Imagine it is 2020, and the Government of Scotland, which worked so hard during the referendum process to keep the legitimacy of our independence out of the courts, is in the dock, facing lawyers from some Big Pharma outfit because our legislators passed a law banning a certain drug that has been proven to have terrible side effects, the judge comes back and says that the Government has no right to pass such a law and orders the Country to pay billions in compensation to the company.
Well it is happening at the moment, Big Tobacco monster Philip Morris is trying to sue Australia and Uruguay for introducing anti-smoking legislation, using a sinister investor dispute resolution system as the legal basis. There are currently nearly 600 similar cases of corporations taking nations to court with 98 currently involved in legal action and I’m afraid that this is just the start. The number of these types of cases will rise exponentially if we continue to sleepwalk our way into the biggest trade deal in history, the Transatlantic Trade and Investment Partnership. Just try and imagine what kinds of effects the threat of international legal action will have on nations thinking about progressive legislation.
Never heard of the Transatlantic Trade and Investment Partnership?
I’m not surprised given the scant coverage it has had, never mind critical appraisal, public scrutiny, far less any meaningful resistance, at least in this country. This is despite negotiations rumbling away for over a year and growing pan-European protest movement. It is known as TTIP and it’s a deal between the EU and the US, currently being discussed by business elites, pretty much away from public scrutiny. It affects you and me and everyone on the planet. There is a lot not to like about this deal, not least that it is being conducted in secret, but the plans to include a similar process for resolving disputes between nations and corporations, the Investor State Dispute Settlement, an arbitration mechanism that allows for companies to sue countries that act against their interests, is the one element of the treaty that has caused the most concern. It is not an exaggeration to say that this treaty, far from being a harmless agreement designed to reduce barriers to business, in fact amounts to a dangerous assault on national sovereignty, a corporate power grab.
It was sections of civil society that first raised the alarm in December last year with an open letter to the lead negotiators of both the EU and the US, picked up by sections of the press. The letter focused on criticism of the ISDS investor state dispute mechanism and was signed by over 100 groups including War on Want, Greenpeace and Friends of the Earth, Since then there has been a flurry of articles, critiques and protests, mostly from groups in Europe, with the cumulative effect being a growing sense of alarm at the potential effects on the environment, food standards, health and safety, digital rights, employment rights, and sovereignty itself, all of which are very good reasons why the Scottish Independence movement, especially the radical and progressive elements should take a far greater interest in this treaty.
The fifth round of talks began on Monday to small but vocal protests, mostly making the modest demand for some transparency, but so far very little has been said about TTIP and how it might relate to Scottish Independence, even as we enter European elections. In the UK, it has been environmental groups that have been most pro-active in voicing their concerns with food safety often cited as a potential problem as companies emboldened by similar treaties use the threat of legal action to try and block sensible policies like food labelling or limits to the use of GM foods. More generally, we need to question the need for a trade agreement between the EU and the US, which already has very low trade tariffs. Negotiators say that the point of the treaty will be to “harmonise” legislation, standards and practices and that cutting this red tape will result in higher growth and more jobs. In reality, this is nothing but a red herring, the real goal for the corporations is not to create jobs, but to attempt a race to the bottom, eroding and eliminating where possible all kinds of current protective legislation. Most importantly elites will have a powerful tool to dissuade countries from passing laws and adopting regulations that protect their people in areas like workplace safety to use one example.
Someone at a public meeting once told me that once the glossy brochure is printed, everything has already been agreed by the people that matter and my own experience with public consultations is that this is very often the case. This is much the same with the EU public consultation on the Investor State Dispute Settlement, launched a few weeks ago, which can be accessed online. It tells us very little about what is actually being discussed. It is not a way for us to interact with the treaty negotiations, much rather a response to growing criticism, not much more than a PR exercise a cynical ploy to give a fig leaf of legitimacy to the treaty process.
At the same time and in fact in the same press release, EU Trade Commissioner Karel de Gucht tried to assuage fears surrounding ISDS by pointing out that the mechanism is being reformed. This myth has already been debunked by the Corporate Europe Observatory. However that is not to say that these developments are insignificant. What it shows is that even powerful entities like the EU, are not immune to public pressure, they are susceptible to sustained criticism, something that should give us some hope that we can still block this treaty.
What we need to do in the Scottish Independence movement, I think, is not so much rush into protests in the form of direct action, like our friends in Europe, but to do something much more modest, yet much more potent. We should begin a process of putting our relationship with Europe and the EU at the centre of our thinking about what a post independent Scotland will look like.
We already have a very good way of doing this through the excellent Jimmy Reid Foundation and I’m sure if they would commission a series of scholarly articles on Europe, we would start to have much more of an idea of what European corporate elites are up to, plus it would have the added bonus of countering the ill-informed odium of the likes of UKIP and other anti EU elements