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In much the same way, USC Title 42 is a mechanism for stripping sovereignty from state governments and handing it to individuals and interest groups. It does th

In much the same way, USC Title 42 is a mechanism for stripping sovereignty from state governments and handing it to individuals and interest groups. It does this by creating a mechanism where (certain) groups get to sue the government for damages based on certain types discrimination. Various state laws give up sovereignty and allow individuals and corporations to sue the state for negligent actions taken by state employees. The Tucker Act strips sovereignty and allows various contracts to be enforced against the government. Governments sometimes give up sovereign immunity. It's actually a very important component of the rule of law, allowing the government to be bound by law in addition to the people.

crdoconnor 11y ago
Federal law is still subjected to democratic oversight. You vote in elections, don't you? Stripping states of sovereignty and giving it to the federal government is still moving it from one democratically accountable government to another. This is not quite the same thing as stripping the federal government of sovereignty and giving it to a secret court of supposedly (but not really) independent lawyers. If you think that it was a great thing that Philip Morris was able to sue Australia or Uruguay for lost profits for putting warning labels on cigarette packets then I suppose you'd be in favor of the ISDS provisions in the TPP. If, on the other hand, you think governments should legislate for the benefit of their citizens' health, then perhaps not so much.
- tptacek 11y ago
  According the very article you're commenting on, the TPP specifically excludes tobacco from the ISDS process.
  - ZenoArrow 11y ago
    Does it exclude the pharmaceutical and agricultural industries as well? Those are two of the big areas people are concerned about with the TPP/TTIP/TISA/CETA.
    - tptacek 11y ago
      We're talking here about the dispute resolution process, which the commenter upthread is presumably commenting about because it was the topic of a Last Week With John Oliver episode a few months ago. The dispute resolution process excludes tobacco, according to the NYT.
      - ZenoArrow 11y ago
        Yes I know that's what is being discussed. However, even if the tobacco industry is exempt from this particular trade deal, it's important to consider which industries are not exempt. BAT suing Australia over plain cigarette packaging wasn't a one off case of ISDS being used to sue a country. Another example would be Lone Pine Resources suing Canada $250 million (USD I believe) over Quebec trying to ban fracking. In other words, whilst I'll be glad if the tobacco industry aren't able to use ISDS to sue a country, there are plenty of other industries that could cause problems with this clause.
        tptacek 11y ago
        How else is anyone supposed to litigate trade disputes? The whole concept of a trade agreement is that countries agree to a series of regulations. There is no such thing as "international law". It is entirely ad hoc. There is no court that has proper jurisdiction over international trade dispute. Shouldn't it be immediately obvious why a company that ostensibly had mining rights in Canada can't expect a fair result to a dispute with Canada by suing in Canadian court?
        ZenoArrow 11y ago
        > "How else is anyone supposed to litigate trade disputes?" In a court system with public oversight, just like the rest of us. > "Shouldn't it be immediately obvious why a company that ostensibly had mining rights in Canada can't expect a fair result to a dispute with Canada by suing in Canadian court?" This is the reason why ISDS clauses came into being, to discourage governments from changing rules that may affect their profits, even if the choice was made democratically. Whilst I understand why companies would want it, I see democratic decisions as having precedent over company profits. If there's a situation where one side has to lose out, then I'd want that to be the company rather than the people of a country. It's a risk investing in infrastructure or products that can cause problems with public or environmental health. Why should the people of a country have to carry the can if a company chooses to make a risky investment? Here's another example of a ISDS trade dispute, El Salvador being sued $301 million USD by OceanaGold, with El Salvador resisting the gold mining that OceanaGold want to carry out because of the risk of poisoning their water supply... http://www.equaltimes.org/will-el-salvador-be-forced-to-pay?lang=en#.VhKxr-zkJ2s http://www.equaltimes.org/will-el-salvador-be-forced-to-pay?...
- yummyfajitas 11y ago
  States (and the federal government) are stripped of sovereignty which is given to unelected judges. Now, if you really want to appeal to democracy, then it's pretty tough to criticize democratic sovereigns delegating their authority to other parties. Do you also consider the regulatory state (in which various unelected bureaucracies such as the EPA or SEC write regulations with minimal democratic oversight) to be a problem? In any case, I do favor the rule of law, which includes allowing unsympathetic parties to have their day in court and to have those cases decided on the legal merits. I also have no particular affection towards democracy or national sovereignty (I use protection of individual rights as my normative basis, and favor sovereignty and democracy only insofar as they protect individual rights).
  - crdoconnor 11y ago
    >States (and the federal government) are stripped of sovereignty which is given to unelected judges. ...appointed by elected representatives. There's simply no comparison to the ISDS. >I also have no particular affection towards democracy It shows.
    - yummyfajitas 11y ago
      Similarly, the ISDS tribunals are agreed to by elected representatives. The comparison is quite apt.
      - ZenoArrow 11y ago
        > "Similarly, the ISDS tribunals are agreed to by elected representatives." They agree about who represents them in the tribunal, but I don't think they have much choice over whether they are sued or not.
        yummyfajitas 11y ago
        Federal and state governments also have no choice over whether they are sued for racial discrimination or contract violations.

crdoconnor 11y ago

Federal law is still subjected to democratic oversight. You vote in elections, don't you? Stripping states of sovereignty and giving it to the federal government is still moving it from one democratically accountable government to another. This is not quite the same thing as stripping the federal government of sovereignty and giving it to a secret court of supposedly (but not really) independent lawyers. If you think that it was a great thing that Philip Morris was able to sue Australia or Uruguay for lost profits for putting warning labels on cigarette packets then I suppose you'd be in favor of the ISDS provisions in the TPP. If, on the other hand, you think governments should legislate for the benefit of their citizens' health, then perhaps not so much.

tptacek 11y ago
According the very article you're commenting on, the TPP specifically excludes tobacco from the ISDS process.
- ZenoArrow 11y ago
  Does it exclude the pharmaceutical and agricultural industries as well? Those are two of the big areas people are concerned about with the TPP/TTIP/TISA/CETA.
  - tptacek 11y ago
    We're talking here about the dispute resolution process, which the commenter upthread is presumably commenting about because it was the topic of a Last Week With John Oliver episode a few months ago. The dispute resolution process excludes tobacco, according to the NYT.
    - ZenoArrow 11y ago
      Yes I know that's what is being discussed. However, even if the tobacco industry is exempt from this particular trade deal, it's important to consider which industries are not exempt. BAT suing Australia over plain cigarette packaging wasn't a one off case of ISDS being used to sue a country. Another example would be Lone Pine Resources suing Canada $250 million (USD I believe) over Quebec trying to ban fracking. In other words, whilst I'll be glad if the tobacco industry aren't able to use ISDS to sue a country, there are plenty of other industries that could cause problems with this clause.
      - tptacek 11y ago
        How else is anyone supposed to litigate trade disputes? The whole concept of a trade agreement is that countries agree to a series of regulations. There is no such thing as "international law". It is entirely ad hoc. There is no court that has proper jurisdiction over international trade dispute. Shouldn't it be immediately obvious why a company that ostensibly had mining rights in Canada can't expect a fair result to a dispute with Canada by suing in Canadian court?
        ZenoArrow 11y ago
        > "How else is anyone supposed to litigate trade disputes?" In a court system with public oversight, just like the rest of us. > "Shouldn't it be immediately obvious why a company that ostensibly had mining rights in Canada can't expect a fair result to a dispute with Canada by suing in Canadian court?" This is the reason why ISDS clauses came into being, to discourage governments from changing rules that may affect their profits, even if the choice was made democratically. Whilst I understand why companies would want it, I see democratic decisions as having precedent over company profits. If there's a situation where one side has to lose out, then I'd want that to be the company rather than the people of a country. It's a risk investing in infrastructure or products that can cause problems with public or environmental health. Why should the people of a country have to carry the can if a company chooses to make a risky investment? Here's another example of a ISDS trade dispute, El Salvador being sued $301 million USD by OceanaGold, with El Salvador resisting the gold mining that OceanaGold want to carry out because of the risk of poisoning their water supply... http://www.equaltimes.org/will-el-salvador-be-forced-to-pay?lang=en#.VhKxr-zkJ2s http://www.equaltimes.org/will-el-salvador-be-forced-to-pay?...
yummyfajitas 11y ago
States (and the federal government) are stripped of sovereignty which is given to unelected judges. Now, if you really want to appeal to democracy, then it's pretty tough to criticize democratic sovereigns delegating their authority to other parties. Do you also consider the regulatory state (in which various unelected bureaucracies such as the EPA or SEC write regulations with minimal democratic oversight) to be a problem? In any case, I do favor the rule of law, which includes allowing unsympathetic parties to have their day in court and to have those cases decided on the legal merits. I also have no particular affection towards democracy or national sovereignty (I use protection of individual rights as my normative basis, and favor sovereignty and democracy only insofar as they protect individual rights).
- crdoconnor 11y ago
  >States (and the federal government) are stripped of sovereignty which is given to unelected judges. ...appointed by elected representatives. There's simply no comparison to the ISDS. >I also have no particular affection towards democracy It shows.
  - yummyfajitas 11y ago
    Similarly, the ISDS tribunals are agreed to by elected representatives. The comparison is quite apt.
    - ZenoArrow 11y ago
      > "Similarly, the ISDS tribunals are agreed to by elected representatives." They agree about who represents them in the tribunal, but I don't think they have much choice over whether they are sued or not.
      - yummyfajitas 11y ago
        Federal and state governments also have no choice over whether they are sued for racial discrimination or contract violations.