By George H. Crowell
Political struggles against so-called “free trade agreements” have consumed vast amounts of time and energy from us social activists. Despite great efforts in Canada and the US against the Canada-US Free Trade Agreement (FTA) until 1988, we lost; and then together with Mexicans on until 1994 struggling against the North American Free Trade Agreement, we lost again. However, along with European activists, we achieved a major victory in 1998 by beating back the Multilateral Agreement on Investment (MAI). We then managed in 2005 at least temporarily to halt the Free Trade Area of the Americas (FTAA).
Now we are working furiously to prevent approval of yet another trade agreement – the Trans-Pacific Partnership (TPP). Here in Canada at the same time we and our European allies are burdened with having to continue a long battle against the Canada-European Comprehensive Economic and Trade Agreement (CETA). Even if we succeed in defeating the TPP, we still have not only the CETA, but also the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA) with which to contend as they surge toward us.
It should be well known by now that those of us who have long been opposing these destructive trade agreements are not against trade as such. We favour fair trade. We have been working hard to resist unjust trade agreements.
A host of particular issues is at stake in each of these agreements. We can generate considerable political opposition to the trade agreements by stressing their varying damaging consequences for different groups of people such as dairy farmers, auto workers, and seniors dependent upon reasonably priced pharmaceuticals. But based on all that we have seen about these trade agreements, it is clear that there is a central problem common to all of them that is of profound concern to all of us, and this is where we need to focus our opposition. All the trade agreements are fundamentally anti-democratic. They are intended to override our democratic institutions. They are designed to establish control over public decision-making by profit-oriented businesses. They are constructed to achieve corporate rule.
The trade agreements are, therefore, unconstitutional in Canada, the US, and other participating nations as well. I approach this issue with no special expertise in constitutional law. But, from a common-sense perspective, the conclusion that these trade agreements are unconstitutional is inescapable. Our constitutions have been shaped to achieve democracy and to defend democracy against all kinds of attempts to displace it. While we cannot now give up our constant political struggles against trade agreements, we need to move decisively together to take legal action against them.
We need to push our democratically established law courts to declare them unconstitutional, and thus to set up a legal bulwark against any and all such anti-democratic institutions.
From the outset so-called “free trade agreements” have been anti-democratic – fully intended to achieve corporate rule. They have been initiated by corporations and, in cooperation with receptive governments, and have been bargained in secret, excluding participation by social justice and environmental advocates. They take up thousands of pages of highly technical language whose meaning is obscure not only to ordinary folk, but also to elected legislators who are pressured to approve them without fully understanding them.
The anti-democratic thrust of the TPP, along with other trade agreements including the FTA and NAFTA, is most obvious in their key provision for “Investor-State Dispute Settlement” (ISDS). This allows foreign corporations operating under the agreements to sue democratically elected governments for actions they may take – even actions clearly in the public interest – which might deprive the corporations of anticipated profits. Such lawsuits initiated by corporations are decided not through any democratically established public court system but by special tribunals, each composed of three trade experts commissioned to enforce the rules of the trade agreements. Their decisions are final and no appeal to our courts is permitted. All the so-called “free trade agreements” contain ISDS provisions, and we can fully expect to find such provisions – potent anti-democratic tools promoting corporate rule – in all future trade agreements.
In addition to ISDS provisions, the persistent, pervasive drive of trade agreements toward ever more privatization – conversion of public institutions serving the public interest into private enterprises seeking private profit – is also profoundly anti-democratic. To draw an illustration from US experience, the 1954 US Supreme Court decision in the case of Brown versus Board of Education declared that racially segregated education is “inherently unequal,” and therefore unconstitutional. Like the US Constitution, the Canadian Charter of Rights and Freedoms strongly affirms the principle of equality. We need to be gathering documentation to make the case in our law courts that privatization is inherently unequal. It favours the rich, and disadvantages the poor. It is therefore unconstitutional.
A decision based on this principle would be far reaching. It would include the drive toward privatization presently dominating public policy beyond trade agreements, and it would open possibilities not only for preventing privatization, but also for shifting assets from private to public control. Especially important is the present need to move from privately controlled banking – the mother of all privatizations – to public banking. Trade agreements coming down the pipe reflect an awareness of the growing movement for public banking and are designed to thwart this effort.
The obstacles against success in lawsuits against anti-democratic trade agreements are intimidating. Deep-pocketed corporations could and would hire hosts of lawyers to fight against them.
This is not the sort of case to be left to the initiative of a single civil society voluntary organization with a single heroic lawyer, however competent, courageous, committed, and willing to work pro bono. We need (in each affected nation) a consortium of social justice and environmental organizations, along with labour unions to take on each case. Here in Canada support of the Canadian Labour Congress with its 3.3 million members is crucial. Participation by civil society organizations already involved in litigation – especially the Canadian Civil Liberties Association, Ecojustice, and Environmental Defence – is also needed. Those who are involved in the current political struggle against the TPP could begin to include calls for a lawsuit as part of their campaign.
How could a lawsuit against trade agreements as unconstitutional begin? Since the TPP is not yet in effect, an injunction against it on constitutional grounds to prevent its enactment would be needed. But we already have NAFTA in effect, and ISDS decisions are already reversing actions taken in the public interest by democratically elected legislative bodies, especially here in Canada. We cannot expect our government which has already participated in the ISDS process to take the NAFTA-forbidden route of appealing to our court system. Civil society organizations acting in the public interest for environmental protection and/ or public benefit would have to take the initiative, arguing in our courts that trade agreements which override legislative actions for public welfare and abscond with public funds are unconstitutional. Once we get a favourable court decision in one case, it would apply in that nation to all other similar situations.
But first we need careful consideration among civil society organizations of the urgent need for such lawsuits. We need to recognize that political struggle against the endless stream of anti-democratic trade agreements – a struggle which is burning out many social activists, nearly all of whom are mere volunteers working against wellpaid professionals – cannot always succeed. Eventually legislators favouring corporate interests become elected and vote to approve the next trade agreement. Some of us activists now need to pour some of our efforts into developing the strategy of taking legal action against the unconstitutional trade agreements.
We need a corps of activist lawyers and law students working in this direction. And we need strong moral and financial support from civil society organizations for this work.
Gaining favourable court rulings against trade agreements will greatly strengthen our hand in our struggle against corporate rule. But we can be sure that the corporate community will be working tirelessly to use other strategies, as they already are, to impose their long-desired goal of corporate rule. For example, they lobby legislators to suppress union organization, they almost entirely control the media, and they seek allowance for unlimited spending to influence elections. The struggle to achieve and to maintain a benevolent democracy is a permanent human responsibility even though it must always rely heavily upon voluntary commitment.
We must not forget that success in the struggle against corporate rule would not be a panacea guaranteed to bring some utopian society. Power concentrated in public hands by leftist governments can also become corrupted. This, however, is not our problem here now. We need now to recognize that our present political struggles against antidemocratic trade agreements at best can give us only temporary victories.
We have every indication that there is no limit to endless assault on democracy through ever more such agreements because the corporate community recognizes them as exceptionally powerful tools for achieving corporate rule. We need to pursue protection from them through constitutional means.
Professor George Crowell, taught Social Ethics in the Department of Religious Studies at the University of Windsor, 1968-1996, and since his retirement has continued his social activism. George is a long-time active member of COMER.
About Our Commenter
Élan is a pseudonym representing two of the original members of COMER, one of whom is now deceased. The surviving member could never do the work she is now engaged in were it not for their work together over many years. This signature is a way of acknowledging that indebtedness.
