NAFTA Talks Should Continue Until a Good Deal Is Achieved

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

Lori Wallach, director of Public Citizen’s Global Trade Watch, released the following statement upon the conclusion of today’s North American Free Trade Agreement (NAFTA) ministerial meeting:

“Until a deal is achieved that eliminates NAFTA’s job outsourcing incentives and foreign tribunals exposing our laws to attack, and that adds strong labor and environmental standards with swift and certain enforcement to raise wages, talks should continue. The administration has been making progress on important elements of the major NAFTA replacement deal that is needed, and we hope they continue negotiating until they get a deal that would enjoy broad support.

Only a deal that eliminates NAFTA’s job outsourcing incentives and investor-state dispute settlement tribunals and adds strong labor and environmental standards with swift and certain enforcement can obtain broad support in Congress, a reality demonstrated by the Trans-Pacific Partnership falling dozens of votes short of passage in the previous Congress.

Certainly the continuation of the status quo of NAFTA helping corporations outsource more jobs to Mexico every week and attack health and environmental safeguards in secretive tribunals is not acceptable. President Trump promised to bring jobs back with a quick NAFTA renegotiation, but more important than a fast deal is the right deal that transforms the failed NAFTA model. Members of Congress, unions and small businesses, state legislators and consumer groups have articulated for decades the structural changes needed to NAFTA to reverse its outsourcing incentives, downward pressure on wages and attacks on our health and environmental laws.”


New Data Show Trump’s First Quarter 2018 China and Mexico Trade Deficits Largest on Record as All Eyes Focus on This Week’s Trade Discussions in China, Looming NAFTA Deadline

U.S. Trade Deficit With World Largest Since 2008 Financial Crisis, Contrary to Trump’s Campaign Pledge to Quickly Reduce Deficit to Bring Back Manufacturing Jobs  

WASHINGTON, D.C. – Record-high first-quarter trade deficits add to the urgency of the Trump administration succeeding in reworking the terms of U.S.-China trade and the North American Free Trade Agreement (NAFTA), Public Citizen said today.

The 2018 first quarter goods trade deficit with China and with the world is significantly larger than figures for the first quarter of 2017 even as the March monthly goods deficit with China declined as U.S. exporters accelerated shipments to beat tariffs that may be imposed relating to the 301 action, which gave an extra boost to U.S. exports overall this month.

President Donald Trump’s pledge to quickly reduce the U.S. trade deficit remained unfulfilled after the U.S. trade deficit rose in 2017. As his second year in office begins:

  • The first-quarter goods trade deficit with China is the largest ever recorded at $91.1 billion, up from $80.7 billion for the same period last year;
  • The goods trade deficit with the world of $196.7 billion is larger than any period since before the 2008 financial crisis – up 8.5 percent over the first quarter of 2017 deficit of $181.4 billion.
  • The first-quarter goods trade deficit with Mexico is the largest ever recorded at $33.3 billion, up from $30.6 billion for the same period last year. After improving from 2011 to 2016, but worsening in 2017, the NAFTA first-quarter 2018 goods deficit is up slightly relative to the first quarter of 2017 – an increase from $49.1 billion to $49.6 billion. (NAFTA data exclude re-exports, which account for 20 percent of U.S. exports to NAFTA countries.)
  • The 2018 first-quarter goods trade deficit with the world is up $24.4 billion compared to the $172.4 billion first-quarter global goods deficit in 2016, the last year of the Obama administration. The deficit in manufactured goods remained 88 percent of the overall deficit from 2016 to 2017, contradicting Trump’s promises to help manufacturing workers.

(All data in inflation-controlled terms.)

With the comment period on proposed China 301 tariffs closing at the end of May, Trump’s senior trade and economic advisers are in Beijing this week seeking major changes to the terms of U.S.-China trade. NAFTA talks must be completed within weeks for a pact to be voted on this year, but only a deal that removes NAFTA’s job outsourcing incentives and adds strong and strictly enforced labor and environmental standards could change the trade deficit trends. Given the failure of the Trans-Pacific Partnership to obtain majority support in Congress, such a major redo of the past U.S. trade agreement model is also necessary for a new pact to be approved by Congress.

“This ever-expanding trade deficit is like the ghost of Trump trade promises past that is haunting the U.S. negotiators now in Beijing trying to remedy the debacle of our China trade policy and those trying to conclude a NAFTA replacement deal that ends the outsourcing incentives and thus could win broad support,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.

The Deficit Is Now Mostly Made Up of Manufactured and Agricultural Goods, With the Oil Deficit Down

Economists who critique the significance of bilateral deficits nonetheless agree that large sustained overall trade deficits can suppress demand and slow economic growth. The overall U.S. trade deficit is mostly made up of manufactured and agricultural goods. Growth in U.S. oil exports and a decline of oil imports since 2011 have masked the deterioration of the non-oil trade deficit.

Over the past three years, the worsening of the non-oil trade deficit has been comparable in magnitude to the worst part of the 2000s “China shock” period, reaching 3.5 percent of GDP between 2014 and 2017 compared to 3.6 percent of GDP between 2002 and 2005. The non-oil trade deficit increased from $573 billion to $756 billion from 2014 to 2017, including the increase in Trump’s first year of office from $703 billion to $756 billion.

“Expect ever-expanding trade deficits that eviscerate Trump’s grand trade reform promises unless the administration transforms our failed China trade policy and removes NAFTA’s job outsourcing incentives, adds strong labor and environmental standards, and thus achieves a NAFTA replacement that can get through Congress,” Wallach said.

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New Trump Administration Trade Report Sticks to the Status Quo

The Trump administration’s recently released 2018 National Trade Estimate Report could become classic reading for political science students studying the “deep state” concept.

The 2018 report, which provides a 500-page compilation of policies in other countries that U.S. commercial interests claim are “trade barriers,” is remarkably similar to Obama-era editions of this congressionally-mandated annual report.

Yes, it was shocking that the Obama administration issued a report that labeled countries’ public health and environmental policies, food-labelling laws, and even religious standards as significant trade barriers. Sadly, this aspect of the report is not surprising for the new administration. 

But attacks in the report on other countries’ policies that reflect the new administration’s approach can only be explained by the reality that too many career trade-policy staff are rutted in pro-status-quo groupthink.

Exhibit A: A key administration demand in the North American Free Trade Agreement (NAFTA) renegotiations is to cut investor-state dispute settlement (ISDS). Administration officials have made clear that ISDS is considered a problem because it makes it less risky and costly to outsource jobs and because it undermines sovereignty. The ISDS system empowers foreign investors and corporations to skirt domestic courts and attack domestic policies by going before tribunals of three corporate lawyers to adjudicate claims. These extra-judicial international arbitration tribunals can order unlimited compensation be paid to investors by a host country’s taxpayers.

Yet this year’s report identifies as a barrier Mexico’s hydrocarbons law because it requires foreign companies to use the domestic court system in Mexico to arbitrate certain government disputes – rather than allowing foreign firms to use unaccountable international tribunals.

Along the same lines, the Trump administration is seeking to roll back NAFTA terms that require the waiver of Buy American and other domestic preference programs. But the report attacks Quebec’s requirement that 60 percent of the goods used in wind energy projects be sourced domestically as this “could pose hurdles for U.S. companies in the renewable energy sector in Canada.”

Jumping from NAFTA to other news headlines, another barrier listed is the European Union’s new privacy law. According to the report, the policy adds “new requirements for accountability, data governance, and notification of a data breach,” which may “increase administrative costs and burdens” for U.S. companies operating in Europe. Funny thing is that U.S. megacorporation Facebook, facing attacks on its lax safeguards, just announced it is adopting the European standard for its operations worldwide.

It bears noting that once again even public health policies designed to improve maternal and infant health are attacked as trade barriers in the report. That includes Malaysia’s proposed revisions to “its existing Code of Ethics for the Marketing of Infant Foods and Related Products” that would restrict corporate marketing practices aimed at toddlers and young children. Also, the report criticizes Hong Kong’s recent regulations governing the marketing of infant formula. Although acknowledging that the regulations are based on “World Health Organization guidance and purportedly voluntary,” the report parrots the food industry’s concern that Hong Kong’s new policies might become mandatory.

Other eyebrow-raising trade barriers? The report criticizes Malaysia – a predominantly Muslim country – for having certain restrictions on the importation of alcohol, and Brunei – another predominantly Muslim country – for requiring that non-halal foods be sold in specially designated rooms.

It remains to be seen whether future National Trade Estimate reports by the Trump administration will be consistent with the administration’s stated positions or the deep-state “trade-think” of decades of Democratic and Republican administrations past will prevail. Either way, we will be watching closely.


On Announcement of Revisions to U.S.-Korea Free Trade Agreement

Statement of Lori Wallach, Director of Public Citizen’s Global Trade Watch

WASHINGTON, D.C. – As the administration announced revisions to the U.S.-Korea Free Trade Agreement (FTA), Lori Wallach, director of Public Citizen’s Global Trade Watch, commented:

“Despite the touted 10,000 tariff cuts and promises of more exports, more jobs, our deficit almost doubled in the FTA’s first five years as U.S. agricultural exports declined and a flood of Korean cars were shipped here.

“It’s unclear how the proposed changes to the pact itself would reverse the doubling of our Korea trade deficit under KORUS, but the new currency agreement could make a difference if it has teeth, delaying the U.S. tariff cuts on Korean trucks could stop the big imbalance from getting even worse, and the parallel steel agreement is significant.

“The limited revisions to KORUS do not the promised new American trade agreement model make, which puts added pressure on NAFTA renegotiations to deliver a deal that eliminates the job outsourcing incentives in our past trade deals and adds strong labor and environmental standards with swift and certain enforcement.  

“Success on many key issues that were not addressed at all in this deal – such as the elimination of job outsourcing incentives and the controversial ISDS tribunals, the tightening of automobile rules of origin, and the addition of strictly enforced labor and environmental standards – will determine if a renegotiated NAFTA can get the bipartisan support necessary to get it passed.”

KORUS Outcomes: First Five Years

Despite the Korea FTA including more than 10,000 tariff cuts, 80 percent of which began on Day One:

U.S. exports to Korea declined 7.8 percent ($3.7 billion), and imports from Korea increased 13.1 percent ($8.1 billion) by the end of KORUS’ fifth year.

  • Since the FTA took effect, S. average monthly exports to Korea have fallen in nine of the 15 U.S. sectors that export the most to Korea, relative to the year before the FTA.
  • U.S. exports to Korea of agricultural goods have fallen 5.4 percent in the first five years of the Korea FTA, despite almost two-thirds of U.S. agricultural exports by value obtaining immediate duty-free entry to Korea under the pact. U.S. agricultural imports from Korea, meanwhile, have grown 45.4 percent under the FTA. As a result, the U.S. agricultural trade balance with Korea has declined 8.1 percent, or $554 million, since the FTA’s implementation. The Obama administration promised that U.S. exports of meat would rise particularly swiftly, thanks to the deal’s tariff reductions on these products. However, despite U.S. officials’ promises that the pact would enhance cooperation between the U.S. and Korean governments to resolve food safety and animal health issues that affect trade, South Korea has imposed temporary bans on imports of American poultry in each of the last three years, including 2017. Comparing the fifth year of the FTA to the year before it went into effect, U.S. poultry producers have faced a 78 percent collapse of exports to Korea – a loss of 82,000 metric tons of poultry exports to Korea. U.S. pork exports have also dropped 1 percent.
  • The 85 percent trade deficit increase with Korea under the pact – from $14 billion in the 12 months before the pact went into effect on March 15, 2012, to $26 billion in its fifth year – came in the context of the overall U.S. trade deficit with the world decreasing by 5 percent. While U.S. goods imports from the world decreased by 7.1 percent, goods imports from Korea increased by 13.1 percent.
  • During that period Korea’s GDP rose 15 percent, and the unemployment rate has averaged 3.4 percent, belying the claims from KORUS defenders that the growing deficit was fueled by weak growth and thus weak demand in Korea.  
  • The U.S. service sector trade surplus with Korea grew much slower since the FTA. In KORUS’ first five years, it increased by only $2 billion from 2011 to 2015, a growth rate of 29 percent, which is notably 64 percent slower than our services surplus growth over the five years before the FTA went into effect.
  • Record-breaking U.S. trade deficits with Korea have become the new normal under the FTA – in 59 of the 60 months of KORUS’ first five years, the U.S. goods trade deficit with Korea has exceeded the average monthly trade deficit in the five years before the deal.
  • The auto sector was among the hardest hit: The U.S. trade deficit with Korea in motor vehicles grew 55.7 percent in the pact’s first five years. S. imports of motor vehicles from Korea have increased by 64.2 percent, or $6.4 billion by the fifth year of the Korea FTA.
  • Exports of machinery and computer/electronic products, collectively comprising 27 percent of U.S. exports to Korea, have fallen 17.1 and 18.8 percent, respectively.

Public Citizen Report: ‘Follow the Money: Did Administration Officials’ Financial Entanglements With China Delay Trump’s Promised Tough-on-China Trade Policy?’

WASHINGTON, D.C. – As the administration is poised to announce long-awaited action on a China trade investigation launched last summer, Public Citizen released a report revealing Trump administration Cabinet members’ and top advisors’ longstanding personal financial entanglements with the Chinese government and government-connected firms. The report raises the question of whether the lack of action during President Donald Trump’s first year in office despite China being candidate Trump’s top target of trade wrath is better explained by the current or past Chinese financial entanglements of numerous top administration officials rather than an ideological battle over trade in the White House.

The report reveals the widespread business connections – some ongoing – between Trump Cabinet officials and other senior staff and Chinese government-run or connected firms that may have affected administration trade policies on China. For instance, despite pledging to divest from two Chinese shipping firms in which he was invested, U.S. Commerce Secretary Wilbur Ross’ financial transaction reports do not include the sale of an estimated $125 million stake in Navigator Holdings, which operates a fleet of liquefied natural gas (LNG) tanker ships that could benefit from several gas-related investment deals with Chinese government-linked firms that Ross announced since becoming Commerce secretary.

“The exits of White House Economic Adviser Gary Cohn and U.S. Secretary of State Rex Tillerson will significantly diminish the top staff with past or current significant financial stakes in China and with Chinese government entities, although Ross remains,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “Will changes in personnel lead to changes in policy with the recent trade enforcement actions paving the way to creation of the comprehensive new China trade policy that is decades overdue?”

Only on China trade were administration trade actions during Trump’s first year opposite of Trump’s campaign pledges and rhetoric. Even Trump’s bellicose China trade rhetoric from the campaign was replaced by an uncharacteristically subdued tone. Rumors have raged since Thanksgiving that the administration would impose punitive measures against Chinese technology theft via a Section 301 investigation that the administration initiated in August. But time and again, action was delayed.

During Trump’s China state visit, Ross gleefully touted Goldman Sachs’ new $5 billion joint fund with the Chinese government’s main investment arm and plans by other state-owned and state-linked firms to buy assets in sensitive U.S. infrastructure, energy and food sectors. Such investments may facilitate the Chinese government “Made in China 2025” plan to dominate the global economy but would seem antithetical to Trump’s promised “tough on China” agenda.

A review of the top-level staff of the Trump administration shows stark conflicts of interests not just relating to business in or with China, but with the Chinese government. These ties and conflicts include:

  • Previous or current ownership of shares in companies profiting from Chinese state-owned investment in the United States (Ross, Cohn, Treasury Secretary Steve Mnuchin, Trump Senior Adviser Jared Kushner);
  • Investments in companies doing business in China that may not have been divested at the time an official was engaged in policymaking that could impact his investments (Ross);
  • Co-investments with Chinese state-owned investors that may not have been divested at the time an official was engaged in policymaking that could impact his investments (Ross);
  • Previous direct ownership of stakes in Chinese state-owned companies (Cohn and Tillerson);
  • Ownership of businesses awaiting approvals for pending trademark applications in China (Ivanka Trump); and more.

The new report provides a compilation of information that is available about these links; many investments might not be disclosed as they may be held in investment vehicles in which the underlying assets are not known.


TPP-11 Countries Sign a Deal — While We Dodged a Bullet on ISDS Expansion Here, Our International Allies Face a Major Fight

Thanks to years of organizing, we in the United States saved ourselves from the corporate-dominated Trans-Pacific Partnership (TPP) by ensuring that the controversial deal was universally reviled across party lines and could never gain a majority in Congress.

But it is deeply unfortunate for our international partners that this week the remaining 11 TPP countries — including Canada and Mexico — signed the deeply flawed TPP model for their countries in a cynically renamed “Comprehensive and Progressive Trans-Pacific Partnership.” We know from our years-long, internationally-coordinated TPP campaign that our sisters and brothers in those nations fought against the corporate-rigged TPP model as hard as we did. We stand in solidarity with them as they continue to mobilize to block the ratification and implementation of this TPP-11 deal in their countries.

While some of the most egregious provisions pushed by Big Pharma that would have further threatened access to life-saving medicines were fortunately set aside (for now) in the revised TPP-11 deal, most of the TPP’s dangerous rules remain intact. It is shocking, for instance, that Canada, Mexico and others agreed to maintain the infamous investor-state dispute settlement (ISDS) system (with only some minor tweaks), that empowers multinational corporations to attack public interest laws before panels of three corporate lawyers.

We dodged a bullet here in the United States — the TPP would have doubled U.S. exposure to investor-state attacks against U.S. policies by newly empowering more than 1,000 additional corporations in TPP countries, which own more than 9,200 additional subsidiaries in the United States, to launch investor-state cases against the U.S. government.

But, it is beyond perplexing that Canada and Mexico would agree to expand their liability to these ISDS attacks on their laws in the TPP-11. In the North America Free Trade Agreement (NAFTA) renegotiations, the United States has proposed to radically roll back ISDS, which should be good news for Canada and Mexico, since Canadian and Mexican taxpayers have paid $392 million to mostly U.S. corporations who won ISDS attacks against their public interest laws using NAFTA.

The corporate lobby, which has been doing all it can to block the positive NAFTA proposal to roll back ISDS, is undoubtedly rejoicing that the TPP-11 countries have signaled their willingness to accept expansion of the controversial ISDS system.

But the diverse consensus to end ISDS in NAFTA and elsewhere spans the political spectrum, with stark criticism coming from voices as disparate as U.S. Supreme Court Chief Justice John RobertsReagan-era associate deputy attorney general Bruce Fein, the pro-free-trade libertarian Cato Institutethink tank, U.S. Senator Elizabeth Warren (D-Mass.)Nobel laureate economist Joseph Stiglitzunions and environmental groups.

We will continue to push to remove ISDS from NAFTA and support our allies in Canada, Mexico and in the other TPP-11 nations as they fight ISDS expansion.


In Memory of Zahara Heckscher

Zahara_HeckscherAll of us at Public Citizen lift up in loving memory our dear friend and peaceful warrior Zahara Heckscher, who passed away on February 24 at the age of 53, after her years-long battle with breast cancer. 

Among her many talents as a writer, poet, teacher and facilitator, Zahara was a fierce, creative and committed activist. As she valiantly battled advanced breast cancer, she became determined to fight for all patients to have access to the cutting-edge cancer medicines that extended her life. 

When she learned that prescription drug companies were using the Trans-Pacific Partnership (TPP) negotiations to lock in extended monopolies that threatened access to affordable medicines, Zahara became a passionate trade justice advocate on behalf of cancer patients around the world. 

She galvanized testimony from people living with cancer and HIV/AIDS from the United States and other TPP countries to protest what she dubbed the “TPP death sentence clause” — a provision that would require governments to grant monopoly periods for biologic medicines used to treat cancer and other serious illnesses and thus deny patients access to more affordable generic and biosimilar medicines.  

The battle over biologics and access to cancer treatment was responsible for dragging out TPP talks for years. In October 2015, she carried those patients’ stories with her to the final round of TPP negotiations in Atlanta to demand that the TPP negotiators drop the “death sentence clause”. She was arrested as she attempted to enter the negotiations, holding an IV-pole, calling on the U.S. Trade Representative (USTR) to drop its insistence on demanding the extended monopoly period for biologic medicines. 

The video of her arrest was shared widely on social media, and her subsequent media interviews on Democracy Now, The Big Picture and others contributed to the national conversation about the dangers of the TPP for health. Due in part to the advocacy of public health advocates like Zahara, the pharmaceutical industry and USTR failed to convince the other TPP nations to accept the full twelve-year monopoly they had been demanding, but the final TPP did include a five-year period.

Zahara insisted that cancer patients cannot wait even one additional year for access to medicines that can keep them alive, so she turned her efforts to stopping Congress from ratifying the TPP.

On World Cancer Day in February 2016, she and fellow cancer survivor Hannah were arrested blocking the entrance to PhRMA, the pharmaceutical industry’s lobby that had pushed the TPP death sentence clause, to warn the public and Congress about TPP’s dangers for access to cancer medicines.  Together, Zahara and Hannah then co-founded Cancer Families for Affordable Medicines, creating public education and advocacy materials for cancer patients and their loved ones to support access to medicines by convincing their members of Congress to vote no on the TPP. 

As the pressure on Congress to pass the TPP mounted in the summer of 2016, Zahara took her message directly to Capitol Hill, getting arrested a third time at the office of Congressman Polis, and traveling to speak in-district to undecided members of Congress to demonstrate what was at stake in the TPP for cancer patients and their loved ones. Despite the fact that TPP passage was a top priority of the White House, Republican congressional leadership and Chamber of Commerce, the district-by-district activism by people like Zahara ensured that the TPP could not achieve majority support in Congress.

In the last year, Zahara’s waning physical strength did not stop her from continuing her trade justice activism. Concerned by reports that the Trump administration was pushing for the same “death sentence clause” in its renegotiations of the North America Free Trade Agreement (NAFTA), just last month, Zahara made an educational video to urge people to take action to ensure that NAFTA renegotiations not further undermine access to essential medicines.

Until the very end, Zahara used every tool at her disposal — from her razor-sharp intellect to her poetic spirit to even the cancer itself — to bless the world and to change it for the better. Her strategic and creative trade justice activism was just one small piece of her multi-faceted legacy. She was an inspiration. We will miss her dearly.


Mexico City NAFTA Renegotiation Round: If No Progress on Major U.S. NAFTA Reform Proposals, What is Path Forward?

WASHINGTON, D.C. – As the seventh round of North American Free Trade Agreement (NAFTA) renegotiation talks begin in Mexico City this weekend, Lori Wallach, director of Public Citizen’s Global Trade Watch, commented:

“A NAFTA replacement deal that would enjoy bipartisan congressional support is entirely possible because U.S. negotiators have stood up to the interests trying to thwart real change and have resolutely pushed proposals to cut NAFTA’s job outsourcing incentives and the ISDS tribunals where corporations can attack our laws and to add stronger rules of origin and an accountability-injecting sunset clause.

With time running short, the question is whether some of these U.S. proposals to restructure NAFTA can be agreed upon in Mexico City and progress made on adding strong labor and environmental standards with swift and certain enforcement to stop companies from moving U.S. jobs to Mexico to pay workers poverty wages and dump toxins and then import those products back for sale here.”

The State of Play as the 7th Round of NAFTA Renegotiations Talks Begin

Two major related questions loom over the seventh round of NAFTA renegotiations that will be begin this weekend: the timeline and whether the three countries can make progress on the elements of a deal that will be necessary for it to get through the U.S. Congress.

The extended end-of-March deadline that the NAFTA countries set for completing a deal is fast approaching, as is the July 1 Mexican presidential election.

The U.S. corporate lobby has battled against the proposals that U.S. Trade Representative (USTR) tabled at the October NAFTA round to restructure NAFTA’s investment, procurement and rules of origin terms and to add higher rules of origin and a review and sunset provision. Not surprisingly, given these changes are necessary both to deliver on President Trump’s campaign promises on NAFTA and to achieve a deal that can get through Congress, the administration has not budged on these proposals.

For most of 2017, both Mexico and Canada simply refused to engage on the main U.S. demands, which was the corporate lobby’s advice. In late December Mexico shifted course, perhaps recognizing that ignoring priority U.S. NAFTA reform proposals actually would not make them go away.

Now with the window of opportunity closing to get a deal before Mexico’s election season kicks into high gear, will agreement be reached in Mexico City on any of the core U.S. reforms? Doing so could pave the way to the sorts of grand bargains that get trade deals done. And given that the United States launched the renegotiations with specific goals in mind, if the changes needed to deliver on those goals remain deadlocked, what is the path forward to any deal - much less one that achieves the bipartisan support needed to ensure passage?

Not surprisingly, the administration is seeking a deal that counters NAFTA’s job outsourcing trend and appeals to the Democratic-swing voters in Midwestern states that sent Trump to the White House – and the unions to which many of them belong. And, certainly this administration does not want to repeat the Obama administration’s strategic blunder of agreeing to a deal that cannot achieve majority support in Congress despite months of intense lobbying a la the Trans-Pacific Partnership.

Agreement on the U.S. proposal on NAFTA’s controversial investment chapter and its Investment-State Dispute Settlement (ISDS) system could be the key to unlocking the impasse. ISDS is unpopular in Congress, not only with Democrats but with a sizeable bloc of GOP committed to opposing any pact that includes ISDS. Progressive and conservative organizations and unions have long held the same view.

ISDS has become a third rail issue because it both promotes job outsourcing and undermines what conservatives call sovereignty and progressives call democratic governance.

The substantive investor protections ISDS enforces operate like no-cost risk insurance and combined with access to a pro-investor dispute resolution regime outside domestic courts, eliminate many of the usual risks and costs that make corporations think twice about moving production to a low-wage developing country like Mexico. More than 930,000 specific U.S. jobs have been certified by the U.S. Labor Department as lost to NAFTA outsourcing and import floods under just one narrow program called Trade Adjustment Assistance (TAA).

Meanwhile, the GOP-majority, the National Conference of State Legislatures, the National Association of Attorneys Generals, the National Association of Countries and the League of Cities all oppose ISDS as a threat to sovereignty. No doubt. The regime grants new rights unavailable in U.S. law or courts to thousands of foreign corporations to sue the U.S. government before a panel of three private-sector lawyers. These lawyers can award the corporations unlimited sums to be paid by American taxpayers, including for the loss of expected future profits. These foreign corporations need only convince the lawyers that a U.S. law or safety regulation or court ruling violates their NAFTA rights. Their decisions are not subject to appeal and the amount awarded has no limit.

Even conservative U.S. Supreme Court Chief Justice John Roberts has weighed in on the ISDS sovereignty threat in his dissent in BG Group PLC v. Republic of Argentina. In that 2014 case, the majority ruled in favor of the enforceability under U.S. law of an ISDS tribunal’s ruling. Roberts decried the notion of a country allowing an extra-judicial international tribunal to “… review its public policies and effectively annul the authoritative acts of its legislature, executive and judiciary … a Contracting Party grants to private adjudicators not necessarily of its own choosing, who can meet literally anywhere in the world, a power it typically reserves to its own courts, if it grants it at all: the power to sit in judgment on its sovereign acts.”

Unless the Unites States joins the growing number of countries extracting themselves from ISD agreements, it’s just a matter of time before the United States loses a case. The number of cases being filed and the types of laws, government decisions and court rulings being attacked through ISDS is expanding. There were 50 total ISDS cases from the 1950s to 2000. In recent years, more than 50 cases are filed annually. Almost half a billion dollars has been paid out so far by Canadian and Mexican taxpayers just under NAFTA and $36 billion in additional known claims is now pending under NAFTA. (Because a lot of these cases result in governments changing laws or paying off foreign corporations before the cases get to the stage where they get listed publicly, many cases remain unknown.) And increasing large developed countries are facing ISDS attacks, with Germany paying out tens of millions thanks to two cases. 

The intensive focus of the corporate lobby on saving ISDS in NAFTA has verified that these investor privileges and protections that facilitate outsourcing, not any actual trade terms, are what the corporate lobby most values about NAFTA. Yet, for all the claims and hype about ISDS somehow being necessary for U.S. investors’ success, the reality is that if they are worried about investing in Mexico, they can buy risk insurance so it’s their skin in the game not the U.S. Treasury’s. And, if firms investing in oil, gas or mining concessions in Canada or Mexico want ISDS-style protections, they can include in their concessions contracts with those governments’ terms sending disputes to the same UN and World Bank arbitration venues that NAFTA uses. That would provide U.S. firms the same protections in Mexico or Canada that NAFTA now provides them, but it would not empower Mexican or Canadian investors – or Japanese or Chinese firms incorporated in Mexico or Canada – with investments in the United States to use ISDS to attack U.S. policies.


New Trade Deficit Tracker

Public Citizen’s Global Trade Watch launches new Trade Deficit Tracker. Contrary to candidate Donald Trump’s pledge to speedily reduce the U.S. trade deficit, in Trump’s first year in office the goods trade deficit is larger than any time since 2008 and up 5 percent overall even in inflation-controlled terms from last year, with a significant jump in the China trade deficit and a 8 percent increase in the North American Free Trade Agreement deficit. Trump has not exercised his available executive authority to fulfill campaign pledges to limit imports, including those from firms that outsource jobs; label China a currency manipulator; revoke trade agreement waivers on “Buy America” procurement policies that outsource U.S. tax dollars to purchase imports for government use; or limit government contracts to firms that outsource jobs.

The overall 2017 U.S. goods trade deficit in inflation-controlled terms was $796 billion in 2017, up 5.4 percent or $40.9 billion from 2016, which was led by a U.S.-China goods deficit of $375 billion in 2017, up 5.5 percent and $19.5 billion from 2016. The 2017 U.S-NAFTA goods trade deficit was up 7.8 percent or $13.8 billion from 2016.

To document the significant increase in U.S. trade deficits under the Trump administration, Public Citizen’s Global Trade Watch has launched a new tracker. The tracker visualizes and tracks significant developments related to U.S. trade deficits with NAFTA partners (Canada and Mexico), and China respectively. Click here or on the image below to visit the tracker.

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www.citizen.org/our-work/globalization-and-trade/trumps-trade-deficit


Trade Deficit Up 5 Percent in Trump’s First Year, Raising Stakes for Quick NAFTA Replacement Deal that Stops Outsourcing, China Trade Action

With Trade Policy Unchanged in Trump’s First Year, Outcomes He Attacked Continue

WASHINGTON, D.C. – Contrary to candidate Donald Trump’s pledge to speedily reduce the U.S. trade deficit, in Trump’s first year in office the goods trade deficit is larger than any time since 2008 and up 5 percent overall even in inflation-controlled terms from last year, with a significant jump in the China trade deficit and an 8 percent increase in the North American Free Trade Agreement deficit. Trump has not exercised his available executive authority to fulfill campaign pledges to limit imports, including those from firms that outsource jobs; label China a currency manipulator; revoke trade agreement waivers on “Buy America” procurement policies that outsource U.S. tax dollars to purchase imports for government use; or limit government contracts to firms that outsource jobs.

“Right now, the same trade policy that Trump attacked ferociously and promised to speedily replace is still in place,” said Lori Wallach. “The first-year Trump jump in the U.S. trade deficit adds urgency to the administration actually securing a NAFTA replacement deal that ends NAFTA’s job outsourcing incentives and implementing a new China trade policy.”

The overall 2017 U.S. goods trade deficit in inflation-controlled terms was $796 billion in 2017, up 5.4 percent or $40.9 billion from 2016, which was led by a U.S.-China goods deficit of $375 billion in 2017, up 5.5 percent and $19.5 billion from 2016. The 2017 U.S-NAFTA goods trade deficit was up 7.8 percent or $13.8 billion from 2016.

“It’s not surprising that the deficit is up, because in year one there has been a wide gulf between Trump’s fiery trade rhetoric and action. So the same failed trade policy Trump attacked as a candidate is still in place, outsourcing continues and promised actions remains undone,” Wallach said. “The Trump administration has made some good proposals to transform NAFTA, but the corporate lobby is so intent on blocking those changes that it has delayed – and could – derail the whole process. And so far, the administration has not implemented the comprehensive new approach to our China trade policy that is needed.”

China Trade: Trump reversed his pledge to take action on his first day on currency issues and has achieved little since to expand U.S. exports to China or limit Chinese imports here. Nor has he followed through on promised actions to limit Chinese steel and aluminum imports using section 232 of the Trade Expansion Act of 1962. Also outstanding is action on a Section 301 petition on China the administration initiated in mid-2016.

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U.S.–NAFTA Trade: Between 2011 and 2016, the U.S. goods trade deficit with NAFTA nations declined 11.6 percent, or $23.2 billion (excluding re-exports). This decline has been consistent except for a small 2.9 percent increase in 2014. The U.S. NAFTA goods trade deficit is now mostly manufactured and agricultural goods. Fossil fuels have declined as a share of the total deficit from 82 percent in 1993 before NAFTA to 16 percent in 2016.

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Trade Deficits Up in Trump’s 11 Months in Office; Rather Than Promised Speedy Reduction, 2017 Deficit Will Be Larger Than in 2016

Pressure Mounts for Trump to Deliver on Trade Pledges as Korea Trade Pact Renegotiation Talks Open in D.C. and NAFTA Talks Head to Showdown in Montreal Later This Month

WASHINGTON, D.C. – Today’s November trade data release shows the U.S. trade deficit with Canada and Mexico is 7.9 percent higher and with China is 5.1 percent higher during the first 11 months of the Trump administration compared to the same period in 2016, spotlighting the gap between President Donald Trump’s campaign pledges to speedily reduce the U.S. trade deficit and the lack of trade policy reforms achieved in his first year. The 2017 11-month China deficit is $352 billion, Mexico is $116 billion and Canada is $59 billion, respectively, compared with $335 billion, $110 billion, and $52 billion, respectively, at the 11-month mark in 2016.

Overall, the North American Free Trade Agreement (NAFTA) deficit has grown during the first year of the Trump administration after seeing a progressive decline from 2011 to 2016, while the China trade deficit continues its upward trajectory.

“The growing trade deficits and related lost jobs stands in stark contrast to Trump’s promised speedy reduction of our trade deficit by transforming our China trade policy and securing a better NAFTA deal,” said Lori Wallach, director, Public Citizen’s Global Trade Watch. “The administration has made some good proposals to transform NAFTA, but the corporate lobby’s efforts to block those changes may derail the whole process, and so far the administration has taken no action on China trade at all.”

Since that pact’s implementation in March 2012, U.S. exports to Korea have declined, while U.S. imports from Korea have increased, resulting in a large goods trade deficit increase of 85 percent in the pact’s first five years in effect. Today’s data shows that the U.S.-Korea trade deficit remains higher than before the agreement went into effect.

Trump launched the promised NAFTA renegotiation in August, but U.S. corporate interests have persuaded Canada and Mexico to not engage on U.S. proposals to transform NAFTA in ways that U.S. unions, small businesses and consumer groups have long argued would slow job outsourcing and downward pressure on U.S. wages. As a result, the January 23-28 Montreal round of NAFTA talks has become a pivot point. If Mexico and Canada do not engage, the prospect is heightened that Trump may give notice to withdraw from NAFTA. NAFTA entered its 24th year on Jan. 1, 2018.

With respect to China, Trump reversed his pledge to take action on his first day on currency issues and has achieved little since to expand U.S. exports to China or limit Chinese imports here. Trump also has not exercised his authority to revoke trade agreement waivers on “Buy America” procurement policies that outsource U.S. tax dollars to purchase imported goods for government use. Nor has he followed through on promised actions to limit Chinese steel and aluminum imports using section 232 of the Trade Expansion Act of 1962. Also outstanding is action on a Section 301 petition on China the administration initiated in mid-2016.

U.S. – NAFTA Trade

Between 2011 and 2016, the U.S. goods trade deficit with NAFTA nations declined 11.6 percent, or $23.2 billion. This decline has been consistent except for a small 2.9 percent increase in 2014. During Trump’s first 11 months, however, the U.S. goods trade deficit increased 7.9 percent, or $12.8 billion relative to the same period in 2016. The U.S. NAFTA goods trade deficit is now mostly manufactured and agricultural goods. Fossil fuels have declined as a share of the total deficit from 82 percent in 1993 before NAFTA to 16 percent in 2016.

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View graphic covering NAFTA trade deficit data over longer timespan.

The full-year trade data (January–December) show a similar trend. After the Great Recession, the NAFTA deficit hit its peak in 2011 but has been decreasing gradually each year, with a small increase in 2014.

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 U.S. – China Trade

The U.S. goods trade deficit with China has increased every year since 2009, except for an insubstantial decrease in 2016. Under the Trump presidency, that small deficit reduction has been reversed, and the goods trade deficit is now rising again.

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View graphic covering U.S.-China trade deficit data over longer timespan.


New Trade Data Shows Marked Rise in Deficits During Trump’s First 10 Months, Spotlighting Urgency of Successful NAFTA Renegotiation, Action on China Trade

2017 Trade Deficits With NAFTA Countries and China on Track to Surpass Large 2016 Deficits – Instead of Speedy Deficit Decreases Trump Promised

WASHINGTON, D.C. – Contrary to President Donald Trump’s campaign promises to speedily reduce the U.S. trade deficit, the deficit with Canada and Mexico is 9.4 percent higher and with China 4.1 percent higher during the first 10 months of the Trump administration relative to the same period in 2016, according to the Census Bureau’s goods trade data released today. The North American Free Trade Agreement (NAFTA) deficit in the first year of the Trump administration is on track to reverse a steady decline from 2011 to 2016 of 11.6 percent, or $23.2 billion, while the China trade deficit looks to resume its steady growth since 2009 after a brief decline in 2016.  

Candidate Donald Trump promised quick action to balance the large and persistent U.S. trade deficits with China and the NAFTA nations. “We have a massive trade deficit with China, a deficit that we have to find a way quickly, and I mean quickly, to balance,he said.

While Trump launched renegotiation of NAFTA in August, he reversed his pledge to take action on his first day in office on China trade and has achieved little since to expand U.S. exports to China or limit Chinese imports here. He also has not exercised his authority to revoke trade agreement waivers on “Buy America” procurement policies that outsource U.S. tax dollars to purchase imported goods for government use. Nor has he followed through on promised actions to limit Chinese steel and aluminum imports using section 232 of the Trade Expansion Act of 1962.

“Candidate Trump slammed our huge trade deficits and related lost jobs and lower wages, and promised a speedy fix, but almost a year into his presidency, no major policies have changed, and now Trump owns trade deficits even larger than last year’s,” said Lori Wallach, director, Public Citizen’s Global Trade Watch. “The administration has made some good NAFTA renegotiation proposals that could make a difference, but the U.S. corporate lobby is urging Mexico and Canada to block those changes. It’s a mystery why the Commerce Department has not followed through on the China actions it announced earlier. 

U.S. – NAFTA Trade

Between 2011 and 2016, the U.S. goods trade deficit with NAFTA countries declined 11.6 percent, or $23.2 billion. This decline has been consistent except for a small jump in 2014, when the U.S. deficit increased by 2.9 percent. During Trump’s first 10 months, however, the U.S. goods trade deficit has increased 9.4 percent, or $13.6 billion relative to the same period in 2016.  The U.S. trade deficit with NAFTA countries is now mostly composed of manufactured and agricultural goods, while fossil fuels have declined as a share of the total deficit from 82 percent in 1993 before NAFTA to 16 percent in 2016.”

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Click here for graphic covering NAFTA trade deficit data over longer timespan

The full-year trade data (Jan. – Dec.) show a similar trend. After the Great Recession, the NAFTA deficit hit its peak in 2011, but has been gradually decreasing each year with a small increase in 2014.  3

U.S. – China Trade

The U.S. goods trade deficit with China has been increasing every year since 2009, except for an insubstantial decrease in 2016. Under the Trump presidency, that small deficit reduction has been reversed, and is now rising again.

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Click here for graphic covering U.S.-China trade deficit data over longer timespan


The Peterson Institute Agrees That Trade Agreements, Bilateral or Multilateral, Can Alter the U.S. Trade Deficit

The Congressional Research Service (CRS) recently released a report asserting that, “Economists generally argue that it is not feasible to use trade agreement provisions as a tool to decrease the deficit because trade imbalances are determined by underlying macroeconomic fundamentals.” Ironically, the scholar they cite in support of that claim has repeatedly said the very opposite.

The CRS report cites a policy brief written by C. Fred Bergsten from the Peterson Institute for International Economics that says most economists argue that reducing the U.S. budget deficit is the most effective, if not only, “policy initiative that would reduce the U.S. current account deficit on a lasting basis.” Bergsten does not provide sources in support of his claim.

In the brief, Bergsten omits a substantial body of literature that illustrates how trade agreements have had substantial effects on U.S. trade deficits. But more perversely, Bergsten himself has claimed that inclusion of certain terms in trade agreements can alter the U.S. trade balance.

Earlier this year, in a piece on renegotiation of the North American Free Trade Agreement (NAFTA) Bergsten wrote that, “... currency manipulation is an unfair trade practice that can have huge effects on trade flows and trade balances, and it is thus quite appropriate for the administration to address it in their trade negotiations.”

Bergsten co-authored another paper in 2012 suggesting that not only has currency manipulation increased the U.S. trade deficit, but it has also caused substantial job loss in the United States:

This buildup of official assets — mainly through intervention in the foreign exchange markets — keeps the currencies of the interveners substantially undervalued, thus boosting their international competitiveness and trade surpluses. The corresponding trade deficits are spread around the world, but the largest share of the loss centers on the United States, whose trade deficit has increased by $200 billion to $500 billion per year as a result. The United States has lost 1 million to 5 million jobs due to this foreign currency manipulation.

Bergsten points out later in the 2012 paper that adding strong and enforceable currency manipulation provisions in multilateral or bilateral trade agreements could help alleviate this problem.

While a bevy of editorial writers and news reporters often repeat the claim that trade deficits are caused by macro-economic factors, not trade agreements, Bergsten himself has often made the opposite point. This begs the question of why the Congressional Research Service would have as its one source in support of a specious claim an economist who has regularly argued the very opposite.


Import Alert: Careful What You Eat During Thanksgiving

Trade Deals Like NAFTA Have Led to a Surge of Imported Food, Threatening Food Safety in America

There’s a good chance that some of the food you will eat during Thanksgiving was produced outside the United States. In fact, about 50 percent of fresh fruit and 94 percent of seafood consumed in the United States is imported. But even though Americans are consuming more imported foods today than ever – largely due to trade deals like the North American Free Trade Agreement (NAFTA) – the vast majority is never inspected before it reaches your plate.

Since 1993, U.S. food imports from Mexico and Canada have tripled, increasing from 10.6 million to 32.2 million metric tons. During the same time, U.S. food imports from the rest of the world grew as well, but only at half the rate.

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While the average American diet relies more and more on imported food, safety regulations and food inspections have not kept up. Only one percent of most food, including dairy, seafood and fruit, are inspected by federal regulators. Less than ten percent of meat and poultry is inspected.

Yet, “trade” agreement rules, like those in NAFTA, require us to import meat and poultry from any processing facility in any country that is deemed to have “equivalent” safety standards, even if core parts of U.S. food safety requirements are not met. Before NAFTA, only meat and poultry from individual processing plants in Canada and Mexico that met U.S. safety and quality standards – and that were certified as doing so by U.S inspectors – could be sold here. NAFTA not only required us to allow imports produced under the other countries’ differing standards, but required us to accept meat from any and all processing plants in Mexico and Canada that were certified as complying with those countries’ domestic standards, not necessarily U.S. standards.

The non-partisan Government Accountability Office describes the federal oversight of food safety as an area of “high risk for fraud, waste, abuse, and mismanagement, or most in need of transformation.” Their 2016 report says one of the top obstacles to food safety is that “a substantial and increasing portion of the U.S. food supply is imported, which stretches the federal government’s ability to ensure the safety of these foods.”

Unfortunately, things may get worse. President Trump has proposed a budget cut of $83 million to the food safety programs administered by the Food and Drug Administration, which oversees 80 percent of the U.S. food supply.

Recent polling shows that food safety is one of the top issues voters are concerned about in the ongoing NAFTA renegotiation. That’s why a coalition of labor, environmental, family farm, consumer, and faith organizations representing over 12 million people has demanded that the renegotiated NAFTA require all imported food to meet U.S. safety standards and mandate more robust inspection. Plus, the groups are demanding that a NAFTA replacement restore the country-of-origin labels on meat that were eliminated in 2016 after the Canadian and Mexican governments successfully attacked the popular U.S. policy as an illegal trade barrier.

NAFTA’s food safety rules are a recipe for disaster. So as you sit down to enjoy your Thanksgiving meal, be careful what you eat!


News Analysis: Next Round of NAFTA Talks May Bring Renegotiation to an Inflection Point if Canada and Mexico Refuse to Engage on U.S. Proposals

From Lori Wallach, Director, Public Citizen’s Global Trade Watch

Renegotiation of the North American Free Trade Agreement (NAFTA) faces a critical juncture as the fifth round of talks officially starts Friday in Mexico City.

At issue is whether Canada and Mexico will engage on a series of proposals to significantly reshape NAFTA that were submitted by the United States during the fourth round of talks in October – and, if they refuse, how the administration will respond. Also at issue if they do engage is what additional proposals the administration will put forward to deal with the abysmal labor standards and wages in Mexico. How these issues play out will greatly affect the fate of NAFTA.

The U.S. proposals from October would reverse some of NAFTA’s incentives to outsource investment and jobs from the United States and are among reforms that Democratic and Republican members of Congress, labor unions and other NAFTA critics spanning the political spectrum have demanded for decades. More than 930,000 U.S. workers have been certified under just one narrow government program as losing their jobs to NAFTA.

The administration has made clear that the choice facing Canada, Mexico and the corporate lobby is either a new approach or no NAFTA. Ironically, the corporate lobby’s strategy increases the likelihood of a no-NAFTA future.

The corporate lobby’s response to the administration’s proposals to eliminate NAFTA job outsourcing incentives suggests that the new reality of a different NAFTA or no NAFTA is being dismissed as a bluff, or that the corporate lobby prefers no NAFTA. Whether a case of magical thinking or ideological rigidity after years of corporate interests dictating U.S. trade policy, the fifth NAFTA renegotiating round will reveal whether the corporate lobby has persuaded the governments of Canada and Mexico to join a game of high-stakes poker that increases the odds of the no NAFTA outcome.

Given that the U.S. Chamber of Commerce, National Association of Manufacturers, Business Roundtable, Coalition of Service Industries, PhRMA and other business lobbies have spent decades and hundreds of millions to insert protections and policies unrelated to trade into U.S. “trade” agreements, they may prioritize defending the protections they won. But why associations representing U.S. farmers and ranchers would get on that ideological bandwagon is inexplicable. The Farm Bureau and commodity groups have joined the Chamber in the our-way-or-the-highway approach that paves the way to a no NAFTA outcome. But the agriculture sector is most reliant in sustaining NAFTA and its duty access for U.S. exports.

If the United States were to withdraw from NAFTA, the pact’s implementing legislation would authorize the president to proclaim a reversion of trade terms between the three countries to the Most Favored Nation tariff levels of the World Trade Organization (WTO). Forty-six percent of U.S. tariff lines, 50 percent of Mexican tariff lines and 76 percent of Canadian tariff lines are duty-free under the WTO, and the existing tariffs would be drastically lower than those before NAFTA because the WTO tariff cuts have been fully implemented. The current average WTO Most Favored Nation applied tariffs on a trade-weighted basis for the United States, Mexico and Canada are respectively 2.4, 4.5 and 3.1 percent.

However, agriculture is the outlier: U.S. exports to Mexico, beef, pork, poultry and wheat would face significant tariffs. (Almost all U.S. corn exports to Mexico, by far the largest U.S. agricultural export, would be duty-free. Mexico went duty-free for yellow corn for all WTO countries in 2008, thus 95 percent of U.S. corn exports to Mexico would be duty-free without NAFTA. A large share of U.S. soy exports also would be duty-free under Mexico’s WTO tariff rates.) Just assuming hypothetically that the president withdrew from NAFTA and chose not to revert to duty free treatment for Canada under the 1988 U.S.-Canada Free Trade Agreement, which was suspended not terminated when NAFTA was enacted, WTO tariffs for Canada would be significant for U.S. exports to Canada of wheat, barley, dairy and beef. 

That farmers have the most to lose under the no-NAFTA outcome and do not have a dog in the fight over auto-sector rules of origin or foreign investor protections, for instance, makes even more perverse their participation in the Chamber’s dangerous game of trying to shut down any discussion of the U.S. NAFTA restructuring proposals that enjoy wide support outside the corporate lobby groups.

U.S. Trade Representative Robert Lighthizer’s response to team status quo’s declaration that the proposed reforms are non-starters was to declare: “These changes of course will be opposed by entrenched Washington lobbyists and trade associations.” The corporate lobby has been in a full meltdown since, operating under a premise that somehow rejecting the proposals will make them go away.

In contrast, Lighthizer has raised a tantalizing prospect: a new trade agreement model could rebuild broader consensus for trade expansion, creating a new bipartisan coalition to pass a NAFTA replacement. The proposals that have triggered the corporate hissy fit would further this goal. There is wide support in Congress and among unions, small businesses and consumer groups for the October U.S. proposals to:

  • Eliminate some investor protections that make it cheaper and less risky to move American jobs to low-wage Mexico,
  • Roll back waivers of Buy American and other domestic procurement preferences that outsource U.S. tax dollars rather than reinvesting them to create jobs at home,
  • Tighten the rules of origin so that goods with significant Chinese and other non-NAFTA content would no longer enjoy NAFTA benefits, and
  • Require NAFTA countries to review the agreement every five years to ensure it is meeting desired outcomes and affirmatively agree to extend it.

Assuming that the countries can engage in real negotiations at the fifth round, the next step toward building broad consensus for trade expansion will involve the administration creating proposals to raise labor and environmental standards and wage levels in Mexico. There is no real remedy to NAFTA’s outsourcing incentives unless a new NAFTA raises Mexican wage levels. Canada’s proposal for a new NAFTA labor chapter is much closer to what unions in all three countries seek than the already-rejected Trans-Pacific Partnership (TPP) labor and environmental standards language that has served as the template for U.S. proposal to date. At the same time, the U.S. administration is exploring what new approach could remedy the clear failings of the labor provisions in past U.S. pacts, a problem made glaringly clear with the recent Central America Free Trade Agreement ruling that persistent, severe labor abuses in Guatemala did not violate the standard U.S. trade-pact labor rules included in that pact.

Also key to attracting large blocs of voters in favor of a revised deal will be not adding the TPP’s extended monopoly protections for pharmaceutical firms or terms rolling back food safety and financial regulation. The administration is inclined to support these terms, but various TPP signatories led by Canada rejected the very provisions last weekend, which derailed efforts to sign a TPP-11 deal.

In an odd role reversal, longtime critics of NAFTA hope Canada and Mexico will engage on the U.S. reform proposals during the fifth round. In contrast, if the NAFTA partners mimic the corporate lobby’s dismissive non-started approach, this round of talks could be the beginning of the end for NAFTA.

Given that low wages and lax environmental standards in Mexico draw firms to relocate production and jobs from the United States, the best outcome for workers in all three countries from the ongoing NAFTA renegotiations is a new agreement that raises standards. Indeed, raising wages in Mexico is essential to reversing American job outsourcing to its southern neighbor, where average manufacturing wages are now 9 percent lower in real terms than before NAFTA. However, because NAFTA includes provisions that explicitly incentivize outsourcing, and almost a million American workers have been certified as losing their jobs to NAFTA, and every week NAFTA helps corporations outsource more middle-class jobs, no NAFTA is better than more years of the current agreement.”


Asia Trip Spotlights Chasm Between Trump Campaign Rhetoric on Trade and Action, Raising Political Stakes for Meaningful Deliverables

WASHINGTON, D.C. – With President Donald Trump beleaguered on many fronts, the stakes for delivering on his trade promises are high as his first trip to Asia features the very nations Trump targeted with the heated trade critique that helped him win the presidency. Undoubtedly there will be announcements of “breakthroughs,” so below we offer some indicators to measure the actual trade outcomes.

Trump pledged to make U.S. trade policy “a lot better” for working people, starting with day-one action to reverse the China deficit, renegotiating or ending the “job-killing” Korea Free Trade Agreement (FTA) and reducing the U.S. trade deficit with Japan. But so far, beyond formally burying the Trans-Pacific Partnership (TPP) – a pact widely acknowledged as already dead for a lack of majority congressional support – Trump has accomplished nothing on the Asia trade front.

The lack of action is especially problematic because many of Trump’s trade critiques – including those raised by Democrats for decades - are correct. Since his election, the situation is getting worse and whether Trump can deliver on his pledges to bring down the trade deficit and create American manufacturing jobs will be  measurable via monthly government trade and jobs data.

  • The latest monthly U.S. goods deficit with China reached $35 billion (August), the largest in nearly two years. The China deficit is on track to be higher in Trump’s first year than in 2016. Absent real changes in China trade policy, Trump cannot deliver on his pledge to bring down the U.S. trade deficit and create American jobs given China typically represents nearly half of the overall U.S. goods and services deficit.
  • After doubling the U.S.-Korea goods trade deficit in its first four years, the Korea FTA is again on track for another large deficit by the end of Trump’s first year in office with the auto industry centered in his politically crucial Midwest states slammed while U.S. farmers have yet to see the promised gains.

Ironically, the trip also spotlights the hollowness of the panicky claims from the corporate lobby. No, Asian nations have not signed an alternative trade deal, the Regional Comprehensive Economic Partnership (RCEP), with China after the TPP’s demise. RCEP is as stuck as ever. No, the TPP did not go forward minus the United States. Expect claims of ‘general agreement’ on that goal on the sidelines of the Asian Pacific Economic Partnership summit in Vietnam. But in fact, the administration’s decision to roll back the investor-state dispute settlement (ISDS) corporate rights and tribunals in the North America Free Trade Agreement (NAFTA) renegotiations reflects an issue that has bogged down Japan’s efforts to get the remaining 11 countries to enact TPP. No, Trump has not launched a China trade war. Indeed, the promised trade actions on steel and aluminum are mired and the 100-day plan touted this spring proved to be a repackaged list of things China promised the Obama administration.

Some less-than-obvious indicators of concrete action would include:

 CHINA: Will Trump terminate negotiations for a U.S.-China Bilateral Investment Treaty (BIT) that the Obama administration nearly completed? Or, as China demands, revive this deal that would make it easier to outsource more American jobs to China? China has indicated some “new” trade deals could be in the offing during Trump’s visit. One way to unpack whether these are simply rewarmed promises from the past or real change will be the fate of the China BIT, an expansive treaty started by the Bush administration and almost completed by Obama. The pact, which China is keen to sign, would give Chinese firms broader rights to purchase U.S. firms, land and other assets and newly expose the U.S. government to demands for compensation from Chinese firms empowered to attack U.S. policies in extra-judicial ISDS tribunals. Former Goldman Sachs executive-turned National Economic Council chief Gary Cohn reportedly shut down plans to terminate the China BIT negotiations earlier this year.

Given that the administration is demanding a major roll back of the ISDS provisions in NAFTA, it would be notable if Trump does not shut down the China BIT, which provides special protections to firms that outsource to China and simultaneously would greatly expand U.S. ISDS liability. Because only a small portion of foreign investment in the United States is now covered by ISDS agreements, to date the United States has avoided paying corporations over ISDS claims. But with China continuing to invest aggressively throughout the United States, a BIT with China would greatly increase U.S. liability. According to a soon-to-be-unveiled Public Citizen database on the footprint of Chinese investment here, total investment reached over $45 billion in 2016 including over 40 acquisitions of American assets worth at least $50 million each, a high-water mark for inbound investment. Buyers include large Chinese conglomerates with ties to the government like Dalian Wanda as well as state-owned enterprises like the Chinese sovereign wealth fund, China Investment Corporation. Chinese investors have entered U.S. sectors similar to those in which foreign investors have launched the most egregious ISDS cases worldwide such as energy and pharmaceuticals. These 2016 deals include Chinese purchases of over 100 oil wells in Texas and a pharmaceutical distribution center in Kentucky.

KOREA: Will Trump push for changes to the 2012 U.S.-South Korea Free Trade Agreement (FTA) or will his visit focus only on North Korea? How to peacefully resolve North Korea’s nuclear escalation is a thorny question. What should happen with the Korea FTA is an entirely separate question that is not complicated. Civil society organizations and many Democrats in Congress opposed the U.S.-Korea FTA in 2011 when the deal was before Congress because at its heart are new rights and powers for corporations to raise medicine prices and attack environmental, health and financial stability safeguards and to get duty free access for goods with significant Chinese content.

U.S. exports to Korea actually declined after the pact. U.S. average monthly exports to South Korea have fallen in nine of the 15 U.S. sectors that export the most to South Korea, relative to the year before the FTA. U.S. exports to South Korea of agricultural goods have even fallen 5.4 percent in the first five years of the FTA. As with most other U.S. FTAs, imports into the United States soared. Thus, the U.S. goods trade deficit with Korea increased by 85 percent in five years. The U.S. goods trade deficit with Korea is once again deteriorating as imports from Korea grow faster than U.S. exports to Korea, reaching $2.3 billion in the latest available monthly data (August 2017).

A broad network of Korean civil society organizations, trade unions, public health organizations similarly opposed the U.S.-Korea deal. Opposition Korean parliamentarians raised many of the same concerns over corporate rights and ISDS, financial stability, access to medicines and more.  The deal sparked violent clashes among parliamentarians after parliament was physically barricaded to avoid a vote and then when tear gas was unleashed in the legislative chambers.

JAPAN: Will Japan agree to a bilateral U.S. trade agreement and/or specific measures to reduce what is the third largest bilateral U.S. trade deficit (behind only China)? The U.S.-Japan goods trade deficit was $74 billion in 2016, and Japan has been a permanent fixture on the U.S. Treasury Department’s “monitoring list” for currency manipulation. It is unclear whether Trump can achieve much to address the deficit or the bipartisan call for binding disciplines on currency manipulation, which Japan rejected in the context of the TPP. But, interestingly, the administration’s position on ISDS in NAFTA is thwarting the Abe administration’s efforts to salvage the widely-rejected corporate rights enshrined in the TPP via a “TPP-11” deal. Many TPP countries, including Malaysia, Vietnam, Australia, and others, had only accepted the ISDS provisions under extreme duress to make a deal with the United States. But recent comments by U.S. Trade Representative Robert Lighthizer about the U.S. proposals to radically roll back the ISDS provisions in the context of the NAFTA renegotiations has emboldened the opposition to these provisions among the TPP-11 nations. Lighthizer’s explanation of why investors do not need ISDS were widely circulated in Australia, New Zealand, and elsewhere.

The New Zealand government, for instance, had been supporting Abe’s efforts to salvage the TPP with minimal changes, but New Zealand’s recently elected new Prime Minister Jacinda Arden, announced this week that her government would “do our utmost to amend the ISDS provisions of the TPP” and that her Cabinet has “instructed trade negotiation officials to oppose ISDS in any future free trade agreements.” Adding this bombshell to the reported 50 requests by the TPP-11 countries to freeze or amend the deal’s clauses, including shelving intellectual property provisions on pharmaceutical data, the prospects for a TPP-11 deal in Vietnam are diminishing.  Even in Japan itself, the political foundation within Abe’s ruling Liberal Democratic Party (LDP) is on much shakier ground for a TPP-11 deal.  Koya Nishikawa, a former agriculture minister and LDP leader who was key in delivering needed support from the powerful farm caucus for the TPP, recently lost his seat in the Japanese Diet.  Without Nishikawa, Japan’s already skeptical agricultural sector may not be supportive of a TPP deal.

  • On TPP-11 dynamics: Jane Kelsey, University of Auckland, kelsey@auckland.ac.nz;
  • English-speaking expert from Japanese civil society on TPP-11 and Japan’s political dynamics surrounding trade: Shoko Uchida, Director, Pacific Asia Resource Center, kokusai@parc-jp.org

In Epic WTO v. Flipper Case, Trade Organization Ruling in Favor of U.S. Dolphin-Safe Tuna Labeling Program May Reflect Concerns About Trump Criticisms of WTO

U.S. Gutted Ban on Dolphin-Deadly Tuna After 1991 Trade Case; Today’s Ruling Means U.S. Dodges $163 Million in Sanctions for Voluntary Labels That Replaced Ban – But Mexico Can Appeal Decision

WASHINGTON, D.C. – After two decades of successful trade attacks that led to the gutting of a U.S. ban on tuna caught in a manner that harms dolphins, today’s World Trade Organization (WTO) ruling was a welcome if unexpected shift that may reflect the institution’s response to intensive pressure by the Office of the U.S. Trade Representative to reform the WTO’s dispute resolution process and President Donald Trump’s threats to withdraw from the body, Public Citizen said.

At issue in today’s ruling are voluntary labels that provide consumers with information to enable them to choose dolphin-safe tuna. The labels were put in place after the U.S. eliminated its ban on dolphin-deadly tuna after losing previous WTO cases. Millions in American taxpayer funds have been spent defending attack after attack on dolphin protections at the WTO.

“The WTO is a political institution, so this ruling may be motivated by a sense of self-preservation, given that the administration has spotlighted how WTO tribunals order countries to gut domestic policies based on unaccountable tribunals making up new obligations to which countries never agreed,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “At another politically fraught moment for the WTO shortly after the 1999 Seattle WTO protests, when a ruling against Europe’s ban on asbestos was seen as substantiating protestors’ claims about the body, a surprise reversal also was issued.” 

Today’s ruling is subject to appeal by Mexico. Public Citizen called on the Trump administration and the Mexican government to include language in North American Free Trade Agreement (NAFTA) renegotiations explicitly affirming the current U.S. labeling program so as to shut down any future disputes after 25 years of trade-pact attacks on U.S. dolphin-safe labeling policies. The initial 1991 tuna-dolphin case, dubbed GATTzilla v. Flipper, instigated environmental and consumer group engagement on “trade” agreements.

Today’s ruling focused on whether a 2016 strengthening of the enforcement provisions of the U.S. dolphin-safe tuna labeling regulations with respect to countries other than Mexico made the policy compliant with WTO rules. The WTO repeatedly had declared that the policy discriminated against Mexico, and that rules that limited exceptions for policies aimed at conserving natural resources or protecting animal life or health did not apply. Most recently, an April 2017 WTO decision authorized Mexico to impose an annual $163 million in trade sanctions against the United States, concluding that 2013 changes to the policy still did not meet WTO rules. The April ruling set the amount of sanctions Mexico could impose after the WTO ruled against the U.S. labeling program in 2011, upheld that ruling on appeal in 2012, ruled in 2015 that the initial U.S. changes to the policy did meet WTO rules and upheld that decision on appeal.

Today’s decision means that the United States will not immediately face the previously authorized $163 million in annual trade sanctions.

The decision is the latest development in an ongoing trade impasse between the U.S. and Mexico on dolphin-safe tuna that started in 1991. The current round of attacks started in 2008 with the WTO repeatedly ruling against the U.S. dolphin-safe tuna labeling program even though it is strictly voluntary and accessible to Mexican fishing fleets should they opt to use dolphin-safe tuna-fishing methods just as U.S., Ecuadorean and other nations’ fleets do. Tuna that does not meet the dolphin-safe standard still can be sold in the United States without that label.

“To make sure that the attack on dolphin-safe tuna ends once and for all, a formal and final settlement of the case safeguarding the policy must be part of NAFTA renegotiations,” Wallach said.

Short overview and background of the case: 1991-2017  


How Progressives Can & Must Engage on NAFTA Renegotiations

Findings from National Poll

Trade stands out from every other policy issue because Donald Trump’s unhappiness with the status quo is shared by virtually all progressive advocacy groups and nearly all Democratic Members of Congress who are otherwise fighting Trump every day. It is urgent for progressives to engage on trade because Trump has triggered the renegotiation of the North American Free Trade Agreement (NAFTA), which will likely conclude early next year or sooner if the president gives the six-month notice provided for in NAFTA to withdraw the U.S. as a signatory. The president also has the ‘fast track’ authority won by President Obama that guarantees him a vote 90 days after he submits an amended agreement to the Congress, with amendments, Senate filibuster and supermajority voting forbidden.

At a time of great peril for our democracy and deepening public opposition to Donald Trump on many fronts, he wins high marks from voters on handling trade and advocating for American workers: 46 percent approve of his handling of trade agreements with other countries, 51 percent, his ‘putting American workers ahead of the interests of big corporations’ and 60 percent, how he is doing “keeping jobs in the United States.”[1]

The Republicans continue to hold an advantage over Democrats on handling the economy in polling.[2] And frankly, Democrats’ advantage in the generic congressional ballot is not as impressive as it should be (8-point lead among registered voters but only 5 among likely voters), as Democrats in Congress seem focused on everything but economic issues.  The Democrats’ silence on the trade issue this year and in the 2016 presidential election – even though three-quarters of House and Senate Democrats opposed trade authority for the TPP – contributed mightily to Trump’s victory in many of the Rustbelt states and to the Democrats’ current disadvantage on the economy.

Progressives need to communicate that they are fighting for American jobs, for raising incomes and wages and for putting the interests of American workers before corporations who shaped NAFTA and are now using it to accelerate job outsourcing, which our research showed is viewed by voters as the greatest threat to America’s living standards.

Fighting for the right major changes to NAFTA is broadly popular among Trump voters as well as the college educated and diverse Clinton voters who are more conflicted about trade, TPP and NAFTA. Focusing on NAFTA in the right way and calling out Trump on what changes he is really fighting for allows progressives to speak powerfully on the economy, lagging wages and American jobs.

Outsourcing and trade agreements

What Donald Trump knows and all progressives must understand is that for voters, the trade issue is not about trade agreements per se. It is about the outsourcing of good paying American jobs that these agreements facilitate.

What many activists will find most challenging is how little voters dwell on the agreements themselves and how uncertain most of them are about their effects on the economy, jobs and living standards. Even though TPP was debated nationally in the presidential contest and championed by Trump and Obama, only 59 percent of voters in our recent poll could identify it now. In focus groups conducted this summer, Trump and Clinton voters struggled to remember what TPP was all about.

A sizeable number are unsure of NAFTA’s impact: 15 percent unsure on the economy, 20 percent on jobs and 26 percent on whether it damaged the environment.

People do hold strong views, become animated in focus groups, and connect the dots to their daily lives when ‘outsourcing’ is brought up. Nearly 60 percent view ‘outsourcing’ negatively, with nearly half intensely negative; only 11 percent view ‘outsourcing’ favorably, putting it in the same league with Vladimir Putin.[3]  Just hearing the word in focus groups made both non-college educated voters in the Midwest states and college-educated Seattle voters see red: those are “middle income jobs,” companies who outsource are “traitors” and “should be financially penalized.”

It is outsourcing that is at the heart of people’s anger with CEOs and big corporations that pursue profits by shifting investments to places with much cheaper labor costs, without any loyalty to their country, company and employees. That anger unites college graduates and white working class voters: 59 percent of the latter react negatively to outsourcing, and the college voters are almost 10-points more negative.

Progressives’ entry point to the trade debate is not the trade agreement themselves, but the outsourcing that people view as the biggest and growing threat to decent paying American jobs. NAFTA renegotiations give progressives an opportunity to talk about an economy where jobs don’t pay enough to live on, which will improve their standing on the economy, while also advocating for changes to NAFTA and the U.S. approach to trade that can really lead to more, better paying American jobs. 

Beyond partisanship

NAFTA is divisive and polarizing – but progressives hoping to ignore the issue allow Trump to continue to prevail on American jobs. If progressives make ‘outsourcing’ the entry point into the trade debate, they can unite Democrats and Trump voters around effective criticisms of NAFTA and messages demanding Trump deliver major changes.

Our research shows Democratic voters become critical of trade agreements and NAFTA when they realize how corporate special interests are lobbying in secret to include provisions that provide special powers to corporations to sue the U.S. government before tribunals of corporate lawyers over our laws to demand taxpayer money or insert provisions into NAFTA to reverse Dodd-Frank Wall Street regulations. This was also true over the course of the TPP debate, as Democrats and progressives became educated about these very same issues. Our recent research showed that college graduates are more anti-corporate than the white working class – which explains why they react more strongly to an anti-corporate NAFTA message and against Investor-State Dispute Settlement (ISDS) and its corporate tribunals.

Together, a critique of NAFTA for facilitating outsourcing and failing to put American workers ahead of corporations shifts Democrats even more dramatically against NAFTA.

Wide support for changes to NAFTA

Support for changing NAFTA is broad. A 43 percent plurality wants to see major changes to NAFTA, while just 39 percent are looking for more modest adjustments. Even fewer Trump and white working voters are looking for small changes. After hearing criticisms of NAFTA – effectively simulating the national debate on NAFTA that is unfolding – the bloc demanding major changes comes to dominate among minority voters (59 percent), metro residents (57 percent), college graduates (55 percent), and Clinton voters (51 percent) too.  

Getting this strategic context right enables progressives to focus the battle on what changes need to happen. If Trump isn’t really pushing for the kinds of changes that are most important for voters, he could be marginalized by the NAFTA debate itself.

Voters’ Top Priorities for NAFTA Change Not Same as Trump’s

The strongest attack on NAFTA is a change the administration is failing to prioritize – and one that is critically important to the progressive agenda on trade and to progressives speaking about an economy that must produce more better-paying American jobs.

The most convincing argument for major changes says that American workers are losing because NAFTA lacks enforceable “labor and environmental standards so companies can move U.S. jobs to Mexico to pay workers poverty wages” and dump pollutants and “import those products back to the U.S. for sale.” Over 80 percent of Trump voters and over 60 percent of Clinton voters found that a convincing argument against the current NAFTA. But new terms to remedy this do not appear to be at the top of the Trump trade agenda in the leaked stories about the negotiations.

The second strongest critical argument focuses on how NAFTA has facilitated the outsourcing of good “middle class jobs to Canada and Mexico” and continues to do so every week. That was a convincing argument to 85 percent of Trump voters and 61 percent of Clinton voters.

In the next tier are arguments about the safety of our food, which also receives an intense reaction. NAFTA limits our ability to ensure food safety, which is very concerning to 63 percent of Trump voters, 54 percent of white working class voters and 42 percent of college graduates.

College graduates express a lot of concern after hearing about Investor-State Dispute Settlement – or the “special powers” given to corporations to “sue the government over our health and safety laws” for unlimited “U.S. taxpayer money.” This raised concerns among 60 percent of college graduates.

Interestingly, one of Trump’s main critiques – the trade balance - scored lower and had the lowest intensity. The key here is that progressive critiques of NAFTA are the ones that voters find most concerning.

Impact of Messaging

The strongest message that gets to Trump voters, but also rings powerfully true for Clinton voters, focuses on how NAFTA facilitates outsourcing, producing an economy where people haven’t seen a pay increase in years, which will continue to worsen unless NAFTA changes.  Rather than leveling the playing field for us, NAFTA “make[s] it easier for companies to outsource jobs to Mexico” where they “can pay employees less” so since NAFTA went into effect, our wages have “been flat.” It says that major changes are needed to NAFTA or else it will continue to give the “greenlight to corporations to outsource American jobs, pushing down wages for everyone in the US.”

By transforming the trade debate into a big economic argument with outsourcing as the main problem, progressives become the advocates for more American jobs with higher wages and salaries.

After a simulated debate where everyone heard competing arguments, half a trade-outsourcing message focused on the ongoing job loss and wage decline, and half a trade-outsourcing message focused on corporate power and privileges, voters are much more likely to believe NAFTA has been damaging and demand major changes. They are more likely to say it is bad for the economy and jobs.

While the shifts are considerable no matter which argument and message, those who heard about ongoing job losses and wage decreases were much more likely to become convinced NAFTA has hurt their own ability to get good, decent-paying jobs (+21-point shift versus +13 point shift). That is the most important change if progressives are to use the NAFTA debate to improve their credibility on the economy.

 

[1] This memo is based on a national phone survey of 1,000 registered voters, using 60 percent cell phones, conducted September 30-October 6, 2017 by Citizen Opinion on behalf of Public Citizen. The polling was preceded by six focus groups among white working class Obama-Trump voters in Macomb County, MI and Oak Creek, WI and college educated Clinton voters in Seattle Washington in July 2017.

[2] According to a June 2017 NBC/Wall Street Journal poll of 900 adults nationwide, the Republican Party has a 7-point advantage over the Democratic Party on dealing with the economy (36 to 29).

[3] Vladimir Putin viewed favorably by 15 percent of adults nationwide in a Bloomberg poll conducted July 8-12, 2017.


As Battle Over NAFTA Investor Protections Heats Up, Trinational Coalition Delivers 400,000 Petitions Demanding Elimination of Corporate Rights and Tribunals

Investor-State Dispute Settlement Becomes Key Measure of Whether NAFTA Renegotiations Will Benefit Working People or Expand Corporate Power

WASHINGTON, D.C. – Growing public opposition to the expansive corporate privileges at the heart of the North American Free Trade Agreement (NAFTA) took center stage as the fourth round of NAFTA talks began today in Washington, D.C. U.S., Mexican and Canadian civil society organizations delivered more than 400,000 petitions demanding that NAFTA’s expansive corporate rights and protections and Investor-State Dispute Settlement (ISDS) be eliminated during renegotiations. [Still photos and video available of delivery event.]

“If you want to know how trade deals like NAFTA have been rigged against working people and our communities, all you need to do is to look at the Investor-State Dispute Settlement process,” said Chris Shelton, president, Communications Workers of America.

“Americans want trade deals that will add new protections for our environment, create American jobs and raising wages, not another corporate giveaway by a phony populist like Trump, said CREDO political director Murshed Zaheed. “If Trump doesn’t use NAFTA renegotiation to eliminate the Investor State Dispute Settlement provision it will further expose his administration as craven crony capitalists masquerading as faux populists.”

“The Teamsters are North America’s supply chain union. With members in long-haul trucking and freight rail, air, at ports and in warehouses, as well as members in manufacturing and food processing, this union has a big stake in trade policy reform,” said Jim Hoffa, general president, Teamsters. “We will be monitoring the modernization of a flawed and failed NAFTA, and fighting to make sure that the new NAFTA works for working families.”

U.S. officials are expected to table a proposal on the controversial NAFTA investment chapter during this week’s negotiations. NAFTA’s investor protections and ISDS make it less risky and expensive for corporations to outsource jobs and empower them to attack domestic policies that protect public health and the environment by going before tribunals of three corporate lawyers who can order unlimited compensation to be paid to the corporations by taxpayers.

Last month, more than 100 small business leaders sent a letter calling for elimination of ISDS in NAFTA. Organizations representing U.S. state legislatures and state attorneys general and hundreds of prominent economics and law professors also have declared opposition to ISDS, as has a group of Republican members of the U.S. House of Representatives. Conservative U.S. Supreme Court Chief Justice John Roberts has warned about the threat of ISDS. But corporate interests are scrambling to defend the controversial regime they use to attack domestic laws and raid taxpayer funds.

While just 50 known ISDS cases were launched in the first three decades of this shadow legal system, corporations have launched more than 50 claims in each of the past six years. More than $392 million in compensation has already been paid out to corporations to date after NAFTA ISDS attacks on oil, gas, water and timber policies, toxics bans, health and safety measures, and more. More than $36 billion in NAFTA ISDS attacks are pending.

“People from the Yukon to the Yucatan are united in demanding an end to NAFTA’s corporate privileges that promote job outsourcing, lower wages and attacks on health safeguards,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “A NAFTA replacement deal that benefits people and the planet cannot grant corporations powers to skirt our laws and courts and demand unlimited taxpayer compensation from tribunals of corporate lawyers.”

“NAFTA is strewn with handouts to corporate polluters that must be eliminated, starting with the free pass for chronic job offshorers to attack air, water, and climate protections in tribunals of corporate lawyers,” said Ben Beachy, director of Sierra Club’s Responsible Trade Program. “Any NAFTA replacement must stop protecting multinational corporations and start protecting the workers and communities across North America who have endured decades of damage under this raw deal.” 

"ISDS makes big corporations feel safer moving jobs around the globe to wherever workers are the most exploited and environmental regulations are the weakest, and it also puts democratically-enacted public interest laws in jeopardy both at home and abroad,” said Arthur Stamoulis, executive director of Citizens Trade Campaign. "While many changes are needed to make a NAFTA replacement deal work for working families and the planet, if trade negotiators maintain ISDS, we’ll know the NAFTA renegotiation has been hijacked by special interests intent on preserving corporate power.”

"ISDS effectively usurps democratic governance, and makes it impossible for elected governments to create policy that benefits ordinary citizens without the threat of a corporate lawsuit,” said Carli Stevenson, campaigner, Demand Progress. “As we fight to preserve the free and open internet in the United States, we stand with activists worldwide against attempts by any corporation to use trade agreements to make their profits sacrosanct and act against the interests of citizens, workers, and consumers. ISDS should not be a part of any trade agreement."

 “ISDS empowers mega-corporations to attack democratic values, human rights, and environmental protections and force governments to award their corruption and greed with unlimited payments of our tax dollars,” said Matt Nelson, Executive Director of Presente Action. “The reality is clear, forces pushing the ISDS have no loyalty to their governments or the people, only to their pipedreams to rule our public institutions like their own private castles."

“Investor-State Dispute Settlement puts power in the hands of international tribunal that do not have the best interests of workers, public health, and the environment, but rather benefit corporations looking to make a profit or gain more power,” said Patrick Carolan, executive director, Franciscan Action Network. “This is not in line with Catholic Social Teaching and Franciscan values which emphasizes the need for just and fair laws for all people.”

“Big Pharma is already demanding more extensive provisions on intellectual property in NAFTA to extend their market monopolies on medicines even longer. At the same time, it’s also pushing to expand NAFTA’s investment chapter to include intellectual property claims. This would mean pharmaceutical giants could use the system of closed-door tribunals to try to overturn important, long-standing features of a country’s laws on patents or other aspects of intellectual property, in pursuit of yet more profits for the one of the most profitable industries in the world, said Richard Elliott, executive director, Canadian HIV/AIDS Legal Network.

Organizations involved include:

AFL-CIO

Canadian HIV/AIDS Legal Network

Center for International Environmental Law

Citizens Trade Campaign

Corporate Accountability International

Council of Canadians

CREDO Action

Communications Workers of America

Daily Kos

Demand Progress

Democracy for America

Derechos Digitales

Food and Water Watch Action Fund

Franciscan Action Network

Friends of the Earth

Global Exchange

Good Jobs Nation

Institute for Agriculture and Trade Policy

Interfaith Workers Justice

International Corporate Accountability Roundtable

International Labor Rights Forum

Just Foreign Policy

Leadnow

Machinists Union

Maryknoll Office for Global Concerns

Open Media

Our Revolution

People Demanding Action

Presbyterian Church (U.S.)

Presente Action

Progressive Congress Action Fund

Public Citizen’s Global Trade Watch

Sierra Club

SumOfUS

Teamsters

Trade Justice Network (Canada)

United Church of Christ

United Electrical Workers


Comments Concerning the Costs and Benefits to U.S. Industry of U.S. International Government Procurement Obligations

An excerpt from Global Trade Watch's official comment submission on U.S. procurement obligations is below. For the full report, please click here

Public Citizen welcomes the opportunity to submit comments to the U.S. Department of Commerce and the Office of the U.S. Trade Representative (USTR) on U.S. government procurement obligations in trade agreements. Public Citizen is a nonprofit consumer group with more than 400,000 members. A mission of Public Citizen is to ensure that in this era of globalization, a majority can enjoy economic security; a clean environment; safe food, medicines and products; access to quality affordable services; and the exercise of democratic decision-making about the matters that affect their lives.

In the context of a creeping expansion of the scope of “trade” agreements negotiated behind closed doors with hundreds of official corporate advisors, Americans across the political spectrum have become aware and upset about the ways in which today’s “trade” pacts conflict with their goals and values. As agreements have expanded far beyond traditional matters such as cutting tariffs and limiting quotas, more Americans have become engaged in demanding a new approach. As a result, the status quo U.S. trade policy model now faces unprecedented crises politically, economically and socially.

Thus, a review of trade-pact procurement terms is timely. These terms constrain how the public can direct our federal and state officials to spend our tax dollars. The rules require firms operating in trade partner countries to be treated like U.S. firms – and foreign goods to be treated as if they were made in America – with respect to many types of government contracts over a set dollar-value threshold, with some limits for U.S. defense agencies and some products. Effectively, these rules offshore our tax dollars rather than investing them to create jobs and innovation at home. As a result, currently “Buy American” now actually means companies and products from 60 countries must be given the same access to U.S. government contracts as U.S. firms and products for all but the lowest-value contracts. And 37 U.S. states are bound to such rules with respect to the 45 signatory countries of the World Trade Organization (WTO) Agreement on Government Procurement (GPA).

These terms also eliminate a reason that U.S. businesses profiting from U.S. government contracts choose to produce domestically. Such firms advocate for the current trade pact procurement rules because they allow them to relocate production to low-wage countries with U.S. trade pacts – profiting from leaving their U.S. workers behind and often also avoiding U.S. tax obligations – and still obtain lucrative taxpayer-funded contracts. Fifty-six percent of the top 50 U.S. government federal contractors in FY 2016 were certified under just one narrow U.S. government program as having engaged in offshoring, and 41 percent of the top 100 FY 2016 contractors were certified as having offshored American jobs. More than a third of total U.S. government contract spending in FY 2016 went to firms certified as having offshored jobs. This totaled $176 billion in U.S. federal government contracts in 2016. As a candidate, President Donald Trump pledged to punish firms that offshore American jobs. However, in 2017 the flow of federal contract awards to major offshorers has continued, with United Technologies, for instance, receiving 15 new awards despite offshoring 1,200 of its 2,000 Carriers job to Mexico, and notorious offshorer General Electric obtaining scores more. As described in this submission, a U.S. president has the unilateral authority to reverse the waivers to Buy American policies that facilitate this business conduct.

In addition to supporting job offshoring, the current trade pact rules on government procurement also limit the criteria governments can use to describe the goods and services they seek and what conditions may be imposed on bidders. The terms reflect the interests of U.S. corporate trade advisors interested in acquiring access to procurement opportunities in other countries and thus limiting the conditions and terms governments may require of them. But the rules apply reciprocally, meaning that they also severely constrain the ability for U.S. citizens and our elected officials to use procurement as an important policy tool. If the federal government – or a state – does not conform its policies to these constraints, then countries that are part of the agreement can challenge our policies in foreign tribunals that can impose trade sanctions against the United States until our laws are eliminated or changed.  

Given that total U.S. government procurement activity is $1.7 trillion, the implications are significant. When able to set criteria on government purchases, the U.S. federal government and our state governments have the capacity to spur innovation and further other policy goals by creating demand for specified goods and services or those produced under specified conditions. However, currently, the trade agreements with procurement terms to which the United States is a signatory impose constraints on the federal government and, to differing degrees, the 37 U.S. states now bound to comply with some of these trade pact terms. It is worth noting that in the early 1990s, when U.S. states were asked to opt in to being bound to the WTO’s GPA, few governors or state legislatures recognized that doing so would result in a form of international pre-emption that would severely limit their policymaking. As states became more aware of the threats posed, fewer and fewer were willing to become bound to these terms. By the mid-2000s, fewer than a dozen states opted in to these policy constraints in the last Free Trade Agreements (FTA) negotiated by the George W. Bush administration. Reflecting this reality, the Trans-Pacific Partnership did not cover state procurement. However, 37 U.S. states remain bound to WTO procurement policy constraints.

As this submission enumerates, the current procurement terms in U.S. trade pacts represent bad economics and limit domestic policy space, and must be eliminated. Even if the underlying notion of offshoring our tax dollars and imposing one-size-fits-all policies about how taxpayer funds may be expended was a good one in general, doing so is a losing proposition for the United States. The U.S. procurement market is much larger than any but that of the European Union. Thus in exchange for some U.S. firms obtaining some contracts in significantly smaller procurement markets, access on equal terms to U.S. firms is provided to the entire massive U.S. procurement market for any firm operating in a trade partner nation or for goods produced in such a nation, including with respect to firms from nations that provide no reciprocal access, such as China. Improved statistical reporting and information exchange is essential to track the exact impact of such terms.

Notably, a U.S. president has the authority to unilaterally exit the WTO GPA by providing 60 days written notice to the WTO Director-General and thus eliminate U.S. obligations with respect to 41 of the 45 WTO GPA parties with which we do not have FTAs. WTO rules do not provide for penalties in response to such an action. The procurement provisions of various FTAs can be eliminated or altered through renegotiation. With respect to U.S. law effectuating these international law obligations, a U.S. president also has unilateral authority to eliminate the waiver for trade pact partners of domestic procurement preferences. This element of our trade agreements is implemented by regulation, rather than in the trade agreement implementing legislation. The economic and social benefits of overhauling the U.S. approach to trade pact procurement terms are sizable.


North Korea Crisis No Reason to Preserve Failed Trade Deal; U.S. Exports to South Korea Dropped, Deficit Nearly Doubled Since Pact

 Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

 “How to peacefully resolve North Korea’s nuclear escalation is a thorny question, but what should happen with the 2012 U.S.-South Korea Free Trade Agreement is an entirely separate question that is not complicated. We opposed the U.S.-Korea Free Trade Agreement in 2011 when it came before Congress because we knew that any deal that has at its heart new rights and powers for corporations to offshore jobs, raise medicine prices and attack environmental, health and financial stability safeguards is bad for people and the planet.

In its five years in effect, this U.S.-Korea trade agreement proved even worse than expected. The unique outcome is that U.S. exports to South Korea actually declined after the pact was implemented. As with most other U.S. FTAs, imports into the United States soared. Thus, the U.S. goods trade deficit with Korea increased by 85 percent in five years. U.S. average monthly exports to South Korea have fallen in nine of the 15 U.S. sectors that export the most to South Korea, relative to the year before the FTA. U.S. exports to South Korea of agricultural goods have even fallen 5.4 percent in the first five years of the FTA.

Claims that U.S.-Korean cooperation on a mutually shared existential priority will somehow be undermined by cancelation of a trade deal that has done the opposite of what was promised is absurd. The 28,000 U.S. troops stationed in Korea are just one demonstration of U.S. support for South Korea and commitment to its defense. Hysterical foreign policy arguments are always the claim of last resort in support of a failed trade agreement, and time and again they have proved meritless. Given the broad public opposition to the FTA in Korea, ending a deal negotiated in secret with 500 official U.S. advisers representing corporate interests would be viewed by many in Korea outside the foreign policy elite as good news.”

Background information and our previous press release summarizing the Korea FTA five-year data release by the U.S. International Trade Commission on May 4, 2017

With respect to the economics of the deal’s termination, Korean tariffs would not rise to 14 percent as suggested by former-U.S. Trade Representative Robert Zoellick. An oped he wrote that ran earlier this week says levels “could” rise, a hedge to cover the reality that he is citing Korea’s bound World Trade Organization tariff rates, not their actual applied rates. (It is the “applied” rate that reflects the actual tariffs charged while the “bound” rate is the highest level to which a country could raise tariffs although only on a Most Favored Nation basis, which means with respect to all countries.) The relevant data is the applied trade weighted mean tariff level provided by the World Bank, which for Korea is 4.78 percent. The United States is at 1.63 percent. (The applied trade weighted mean is the actual average tariff level based on actual trade flows.)

 

May 4, 2017, Public Citizen press release

Today’s Five-Year Korea FTA Data Show March Imports from Korea Higher than Any Month But One Since Pact Started: What Is Trump’s Plan for Pact?

U.S. Trade Deficit With Korea Has Soared as U.S. Exports Fell, Imports Jumped Under 2012 U.S.-Korea Free Trade Agreement

 WASHINGTON, D.C. – Despite the Trump administration’s tough rhetoric about the U.S.-Korea Free Trade Agreement (FTA) pact, imports from Korea in March 2017 were higher than any month but one in the pact’s five years in effect.

Today’s release of new U.S. Census trade data for the first full five years of the Korea FTA spotlight statements from both President Donald Trump and Vice President Mike Pence in the past month that the agreement’s outcomes are not acceptable. While the Trump and Pence statements were notable for coming despite escalating military tensions on the Korean Peninsula, what the administration will do about the pact and when remains a mystery.

“Our trade deficit with Korea has increased dramatically under this agreement Trump bashed on the campaign trail, and workers in the swing stats that elected  Trump  have been hardest hit, so what will Trump do about it,” asked Lori Wallach, director of Public Citizen’s Global Trade Watch.

While then-Representative Pence voted to pass the agreement in 2011, now-Vice President Pence, in an April 2017 trip to Seoul, declared the pact to be “falling short” and needing review and reform. Later that month, Trump declared of the Korea deal: “We’ve told them that we’ll either terminate or negotiate. We may terminate.”  Trump spotlighted the “job-killing trade deal with South Korea” in his nomination acceptance speech and on the stump, where he also often noted that “this deal doubled our trade deficit with South Korea and destroyed nearly 100,000 American jobs.”

Many of Trump’s trade-related campaign pledges were broken in his first 100 days, calling into question the prospects for action on the Korea pact. A powerful White House faction opposes the trade policy changes that Trump promised would deliver more American jobs and lower deficits

The agreement, sold by the Obama administration with a “more export, more jobs” slogan, has resulted in U.S. exports to Korea declining 7.8 percent ($3.7 billion) and imports from Korea increasing 13.1 percent ($8.1 billion) by the end of its fifth year. The 85 percent trade deficit increase with Korea under the pact – from $14 billion in the 12 months before the pact went into effect on March 15, 2012 to $26 in its fifth year – came in the context of the overall U.S. trade deficit with the world decreasing by 5 percent.  While U.S. goods imports from the world decreased by 7.1 percent, goods imports from Korea increased by 13.1 percent.

Defenders of the pact claim the results stem from weakness in Korea’s economy, but in fact Korea’s GDP has risen by 15 percent from 2011 to 2016 while unemployment rates have averaged 3.4 percent, hardly the indicators of a weak economy.  

Meanwhile, the U.S. service sector trade surplus with Korea has increased by only $2 billion from 2011 to 2015 a growth rate of 29 percent in its five years in effect that is notably 64 percent slower than our services surplus growth over the five years before the FTA went into effect. (Service sector data for the full fifth year of the deal will be released in October.)

Despite the Korea FTA including more than 10,000 tariff cuts, 80 percent of which began on Day One:

  • Record-breaking U.S. trade deficits with Korea have become the new normal under the FTA – in 59 of the 60 months since the Korea FTA took effect, the U.S. goods trade deficit with Korea has exceeded the average monthly trade deficit in the five years before the deal.
  • Since the FTA took effect, U.S. average monthly exports to Korea have fallen in 10 of the 15 U.S. sectors that export the most to Korea, relative to the year before the FTA.
  • The auto sector was among the hardest hit: The U.S. trade deficit with Korea in motor vehicles grew 55.7 percent in the pact’s first five years. U.S. imports of motor vehicles from Korea have increased by 64.2 percent, or $6.4 billion by the fifth year of the Korea FTA.
  • Exports of machinery and computer/electronic products, collectively comprising 27 percent of U.S. exports to Korea, have fallen 20.6 and 20.1 percent respectively.
  • U.S. exports to Korea of agricultural goods have fallen 5.4 percent in the first five years of the Korea FTA, despite almost two-thirds of U.S. agricultural exports by value obtaining immediate duty-free entry to Korea under the pact. U.S. agricultural imports from Korea, meanwhile, have grown 45.4 percent under the FTA. As a result, the U.S. agricultural trade balance with Korea has declined 8.1 percent, or $554 million, since the FTA’s implementation. The Obama administration promised that U.S. exports of meat would rise particularly swiftly, thanks to the deal’s tariff reductions on these products. However, despite U.S. officials’ promises that the pact would enhance cooperation between the U.S. and Korean governments to resolve food safety and animal health issues that affect trade, South Korea has imposed temporary bans on imports of American poultry in each of the last three years, including 2017. Comparing the fifth year of the FTA to the year before it went into effect, U.S. poultry producers have faced a 78 percent collapse of exports to Korea – a loss of 82,000 metric tons of poultry exports to Korea. U.S. pork exports have also dropped 1 percent.

NAFTA Plan Does Not Describe Promised Transformation of NAFTA to Prioritize Working People

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

 Note: Today, the Trump administration published a document on its NAFTA renegotiation objectives. Under the 2015 Fast Track law, the administration must publish “a detailed and comprehensive summary” of its specific negotiating objectives 30 days before formally beginning trade talks.

“This document does not describe the promised transformation of NAFTA to prioritize working people that some voters were expecting based on President Trump’s campaign pledges.

More than 910,000 specific American jobs have been certified as lost to NAFTA under just one narrow program, but this document does not make clear whether NAFTA’s job offshoring incentives or its ban on Buy American procurement policy will be eliminated or labor or environmental standards better than the widely rejected one in the TPP will be added.

The document is quite vague so while negotiations can start in 30 days, it’s unclear what will be demanded on key issues, whether improvements for working people could be in the offing or whether the worst aspects of the TPP will be added making NAFTA yet more damaging for working people. The administration should follow the European Union’s practice and make public its actual proposals being shared with Mexico and Canada prior to talks starting.

The Trump administration has a very narrow pathway to both achieving the president’s campaign pledges on NAFTA and passing a new NAFTA deal. Achieving Trump’s campaign-promised NAFTA deficit-lowering and U.S. job creation goals will require changes to NAFTA that GOP congressional leaders and the corporate lobby oppose and about which this document remains vague. Even if a bloc of GOP rank and file members may support elimination of NAFTA’s investor offshoring incentives and Buy American ban, which are necessary to achieve Trump’s goals, a sizeable bloc of Democratic votes will be needed to pass a new NAFTA of that sort. But GOP congressional leaders and the corporate lobby are demanding TPP elements be added to NAFTA and that will push away Democrats. Some aspects of that TPP agenda can be seen in today’s document because much of the text repeats the negotiating objectives of the 2015 Fast Track bill, which GOP leaders and the corporate lobby loved and most congressional Democrats, a sizeable bloc of GOP congressional members and labor and civil society groups opposed.”


NAFTA Legacy Series: Mexico’s Lost Opportunity

With NAFTA renegotiations about to begin, Public Citizen has compiled the latest information on how NAFTA’s outcomes measure up to its proponents’ promises. This is the fourth of a four-part expose.

To hear President Trump’s version of NAFTA, Mexico was the big winner. The reality is that NAFTA cost more than two million Mexicans lost their livelihoods related to agriculture. Mexican workers’ real wages are 9 percent lower or $1,500 less than in the year before NAFTA with median manufacturing wages of $2.50 per hour sufficient to support basic needs.

After the first two decades of NAFTA, Mexico’s real gross domestic product per capita growth rate has been a paltry 18.6 percent, ranking 18th out of the 20 countries of Central and South America. In contrast, from 1960 through 1980, Mexico’s per capita gross domestic product grew 98.7 percent. Mexico would be close to European living standards today if it had continued its previous growth rates.

And Mexican taxpayers have forked over $204 million to corporations attacking domestic laws in front of NAFTA tribunals of three corporate lawyers whose decisions are not subject to appeal.

The Mexican people – like people in the United States - were promised that NAFTA would strengthen their economy and raise wages. But after more than 20 years of NAFTA, over half of the Mexican population, and over 60 percent of the rural population, still fall below the national poverty line.

Mexican farmers suffered the worst under the agreement. Before NAFTA, Mexico only imported corn and other basic food commodities if local production did not meet domestic needs. But NAFTA eliminated Mexican tariffs on corn and other commodities and required revocation of programs supporting small farmers. Amidst a NAFTA-spurred influx of cheap U.S. corn, the price paid to Mexican farmers for the corn that they grew fell by 66 percent, forcing many to abandon farming. From 1991 to 2007, about 2 million Mexicans engaged in farming and related work lost their livelihoods. The price of tortillas – Mexico’s staple food – shot up 279 percent in the pact’s first ten years, even as the price paid to Mexican corn farmers plummeted.

To read more on NAFTA’s effects on Mexico, please click here


NAFTA Legacy Series: Empty Promises for U.S. Farmers

With NAFTA renegotiations about to begin, Public Citizen has compiled the latest information on how NAFTA’s outcomes measure up to its proponents’ promises. This is the third of a four-part expose.

Agriculture is supposed to be the winner under NAFTA, right? Um, no: the U.S. agriculture trade balance with NAFTA partners Mexico and Canada fell from a $2.5 billion surplus in the year before NAFTA to a $6.4 billion deficit in 2016. The rising trade deficit in agricultural products has contributed to the loss of more than 200,000 small family farms. Since NAFTA has taken effect, one out of every ten small farms has disappeared.

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Yes, we exported much more corn to Mexico since NAFTA. But our NAFTA trade deficits in beef/live cattle and vegetables outweigh those gains. And, here’s another conventional wisdom buster: even without NAFTA U.S. corn would not face tariffs in Mexico. Mexico eliminated tariffs on corn for all countries in 2008.

But government data reveals that since 1993, U.S. agricultural imports from NAFTA countries have grown much quicker than U.S. exports to those same countries, resulting in massive agricultural trade deficits. Since the Great Recession, U.S. food imports have grown twice as fast as U.S. food exports.

To read more on NAFTA’s effects on U.S. agriculture, please click here.


NAFTA Legacy Series: Corporate Courts Attack Public Interest Laws

With NAFTA renegotiations about to begin, Public Citizen has compiled the latest information on how NAFTA’s outcomes measure up to its proponents’ promises. This is the second of a four-part expose.

The key provision in NAFTA grants new rights to thousands of foreign corporations to sue the U.S. government before a tribunal of three corporate lawyers. These lawyers can award corporations unlimited sums to be paid by American taxpayers, including for the loss of expected future profits. These corporations need only convince the lawyers that a U.S. law or safety regulation violates their NAFTA rights. The corporate lawyers’ decisions are not subject to appeal. This system is formally called Investor-State Dispute Settlement.

More than $392 million in compensation has already been paid out to corporations in a series of investor-state cases under NAFTA. This includes attacks on oil, gas, water and timber policies, toxics bans, health and safety measures, and more. In fact, of the 14 claims (for more than $50 billion) currently pending under NAFTA, nearly all relate to environmental, energy, financial, public health, land use and transportation policies – not traditional trade issues.

While this shadow legal system for multinational corporations has been around since the 1950s, just 50 known cases were launched in the regime’s first three decades combined. In contrast, corporations have launched approximately 50 claims in each of the last six years. ISDS is now so controversial that some governments have begun terminating their treaties that include ISDS.

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As corporations and law firms become emboldened and more creative in their uses of ISDS, it is likely only a matter of time before U.S. taxpayers are on the hook: as long as NAFTA is in effect, more than 8,500 corporate subsidiaries from Canada and Mexico are empowered to use ISDS to challenge our policies.

To read more about how these tribunals of three corporate lawyers have been operating under NAFTA, please click here.


NAFTA Legacy Series: Lost Jobs, Lower Wages, Increased Inequality

With NAFTA renegotiations about to begin, Public Citizen has compiled the latest information on how NAFTA’s outcomes measure up to its proponents’ promises. This is the first of a four-part expose.

NAFTA was sold to the U.S. public in 1993 with grand promises of improved trade balances and more jobs. Instead, more than 910,000 specific American jobs have been certified as lost to NAFTA – due to rising imports and offshoring – under just one narrow government program that undercounts the damage.

And the United States’ trade small trade surplus with Mexico and small deficit with Canada crashed into a $134.3 billion deficit – counting both goods and services.   The U.S. goods trade deficit with NAFTA partners Canada and Mexico increased 521 percent – it was $173 billion in 2016 - as annual growth of that deficit was 47 percent higher with Mexico and Canada than with countries that are not party to a NAFTA-style trade pact – a group that includes China. And, annual growth of U.S. services exports to Mexico and Canada since NAFTA has fallen to less than half the pre-NAFTA rate.  

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As we lost hundreds of thousands of manufacturing jobs, wages were pushed down economy-wide. According to the U.S. Bureau of Labor Statistics, two out of every five displaced manufacturing worker rehired in 2016 experienced a wage reduction, with one out of four taking a cut of greater than 20 percent. For the average manufacturing worker earning more than $38,000 per year, this meant an annual loss of at least $7,700. And as these workers joined the glut of those already competing for non-offshorable service sector jobs, wages in these growing service sectors were also pushed down.

The Center for Economic and Policy Research has discovered that the trade-related losses in wages now outweigh the gains in cheaper goods for the vast majority of U.S. workers.

Lost jobs and lower wages have exacerbated income inequality to levels not seen since the Great Depression. Even proponents of NAFTA admit that trade pressures have likely contributed to today’s historic degree of inequality. The pro-NAFTA Peterson Institute has estimated that 39 percent of observed growth in U.S. wage inequality is attributable to trade trends.

To read more about NAFTA’s effects on the U.S. economy, jobs and income inequality, please click here.


Ecuador Says No to ISDS, Exits BITs*

After years of sustained activism in Latin America and across the globe, the President of Ecuador recently terminated its remaining 16 treaties that empower multinational corporations to challenge its laws before panels of three corporate lawyers and demand unlimited sums of taxpayer money.

By terminating treaties that include the corporate-rigged investor-state dispute settlement (ISDS) system, Ecuador is the latest country to prioritize its people over corporate rights.

Ecuador’s decision to terminate its ISDS pacts was spurred by firsthand experience with some egregious cases, particularly with Big Oil. For example, Chevron is looking to avoid paying for its massive pollution in the Ecuadorian Amazon. And, Occidental Petroleum received a $1.4 billion award against Ecuador despite having obviously violated its contract with the government.

In response to citizens’ uproar against ISDS throughout Latin America, in 2013, the Ecuadorian government established an audit commission of government officials, academics, lawyers and civil society groups to analyze the costs and benefits of the country’s existing treaties and make recommendations.

On May 8, the government made public the Audit Commission’s 688-page report, which recommended that the government should terminate its remaining treaties and develop an alternative investment treaty model that removes ISDS and rebalances the rights of citizens over corporations.

The Audit Commission reported that the treaties had failed to deliver on promised foreign investment and had, in fact, undermined the development objectives laid out in Ecuador’s constitution. The report found that Ecuador had been forced to pay nearly $1.5 billion to multinational corporations (equivalent to 62 percent of its annual health spending), and that, under currently pending cases, the government runs the risk of having to pay out $13.4 billion (more than half the government’s entire annual budget for 2017).

Ecuador’s President Raphael Correa heeded the advice in the Audit Commission’s report and on May 16, 2017, issued executive decrees that terminated the existing treaties, including its treaty with the United States.

Ecuador joins countries — such as South Africa, Indonesia, Bolivia and India — that have terminated their investment treaties. Meanwhile, Mercosur and the South African Development Community have recently explicitly excluded ISDS from their respective investment protocols.

And Ecuador’s move away from ISDS-enforced treaties mirrors the growing movements in Europe and the United States to stop the expansion of corporate power through ISDS. Bipartisan opposition to ISDS in the Trans-Pacific Partnership (TPP) was a significant reason that the deal could never achieve majority support in the U.S. Congress. The wave of opposition to ISDS in Europe also helped to stall the U.S.-EU negotiations for a Transatlantic Trade and Investment Partnership (TTIP).

Worldwide, the tide is turning against the notion that multinational corporations and investors should be granted extraordinary rights and the ability to enforce them against governments in a corporate-rigged, extrajudicial system. Ecuador’s announcement shows that the diverse movement of civil society, legal scholars and government officials concerned about ISDS are making progress in rolling back the regime.

In the United States, the upcoming renegotiation of the North American Free Trade Agreement (NAFTA) is an obvious opportunity to demand that ISDS be eliminated from any NAFTA replacement.

As pressure grows worldwide for governments to withdraw from the ISDS system, the Trump administration has 60 days before it must reveal its position. (Under Fast Track, the administration must publicly post a detailed description of its negotiating plans 60 days after the initial notice.)

Given that ISDS was a key contributor to the U.S. Congress’ opposition to the TPP, it is not surprising that the administration’s NAFTA renegotiation notice was greeted by demands from Congress and civil society that ISDS elimination must be a top priority.  

*Updated 5/22/17 .


Will NAFTA Renegotiation Produce TPP 2.0 and Intensify Damage? Or Fulfill Trump Promise of a ‘Much Better’ Deal for Working Americans? Maintaining Secretive Process With 500 Official Corporate Advisers Does Not Bode Well

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

Note: Today, the Trump administration sent formal notice of NAFTA renegotiation to Congress.

As a candidate, Donald Trump promised to make NAFTA “much better” for working people. Today’s notice is markedly vague. But Trump’s NAFTA renegotiation plan that leaked in late March described just what the corporate lobby is demanding: using NAFTA talks to revive parts of the Trans-Pacific Partnership (TPP), like expanded investor incentives to offshore jobs that could make NAFTA even worse for working people.

The obvious measure of whether NAFTA renegotiation is intended to benefit working people is if Trump makes clear he will eliminate NAFTA’s special investor rights that make it easier to offshore American jobs and attack our laws before tribunals of three corporate lawyers who can award the firms unlimited sums of taxpayer money.

If corporate elites are allowed to dictate how NAFTA is renegotiated, the agreement could become more damaging for working families and the environment in the three countries. And modest tweaks will not stop NAFTA’s ongoing damage, much less deliver on Trump’s promises for a deal that will create American jobs and raise wages.

Already the 500 corporate trade advisers who got us into the TPP have been consulted on NAFTA renegotiations, while the few labor advisers were shut out of that March meeting. And the public and Congress are being left in the dark about negotiating plans and goals.

If Trump won’t make negotiations transparent – by issuing detailed goals and making draft texts available – how can the public know that the deal is not being shaped to benefit Trump’s many Canadian and Mexican investments, or that the Goldman Sachs team in the White House isn’t turning NAFTA into TPP 2.0?

Trump’s conflicts of interest and self-dealing opportunities with NAFTA renegotiation are not hypothetical; the sprawling Trump business empire has 14 Canadian and two Mexican investments. Some of Trump’s clothing line is made in Mexico. Trump won’t divest his business holdings or release his tax returns, so unless he reveals his full Mexican and Canadian business dealings, we won’t even know in whose interest these NAFTA talks are being conducted.

Trump’s broken promises on trade are piling up. Instead of punishing firms that offshore American jobs, he has awarded United Technologies 15 lucrative new government contracts even after they proceeded to offshore 1,200 of their 2,000 Indiana Carrier jobs. Instead of enacting the promised “get tough on China” trade policy, he flip-flopped on his pledge to declare China a currency manipulator on Day One and has done nothing to counter our massive $347 billion China trade deficit.


Today’s Five-Year Korea FTA Data Show March Imports From Korea Higher Than All But One Month Since Pact Started: What Is Trump’s Plan for Pact?

U.S. Trade Deficit With Korea Has Soared as U.S. Exports Have Fallen; Imports Jumped Since 2012 U.S.-Korea Free Trade Agreement

WASHINGTON, D.C. –Imports from Korea in March 2017 were higher than any month but one in the five years the U.S.-Korea Free Trade Agreement (FTA) has been in effect. Today’s release of new U.S. Census trade data for the first full five years of the Korea FTA spotlight statements from both President Donald Trump and Vice President Mike Pence in the past month that the pact’s outcomes are unacceptable. While the statements were notable for coming despite escalating military tensions on the Korean Peninsula, what the administration will do about the pact and when remains a mystery.

“Our trade deficit with Korea has increased dramatically under this agreement, which Trump bashed on the campaign trail, and workers in the swing states that elected Trump have been hardest hit, so what will Trump do about it,” asked Lori Wallach, director of Public Citizen’s Global Trade Watch.

While then-Representative Pence voted to pass the agreement in 2011, now-Vice President Pence, in an April 2017 trip to Seoul, declared the pact to be “falling short” and needing review and reform. Later that month, Trump declared of the Korea deal: “We’ve told them that we’ll either terminate or negotiate. We may terminate.”  Trump spotlighted the “job-killing trade deal with South Korea” in his nomination acceptance speech and on the stump, where he also often noted that “this deal doubled our trade deficit with South Korea and destroyed nearly 100,000 American jobs.”

Many of Trump’s trade-related campaign pledges were broken in his first 100 days, calling into question the prospects for action on the Korea pact. A powerful White House faction opposes the trade policy changes that Trump promised would deliver more American jobs and lower deficits.

The agreement, sold by the Obama administration with a “more export, more jobs” slogan, has resulted in U.S. exports to Korea declining 7.8 percent ($3.7 billion) and imports from Korea increasing 13.1 percent ($8.1 billion) by the end of its fifth year. The 85 percent trade deficit increase with Korea under the pact – from $14 billion in the 12 months before the pact went into effect on March 15, 2012, to $26 billion in its fifth year – came in the context of the overall U.S. trade deficit with the world decreasing by 5 percent. While U.S. goods imports from the world decreased by 7.1 percent, goods imports from Korea increased by 13.1 percent.

Defenders of the pact claim the results stem from weakness in Korea’s economy, but in fact, Korea’s GDP has risen by 15 percent from 2011 to 2016 while the unemployment rate has averaged 3.4 percent – hardly the indicators of a weak economy. 

Meanwhile, the U.S. service sector trade surplus with Korea has increased by only $2 billion from 2011 to 2015 a growth rate of 29 percent in its five years in effect that is notably 64 percent slower than our services surplus growth over the five years before the FTA went into effect. (Service sector data for the full fifth year of the deal will be released in October.)

Despite the Korea FTA including more than 10,000 tariff cuts, 80 percent of which began on Day One:

  • Record-breaking U.S. trade deficits with Korea have become the new normal under the FTA – in 59 of the 60 months since the Korea FTA took effect, the U.S. goods trade deficit with Korea has exceeded the average monthly trade deficit in the five years before the deal.
  • Since the FTA took effect, U.S. average monthly exports to Korea have fallen in 9 of the 15 U.S. sectors that export the most to Korea, relative to the year before the FTA.
  • The auto sector was among the hardest hit: The U.S. trade deficit with Korea in motor vehicles grew 55.7 percent in the pact’s first five years. U.S. imports of motor vehicles from Korea have increased by 64.2 percent, or $6.4 billion by the fifth year of the Korea FTA.
  • Exports of machinery and computer/electronic products, collectively comprising 27 percent of U.S. exports to Korea, have fallen 17.1 and 18.8 percent, respectively.
  • U.S. exports to Korea of agricultural goods have fallen 5.4 percent in the first five years of the Korea FTA, despite almost two-thirds of U.S. agricultural exports by value obtaining immediate duty-free entry to Korea under the pact. U.S. agricultural imports from Korea, meanwhile, have grown 45.4 percent under the FTA. As a result, the U.S. agricultural trade balance with Korea has declined 8.1 percent, or $554 million, since the FTA’s implementation. The Obama administration promised that U.S. exports of meat would rise particularly swiftly, thanks to the deal’s tariff reductions on these products. However, despite U.S. officials’ promises that the pact would enhance cooperation between the U.S. and Korean governments to resolve food safety and animal health issues that affect trade, South Korea has imposed temporary bans on imports of American poultry in each of the last three years, including 2017. Comparing the fifth year of the FTA to the year before it went into effect, U.S. poultry producers have faced a 78 percent collapse of exports to Korea – a loss of 82,000 metric tons of poultry exports to Korea. U.S. pork exports have also dropped 1 percent.

New Report Reveals Trump Is Not Punishing Corporations that Offshore American Jobs, but Awarding Them New Government Contracts

56 Percent of Top U.S. Government Contractors Offshored Jobs

WASHINGTON, DC – Despite President Donald Trump’s campaign promises to punish firms that offshore American jobs, the flow of federal contract awards to major offshorers has continued unabated since Trump’s inauguration, according to a new report released today by Good Jobs Nation and Public Citizen’s Global Trade Watch. The report, titled “Trump’s First 100 Days: Federal Contracting with Corporate Offshorers Continues,” reveals that a majority of the largest U.S. government contractors ship jobs overseas. Even after United Technology decided to offshore 1200 of its 2000 Indiana Carrier jobs to Mexico despite Trump’s interventions, the firm has obtained 15 new federal government contracts since Inauguration Day.

Key findings of the study include:

  • 56 percent of the top 50 federal contractors in FY 2016 were certified under just one narrow U.S. government program as having engaged in offshoring, and 41 percent of the top 100 FY 2016 contractors were certified as having offshored jobs.
  • The top federal contractors certified as having offshored jobs received $176 billion in contracts in 2016, which accounts for more than a third of total contract spending for that year.
  • Since Trump’s inauguration, the flow of federal contract awards to major offshorers has continued, with United Technologies, for instance, receiving 15 new awards and General Electric obtaining scores more. 

Read the full report here.   

“Our analysis proves that Donald Trump is not fulfilling his signature campaign promises to stop offshoring and bring back American jobs.  Even though he’s signed over 60 executive orders during his first 100 days, he has yet to use the power of the pen to stop corporations that receive taxpayer dollars from shipping American jobs overseas,” said Joseph Geevarghese, director of Good Jobs Nation.    

“After pledging to punish companies that offshore American jobs, Trump has not even used his expansive unilateral authority to ban offshorers from being awarded lucrative government contracts.  Instead of delivering on his promises to end offshoring and create American jobs, Trump is rewarding companies that offshore with big contracts paid by our tax dollars. He has not introduced the End Offshoring Act or launched the NAFTA renegotiations he promised for his first 100 days, and he caved on taking tough actions to reduce our huge job-killing China trade deficit,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. 

“It's disgusting that companies like T-Mobile get taxpayer money at the same time they’re sending thousands of jobs abroad,” said Jamone Ross, a former call center worker for T-Mobile in Texas, who lost his job  in 2012 along with 500 co-workers when T-Mobile shifted their work to Asia and Honduras.  “When I lost my job I’d just gotten married and bought a house. Thanks to T-Mobile, I spent the first year of my marriage taking out loans to keep up my mortgage payments, and the next year digging myself out of debt.  Friends of mine lost their cars and their apartments. If Trump really cares about American workers, like he says, he should stop this, right now.”

U.S. presidents have broad executive authority to enact “policies and directives” for federal contracting. Trump has failed to exercise this authority to cut off firms that offshore from obtaining lucrative government contracts paid with taxpayers funds.

The report highlights that Trump appeared willing to flex his muscle as “purchaser-in-chief” right after the 2016 election with his high-profile interventions to try to prevent United Technologies, a major defense contractor, from shipping its Carrier subsidiary’s operations to Mexico.  However, the study finds that since then Trump not only has failed to take promised actions, such as introducing and “fight[ing] for passage within the first 100 days of my Administration” of a Stop Offshoring Act in his first 100 days, but his administration has approved lucrative contracts with some of the nation’s most notorious chronic offshoring corporations.

 


Trump’s Trade Agency Attacks Other Countries’ Efforts to Promote and Protect Breastfeeding in New Report

On March 31, the Office of the United States Trade Representative (USTR) released the National Trade Estimate report. This is a statutorily-required annual review of U.S. trade partners’ “significant trade barriers” that the U.S. government seeks to have eliminated.

The 492-page report provides excellent insight into the growing global backlash against our current “trade” policies. While President Donald Trump has flip-flopped on his pledges to reverse the gigantic job-killing trade deficit with China, this U.S. government report labels as illegal trade barriers an array of public interest policies, including – shamefully – other governments’ policies to promote breastfeeding.

Despite substantial progress in reducing infant mortality around the world in recent decades, nearly seven million children under the age of five still die each year – about half of them newborns. Studies show that breastfeeding has the potential to save 800,000 children under the age of five every single year.

According to the United Nations Children’s Fund (UNICEF), “breastfeeding is the foundation of good nutrition and protects children against disease.” But only 43 percent of infants (0-5 months) in the world are exclusively breastfed, and this number is even lower in parts of Latin America, Africa and Europe.

For decades, infant formula manufacturers have been accused of aggressive marketing campaigns in developing countries to discourage breastfeeding and instead, to push new mothers into purchasing formula.  The famous boycott of Nestlé in the 1970s led to the development and adoption by nations worldwide of the UNICEF/World Health Organization (WHO) International Code of Marketing of Breastmilk Substitutes (The Code) in 1981. The Code sets guidelines and restrictions on the marketing of breastmilk substitutes, and reaffirms governments’ sovereign rights to take the actions necessary to implement and monitor these guidelines.

To promote and protect the practice of breastfeeding, many countries have implemented policies that restrict corporate marketing strategies targeting mothers. These policies have led to increased breastfeeding in many countries even though greater progress is still needed.  

Rather than embracing these efforts to safeguard the world’s most vulnerable inhabitants, the Trump administration, in its March 31 report, indicted the policies as “trade barriers” that should be eliminated:  

  • Hong Kong: The Report criticizes a Hong Kong draft code, designed to “protect breastfeeding and contribute to the provision of safe and adequate nutrition for infants and young children.” USTR labels the policy as a technical barrier to trade due to its potential to reduce sales of “food products for infants and young children.”
  • Indonesia: USTR labels a draft regulation in Indonesia that would prohibit the “advertising or promotion of milk products for children up to two years of age” as a technical barrier to trade.
  • Malaysia: USTR questions Malaysia’s proposed revisions to “its existing Code of Ethics for the Marketing of Infant Foods and Related Products” that would restrict corporate marketing practices aimed at toddlers and young children.
  • Thailand: The report critiques Thailand for introducing a new regulation that would impose penalties on corporations that violate domestic laws restricting the “promotional, and marketing activities for modified milk for infants, follow-up formula for infants and young children, and supplemental foods for infants.”

Seriously? Why not also label popular public health policies aimed at reducing medicine prices as trade barriers too? Oh, actually, that is also a feature of the report.


Trump’s Trade Deficit “Fix”: Flip-flop on China Pledges and Attack Breastfeeding, Affordable Medicines and Anti-Obesity Policies

What’s a $437 billion dollar trade deficit between frenemies? Apparently not sufficient for President Donald Trump to keep his oft-repeated pledge to declare China a currency manipulator, the world learned last week.

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This reversal comes on the heels of last week’s study-not-action move on his promise to reduce the trade deficit. President Trump signed an Executive Order to create yet another study on foreign trade barriers –   oddly enough, on the same day that his administration released the government’s annual report that analyzes “significant foreign trade barriers” among U.S. trading partners. 

So what are these so-called “trade barriers”?

Well, sadly, they are an embarrassing list of attacks on other countries’ public health and environmental policies, financial regulations and even religious standards.

Japan’s programs that reduce the cost of medicines and New Zealand’s popular health programs that control medicine prices are on the hit list. (Yup, the list includes attacks on policies that promote competition from generic drugs to bring down prices for consumers, which ostensibly is what “free trade” is supposed to do.)

Also targeted is Vietnam – for strengthening its inspection processes for imported foods.  Mexico’s new energy efficiency standards for electronic and electrical equipment are smacked because they impose “burdensome and costly requirements on products exported to Mexico.”

Bad on Canada for having requirement that drug companies, um, demonstrate a medicine’s utility before firms can obtain monopoly patent rights. Somehow the European Union’s requirement that corporations “obtain parental consent to process the personal data of minors aged 16 years or younger” is a trade barrier because this forces corporations “to interrupt or curtail service to a large and active segment of their customer base.”

And then they go after the babies. Public interest policies aimed at promoting breastfeeding are “significant trade barriers.” That includes a draft Hong Kong code meant to “protect breastfeeding and contribute to the provision of safe and adequate nutrition for infants and young children.” The administration labels this to be a technical barrier to trade due to its potential to reduce sales of “food products for infants and young children.”

The report goes after Thailand for introducing a new regulation that would impose penalties on corporations that violate domestic laws restricting the “promotional, and marketing activities for modified milk for infants, follow-up formula for infants and young children, and supplemental foods for infants.” That would otherwise be known as Thailand’s implementation of the World Health Organization/United Nations Children Fund International Code of Marketing of Breast-Milk Substitutes.

Continuing with the attack on policies promoting children’s health, the report attacks several countries have introduced policies to reduce obesity among children and adolescents. In Chile, the government adopted a law that requires food products that exceed specified thresholds of sodium, sugar, energy (calories), and saturated fat “to bear a black octagonal ‘stop’ sign for each category with the words ‘High in’ salt, sugar, energy, or saturated fat.” The law prohibits corporations from advertising products that have at least one stop sign to children under the age of fourteen. The report explains this listing by claiming that this law has been costly for corporations.  (Odd, no mention of cost to the government or Chilean public of obesity-related childhood health problems.)

In Peru, a similar regulation “includes a mandatory front-of-pack warning statement on food labels for prepackaged foods that surpass an established threshold for sugar, sodium, and saturated fats, and for all food products that contain trans-fats. The Act also establishes restrictions on advertising and promoting such food products to children and adolescents.” The report labels this as a barrier to trade and asserts that it will continue to raise its concerns with Peru.

The report also gripes that it’s unfair that Malaysia – a predominately Muslim country – restricts the importation of alcohol, and that Brunei – another predominately Muslim country – requires that non-halal foods be sold in specially designated rooms.

Obviously, promoting bacon and booze sales in Muslim countries and sacking public health laws will solve our job-killing trade deficit. So why follow through on those “get tough on China trade cheating” pledges, or trade policy, or tackle the rules in our flawed trade deals that incentivize job-offshoring? Or, could it be that the Trump administration’s notion of “trade barriers” is coming from the same corporations that have shaped our past trade policies and, year after year, get the list of policies they dislike turned into the U.S. government’s list of other countries’ trade barriers requiring elimination?


Draft NAFTA Renegotiation Plan in Official Fast Track Notice Letter Would Not Fulfill Trump’s Pledge to Make NAFTA ‘Much Better’ for Working People or Enjoy a Congressional Majority

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

For those who trusted Trump’s pledge to make NAFTA “much better” for working people, it’s a punch in the face because the proposal could have come from any past pro-NAFTA administration and describes the Trans-Pacific Partnership (TPP) or any other same-old trade deal.

If this is Trump’s plan for renegotiating NAFTA – expanding the investor protections that promote job offshoring plus maintaining the ban on Buy American and the foreign tribunals that can attack U.S. laws – he will have broken his campaign promises to make NAFTA better for working Americans and will have a deal that cannot get a majority in Congress.

This is the sort of corporations-first, not-better-for-working-Americans agenda that results from Trump’s decision to keep the same closed-door process and the 500 corporate advisers that got us into the original NAFTA and TPP debacles. Already, the corporate trade advisers have been consulted on the NAFTA agenda in a meeting two weeks ago, while the few labor advisers included in the system were shut out. But for this leaked document, the public and Congress are being left in the dark about negotiating plans and goals.

BACKGROUND:

A draft of the formal notice to Congress of intent to launch trade negotiations required under Fast Track leaked out on Wednesday. The text of the notice letter to Congress outlines a negotiating agenda that is largely what was contained in the final text of the TPP, an agreement that Trump excoriated on the campaign trail. The letter includes some shocking points:

  • After promising to stop job offshoring and “bring back” manufacturing jobs to the United States, Trump’s plan not only would maintain the investor protections in NAFTA and investor-state enforcement tribunals, but calls for expanding protections U.S. investors would have for relocating investment offshore. (This is written in coded language in the investment section of the document.)
  • After promising a Buy American, Hire American agenda, Trump’s plan would maintain the NAFTA rules that require the United States to waive Buy American and other domestic procurement preferences so that American tax dollars are also offshored instead of being reinvested domestically to create jobs at home.
  • Language on intellectual property and access to medicines, financial services deregulation, food standards and product safety reflects the TPP standard that was extremely harmful to consumer interests.
  • The language on labor and environment standards describes the TPP terms that Democrats in Congress and unions uniformly rejected.

Pharmaceutical Giant Threatens to Drag Government Before Corporate Tribunal for Trying to Make Essential Cancer Drug Accessible

Novartis Battle Against Colombian Government Highlights the Threats to Public Health Posed By the Outrageous Investor-State Dispute Settlement Regime and Bad “Trade” Deals

By: Haytham Hashem, GTW Intern

Swiss pharmaceutical giant Novartis appears to have used trade and investment agreements to launch a legal and political pressure campaign against the government of Colombia’s efforts to make a Novartis leukemia drug accessible to cancer patients.

The drug, imatinib, also known as Gleevec in the United States, is a chemotherapy medication used to treat several forms of leukemia. A preferred choice for many leukemia patients and their doctors, imatinib is designated an “essential medicine” by the World Health Organization due to its record of effectiveness and safety. The drug must be taken daily, with the duration of treatment typically a minimum of 36 months, although courses commonly continue for five or more years.

Imatinib has led global sales for Novartis, generating $4.6 billion in 2015.

Currently, the medicine costs $15,000 per patient per year in Colombia, a country with a per capita GDP of just $6,105. Colombian civil society groups asked their government to issue a compulsory license for the medicine. This would end Novartis’ current monopoly rights to produce the drug and authorize generic competition, the most effective means of reducing price. A Colombian legislative committee urged the Minister of Health to declare a matter of public interest, a key procedural step toward allowing competition from generics.

Novartis and U.S. government representatives pressured Colombia not to issue the compulsory license. Colombia instead followed a more conservative course toward modest price controls. The Colombian Ministry of Health issued the public interest declaration, but indicated that a compulsory licensing would only be employed in case of acute shortage.

Nevertheless, last year Novartis provided formal notice of a dispute against the Colombian government using the controversial Investor-State Dispute Settlement (ISDS) system under the Swiss-Colombia Bilateral Investment Treaty. That agreement includes ISDS provisions similar to those found in the North American Free Trade Agreement (NAFTA). The period for trying to resolve the dispute expired in the end of 2016. In late December 2016, the Health Ministry announced that, in accordance with the public interest, price would go down by some 44 percent. Due to the secretive nature of ISDS cases, Novartis’ next steps in the ISDS case — and the specific charges against Colombia — are unknown.

Novartis isn’t the first drug company to use the extraordinary rights in trade and investment treaties to challenge governments’ medicine pricing policies: Eli Lilly attempted to use NAFTA to demand $450 million from Canadian taxpayers over Canadian courts’ decisions that the firm’s monopoly patent rights for two drugs did not satisfy the country’s standards to obtain a patent.

ISDS empowers multinational corporations to sue governments before panels of three corporate lawyers. These corporations need only convince the corporate lawyers that a law or safety regulation violates their new investor rights. The corporate lawyers can award the corporations unlimited sums to be paid by taxpayers, including for the loss of expected future profits the corporations claim they would have earned if the domestic policy was never enacted. The corporate lawyers’ decisions are not subject to appeal and the amount they can order taxpayers to give corporations has no limit.

Public backlash against ISDS was one of the primary reasons that the Trans-Pacific Partnership (TPP) could not obtain majority support in the U.S. Congress and negotiations for a Transatlantic Trade and Investment Partnership have been sidelined.

Novartis’ threatened ISDS claim appears to be just one element of its extreme pressure tactics to strong-arm the Colombian government. A shocking, leaked letter from last year (English available here) from the Colombian Embassy in Washington, D.C., to the Colombian Minister of Foreign Affairs discusses mounting political pressure from U.S. Senate staff, the Office of the U.S. Trade Representative (USTR), and unnamed pharmaceutical companies to dissuade Colombia from moving forward to make the leukemia drug more accessible to those who needed it.

The leaked diplomatic communication warns that Colombia’s actions to lower the drug’s price could risk U.S.-Colombia relations, Colombian membership in the TPP, and trigger consequences under the 2012 Colombia-U.S. Free Trade Agreement. Threatening Colombia’s potential membership in the TPP over an access to medicines effort was particularly perverse, given that Doctors Without Borders called the TPP “the worst trade agreement for access to medicines in developing countries.”

Perhaps most disturbingly, the Colombian Embassy was sufficiently alarmed by the pressure from the United States to twice remark that it was concerned that proceeding with the compulsory license would put at risk the $450 million committed for President Obama's support for Paz Colombia, the peace initiative working to end the devastating 50 year-long Colombian conflict that has claimed nearly a quarter of a million lives — mostly civilian.

In response, Senators Bernie Sanders (I-VT) and Sherrod Brown (D-OH) wrote to then-USTR Michael Froman, describing the situation and condemning “any efforts to intimidate and discourage Colombia’s government from taking measures to protect the public health in a way that is appropriate, effective, and consistent with the country’s trade and public health obligations.” They pointed out that “compulsory licenses are consistent with Colombia’s International trade obligations and are a legitimate means to ensuring access to medicines.”

Access to medicine experts believe that Novartis is most focused on setting a precedent in the Colombia case, rather than focused on direct financial losses with respect to the drug’s sale in Colombia. The Colombian patent for imatinib is set to expire in 2018. There are an estimated 2,000 Colombian users of imatinib. Factoring the initial 2016 Ministry proposed price cut of 50 percent (to about $7,500 per year), would yield a total difference of about $27 million over two years.

That is not an insubstantial amount of money. But in 2014, Novartis’ total revenue was $53.6 billion, twice as much as Colombia’s public and private healthcare expenditures combined (GDP for reference).

Of course, the favored refrain from pharmaceutical companies — from Mylan’s EpiPen price-gouging CEO to the infamous Martin “Pharma Bro” Shkreli — is that high profits are necessary to fund research on new drugs. However, we know that is not true across the industry. In 2014, Novartis spent nearly 50 percent more on sales and marketing than it did on research and development.

Furthermore, Novartis’s development costs for imatinib were relatively low. And Novartis did not develop imatinib on its own. Imatinib is the product of collaborations and shared funding arrangements between charities, public agencies and Novartis, which benefited from regulatory exemptions and now government-granted monopoly patents to produce the drug that facilitates billions in corporate earnings.

Novartis’ ISDS threat against Colombia is just one more example of why the expansion of corporate power via ISDS is one of the most dangerous components of our broken trade model.

Fortunately, the TPP, which would have drastically expanded ISDS liability by empowering tens of thousands of additional corporations to use the process, was defeated by thousands of diverse organizations representing working people united across borders.

But we must stop all ongoing negotiations that would expand ISDS, such as for a U.S.-China Bilateral Investment Treaty, and replace past trade and investment deals, such as NAFTA and the U.S.-Colombia pact.

The U.S. national consumer, environmental, faith, and labor coalition, Citizens Trade Campaign, lists the removal of ISDS as one of its primary demands for NAFTA replacement.

For more on ISDS, see Public Citizen’s selection of case studies of ISDS attacks against public interest protections here, and summaries of all ISDS cases under U.S. free trade agreements here.


On Unhappy Fifth Anniversary of U.S.-Korea Free Trade Agreement, Deficit With Korea Has Doubled as U.S. Exports Fell, Imports Soared

President Trump Appoints a Leading Promoter of Korea Pact as White House Special Assistant for Trade and Goes Silent on Deal After Decrying ‘Job-Killing Trade Deal With South Korea’ on Stump.

WASHINGTON, D.C. –President Donald Trump has been conspicuously silent about the U.S.-Korea Free Trade Agreement (FTA) since taking office, so whether the administration comments on the pact’s March 15 fifth anniversary is being closely watched. Trump spotlighted the “job-killing trade deal with South Korea” in his nomination acceptance speech and on the stump, where he also often noted “this deal doubled our trade deficit with South Korea and destroyed nearly 100,000 American jobs.”

 Trump’s approach to the pact was called into question when he appointed one of the Korea FTA’s most persistent promoters, Andrew Quinn, to be special assistant to the president for international trade, investment and development. When the deal was initially completed in 2007, Quinn, who played a role in FTA negotiations as counselor for economic affairs at the U.S. Embassy in Seoul, declared: “It's a great agreement” that “demonstrated the effectiveness of the model, i.e., a comprehensive high-standard agreement.” When Quinn later served in the Obama White House National Security Council as director for Asian economic affairs from September 2010 to August 2012, he worked on the ratification of the Korea FTA. He most recently served in the Obama administration as the deputy lead negotiator for the Trans-Pacific Partnership.

“Our trade deficit with Korea doubled under this deal, so it’s not surprising Trump spotlighted it as a job-killer during his campaign. But voters who supported him because they thought he’d do something to reverse the damage of this and other deals will be furious if he fails to act, and more so when they learn that the very ‘insiders’ he criticized on the stump are calling the shots,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.

The agreement, sold by the Obama administration with a “more export, more jobs” slogan, had already resulted in the doubling of the U.S. goods trade deficit with Korea by its fourth year, as U.S. exports declined 10 percent ($4.5 billion) and imports from Korea increased 18 percent ($10.8 billion), resulting in a trade deficit of $31.6 billion relative to one of $15.9 billion in the 12 months before the pact went into effect on March 15, 2012. That deficit increase with Korea came in the context of the overall U.S. trade deficit with the world decreasing by 2 percent. Meanwhile, the U.S. service sector trade surplus with Korea has increased by only $2 billion from 2011 to 2015, a growth rate of 29 percent that is notably 64 percent slower than our services surplus growth over the four years before the FTA went into effect. In the 10 months of available trade data since the FTAs full fourth year, the goods deficit with Korea has totaled $25.5 billion compared with $25.3 billion in the comparable period a year ago. Goods trade data for the full fifth year of the deal will be released May 4 and service sector data in October.

The division among Trump  staff over trade policy was on display in the only Trump administration comment on the Korea FTA, which came in the March 1 President’s Trade Agenda report that reflects the views of Trump’s nominee for U.S. Trade Representative Robert Lighthizer: “Further, the largest trade deal implemented during the Obama Administration – our free trade agreement with South Korea – has coincided with a dramatic increase in our trade deficit with that country. From 2011 (the last full year before the U.S.-Korea FTA went into effect) to 2016, the total value of U.S. goods exported to South Korea fell by $1.2 billion. Meanwhile, U.S. imports of goods from South Korea grew by more than $13 billion. As a result, our trade deficit in goods with South Korea more than doubled. Needless to say, this is not the outcome the American people expected from that agreement. Plainly, the time has come for a major review of how we approach trade agreements. For decades now, the United States has signed one major trade deal after another – and, as shown above, the results have often not lived up to expectations.”

Despite the Korea FTA including more than 10,000 tariff cuts, 80 percent of which began on Day One:

  • The U.S. goods trade deficit with Korea increased 99 percent, or $15.4 billion, in the first four years of the Korea FTA (comparing the year before it took effect to the fourth year data) and in the 10 months of its fifth year is on track to beat the fourth year deficit. Nearly 80 percent of the deficit is in the automotive sector. Record-breaking U.S. trade deficits with Korea have become the new normal under the FTA – in 47 of the 48 months since the Korea FTA took effect, the U.S. goods trade deficit with Korea has exceeded the average monthly trade deficit in the four years before the deal.

  • Since the FTA took effect, S. average monthly exports to Korea have fallen in 10 of the 15 U.S. sectors that export the most to Korea, relative to the year before the FTA. Exports of machinery and computer/electronic products, collectively comprising 27.8 percent of U.S. exports to Korea, have fallen 21.6 and 8.2 percent respectively under the FTA.

  • U.S. exports to Korea of agricultural goods have fallen 19 percent, or $1.4 billion, in the first four years of the Korea FTA despite the administration’s oft-touted point that almost two-thirds of U.S. agricultural exports by value would obtain immediate duty-free entry to Korea under the pact. U.S. agricultural imports from Korea, meanwhile, have grown 34 percent, or $123 million, under the FTA. As a result, the U.S. agricultural trade balance with Korea has declined 22 percent, or $1.5 billion, since the FTA’s implementation. The Obama administration promised that U.S. exports of meat would rise particularly swiftly, thanks to the deal’s tariff reductions on beef, pork and poultry. However, U.S. exports to Korea in each of the three meat sectors have fallen below the long-term growth trend since the Korea FTA took effect. Compared with the exports that would have been achieved at the pre-FTA average monthly level, U.S. meat producers have lost a combined $62.5 million in poultry, pork and beef exports to Korea in the first four years of the Korea deal – a loss of more than $5 million in meat exports every month.

    • Despite the promises made by U.S. officials that the pact would enhance cooperation between the U.S. and Korean governments to resolve food safety and animal health issues that affect trade, South Korean banned nearly all imports of American poultry at the beginning of 2015 due to several bird flu outbreaks in Minnesota and Iowa. Comparing the FTA’s fourth year to the year before it went into effect, U.S. poultry producers have faced a 93 percent collapse of exports to Korea – a loss of nearly 100,000 metric tons of poultry exports to Korea. U.S. beef exports are finally nearing pre-FTA levels after declining an average of 11 percent during the first three years of the agreement. U.S. pork exports have also nearly recovered to pre-FTA levels after falling by an average of 16 percent in the first three years of the agreement.

  • U.S. goods exports to Korea dropped 10 percent, or $4.5 billion, under the Korea FTA’s first four years. In the 10 months of data since then, U.S. goods exports to Korea decreased by 1.4 percent or $483 million, relative to the same 10-month period in the previous year.

  • While U.S. goods imports from the world decreased by 6 percent, U.S. goods imports from Korea increased by 18 percent, or $10.8 billion, during the FTA’s first four years. In the 10 months of data since then, U.S. goods imports from the world decreased by 2 percent, while U.S. goods imports from Korea remained at the high levels of the period in the previous year.

Graphskoreafta


The auto sector was among the hardest hit: The U.S. trade deficit with Korea in passenger vehicles grew 66 percent in the pact’s first four years. In the 10 months since then, the U.S. trade deficit in vehicles has increased an additional 2 percent, relative to the same 10-month period in the previous year.
U.S. imports of passenger vehicles from Korea has increased by 69 percent, or by an additional 597,607 vehicles by the fourth year of the Korea FTA in addition to the 862,789 vehicles sold to the United States by Korea before the FTA. This import flood dwarfed the 36,580 increase in U.S. passenger vehicles that the United States exported to Korea by the fourth year of the pact. Even so, expect defenders of the agreement to say U.S. auto exports have grown faster than Korean auto exports or that U.S. auto exports to Korea have tripled – without mentioning that this figure just represents the addition of the 36,580 vehicles from the low pre-FTA sales number of 14,284 U.S. vehicles sold in Korea without mentioning that on balance the United States has suffered a 66 percent expansion of our auto trade deficit with Korea.


Bait & Switch: Trump Trade Plans to “Bring American Jobs Back” as Promised in Campaign Notably MIA in Speech

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

“How will this speech be received by the voters who sent Trump to the White House? Glaringly MIA was even a vague plan to deliver on the endless campaign promises to bring American jobs back with a new trade policy while highly visible was Trump’s cabinet packed with former Wall Street and other corporate elites including those responsible for past American job offshoring. 

Trump’s silence on trade plans to bring back American jobs and the cabinet packed with former Wall Street and other corporate elites sitting in the front row sure is not the “clear the swamp” administration that voters in Michigan, Wisconsin, Ohio and Pennsylvania were expecting when Trump promised the end of business as usual in Washington.”

BACKGROUND: After campaigning relentlessly on a “get tough on China” trade mantra, one of Trump’s only first-day promises that was not fulfilled was declaring China a currency manipulator. Trump notably dropped any reference to this promise in the speech and also failed to clarify what happened to one of the widely expected first-day executive orders to terminate negotiations for a U.S.-China Bilateral Investment Treaty (BIT.) The treaty replicates key aspects of the Trans-Pacific Partnership (TPP) and the North American Free Trade Agreement (NAFTA), pacts that Trump loves to bash.

Even Trump’s standard line about renegotiating NAFTA was missing from this speech. The only reference to action on trade was touting his formal burial of the TPP, a deal that was already dead before Trump was elected given it had failed to generate majority congressional support in the ten months after it was signed.

We released a short video that suggests what has happened to Trump’s trade promises: Goldman Sachs. The Wall Street firm Trump loved to bash on the campaign trail now has a weighty presence in the senior ranks of the Trump administration. The firm also happens to be the Wall Street leader lobbying for the China treaty. And it was a grand booster of the TPP. And it supported NAFTA.

A 2016 Freedom of Information Act request revealed Trump’s National Economic Council chair Gary Cohn – previously the No. 2 official at Goldman Sachs – discussing how to move the China BIT and the TPP with Obama U.S. Trade Representative Mike Froman. When ethics experts raised concerns about Cohn's recent stunning $285 million Goldman Sachs exit payment, Cohn said he would recuse himself from any matters related to Goldman Sachs. Does this include the China BIT? Or has Cohn already managed to derail the expected executive order ending negotiations on the China treaty?

Meanwhile, it was Goldman Sachs alum and now Treasury Secretary Steve Mnuchin who last week explained why there’s been no action on China currency, announcing that the administration is not ready to make any judgements on China currency now and that Treasury would undertake a broad review of currency issues using its regular procedures. The next Treasury currency report is due in April. 

The next day, Trump declared that China was the “grand champion at manipulating its currency” and declared when visiting manufacturing CEOs that action would be taken to combat China’s “$500 billion” U.S. trade deficit. Hmm... that vague line did not even make it into the speech.

The China BIT would make it easier to offshore more American jobs to China. It also would give Chinese firms broader rights to purchase U.S. firms, land and other assets and newly expose the U.S. government to demands for compensation from Chinese firms empowered to attack U.S. policies in extra-judicial tribunals. Everything Trump campaigned against...


Joint Session Speech Mystery: Has Goldman Sachs Wing of Administration Derailed Trump’s China Trade and Jobs Plans?

Will Tuesday night’s address to Congress reveal just how President Trump plans to change U.S. trade policy to "bring jobs back to America”? Polling suggests the jobs-trade nexus is one of the issues on which Trump has popular support amid sagging approval ratings.

Given that recently released 2016 trade data shows that our $347 billion goods trade deficit with China represents almost 50 percent of our global goods trade deficit, what happened to the “get tough on China” trade mantra from the campaign? There’s been a lot of administration talk about renegotiating the North American Free Trade Agreement (NAFTA). However, Trump’s promises to bring down the U.S. trade deficit and create more U.S. manufacturing jobs require attention to China trade.

Yet, one of the only first-day promises included in Trump’s Contract with the American Voter that was not fulfilled was declaring China a currency manipulator. The executive order flurry has not included the widely expected termination of negotiations for a U.S.-China Bilateral Investment Treaty (BIT.) The treaty replicates key aspects of the Trans-Pacific Partnership (TPP) and the NAFTA pacts that Trump loves to bash.

The China BIT, started by the Bush administration and almost completed by the Obama administration, would make it easier to offshore more American jobs to China. It also would give Chinese firms broader rights to purchase U.S. firms, land and other assets and newly expose the U.S. government to demands for compensation from Chinese firms empowered to attack U.S. policies in extra-judicial tribunals. Everything Trump says he is against, so what gives?

Maybe Trump will explain his MIA China trade strategy in tomorrow’s speech? We released a short video today that suggests an answer: Goldman Sachs. The Wall Street firm Trump loved to bash on the campaign trail now has a weighty presence in the senior ranks of the Trump administration. The firm also happens to be the Wall Street leader lobbying for the China treaty. Not exactly what those voters in Michigan, Wisconsin, Ohio and Pennsylvania were expecting when Trump promised the end of business as usual in Washington.

A 2016 Freedom of Information Act request revealed Trump’s National Economic Council chair Gary Cohn – previously the No. 2 official at Goldman Sachs – discussing how to move the China BIT and the TPP with Obama U.S. Trade Representative Mike Froman. When ethics experts raised concerns about Cohn's recent stunning $285 million Goldman Sachs exit payment, Cohn said he would recuse himself from any matters related to Goldman Sachs. Does this include the China BIT? Or has Cohn already managed to derail the expected executive order ending negotiations on the China treaty?

Meanwhile, it was Goldman Sachs alum and now Treasury Secretary Steve Mnuchin who last week explained why there’s been no action on China currency: “[W]e have a process within Treasury … and we’re not making any judgments until we continue that process.” Treasury would undertake a broad review of currency issues using its regular procedures, Mnuchin said. The next Treasury currency report is due in April. 

The next day, Trump declared that China was the “grand champion at manipulating its currency” and declared when visiting manufacturing CEOs that action would be taken to combat China’s “$500 billion” U.S. trade deficit. Hmm...

Will Trump’s joint address to Congress clarify who is setting Trump administration China policy and/or what that will mean for Trump’s promises to bring back American manufacturing jobs? If Trump is silent on the U.S.-China investment treaty and currency, does that mean the Goldman Sachs crew already has redirected his campaign pledges for change into more-of-the-same job-killing China trade policy?  A lot of voters will be watching closely, having given Trump the chance to prove his presidency will not be business as usual.


Will the Trump Administration Fix the Distortions in U.S. Trade Data?

Analysis From Lori Wallach, Director Public Citizen’s Global Trade Watch

Recent press reports reveal that the Trump administration is exploring changes in how U.S. trade data is reported. Depending on what those changes are, that could be good news, because the current method for reporting bilateral trade flows significantly distorts trade balances to dramatically and deceptively reduce U.S. trade deficits. No doubt that defenders of status quo U.S. trade policies will gin up an attack on any efforts to fix these distortions.

So it is ironic, but not surprising, that the coverage insinuates that the Trump administration is trying to bias the data for political purposes: For years, members of Congress and trade analysts have demanded changes to U.S. trade flow reporting to make it more accurate. Why? Because proponents of past trade agreements have politically exploited the way that the current trade data inaccurately inflates export levels and artificially suppresses trade deficit figures to try to hide past pacts’ damage. 

Namely, the trade data that is reported monthly by the Census Bureau counts “foreign exports,” also known as “re-exports” as if they were U.S.-made goods. This can dramatically and inaccurately inflate export figures and hide trade deficits. According to the official Census Bureau definition, re-exports are goods made abroad, imported into the United States, and then re-exported again without undergoing any alteration in the United States. Re-exports support zero U.S. production jobs.[i] 

To put this into perspective, if one counts as U.S. exports only goods actually produced here, the 2015 U.S. goods trade deficit with Mexico was $109 billion and with Canada $63 billion – a $172 billion North American Free Trade Agreement (NAFTA) goods deficit. However, if one includes the foreign-made re-exported goods as U.S. exports, the NAFTA goods deficit shrinks by more than half - to $76 billion. The Mexico goods deficit falls to $60 billion and the Canadian deficit to $16 billion.

Capture1

Current U.S. Trade Data Methodology Skews Bilateral Trade Balances

If the Trump administration were to institute a new method to report trade data that accurately captures the balance between American-made exports to each country and imports from each country that are consumed in the United States, it would be a significant improvement on the currently available information. And as described below, the way to do this is not difficult as a policy matter. It would merely require tracking U.S. exports on the basis of the country in which they are actually produced.

Currently, each month, the U.S. Census Bureau releases raw data on the “total exports” from the United States and total imports coming in (called “general imports”). This data, as demonstrated by the NAFTA example, distorts bilateral trade balances. For example, this data counts as U.S. exports goods produced in China, stored in a warehouse after being taken off a ship from China in California’s Long Beach port and then later, without alteration, trucked to a destination in northern Mexico. This data also counts the Chinese imports into the United States as part of the U.S.-China trade balance. The result: The U.S. deficit with Mexico would be artificially reduced, and the U.S. deficit with China would be artificially increased. (The Census measure does provide accurate accounting of our trade balance with the world because the re-exports and those imports that get re-exported balance out.)

A more accurate measure for bilateral trade balances come from the U.S. International Trade Commission (ITC). Each month, a few days after the Census data is released, the ITC posts refined data for “domestic exports” that includes only U.S.-produced exports and data for “imports for consumption” that removes imports destined for export processing zones. This ITC data is used in the congressionally mandated trade agreement studies required under Fast Track that are the basis for projections on trade pacts’ effects on economic growth and jobs. This data accurately captures American-made exports. But the import data still can be skewed because some of the imports counted in “imports for consumption” may be re-exported. That is to say that the U.S. International Trade Commission’s current import data is not detailed enough to avoid distorting the U.S. bilateral trade balances with numerous nations on the import side even as it corrects for the false inflation of exports.

If the U.S. government provided data on where all goods exported from the United States were actually produced, then it would be possible to extract from the import data those goods that end up being re-exported. Canada requires that all imports indicate a country of production. So, for instance, if a Korean firm producing televisions in Mexico so as to obtain duty-free access into the U.S. consumer market under NAFTA were to import $2 billion in televisions into the United States, but then $500 million of those goods were re-exported to Canada, the Canadian data would let us know to count only $1.5 billion as U.S. imports for consumption. Expanding on this notion, if the Trump administration were to require that all U.S. exports indicate their country of production, then the import side of the ITC data could be perfected across the board.

As a policy matter, this is a rather painless solution to a trade data problem that currently thwarts  the availability of the accurate data needed to inform U.S. trade policymaking decisions. But proponents of status quo trade policies can be expected to launch a nasty political attack on such an improvement because it would clarify the enormity of the gap between what was promised for pacts such as NAFTA relative to their actual outcomes. Ironically, such an improvement also likely would bring down the U.S.-China trade deficit figures some. 

The Politics Underlying Current U.S. Trade Data

For years, the U.S. Chamber of Commerce has pushed out various cuts of the raw Census data to claim that past trade pacts have not generated significant trade deficits. In 2014, then-U.S. Trade Representative Michael Froman even used a cut of the raw data to claim, absurdly, that the United States no longer had a NAFTA trade deficit.

Interests seeking to maintain current U.S. trade agreements and policies undoubtedly oppose refinements to the current data that would accurately expose the extent of U.S. trade deficits with trade agreement partners. This is especially true with respect to NAFTA countries, because the portion of re-exported versus domestically produced goods relative to total U.S. exports to the NAFTA nations has increased over time.

Capture

These interests have pushed for their own changes to U.S. trade data, including a 2014 proposal for “Factoryless Goods” accounting. This proposal would have counted as a U.S. export an iPhone produced in China that is exported from China to Germany. These interests also raise a series of specious arguments against removing foreign-made exports from U.S. export figures. For instance, they claim that re-exports have some U.S. value-added, just not enough to shift a product into a new tariff category, even though the Census definition of re-export states explicitly that re-exports have zero value added in the United States: Foreign Exports (Re-exports: For statistical purposes: These are exports of foreign-origin goods that have previously entered the United States, Puerto Rico, or the U.S. Virgin Islands for consumption, entry into a CBP bonded warehouse, or a U.S. FTZ, and at the time of exportation, have undergone no change in form or condition or enhancement in value by further manufacturing in the United States, Puerto Rico, the U.S. Virgin Islands, or U.S. FTZs. For the purpose of goods subject to export controls (e.g., U.S. Munitions List (USML) articles) these are shipments of U.S.-origin products from one foreign destination to another.)

When confronted with the accurate data, NAFTA defenders then typically shift to claims that the NAFTA deficit mainly represents trade in oil and other fossil fuels. But the share of the U.S. NAFTA goods trade deficit that is composed of fossil fuels (oil, gas and coal) has declined under NAFTA, from 82 percent in 1993 to 26 percent in 2015, as we have faced a surge of imported manufactured and agricultural goods from NAFTA countries. Even if one were to remove all fossil fuel categories from the balance, the remaining 2015 NAFTA goods trade deficit was $127.3 billion.

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  [i] Call between U.S. Census Bureau staff and Public Citizen staff, Sept. 25, 2014.


Trump Missed Deadline for Promised Start of NAFTA Renegotiation in 100 Days, But Whenever Talks Begin, It is the Content, Not The Speed, That Counts

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

The Trump administration can rename NAFTA the North American Free and Most Fairest of Them All Trade Agreement, but given that NAFTA is packed with incentives to offshore jobs and special protectionist goodies for various industries, NAFTA must be replaced – not tweaked – to actually deliver better outcomes for working people.

Monthly government data will show whether a NAFTA replacement delivers on the trade deficit reduction and job creation Trump has promised and to move those numbers will require a new deal that raises Mexican wage levels and environmental standards and eliminates NAFTA’s job and investment offshoring incentives and ban on Buy American procurement.

Replacing NAFTA is important, but with China counting for half of the U.S. trade deficit, it is odd that Trump has not announced an end to negotiations almost completed by the Obama administration for a U.S.-China bilateral agreement that includes the job offshoring incentives at the heart of NAFTA or  declared China a currency manipulator on his first day as promised.

It’s ironic that Trump is the beneficiary of the “Fast Track” trade authority narrowly enacted by congressional supporters of NAFTA. By delegating away its constitution trade authority, Congress has empowered Trump to unilaterally launch NAFTA renegotiations or create new bilateral deals with Mexico and Canada; determine the contents, sign and enter into deals before Congress gets a vote; and then write implementing legislation and force congressional consideration in 90 days with amendments forbidden and Senate supermajority rules suspended.

Under the Fast Track rules, Trump needed to have given notice on Monday, Jan. 31, to be able to start NAFTA renegotiations within his first 100 days as promised.

If the 500 official U.S. trade advisers representing corporate interests who have had a privileged role in developing our past trade deals, including NAFTA, remain in place to shape NAFTA renegotiations, the resulting deal not only could be more damaging to working people, but – like the Trans-Pacific Partnership (TPP) – become impossible to enact.

Even with Fast Track, Trump requires House and Senate majorities to enact a NAFTA redo. Most congressional GOP and their corporate allies support the offshoring incentives and other terms that must be eliminated if Trump is to deliver on his deficit reduction and job growth goals. Building a congressional majority requires that a NAFTA replacement exclude terms that would alienate congressional Democrats who for decades have promoted NAFTA alternatives to expand trade without undermining American jobs and wages, access to affordable medicine, food safety or environmental protections. (See Citizens Trade Campaign’s Jan. 13 letter to Trump and U.S. Rep. Rosa DeLauro’s Jan. 3 letter to Trump on what must be in a NAFTA replacement for it to provide broad benefits.)

Many congressional Republicans and the corporations that have rigged past deals view NAFTA renegotiation as a means to revive aspects of the TPP. This includes limits on generic competition that bring down medicine prices for consumers. Including such terms would eliminate Democratic support.


President Trump’s Executive Orders Formally Bury TPP’s Corpse, but What About TTIP, TISA, China BIT?

President Trump’s Executive Orders Formally Bury TPP’s Corpse, but What About TTIP, TISA, China BIT?

Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch

Formally withdrawing from the Trans-Pacific Partnership (TPP) will bury the moldering corpse of a deal that couldn’t gain majority support in Congress, but the question is going forward will President Trump’s new trade policies create American jobs and reduce our damaging trade deficit while raising wages and protecting the environment and public health not just here but also in trade partner nations?

If President Trump intends to replace our failed trade policy, a first step must be to end negotiations now underway for more deals based on the damaging NAFTA/TPP model so its notable that today’s announcement did not end talks to establish the Transatlantic Trade and Investment Partnership, the Trade in Services Agreement and the U.S.-China Bilateral Investment Treaty – all of which would replicate and expand the TPP/NAFTA model Trump says he is ending.

President Trump also repeatedly has said he would launch NAFTA renegotiations immediately and withdraw from NAFTA if he cannot make it “a lot better” for working people. NAFTA renegotiation could be an opportunity to create a new trade model that benefits more people, but if done wrong, it could increase job offshoring, push down wages and expand the protections NAFTA provides to the corporate interests that shaped the original deal.

Even with the Fast Track authority Trump inherits, to pass a NAFTA replacement he must ensure its terms enjoy support from most congressional Democrats and a subset of Republicans. Most congressional Republicans and many people Trump has named to senior positions passionately support the very agreements Trump opposes. Most congressional Democrats have opposed deals like TPP and NAFTA and for decades promoted alternatives that expand trade without undermining American jobs and wages, access to affordable medicine, food safety or environmental protections.

NAFTA is packed with incentives for job offshoring and protections for the corporate interests that helped to shape it, so to make NAFTA better for people and the planet will require it to be replaced, not tweaked. To remedy – not worsen – NAFTA’s damage, both the old negotiating process and the contents must be replaced. To put the needs of working people, their communities, the environment and public health over the demands of the special interests that have dominated U.S. trade policymaking, the 500 official U.S. trade advisers representing corporate interests who called the shots on past agreements must be benched.

If corporate elites are allowed to dictate how NAFTA is renegotiated, the deal could become even more damaging to working people and the environment in the three countries. Absent high labor and environmental standards, requirements for more North American content in products could increase U.S. job offshoring. The corporate interests that have rigged past trade deals say NAFTA renegotiation is how they will revive the special protections they achieved in the TPP, for instance limits on competition from generic drugs so pharmaceutical firms can keep medicine prices high.  (See Citizens Trade Campaign’s Jan. 13  letter to Trump and U.S. Rep. Rosa DeLauro’s Jan. 3 letter to Trump on what must be in a NAFTA replacement for it to provide broad benefits.)


Choice of Robert Lighthizer as USTR Strengthens Prospects for a New Approach to U.S. Trade Policy

Former Reagan Trade Official and Longtime Critic of Dogmatic “Free-Trade” Republicans Nominated to Join Trump Cabinet Packed With TPP Proponents

WASHINGTON, D.C. — The nomination of Robert Lighthizer to be U.S. Trade Representative signals President-elect Donald Trump’s interest in altering the trade policy approach that has prevailed through Republican and Democratic administrations for the past two decades. Lighthizer has consistently noted that historically Republicans favored trade policies designed to obtain specific national economic goals and criticized the Republican Party’s rigid support over recent decades of “free trade” ideology. His views put him at odds with most of Trump’s other high-level appointees who represent the very perspective on trade that Lighthizer has long critiqued.

“Lighthizer is very knowledgeable about both technical trade policy and the ways of Washington, but what sets him apart among high-level Republican trade experts is that for decades his views seemed to be shaped by the pragmatic outcomes of trade agreements and policies rather than fealty to any particular ideology or theory,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “I don’t know that he would agree with progressive critics of our status quo trade policies about alternative approaches, but he also has had quite a different perspective on trade policy than the Republican congressional leaders and most of Trump’s other cabinet nominees who have supported the TPP and every past trade deal.”

President-elect Donald Trump has filled many top administration posts with proponents of the Trans-Pacific Partnership (TPP), a pact that Trump railed against during his campaign. Trump appointees who publicly advocated for the TPP include Wilbur Ross (Secretary of Commerce), Exxon Mobil CEO Rex Tillerman (Secretary of State), Gov. Terry Branstad (Ambassador to China), Gen. James Mattis (Secretary of Defense) and Goldman Sachs President Gary Cohn (Director of National Economic Council) – not to mention Vice-President-elect Mike Pence.

“Thankfully there was never a congressional majority for the TPP in the 10 months after it was signed so the TPP was dead before the election,” said Wallach. “But even so, most of Trump’s cabinet members will be inclined to grab the shovel from Trump’s hands before he can bury the TPP’s moldering corpse by formally withdrawing the U.S. as a signatory.”

Other prominent TPP supporters nominated to join the Trump administration include:

  • Rick Perry – TPP supporter named Secretary of Energy
  • Ryan Zinke – Supporter of Fast Track for TPP named Secretary of Interior
  • Tom Price – Supporter of Fast Track for TPP named Secretary of Health & Human Services
  • Ben Carson – TPP supporter named Secretary of Housing and Urban Development
  • Elaine Chao – TPP supporter named Secretary of Transportation
  • Mike Pompeo – TPP supporter named CIA Director

TPP Would Have Proved Useless in Countering China’s Ambitions

New Report Shows Systematic Failure of Past Trade Pacts Sold with Foreign Policy Claims about China’s Conduct, Improved Labor Rights, and U.S. Global Leadership Now Being Recycled to Warn about TPP’s Demise

WASHINGTON, D.C. – It remains to be seen whether Donald Trump will withdraw the United States’ signature from the Trans-Pacific Partnership (TPP) on his first day in office as promised, but the dire warnings emanating from TPP supporters in response to the pact’s inability to obtain majority support in Congress recycle almost verbatim foreign policy claims that have proved baseless, a new report published today by Public Citizen shows. China’s rise poses real challenges for the United States, but a comprehensive review of foreign policy-related claims made to sell past U.S. trade agreements shows that trade agreements have systematically failed to forestall posited foreign policy threats or deliver promised benefits.

“The economic arguments for the TPP failed, it could not garner majority support in Congress and now its supporters are resurrecting the same old zombie foreign policy arguments in an attempt to stave off its final burial,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.

In extensive side-by-side tables, the report reviews four categories of foreign policy arguments used for decades to sell the controversial trade-policy-of-the-moment, from the North American Free Trade Agreement (NAFTA) to China Permanent Normal Trade Relations (PNTR) to the TPP. Congress and the public are warned that an agreement’s implementation is essential to counter China’s ambitions and let the United States write the rules of the road, maintain U.S. global leadership, export U.S. values such as human and labor rights and enhance U.S. national security.

Such claims helped pass previous trade deals that they were employed to sell. As a result, we can examine the actual outcomes of the claims and document that they have proven uniformly false.

“If future U.S. presidents want to pass the trade agreements that they negotiate, then they must deliver deals that provide economic benefits to most Americans,” said Wallach. “Trying to scare up support for a trade deal by raising the same old parade of foreign policy horrors that allegedly will result if is not implemented is not a winning strategy and even more so because these very claims have proved false.”

The research for the report showed the most overlap between TPP claims and those made during the 2000 China PNTR fight. Indeed, a 2000 quote from then-U.S. Senator John Kerry (D-MA) on China PNTR and a 2016 quote from Secretary of State Kerry on the TPP, are almost identical. But implementation of China PNTR did not, in fact, provide a counter pressure to China's authoritarian government, improve human and labor rights, or enhance China’s cooperation on an array of national security challenges. The actual result was just the opposite.

The report also reviews various U.S. trade pacts with Latin American that were also sold as necessary to keep China (or Japan) from dominating the region, politically and economically, and as vital to improving democracy and human rights in trade partner countries. Yet the very foreign policy (and economic) threats that the deals’ passage was promised to forestall, occurred regardless, while the touted improvements in human rights failed to materialize.

“With a robust debate about the TPP’s actual terms, and the rising public awareness of the pact’s real threats, the foreign policy scare tactics failed this time,” Wallach said. “But that has not stopped TPP proponents from repeating them endlessly in response to the TPP’s demise as if somehow that will revive the deal.”


TPP RIP

 Statement of Lori Wallach, Director, Public Citizen’s Global Trade Watch on the Demise of the Trans-Pacific Partnership in the Lame-Duck Session of Congress

The news that the White House and Republican congressional leaders have given up on passing the Trans-Pacific Partnership (TPP) is welcome. That the TPP would be defeated by Congress if brought to a vote signals that Trojan-horse “trade” agreements that expand corporate power and shrink Americans’ wages are simply no longer politically viable. People power beat the united forces of a U.S. president, the Republican congressional leaders and the entire corporate lobby.

The unremitting push by the Obama administration for the TPP right through this election helped to elect Donald Trump, but Trump has not derailed the TPP – people power united across borders did that. Six years of relentless, strategic campaigning by an international movement of people from the TPP countries united across borders to fight against corporate power is why the TPP is all but dead.  

Thanks to years of campaigning by people across this country, since its February 2016 signing, the TPP could not garner a majority of support in the U.S. House of Representatives. And it was clear that the TPP was in trouble in 2015, when Fast Track authority for the TPP barely squeaked through Congress.

The TPP’s signing was delayed for years by vibrant civil society movements in other TPP nations that pushed their governments to reject TPP terms expanding investor rights, monopolies for pharmaceutical firms, financial deregulation and other threats. That meant time to organize, organize, organize. Over those years, millions of Americans helped to educate and organize their friends, families, and colleagues to demand their representatives opposed the TPP.

That the TPP pushed by the most powerful forces in the world is not being implemented represents the American public’s resounding rejection of  trade policies that not only failed to live up to its proponents’ promises over the past 20 years, but caused real damage to working people and the environment.

The only way forward is to create new rules of the road for globalization that put people and the planet first while harvesting the benefits of expanded trade. And we must roll back the existing “trade” deals and extreme investor-state dispute settlement regime that have caused people and the planet so much damage. The coalition that stopped the TPP is powerful and united and will fight forward to deliver that change. And, we will be ready to take on any attempt to revive the TPP or advance other corporate-friendly trade pacts based on the same failed and outdated model of trade.

For a review of the six-year international campaign against the TPP, please read https://medium.com/@citizenstrade/no-trump-didnt-kill-the-tpp-progressives-did-884b534542d#.175otqc1j


Latest TPP Peril: President Donald Trump

The election of President Donald Trump, and the slew of exit polls showing Americans’ ire over our failed trade policies that fueled that outcome, should dissuade Republican congressional leaders from pushing the Trans-Pacific Partnership (TPP) in the lame-duck session of Congress that starts next week. We will know by Thanksgiving if that is the case.

But even if the TPP never goes into effect, its damage will be felt worldwide - in the form of the election of President Donald Trump.

Yes, many factors contributed to this outcome. But it was not all racists and other haters who elected Trump. It was also a lot of working class voters who supported President Barack Obama twice. Hillary Clinton suffered her biggest losses in the places where Obama was strongest among white voters.

Did we have to get to this to end the era of smug Democratic and Republican political elites scoffing at the notion that trade is a salient political issue - and relentlessly pushing more of the same policies to the detriment of a voting bloc otherwise known as a majority of our fellow Americans?

Michael Moore proved to be spot on when he warned that Trump would win - and why. Do not underestimate the fury and desperation of tens of millions of Americans whose lives and communities have been devastated by bipartisan complicity in an agenda of corporate empowerment, job-killing trade agreements and Wall Street ravages, he wrote in an essay well worth a read.

Do not assume that these voters will focus on the messenger being a multinational corporation masquerading as a racist, misogynistic, narcissistic man (my description, not Moore’s) when they finally hear the message they have long awaited: yes, you have been screwed by Washington; yes I know your economic future was crushed by bad trade deals and Apple and Ford will pay if they move more jobs offshore; yes, the political establishment needs Molotov-cocktail accountability and I am that guy.

Do not imagine, Moore cautioned, that the millennials’ passion for Bernie Sander, a very different but also improbably successful (from the political establishments’ perspective), anti-establishment messenger of economic populism will translate into enthusiasm for the ultimate Democratic establishment nominee.

That Hillary Clinton, an impressive, capable and intelligent woman, proved a perfect foil as The Establishment was not all her doing. Bill Clinton sowed the wind with NAFTA, his China trade deal and Wall Street deregulation that reaped the whirlwind for Hilary Clinton.

This is a reality with which the Democratic Party must reckon. Through the lens of a Trump victory delivered by traditional Democratic base working class voters in Wisconsin, Pennsylvania, Michigan and Ohio, the shift in polling over the past several years showing Democrats more favorable than GOP voters to the TPP and past trade deals require careful study.

Have “Democratic voters” opinions about the same old trade policies that deliver more corporate power and fewer good American jobs really gotten rosier? Or, does that polling data reflect changes in the composition of who now considers themselves to be a Democrat?

Given polling shows that Independents’ views on trade closely mimic those of GOP voters, perhaps that bloc of working class voters that is a necessary component of a winning presidential coalition has maintained a steady view on trade. But witnessing President Obama enthusiastically push a slew of the same sort of trade deals they hate akin to those President Clinton enacted in the 1990s signaled that the Democratic Party no longer had a place for them and they accordingly no longer consider themselves Democrats.

This is worth considering in the context of the TPP effect on this election. The TPP did not elect Trump per se.

But with no small thanks to President Obama’s relentless, high-profile campaign throughout the primaries and general election to pass the pact, the TPP pact readily served as a potent symbol of business-as-usual in Washington and its facilitation of growing corporate power over every facet of our lives.

The TPP seems like something from an overwritten dystopian novel: It covers 40 percent of the global economy, yet it was negotiated in secret with hundreds of corporate advisors while the public was locked out. The TPP’s key provision grants new rights to thousands of multinational corporations to sue the U.S. government before a panel of three corporate lawyers. These lawyers can award the corporations unlimited sums to be paid by America’s taxpayers, including for the loss of expected future profits, and their decisions are not subject to appeal. The corporations need only convince the lawyers that a U.S. environmental law, financial regulation or pro-consumer court ruling violates the new rights that the TPP would grant them.

No doubt that Trump’s sweep of midwestern and southern states was accompanied by exit polls showing the power of his attack on our failed trade policy. Or that the Reuters/Ipsos election day poll found 72 percent agree “the American economy is rigged to advantage the rich and powerful,” while 68 percent agree that “traditional parties and politicians don’t care about people like me,” and 75 percent agree that “America needs a strong leader to take the country back from the rich and powerful.”

Consider the poll released last week by Greenberg, Quinlan and Rosner showing fully 68 percent of GOP voters (34 percent with intensity), and 60 percent of all voters would punish a member of Congress supporting the TPP in the lame-duck session. While this sentiment was strongest among Republicans, it spanned the political spectrum and included majorities of all segments of the “rising electorate,” millennials, minorities and unmarried women.

What happens next? At least as far as the TPP is considered, it’s the call of House Speaker Paul Ryan. In the coming days he must decide whether to bring the TPP to a vote in the lame-duck Congress.

Would Paul Ryan risk jeopardizing his hold on power in the House and remain a credible future presidential candidate if he pushes something overwhelmingly opposed by his party’s base voters? And more practically, with 16 GOP House members that voted to give President Obama Fast Track authority for the TPP in 2015 having mid-election conversions to TPP opposition and others who weathered the wrath of trade voters in this cycle worrying about the 2018 primaries, could he muster the votes? (House Democrats who opposed Fast Track have remained consistent in opposing the TPP, so passing the TPP would rely on the Republicans.)

Undoubtedly House GOP will note the electoral success of improbable GOP down-ticket converts to TPP opposition, such as former U.S. Trade Representative and now U.S. Sen. Rob Portman (R-Ohio), Sen. Pat Toomey (R-Pa.), and Sen. Richard Burr (R-N.C.) in contrast to the defeat of Rep. Joe Heck (R-Nev.) who supported Fast Track and refused to reveal his position on TPP (read: support) as his opponent, now the Senator-election, campaigned against it. (Also noteworthy: in this wave election, the only congressional Democrat who may lose is Rep. Brad Ashford (D-NE), one of few Democrats to vote in favor of fast tracking TPP approval.)

On the other hand, the Chamber of Commerce and the GOP donor class are clamoring for a TPP vote.

Stay tuned...


U.S. Agricultural Exports Lag under Past Trade Deals

Proponents of the Trans-Pacific Partnership – or TPP – have spent decades promising U.S. farmers and ranchers that free trade agreements are good for agriculture. Time and again, these promises have been broken. Since becoming the researcher at Public Citizen’s Global Trade Watch, I have been digging through the agriculture trade data. The case is quote compelling:  our past trade agreements have had a negative impact on U.S. agriculture. That is worth considering, because the TPP would double down on the past model.

Since 2008, U.S. food exports to free-trade partners have lagged behind U.S. food exports to the rest of the world. In fact, the volume of U.S. food exports to non-FTA countries rebounded quickly after the 2009 drop in global trade following the financial crisis. But U.S. food exports to FTA partners remained below the 2008 level until 2014. Even then, U.S. food exports to FTA partners were just 1 percent higher than in 2008, while U.S. food exports to the rest of the world stood 4 percent above the 2008 level.

Agpic Now let’s consider what to make of the recycled promises that the TPP will be a boon for U.S. farmers. The TPP itself was modeled on the U.S.-Korea free trade agreement that entered into force in April 2012. Before its passage, U.S. Agriculture Secretary Tom Vilsack declared: “we believe a ratified U.S. Free Trade Agreement [with Korea] will expand agricultural exports by what we believe to be $1.8 billion.”

In reality, exports to Korea of all U.S. agricultural products fell $1.4 billion, or 19 percent, from the year before the FTA took effect to its recently-completed fourth year of implementation. During that same period, total U.S. agricultural exports to the world only declined by 9 percent.

And there are many products that have experienced declining exports since the U.S. – Korea FTA.

  • Apples:S. apple exports to Korea have fallen 8 percent in the first four years of the Korea FTA.
  • Corn:S. corn exports to Korea have plummeted 57 percent during the Korea FTA’s first four years – a loss of more than 3.6 million metric tons of corn exports each year.
  • Poultry: S. poultry exports to Korea have dropped 35 percent during the first four years of the Korea FTA – a loss of more than 25,300 metric tons of poultry exports each year.
  • Wine: While FTA proponents have claimed wine as a winner under the Korea FTA, U.S. exports to Korea of wine have declined 6 percent under the Korea FTA’s first four years – a loss of nearly 239 metric kiloliters of wine exports each year.

Those hardest hit by rising agricultural imports and declining trade balances are the smaller-scale U.S. family farms. Since 1993, the year before NAFTA took effect, one out of every ten small U.S. farms has disappeared. By 2015, nearly 198,000 small U.S. farms had been lost.

In addition to this report, the Department of Agriculture’s conducted its own study and found that the TPP would increase U.S. growth by 0.00 percent if all tariffs on all products were eliminated, which did not occur. The U.S. International Trade Commission’s study found that nearly half of all U.S. agricultural sectors would experience worsening trade deficits under the TPP. And this study was conducted under many false assumptions, including the assumption that countries won’t manipulate their currency to gain a competitive edge in exports.

Government data undermine the claim that farmers and ranchers benefit under free trade agreements. To read more of our findings on what trade agreements have meant for U.S. agriculture, please click here.

 


New Interactive Map Shows TPP Would Expand Multinational Corporations’ Power to Attack U.S. Laws Using System That Hundreds of Law Professors, VP Candidate Kaine Cite as Reason to Oppose Pact

TPP Would Double Number of Corporations Empowered to Demand U.S. Taxpayer Compensation After Years of the U.S. Government Dodging Investor-State Challenges Because Current U.S. Treaties Cover Few Major Foreign Investors Here

A new Public Citizen interactive map shows how enactment of the Trans-Pacific Partnership (TPP) would dramatically expand U.S. exposure to multinational corporate demands for taxpayer compensation using the controversial “investor state dispute settlement” (ISDS) system.

Under existing treaties, relatively few foreign investors are empowered to use the ISDS regime against the United States, which is why the U.S. has come close to losing cases, but to date has not been ordered to pay compensation. Implementation of the TPP would double the U.S. exposure, an unprecedented increase in U.S. investor-state liability that recent Colombia Law School analyses will make it highly probable that the U.S. will lose future cases.

As the White House escalates its push for a vote on the TPP in the lame-duck session, an explosive four-part investigative exposé by Pulitzer Prize-winning journalist Chris Hamby revealed how Justice Department, State Department and other government lawyers, and even some of the inside players in the ISDS system, view it as a threat to the U.S. justice system. Earlier this week, hundreds of prominent pro-free trade law and economics professors called on Congress to oppose the TPP because it would greatly expand the extra-judicial tribunal system.

The ISDS system at the heart of the TPP would grant new rights to thousands of foreign corporations to sue the U.S. government before a secret panel of three corporate lawyers. These lawyers would be able to award the corporations unlimited sums to be paid by America’s taxpayers, including for the loss of expected future profits. These foreign corporations need only convince the lawyers that a U.S. law or safety regulation violates their TPP rights. Their decisions would not be subject to appeal, and the amount awarded would have no limit.

The interactive map, released today, shows additional multinational corporations located in every U.S. state that would be able to launch ISDS attacks against the United States if the TPP were implemented as well as if the Transatlantic Trade and Investment Partnership (TTIP) (now being negotiated with European countries) were completed with ISDS included. If one counts all corporations in all countries covered by all 50 existing U.S. investor-state pacts, 9,829 U.S. subsidiaries owned by 4,100 foreign corporations from those 50 nations can currently launch investor-state cases against the U.S. government. The TPP alone would double U.S. ISDS exposure, with the additional 10,085 U.S. subsidiaries owned by 3,682 additional corporations in TPP countries not now covered by U.S. ISDS pacts newly able to launch investor-state cases against the U.S. government. The TTIP would newly empower the more than 26,900 U.S. subsidiaries of more than 12,100 European Union parent corporations invested here. .

Under existing U.S. pacts, nearly $3 billion in taxpayer money has been paid to corporations by other countries for toxics bans, land-use rules, regulatory permits, and water and timber policies, among others. More than $70 billion is pending under U.S. treaties in corporate claims against medicine patent policies, pollution cleanup requirements, climate and energy laws, and other public interest polices.

While the Obama administration is pushing for the TPP and TTIP pacts, other countries have begun to withdraw from the system after facing billions in claims, including South Africa, India, Indonesia and other nations. After Germany was hit with two major ISDS claims against its decision to phase out nuclear power and its new coal-fired electric plants regulations, the government notified the EU that it could not accept a TTIP pact that expanded the existing ISDS regime.


As White House Spotlights Conflict With Democratic Presidential and Congressional Candidates by Escalating Toward TPP Lame-Duck Vote, Sen. Warren and Hundreds of Academics Urge Rejection

Audio recording and transcription of press call with Senator Warren and prominent academics can be found here.

Economic and Legal Scholars Cite Multinational Corporate Rights to Unlimited Taxpayer Funds Via ISDS Tribunal System Named by VP Candidate Kaine as Basis for His Opposition

The investor-state dispute settlement (ISDS) regime at the heart of the Trans-Pacific Partnership (TPP) that would newly empower thousands of multinational corporations to challenge U.S. policies before panels of three private lawyers to demand taxpayer compensation is the target of a letter sent to Congress today by leading pro-free trade U.S. economics and law professors calling on Congress to reject the TPP.

The White House has escalated its efforts to pass the TPP in the lame-duck session, with Cabinet secretaries who are promoting the TPP crossing paths with Democratic presidential and congressional candidates campaigning against the TPP.  

Last year, several dozen legal scholars joined congressional Democrats in raising concerns about the ISDS regime and demanding that a final TPP deal exclude the parallel legal system for multinational corporations. President Barack Obama scorned the critics, declaring they were  “making this stuff up.” Today’s letter, signed by more than 200 prominent academics, including Obama’s Harvard Law School mentor Professor Larry Tribe, warns that the ISDS regime threatens the rule of law and undermines our nation’s democratic institutions. The academics call on Congress to reject the pact because the final deal would greatly expand the ISDS regime.

U.S. Sen. Elizabeth Warren (D-Mass.) praised the letter: “Today’s letter from top legal experts makes clear: ISDS undermines the American judicial system and tilts the playing field further in favor of big multinational corporations,” Warren said. “This provision empowers companies to challenge laws and regulations they don’t like, with friendly corporate lawyers instead of judges deciding their disputes. Congress should not approve a TPP agreement that includes ISDS.”

Tribe, Nobel laureate Joseph Stiglitz, former California Supreme Court Justice Cruz Reynoso, and Columbia University Professor and UN Senior Adviser Jeffrey Sachs are among the signers, many of whom have supported past U.S. trade agreements. The letter spotlights the danger of the ISDS provisions, which was the same reason Democratic vice presidential nominee Tim Kaine cited for opposing the final TPP deal.

The U.S. has dodged ISDS liability to date because past treaties have covered only a limited number of foreign investors operating here. Research conducted by Public Citizen shows that the TPP, which includes Japan, Australia and other nations with more than 9,000 corporate subsidiaries in the United States, would double U.S. ISDS exposure. Nearly $3 billion in ISDS awards has been paid to corporations under U.S. treaties alone and claims worth more than $70 billion are pending.

Recent investigative reports by a Pulitzer-Prize-winning journalist and a new Columbia Global Reports book reveal how critics have understated the threats posed by the ISDS regime, which – if the TPP is approved – would empower thousands more multinational corporations to challenge U.S. federal, state and local laws, court decisions and government actions before panels of three private lawyers. Under ISDS, the panel of lawyers can award the companies unlimited taxpayer money, including for loss of expected future profits. The decisions cannot be appealed.

“In recent years, corporations have challenged a wide range of environmental, health and safety regulations, fiscal policies, bans on toxins, denials of permits including for toxic waste dumps, moratoria on extraction of natural resources, measures taken in response to financial crises, court decisions on issues ranging from the scope of intellectual property rights to the resolution of bankruptcy claims, policy decisions on privatizations of prisons and health care, and efforts to combat tax evasion, among others,” the letter notes.

The experts lament that despite the Obama administration’s claims to have addressed growing concerns about the ISDS system, “the final TPP text simply replicates nearly word-for-word many of the problematic provisions from past agreements, and indeed would vastly expand the U.S. government’s potential liability under the ISDS system.” They fear that the expansion of ISDS in the TPP and in ongoing negotiations with Europe “threatens to dilute constitutional protections, weaken the judicial branch and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances.”

This letter adds to a rising chorus of opposition to ISDS from prominent members of Congress such as Warren; the National Conference of State Legislatures; pro-free trade think tanks such as the Cato Institute; and hundreds of labor, environmental, consumer and faith organizations.

View the letter and list of signers.

What the signers are saying:

Jeffrey Sachs, professor of economics, Columbia University:

“We need trade agreements that protect worker rights and the environment. ISDS gravely threatens environmental protection and worker rights, and the rule of law more generally, as evidenced by the current lawsuit by TransCanada suing the U.S. government for $15 billion over the cancellation of the climate-wrecking Keystone XL Pipeline.” 

Jeffrey Sachs: lsachs1@law.columbia.edu


Cruz Reynoso, former California Supreme Court Justice and professor of law emeritus, University of California, Davis:

 “The right of foreign corporations and investors to challenge U.S. policies which allegedly violate investor rights is a frontal attack on our judicial system.”

Cruz Reynoso: creynoso@ucdavis.edu

 

Alan Morrison, associate dean, George Washington Law School:

“The United States Constitution simply does not allow Congress to assign the duty to assess the legality under the TPP of federal and state laws to the unreviewable discretion of three private individuals, instead of to our federal court system with full-time and unconflicted judges.”

Alan Morrison: abmorrison@law.gwu.edu

 

Lisa Sachs, professor of law, director of Columbia Center on Sustainable Investment:

“A multilateral agreement presents an opportunity to promote the rule of law, strengthen domestic judicial systems and ensure the rights of all, including the most vulnerable, are equally advanced. ISDS in its current form undermines each of those objectives. The whole system needs a rethink to better balance all stakeholders' interests and rights.”

Lisa Sachs: lsachs1@law.columbia.edu

 

Kevin Gallagher, professor of economics, Boston University:

“ISDS accentuates the regulatory risks that characterize the latest trade and investment pacts by granting foreign investors far greater rights over national democratic decision-making. Putting governments and their citizens back in charge of settling disputes is the first step toward the comprehensive reform that is needed.”   


TPP Is Not Dead, Unfortunately

The reports of the Trans-Pacific Partnership’s death have been greatly exaggerated, unfortunately.

It would great news if the pact, which would mean more power for corporations over our lives and government, and fewer good jobs for Americans, were ready to be boxed and buried.

But more urgently, if last week’s news stories convince the growing transpartisan movement fighting the TPP to stand down, the prospects that the pact’s powerful proponents can succeed in their plan to pass it after the election will increase.

Last week Senate Majority Leader Mitch McConnell (R-KY) said at the Kentucky Farm Bureau: "The current agreement…which has some serious flaws, will not be acted upon this year." This generated a wave of press coverage declaring that there would be no lame duck vote on the TPP.

Except, McConnell has said pretty much the same thing since the final TPP text was released, as have other Republican leaders.

Note that McConnell said the “current agreement” would not get a vote. A few weeks ago House Speaker Paul Ryan (R-WI) said: "I see no point in bringing up an agreement only to defeat it...it is not ready, the president has to renegotiate some critical components of it." Immediately after McConnell’s speech, a Ryan spokesman said: "As we have said for months, timing will be determined by progress on the substance – and the administration has a lot of work to do there."

Those statements need to be understood for what they are: negotiating for changes to obtain even more corporate goodies – longer monopoly protections for pharmaceutical firms’ high medicine prices, elimination of an exception protecting some tobacco regulations from TPP attack, and more. So far the corporate “we-want-more-or-else” tactic has pushed the White House into caving on Wall Street firms’ demands to “fix” TPP rules allowing governments to limit movement of financial data across borders. Since the administration has made no parallel moves to address criticisms coming from its own party, a very bad deal is getting even worse. 

At the same time, many senators and representatives who voted for Fast Track are using these statements to try and duck accountability by pretending that the TPP is a moot issue. If these members then turn around after the election and support the TPP, that will be a huge insult to the democratic process and the millions of voters who are loudly urging Congress to support fair trade deals that support workers, consumers and the environment, rather than corporate giveaways like the TPP.

The GOP leaders are not only trying to pressure the White House to meet their demands, but are trying to scare the other TPP countries off of their current positions that no changes are possible.

If the GOP leaders get what they want, they will be pushing hard to pass an even more damaging TPP in the lame duck session, despite their insincere political posturing over the unpopular agreement leading up to the elections.

It’s also possible congressional Republicans will jump into gear to pass the deal in the lame duck session even if they do not achieve that last one percent of corporate goodies for the one percent.

Thanks to Fast Track, President Obama gets to decide if the TPP vote clock is started – not the Republican leadership. It is risky, but Obama could call the GOP leaders’ negotiating bluff.

Fast Track is a one use tool. Failure to pass the TPP once a president starts the clock means that Fast Track for the TPP is “used up.” Knowing that corporations that fund the Republicans want the TPP, Obama could gamble that the GOP leaders would fold on their demands and start pressuring their members to vote “yes” if he submits the implementing legislation.

And make no mistake, the massive corporate coalition pushing for the TPP is aggressively lobbying to pass the pact in the lame duck session—that unique moment of minimum political accountability when the retired and fired in Congress get to come back and vote one more time knowing they will not be facing their voters again. These interests are rolling out big-money AstroTurf “field” operations to generate paid telephone calls for the TPP, wrangle corporate retirees to write their Representatives and carpet cyberspace with paid social media.

That is not the behavior one would expect from interests with close personal relationships to McConnell and Ryan if in fact the Republican leaders intended to block a lame duck TPP vote, something the GOP could do even if Obama started the clock.

Because there would not be the required 90 congressional session days to force floor votes under Fast Track, the Republican congressional leaders would have to bring the TPP to a vote quickly or run out of time. (That is why Sen. Bernie Sander’s statement last week, praising McConnell for announcing he would “block” the TPP was so very sly, because of course McConnell said no such thing.)

It is also worth noting that the administration is working relentlessly to line up the votes to pass the TPP in the lame duck. So far there have been 30 events featuring cabinet secretaries and other Obama officials in key districts during the congressional recess.


For those who want to ensure a real TPP funeral, the only path to ensure TPP RIP is by locking down the votes district by district. That is entirely doable.

Already a dozen House GOP that supported Fast Track last year have announced opposition to the TPP.  And, many of the 28 House Democrats that supported Fast Track have not announced support for TPP.

Perhaps they, like Vice Presidential nominee, Senator Tim Kaine, who announced opposition to the TPP after supporting Fast Track, have concerns about the gap between what they were told the final deal would include and what is in the actual final text on critical issues—such as the undemocratic investor-state corporate empowerment system

The current political context, with the presidential nominees of both parties against the TPP coupled with rising public anger across partisan lines about the influence corporations have over governments and the decisions that shape our daily lives means the TPP can be stopped.

The TPP exemplifies how the rules get rigged by the very few against the interests of the many: the deal was hatched with 500 official U.S. trade advisors representing corporate interests involved in years of closed-door negotiations while the public, press and Congress were locked out. The resulting core TPP provision grants thousands of corporations new rights to sue the U.S. government before a panel of three corporate lawyers that can award unlimited sums, including for loss of future expected profits, to be paid by American taxpayers when the corporations claim U.S. policies violate the new entitlements the TPP would provide them.

But, the only way that the TPP will be stopped is if local constituents make every member of Congress publicly state his or her position on the TPP before the election when being in favor of such an outrage will have a political price.


Six Things to Know About the TPP

  1. The TPP is not mainly about trade at all: Only six of its 30 chapters cover trade matters while most provide specific new rights and powers for corporations.  The pact has become so controversial because – at a time when poll after poll shows that Republicans, Democrats and Independents are furious about growing corporate power over their lives and governments – the TPP provides a concrete example of how the rules get rigged against most Americans’ interests. As this New Yorker piece describes, 24 of the 30 chapters require limits on food, financial and other regulations and provide drug firms new monopoly rights. The TPP was negotiated in secret with hundreds of corporate advisors (see the Washington Post infographic of 500 corporate advisors), while the public and press were shut out – as was Congress until year six of seven of the closed-door talks. Recent opinion research shows that the more the American public hears about the TPP and its actual terms, the more they oppose it.
  1. There are few remaining tariffs left between TPP nations to cut, which is why pro-free trade economists say there are very limited economic gains to be had from the TPP. From Paul Krugman to Joseph Stiglitz to Robert Reich to Jeffrey Sachs to Simon Johnson and beyond, prominent economists who supported the North American Free Trade Agreement (NAFTA) and other past pacts say there would be few economic upsides from the TPP. Many are working to stop the TPP because they consider it as threatening to the U.S. economy and most Americans’ interests. The TPP includes protections that make it easier for corporations to send jobs overseas, removing the risks and costs that make corporations think twice about offshoring jobs to low-wage countries. The pro-free-trade Cato Institute calls these terms a subsidy on offshoring.
  1. The TPP’s key provision grants new rights to thousands of multinational corporations to sue the U.S. government before a panel of three corporate lawyers that would be empowered to award the corporations unlimited sums to be paid by America’s taxpayers, including for the loss of expected future profits. Were the TPP enacted, multinational corporations need only convince the tribunal of private sector lawyers that a U.S. law or safety regulation violates their TPP rights. The tribunals’ decisions are not subject to appeal and the amount awarded has no limit. To date, the United States has avoided losing such “investor-state dispute settlement” cases because past pacts did not include major capital-exporting nations except Canada. But the TPP would newly empower the U.S. subsidiaries of more than 9,500 Japanese and other TPP-nation firms to attack U.S. federal, state and local policies and government actions, as TransCanada recently did using similar terms in NAFTA.
  1. Even the official U.S. government assessment of the TPP, the U.S. International Trade Commission (ITC) report released on May 18, projected few economic gains but estimated that 36 of 55 U.S. economic sectors would suffer declining trade balances under the TPP. The ITC projected that the TPP would increase the U.S. global trade deficit by $21.7 billion by 2032 and even worsen our services trade balance. The ITC projected a $24 billion dollar jump in the manufacturing trade deficit and job loss and manufacturing losses five times larger than gains for winning agricultural sectors, with corn and wheat losing. The projected upside: tiny economic growth gains (15/100 of one percent) by 2032 – meaning the United States would be as wealthy on January 1, 2032 with the TPP as it would be on February 15, 2032 without. A recent study finds that the TPP would spell a pay cut for all but the richest 10 percent of U.S. workers by exacerbating U.S. income inequality, just as past trade deals have done.
  1. The “TPP covers 40 percent of the global economy” line is a misdirect: The six TPP nations with existing U.S. free trade pacts account for more than 80 percent of the trade counted in the 40 percent. Tariffs on U.S. goods going to Australia, Canada, Chile, Mexico, Peru and Singapore already do not exist or are being eliminated. So while TPP countries may account for 40 percent of world trade, the TPP would cut tariffs on only 20 percent of that 40 percent share. Japan comprises fully 88 percent of the combined gross domestic product of the five TPP countries without an existing U.S. free trade agreement, but Japan’s average applied tariff weighted by product import shares is now only 1.2 percent. Indeed, tariff levels in the remaining five TPP countries are generally low.
  1. Environmental, consumer, faith, senior, family farm, LGBTQ, Internet freedom, small business, human rights, online activism, and other organizations have made stopping the TPP a major priority because it would undermine decades of their policy achievements and foreclose future progress by requiring signatory countries to conform domestic laws to hundreds of pages of non-trade rules promoted by the corporate interests involved in negotiations. Doctors Without Borders calls the TPP the worst trade agreement for access to medicines. The online groups that derailed the Stop Online Piracy Act (SOPA) in Congress are fighting TPP terms that undermine Internet freedom and consumer privacy. Consumer groups are engaged because the TPP would require us to accept food imports that do not meet U.S. safety standards and limit commonsense financial regulation needed to avoid future crises. Climate and youth organizations are fighting the TPP because it would forbid many of the policies we need to combat climate change. Just one recent letter to Congress was signed by 1,500 organizations from NRDC and Sierra Club and 350.org to MoveOn and CREDO to the National Farmers Union and Public Citizen and Food & Water Watch to Common Cause and Action Aid to the AFL-CIO and SEIU to score of national unions to the Presbyterian, Unitarian and other faith groups with tens of millions of members combined.

For more info: Lori Wallach, Public Citizen’s Global Trade Watch at lwallach@citizen.org 


Public Health Takes a Hit Even as Uruguay Prevails in Infamous Philip Morris Investor-State Attack

Thankfully, a years-long campaign to shame Philip Morris and the investor-state dispute settlement (ISDS) system for the tobacco giant’s infamous ISDS attack on Uruguay ultimately prevailed, but not without leaving deep and damaging scars to global tobacco-control efforts. An ISDS tribunal ruled that Uruguay did not have to compensate Philip Morris after the firm attacked Uruguay’s public health law requiring that 80 percent of tobacco product packages feature graphic medical warning labels.  

But what happens when a government “wins” an ISDS attack should be a cautionary tale for the threats posed by the Trans-Pacific Partnerships (TPP). If enacted, the TPP would double U.S. ISDS liability overnight.

Uruguay only managed to dodge this bullet because billionaire Michael Bloomberg stepped in to cover its millions of dollars in costly legal defense during six years of litigation. When Philip Morris initiated the ISDS case in 2010, the Uruguayan government reportedly was prepared to immediately cave and change their anti-tobacco law, since defending the case was financially impossible for the tiny country. 

Late last year, another ISDS tribunal ruled that it did not have jurisdiction in the Philip Morris case against Australia for similar tobacco-control policies, but Australians saw more than $50 million of their tax dollars go to legal costs to defend against the attack, according to World Health Organization Director General Margaret Chan. This includes having to pay the three corporate lawyers who served as “judges” during the four-year ordeal. They bill at least $375 per hour and, in a manner that would be unethical for real judges, often rotate between suing governments for corporations and “judging” cases.

And, just by launching these cases, Philip Morris managed to chill other nations from enacting similar legislation for years to avoid being the next target. One example: New Zealand held off on its own plain packaging proposal to see what happened with Australia. Canada’s efforts to enact plain-packaging legislation died after R.J. Reynolds sent a memorandum to the House of Commons arguing the policy would constitute an illegal expropriation under the North American Free Trade Agreement’s ISDS regime, exposing Canada to millions in liability.  

With six million people dying from tobacco-related deaths each year globally, it is not hyperbole to say that the years of litigation of these ISDS cases contributed to needless loss of life.

The Obama administration touts that the TPP will exclude tobacco companies from using ISDS to challenge public health policies. But as Senator Elizabeth Warren put it, the ISDS tobacco exclusion is “pretty much an admission that ISDS can be used to weaken other public health laws.”

And, the favorable ruling in the Uruguay case unfortunately does not assure governments of their policy space. Among the fatal flaws baked into the very structure of the ISDS system is how capricious and subjective ISDS tribunals are. When a particularly egregious case gets massive negative attention and becomes highly politicized, it is in the interest of the tribunal to “make it go away” in order to preserve the ISDS system as a whole. 

When Canadian companies Methanex and Glamis Gold launched some of the few ISDS cases against the United States — against California regulations of toxic substances and mining respectively — the public outrage by members of Congress and others likely affected the outcomes, and the United States dodged the ISDS bullet. Other, less high-profile cases with very similar fact patterns and based on the same claims ended with the taxpayers of other countries having to pay multi-million dollar awards to corporations. 

For now, we breathe a sigh of relief that these cases against Uruguay and Australia did not result in millions in taxpayer compensation to the tobacco giant and congratulate all the public health advocates that helped to spotlight the travesty of Philip Morris’ ISDS attack against the countries. 

But, at the same time, we must redouble our efforts to stop the TPP, which would dramatically expand this dangerous and capricious ISDS regime.