[Cross posted from the American Constitutional Society blog, Link] The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.” The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future. If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations. (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).
Here, I analyze Section 8’s promise using The Washington Post’s “Fact or Fiction” Pinocchio scale. For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.
Section 8 of the TPA bill states:
8. SOVEREIGNTY
(a) UNITED STATES LAW TO PREVAIL IN EVENT OF CONFLICT.—No provision of any trade agreement entered into under section 3(b), nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States, any State of the United States, or any locality of the United States shall have effect.
(b) AMENDMENTS OR MODIFICATIONS OF UNITED STATES LAW.—No provision of any trade agreement entered into under section 3(b) shall prevent the United States, any State of the United States, or any locality of the United States from amending or modifying any law of the United States, that State, or that locality (as the case may be).
(c) DISPUTE SETTLEMENT REPORTS.—Reports, including findings and recommendations, issued by dispute settlement panels convened pursuant to any trade agreement entered into under section 3(b) shall have no binding effect on the law of the United States, the Government of the United States, or the law or government of any State or locality of the United States.
Let’s take these in order. Section (a) is a repetition of the language in every free trade implementation act that has passed congress since NAFTA. In technical detail, it is mostly literally true. International trade agreements, like most international treaties in the U.S., are non-self-executing, meaning that they only become judicially cognizable as U.S. law through domestic legislation implementing their mandates. Section (a) can be seen as articulating that standard. Elsewhere, the bill makes clear that the President has to identify through draft implementing legislation all the changes in US law required by the treaty. Any changes in law required by the treaty that are not adopted by the Congress in that implementing legislation will have no effect on U.S. law.
It is not true, however, that a failure of Congress to implement changes a treaty requires renders those provisions has having “no effect” whatsoever. The non-implemented provisions will still bind the U.S. under international law. Some other party of the treaty, or a private investor under investor-state dispute settlement (ISDS), could (depending on the enforcement language in the treaty) sue the U.S. for damages or to authorize trade sanctions. That dispute settlement process would bind the U.S. government – and have effect – even though it would not change U.S. law.
The language in (b) was not included in the last Trade Promotion Authority bill to pass Congress in 2002 or in any Free Trade Agreement implementing act. It shows that one of the major criticisms of U.S. trade policy, especially in the intellectual property field, is taking hold. The criticism is that even when the trade agreement provisions are consistent with presently existing U.S. law, they still have the negative effect of locking the U.S. into its present legislative structure.
Take the example of the use of software or services to break the code on a locked cell phone to use it with another carrier. Such action circumvents the “technological protection measure” imposed by the cell phone maker that blocks access to copyrighted software driving the phone. The Digital Millennium Copyright Act makes such “circumvention” illegal absent an exception. And the U.S. has entered a series of trade agreements that require countries to abide by the DMCA standard as it then was, including the lack of a permanent exception for cell phone unlocking. And thus, if Congress adopts a permanent exception for this problem (or for another problem, like facilitating accessible format copies for people with disabilities) the U.S. will be in derogation of trade agreement language it has already signed.
So does TPA section (b), claiming that nothing in a trade agreement can “prevent the United States, any State of the United States, or any locality of the United States from amending or modifying any law,” solve the problem? No it does not. Like (a), section (b) can be read as literally true. The U.S. Congress can always amend U.S. law in contravention of international law, and therefore nothing in a trade agreement can “prevent” the amendment of U.S. law. But the clear implication of the section is, like (a), that changing our laws to violate a treaty will have no effect. This is clearly not true. If Congress changes our law to be in violation of a treaty commitment, the only way to avoid liability for that change is to re-negotiate the applicable treaties to remove the confining language at issue.
Section (c) contains the biggest whopper. There, the bill claims to be able to render findings by dispute settlement panels with “no binding effect” on the law or “the Government” of the U.S. The key here is that international law, not U.S. law, decides the extent to which international treaties bind and the scope of remedies available. If a treaty has a dispute resolution process, then the nature of how that process binds an individual country is determined by the treaty, including any reservations made in the treaty itself, not by local trade authorization legislation.
Thus, an international tribunal, following the Vienna Convention on the Law of Treaties and the scope of customary international law, would ask: (1) Is there a treaty, i.e., did the president sign and Congress ratify? (Yes, yes.), and (2) Does the treaty have a reservation carving out the U.S. from dispute resolution? (No.) Then the dispute resolution process binds. That is it. They don’t have to look at the local legislation giving the president negotiating authority because, under international law, the president has the authority to bind the United States even where he exceeds his domestic constitutional authority.
Technically, clauses (a) and (b), and the statement in (c) about settlement panels binding the “law” of the U.S., can be true only if the concern is cabined to whether international law can directly change a U.S. statute by being self-executing. But the clear intent of the provision is to suggest that the legislation can render trade agreements that conflict with our laws as being without effect, including not binding the “U.S. government.”
This the statute cannot do. For stating that the legislation can prevent trade agreements from binding the U.S. in areas where the statute can have no such effect, Section 8 of the TPA gets a Four Pinocchio rating from me. Members of Congress and the public concerned about the ability of trade tribunals to find our domestic laws and regulations in violation of vague limits on regulatory authority should find little comfort in the “Sovereignty” section of the TPA bill.
