It isn’t often that we see how the United States feels when it sees itself on the receiving end of a secretive international treaty process – you know, one akin to the Trans Pacific Partnership process that alarms many New Zealanders. Yet only a few days ago, we had front row seats for exactly that sort of Alice Through the Looking Glass experience, as a couple of conservative US Senators decided, on principle, to scuttle the international Law of the Sea Treaty process. What made it fascinating was that the rationales used by Senator Rob Portman and his Republican colleague Kelly Ayotte are almost exactly the same ones commonly raised by local opponents of the TPP.
Let’s back up a little here. If you don’t know Rob Portman, the Ohio senator is still on the very, very short list of Mitt Romney’s possible vice–presidential running mates. He also used to be the top US Trade Representative for the Bush administration, so he knows his way around the international treaty arena. We’re not talking here about some Midwestern bozo with a bee in his bonnet about furriners. Here’s how it went down:
Citing significant concerns about the breadth and ambiguity of the Treaty, and more importantly, the risks to U.S. sovereignty due to issues regarding enforcement and adjudication the two members of the Senate Armed Services Committee stated, “After careful consideration, we have concluded that on balance this treaty is not in the national interest of the United States. As a result, we would oppose the treaty if it were called up for a vote.” [Emphasis mine]
Portman and Ayotte went on: “We simply are not persuaded that decisions by the International Seabed Authority and international tribunals empowered by this treaty will be more favorable to U.S. interests than bilateral negotiations, voluntary arbitration, and other traditional means of resolving maritime issues.” Right. So unless the decisions by the relevant international authority and its tribunals were ‘more favourable to US interests’ than existing methods of arbitration, these two Senators would be using their crucial swing votes to sink the entire Treaty.
The link cited above also contains the full text of the Portman/Ayotte letter to Harry Reid. In that letter, the two Senators express their concern about the scope of the Treaty and the enforceable regulatory system that it would have created. (Again, exactly what local critics oppose in the TPP.) As they put it: “This agreement is striking in both the breadth of activities it regulates and the ambiguity of obligations it creates. Its 320 articles and over 200 pages establish a complex regulatory regime that applies to virtually any commercial or governmental activity related to the oceans.” Sound familiar? Take out the bit that says ‘oceans’ and put in ‘foreign investment’, and they could be talking about the TPP.
Just like the critics of the TPP, Portman and Ayotte worry a lot about the potential threat to sovereignty, and the vulnerability of their country to the rulings of un-elected international tribunals and to damages claims laid by foreign litigants. Read this part of their letter to Reid for instance:
Article 293 empowers tribunals to enforce not only the treaty provisions but also “other rules of international law not incompatible with [the treaty].” Because the treaty authorizes international legislative and judicial bodies to give shape and substance to these and other open-ended commitments, the United States would be binding itself to yet-unknown requirements and liabilities. That uncertainty alone is reason for caution.
Reason for caution, indeed. Yet this is exactly the process – with all sorts of “open-ended commitments” and “yet unknown requirements and liabilities” – that our government is binding us to with the TPP. Well, those two experienced Senators weren’t having any truck with it. Unless that is, the United States could somehow manage to attain a majority on those ‘impartial’ tribunals. This bit is unintentionally hilarious:
The treaty’s breadth and ambiguity might be less troubling if there were adequate assurance that it will be enforced impartially and in a manner consistent with U.S. interests. But that is not so. [Oh no!]
Got that? The tribunal is supposed to rule impartially – and that’s fine by them – but if even the potential exists that this impartiality might one day go against US interests, fergeddit. Comically, the letter goes on to express something close to shock, horror that since the United States might be unable to stack the tribunals with its own or friendly arbiters, then US national autonomy could be at risk in all sorts of other ways. As the letter says:
In some cases, the United States could elect to resolve disputes before a five-member arbitration tribunal, in which we would choose two arbitrators. But the United States would have no hand in selecting the decisive, fifth arbitrator, unless it could agree with the opposing party.
America doesn’t get to pick the ref? That’s just not how the US plays the game. Far better to pick up the ball and go home, lest even worse horrors should unfold:
Other cases would be decided by the powerful International Tribunal, which is even less accountable to the United States. Comprised of 21 foreign judges with no guaranteed U.S. seat, the tribunal can resolve any dispute concerning interpretation of the treaty. It has compulsory jurisdiction over disputes concerning the seabed beyond national borders and power to grant preliminary injunctive relief whenever it deems necessary “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment.”
Wow. Would there, could there, be “meaningful review” of the tribunal’s decisions by the US Supreme Court? Probably not. And because not, game over. Otherwise:
…private litigants will likely be able to invoke tribunal judgments as enforceable in U.S. courts — against the government and possibly against U.S. businesses. The United States will have no lawful choice but to acquiesce to tribunal judgments, however burdensome or unfair.
Wouldn’t that be just awful? Because as the two Senators complain, the Treaty’s adjudicative processes might expose the United States to being sued for damages by foreign litigants! Yet again, that’s exactly what local critics complain about with respect to the TPP – that the processes to which New Zealand becomes signatory will enshrine investor rights such that they will over-ride the capacity of New Zealand courts to review tribunal judgments meaningfully, and will expose the country to compensation claims by foreign investors that will be levied by foreign advocates (some of whom, on their off days, work for the claimants) who will be sitting in a room in Geneva.
Portman and Ayotte conclude with this zinger: “On balance, we believe the treaty’s litigation exposure and impositions on U.S. sovereignty outweigh its potential benefits.” So there you have it. Unless the US can ensure the supremacy of its own interests by stacking the relevant tribunals… why, its sovereignty could end up infringed, leaving the US of A open to claims by foreign litigants for compensation. Somehow, does it seem wise for New Zealand to be secretively engaged in a TPP process with people who clearly won’t sign or ratify anything that involves even the potential for risks or major concessions on their side of the table? As Salvatore Giuliano used to say, I can take care of my enemies but God protect me from my friends.
Sure, some would argue that the Law of the Sea Treaty has a security dimension not present in the TPP deal. Except that for a small trading nation like New Zealand, our patterns of trade are our security. The more interesting point is that here are two conservative Republicans, one with marked expertise in international trade issues and treaties. Yet they’re both saying they won’t have a bar of any sovereignty-endangering international treaties, and would rather sink them than sign them, on principle. When it comes to the TPP, where are their equivalents in the National Party?
The Last Goodbye
Good to see that my attempt on Monday at paying tribute to the life and career of Alexander Cockburn has been merely one of dozens of similar efforts. The best of them, to my mind, has been James Wolcott’s obituary for Cockburn in Vanity Fair, and I recommend it. Both for what it says about Cockburn, but also for this interesting passage by Wolcott:
Even when he [Cockburn] was at his most high-visibly productive, there were those who complained that he devoted and dispersed too much of his energies into deadline journalism and public addressing, riding the whirligig instead of delivering a “real book,” a stand-alone achievement that would have joined the company of the best of C. Wright Mills or Saul Alinsky. It was a nagging shadow that would dog journalists and critics as different as Dwight Macdonald, Manny Farber, Pauline Kael, Seymour Krim, William F. Buckley Jr., and Ellen Willis–where’s the Major Tome, buddy? Since I’m a fan of collections and anthologies, believe that the best writing often shines in shards and galloping stretches, I never find myself lobbying for a writer I enjoy reading regularly to hole up in Heidegger’s hut for four or five years to bring forth a mountain. You want a tombstone masterpiece so much, go write your own, we’ll keep the landing-strip lights on for your victorious return.
Well, exactly. The world is full of books. Go into any second hand bookshop for a lesson in transience and redundancy. I’ll take the journalism any day.