Despite the best efforts to keep it a secret, you may know by now about the Transatlantic Trade and Investment Partnership (TTIP). After Greenpeace published leaked documents from the deal, the EU-Parliament voted to renegotiate some important paragraphs and took to publishing drafts more openly. The deal is being frustrated and delayed, not least by the Brexit vote, but it’s not from the table, not at all.

Now another treaty appears to have been secretly negotiated: CETA, the Comprehensive Economic and Trade Agreement between the EU and Canada. At first sight it seems far less consequential than TTIP, as Canada is a far smaller economy, but it may have comparable toxic consequences. Among the many similarities with the TTIP deal is the secrecy surrounding the negotiations and the way it is pushed through with scant regard for the democratic process. As it stands, all national parliaments will have to approve the deal but, to speed things up a bit, it will become effective before that time. You may want to read that last sentence again, because it is reflects a really weird interpretation of the word democracy.

I invite you to take a look around to learn more about the deal; then go to https://stop-ttip.org/about-cetacheck/ where you can do something: the website tries to bundle citizen’s protests against the deal and more specifically against the undemocratic process with which the deal is pushed through. Doing ‘The CETA-check’ consists of putting 15 questions to your representatives in the EU-Parliament and/or your government. This seems a very effective way of letting them know you care; remember that it’s only leaked documents and citizens protests which hindered the premature acceptance of the TTIP deal. (Tip: the relevant part of the website functions technically a bit clumsy: you have to choose your country and a fraction of the EU-parliament before you see the names of representatives you can send any or all of the 15 questions to.)

Some musings about TTIP and CETA

I’ve been wondering why I am so furiously opposed to TTIP and CETA. Sure, a lot of articles have painted a very negative picture of the consequencies; see for example http://www.independent.co.uk/voices/comment/what-is-ttip-and-six-reasons-why-the-answer-should-scare-you-9779688.html and even a cursory search of the web will point you to many more comments in the same vein. On the other hand, the EU-website (http://ec.europa.eu/trade/policy/in-focus/ttip/) provides lots very rationially sounding arguments pro as well as lots of reassurances about the perceived dangers. The protesters are scare-mongers who did not take the trouble to actually read the text of the treaty very well – that is the message conveyed to me from those pages. It could well be true, that’s my worry.

Let’s take an example. The article in the newspaper The Independent to which I provided a link hereabove mentions the British national Health Service (NHS) as one of the bodies who should be ‘very scared’ of the TTIP deal. Apparently the NHS heeded that advice and asked questions, which EU Commissioner Malmström addresses in a letter (http://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154617.pdf). “You obviously can’t read nor think” she says to the NHS, although not in those exact words. “You have absolutely nothing to worry about” is the gist of her letter, before going into specific legal details.
Having had no education in legal matters, I can’t judge her arguments but they sound convincing enough.

So why am i not convinced? Why, in fact, does her letter give me the chills?

I’ll make an effort to explain. I know and suppose we all know that laws, even the most carefully worded ones, have holes in them and may have unforeseen consequencies. Lawyers will find loopholes; business as well as citizens will react in unforeseen ways. This is an inevitable fact of life.
In the balanced democratic process as developed over several centuries, this is at most annoying but not a big problem. For starters, our independent judges have quite some leeway in interpreting laws according to the intention of the law rather than it’s specific wording. This intention, therefore, is explicitly layed down as part of the law-making process. In the anglosaxon tradition the unwritten law, that is the body of all court decisions, even stands on equal footing with the laws as passed by parliament or congress. But it plays an important role in all Western democracies. If this leeway is not enough, we simply revise the law, plug the holes and take away the unforeseen incentives for unwanted behaviour.
Thus, by constantly adjusting the sails, our boat by and large keeps to the course we want it to.

Now think of a legal agreement, a contract. That’s a different matter altogether: if it has holes or unforeseen consequences – tough luck! You can’t one-sidedly revise an agreement on those grounds; you’re simply stuck with it. And arguing before a judge that certain interpretatons are against the intention of the contract is very, very hard indeed.
Therefore almost all contracts contain at least these two provisions:

1. A limited timespan;

2. A body, acceptable to both parties, which will settle any disputes and can be relied upon to be impartial and desinterested.

Very few contracts are drawn up without these two provisions and rivers of tears have been shed by those who forgot about them. Yet, contracts between individuals have at least a naturally limited lifespan and enjoy the protection of the wider provisions of State Law.

A treaty is mightier than the law

An International Treaty between countries has one important similarity with a civil contract. In contrast with a law, it can not be revised – at least not one-sidedly. (Sure, Donald Trump, these days, promises to do just that: one-sidedly end some trade agreements he doesn’t like. Well, it just may be that the president of the US can do that, but we sure as hell can not – especially not when the trade agreement is with the US!)

So, if the treaty lacks a period for which the agreement holds (like TTIP and CETA) we are stuck with it forever as International law takes precedence over national law.
We may discover loopholes and unintended consequences (in fact, we are bound to) and we may want to adjust and change our laws accordingly; we may even completely change our thinking about economics and economic growth, giving increased priority to living a good life for instance – all this will not affect our obligations under the treaty which, in the case of TTIP and CETA, effectively prohibit such changes.
Theoretically, the treaty could be revised once all parties agree but I think it is unrealistic to expect such an agreement to arise at the same time and in the same form everywhere. In addition, powerful forces will oppose everything which threatens sales and profit. Thus, I can readily see the treaty becoming a millstone round the neck of all parties concerned; a deadly lock-in from which only a small elite of people profit and will be profiting ’till the end of time’.

In addition, an impartial body to decide about disputes is hard to come by. This point is, very rightly I think, one of the main points in the discussion within the EU-parliament, as the proposed bodies (called ISDS for ‘Investor to State Dispute Settlement’) seem to be composed in a way which makes it hard to believe in their impartiallity. A web search on the keywords ‘ISDS impartiality’ reveals a host of articles on the matter, where the issues are hotly debated. Even venerable academics take part, using unusually harsh wordings for the contributions of their disagreeing peers. A host of possible adjustments for the ISDS idea are proposed as well as alternatives. Yet the Dutch Advisory Council on International Affairs concludes these would not provide better protection for states’ right to regulate. “These issues must be resolved by better drafting of the substantive provisions of Investor Protection Agreements” it says.
Right! We must have a wording without any loopholes which cannot possibly lead to unforeseen consequences.

Malmström’s letter

Now back to Comissioner Malmström’s letter to the NHS: why did it anger me so much?

I can see that more clearly now: here we have a letter from a politician assuring us that a legal text is full-proof, contains no loopholes and wil never have unintended consequences. In the face of history of the past centuries this is a completely ridiculous assurance and an insult to my intelligence.
Sure, if she were talking about a new law which could be adjusted at any time I could understand and even appreciate her arguments.
But she is not talking about laws which can be adjusted; she is talking about contract as we have not met before; a contract above the law which is set in stone and can not be revised or adjusted when holes and unforeseen consequences come to light.

And they will come to light – of course they will, as they’ve always done.

Commissioner Malmström’s letter testifies of great arrogance in that it promises us the text of the ITTP-treaty is better written than any legal text in history in that it is without loopholes and will not entail unforeseen consequences. Moreover, there is no mention of those two provisions which limit the possible damage of any contract: a limited timespan and an impartial body to settle disputes.
Most importantly: the agreements she wants us to sign is one which is set in stone and will leave future generations to battle with the possible negative consequences.
If we rely on assurances like Malmström’s, we build on ground which has a proven record of being very shaky.

A final contemplation on TTIP and CETA

What’s bugging me about TTIP and CETA is certainly the content of the treaty, which in my opinion is objectionable. Maybe more about that later. But far more am I worried, like obviously so many others, about such International Treaties undermining the democratic right of citizens to change their mind in the face of new developments or insights or whatever, for fear of getting sued by companies for hundreds of millions of euro’s.

I freely admit to being one of those who want to change the world; one of an increasing number who thinks that rampant consumerism, the plundering of scarce natural resources, global warming and the widening gap between the have’s and have-not’s will eventually come back to haunt us, or rather the generations after us.
I also admit to being deeply influenced by the Happiness movement among economists, which isn’t a movement at all but rather a core of thinking which questions the belief that more economic growth and maximisation of personal income are what makes us, the citizens of the rich part of the world, happy.

It may be just a pipe-dream, but I can imagine a future where not just a few but a majority will care about the environment and our heritage to future generations and will want to drastically re-draw the lines on the court-yard on which our economic games are played.
But even if you do not believe that is possible, you may agree that we should leave this to our children and not agree to treaties which will bind them for an indefinite period to our current way of doing business.

Added 30 oct 2016

The CETA treaty between Canda and the EEC was signed 30 oct.2016