The Trojan Horse President

[cali]

91. sure.

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Negotiating objectives

According to the Congressional Research Service, Congress categorizes trade negotiating objectives in three ways: overall objectives, principal objectives, and other priorities. The broader goals encapsulate the overall direction trade negotiations take, such as enhancing the United States' and other countries' economies. Principal objectives are detailed goals that Congress expects to be integrated into trade agreements, such as "reducing barriers and distortions to trade (e.g., goods, services, agriculture); protecting foreign investment and intellectual property rights; encouraging transparency; establishing fair regulatory practices; combating anti-corruption; ensuring that countries enforce their environmental and labor laws; providing for an effective dispute settlement process; and protecting the U.S. right to enforce its trade remedy laws". Consulting Congress is also an important objective.[16]

Principal objectives include:

Market access: These negotiating objectives seek to reduce or eliminate barriers that limit market access for U.S. products. "It also calls for the use of sectoral tariff and non-tariff barrier elimination agreements to achieve greater market access."
Services: Services objectives "require that U.S. negotiator strive to reduce or eliminate barriers to trade in services, including regulations that deny nondiscriminatory treatment to U.S. services and inhibit the right of establishment (through foreign investment) to U.S. service providers."
Agriculture: There are three negotiating objectives regarding agriculture. One lays out in greater detail what U.S. negotiators should achieve in negotiating robust trade rules on sanitary and phytosanitary (SPS) measures. The second calls for trade negotiators to ensure transparency in how tariff-rate quotas are administered that may impede market access opportunities. The third seeks to eliminate and prevent the improper use of a country’s system to protect or recognize geographical indications (GI). These are trademark-like terms used to protect the quality and reputation of distinctive agricultural products, wines and spirits produced in a particular region of a country. This new objective is intended to counter in large part the European Union’s efforts to include GI protection in its bilateral trade agreements for the names of its products that U.S. and other country exporters argue are generic in nature or commonly used across borders, such as parma ham or Parmesan cheese.”
Investment/Investor rights: “The overall negotiating objectives on foreign investment are designed “to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than domestic investors in the United States, and to secure for investors important rights comparable to those that would be available under the United States legal principles and practices."[17]

Scope

Fast track agreements were enacted as "congressional-executive agreements" (CEAs), which must be approved by a simple majority in both chambers of Congress.

Although Congress cannot explicitly transfer its powers to the executive branch, the 1974 trade promotion authority had the effect of delegating power to the executive, minimizing consideration of the public interest, and limiting the legislature's influence over the bill to an up or down vote:[18]

It allowed the executive branch to select countries for, set the substance of, negotiate and then sign trade agreements without prior congressional approval.
It allowed the executive branch to negotiate trade agreements covering more than just tariffs and quotas.
It established a committee system, comprising 700 industry representatives appointed by the president, to serve as advisors to the negotiations. Throughout trade talks, these individuals had access to confidential negotiating documents. Most members of Congress and the public had no such access, and there were no committees for consumer, health, environmental or other public interests.
It empowered the executive branch to author an agreement's implementing legislation without Congressional input.
It required the executive branch to notify Congress 90 days before signing and entering into an agreement, but allowed unlimited time for the implementing legislation to be submitted.
It forced a floor vote on the agreement and its implementing legislation in both chambers of Congress; the matters could not "die in committee."
It eliminated several floor procedures, including Senate unanimous consent, normal debate and cloture rules, and the ability to amend the legislation.
It prevented filibuster by limiting debate to 20 hours in each chamber.
It elevated the Special Trade Representative (STR) to the cabinet level, and required the Executive Office to house the agency.

The 1979 version of the authority changed the name of the STR to the U.S. Trade Representative.[18]

The 2002 version of the authority created an additional requirement for 90-day notice to Congress before negotiations could begin.[18]

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http://en.wikipedia.org/wiki/Fast_track_%28trade%29

And this is an analysis of the current TPA in regard to sovereignty issues as they impact I/P. This analysis highlights the problems with the legal language employed:


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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.

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http://infojustice.org/archives/34298