Drum seemed also to have problems with the TPP.

    A seemingly unrelated issue, Pyne and University and science dumbing down appears to share the insanity, as with surveillance, together with continued weird defence procurement processes involving $50 billion worth of subs and aircraft apparently not suitable for Australia needs kept behind a veil of secrecy, while the manucfaturing skills base is killed and tens of thousands of workers are thrown out of a job.

    Am not so sure now I want to thank Ikon, Newtonian, David Lisle and several others…I feel like I am standing in the rubble of Berlin after the Russians arrived.

  32. It’s worth reading “NAFTA: 20 years of regret for Mexico” – by Mark Weisbrot in the Guardian Australia edition. Although, I will say there are some awkward sentences in it where Weisbrot gets his intended meaning almost backwards.

    Sorry to paul walter. True perception of these problems is certainly depressing but at least contains some hope of prevention (though I wonder by what means). If the TPP arrives as a reality then matters are going to be a lot more depressing.

    I have read a few Guardian articles where the journalists draw a distinction between the EU and trade agreements like NAFTA and the TPP. Their basic premise is that the EU was set up and implemented in a more enlightened manner and with better motives. This might be true to some extent. However, the end point of the EU (and it is in its end-game now) doesn’t seem to be much better than NAFTA. Greece is getting Mexicanised right now. If we join the TPP it will be our turn.

  33. Read someone saying, re the TPP, that after it was signed it would “be too late”. What am I missing here. Can a treaty like this not be cancelled after signing? Can a future Australian gov not walk away from it? (Yeah, I know that oppositions tend to pretend that they can’t once in power.)

    Could a party run on the slogan “I’ll repeal the TPP”?

  34. The US Congress would be wary to block it, as the next agreement would be lead by China who will not kowtow to Hollywood.

  35. @David Allen

    Australia is a party to the Vienna Convention on the Law of Treaties. The text of that convention limits the rights of parties to withdraw from any treaty to which they are party. The text doesn’t grant unlimited rights to withdraw from treaties just because a new government doesn’t like them.

    Say two companies enter into a contract and say one of them later elects a new board of directors who don’t like the contract. The new board of directors might be able to go to court and argue that the contract wasn’t valid, if they could find a good enough legal argument, but they couldn’t legally get out of the contract just because they didn’t like it. The Vienna Convention on the Law of Treaties is (among other things) intended to apply the same approach to international treaties.

    Of course countries sometimes break international law and get away with it just as people sometimes break national laws and get away with it. I don’t know what the consequences would be if a future Australian government tried to walk away from a treaty previously ratified by the current Australian government. I’m not saying it’s impossible, only that it’s usually not legal.

  36. @John Brookes

    I’m not sure which constitution you’re thinking of, but I don’t see which part of the Australian Constitution it might violate, and I also don’t see which part of the US Constitution it might violate.

  37. @John Brookes
    It’s an interesting question. It’s hard to see how a multilateral trade treaty would be unconstitutional per se, but it’s certainly possible that domestic laws made to implement aspects of the treaty might be. But you’d need to know the detail of the treaty and the domestic laws made to implement it before you could form a view on their constitutionality or otherwise. At first glance, it seems possible that one might loosely construct an argument that a law made to implement an investor-state dispute resolution clause, to the extent that it involves the resolution of disputes between private parties and the Australian Government, arising under a treaty, to be ventilated outside the Australian court system, may be in violation of section 75 of the Constitution, which establishes the High Court’s original jurisdiction. But admittedly I’m just flying a kite here – I have no idea if such arguments have been made before in relation to existing investor-state dispute resolution arrangements, or if so, how such arguments faired. It would ultimately depend on the detail of the investor-state dispute resolution system and how it is implemented.

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  39. @Tim Macknay

    Section 75 of the Constitution gives the High Court original jurisdiction in any matter arising under a treaty, but it doesn’t make that jurisdiction exclusive. Under section 77 of the Constitution Parliament could legislate to make the jurisdiction of the High Court or of other federal courts in matters arising under a treaty exclusive of the jurisdiction of State courts, but it doesn’t say anything about making jurisdiction exclusive of the jurisdiction of courts or tribunals of other countries, or international ones, or special-purpose ones created by the treaty itself.

  40. @John Brookes

    I think that if this was tested, that the High Court would probably view a TPP power as an incidental power, and there for Constitutional.

    Particularly if the TPP is ratified by Parliament.

    However it may be interesting to see whether clauses of TPP contradict ILO and Human Rights conventions etc.

    The High Court may have to determine an issue if the Parliament ends up ratifying two instruments which have parts that cannot coexist.

  41. @J-D
    Yes, presumably that would be the sort of argument put forward by a party seeking to defend the hypothetical law implementing the hypothetical investor-state dispute resolution clause in the event that the hypothetical argument I suggested was put forward by a party opposed to the hypothetical law in a hypothetical legal challenge.
    Good breeze for kite flying, today. 🙂

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