The Secret Life of the North American Free Trade Agreement
October 5, 1993
This column was written before NAFTA was voted on in Congress in 1993. History has shown my concerns to be valid. Thousands of jobs have been lost, and we are functioning under international laws that supercede our own carefully-crafted legislation. It is not a good situation.
We should get out of this treaty as soon as possible. Under provisions in the treaty, all we have to do is announce our intentions to pull out, and then we can do so six months later. Of course, this will not happen under the Bush administration.
As you might expect, I was also opposed to the CAFTA treaty passed last fall in Congress.
Something strange is going on with NAFTA, the North American Free Trade Agreement. We have impressive groups and individuals, all with impressive credentials, people I respect and people I don't, on both sides of this ponderous three-nation treaty.
Since I couldn't count on my usual barometers, I decided to see for myself what NAFTA contained. I read several briefing papers on NAFTA and the side agreements from such sources as Senator Mitchell's office, the White House, and Public Citizen, Ralph Nader's group, and I've plowed through NAFTA itself, which, as it sits on my kitchen table, is four inches high.
I can see the reasons for the confusion.
Deep down, I think free trade is a good thing. And there are large chunks of NAFTA which I think are either excellent or acceptable.
But as I went through this document, I would come across sections, paragraphs, phrases, which concerned me or even scared me.
Phrases like: "No Party shall provide in its domestic legislation for an appeal from a panel decision to its domestic courts." (Article 1903.11) Does this put NAFTA rulings beyond the jurisdiction of our U.S. Supreme Court?
After all this study, I am left with two major concerns, about the governing structure of this agreement, and about the secrecy and unaccountability built into NAFTA's system of checks and balances.
The goal everyone is shooting for is a healthy economy - good jobs in a diverse economy, free flow of information, products, services, getting some life back into this current global stagnation.
Free trade could well be a means to that end.
But when a means to an end is elevated to an end in itself, which appears to be happening with NAFTA, things start to get distorted.
NAFTA says that any state or federal laws in any of the three countries which are a hindrance to free trade are at risk. The side agreements on the environment say that states can keep laws which are stricter than federal law, but they explicitly do not say those laws can remain intact in the face of a challenge under NAFTA. Does that mean a company from Georgia cannot cite NAFTA to challenge a state law, but someone from Quebec or Mexico City could?
Two Maine laws came to mind when I read this section of NAFTA. They are our existing laws prohibiting the sale of irradiated foods, and our ban on non-recyclable aseptic containers. Those laws are a clear hindrance to free trade. They were designed to be hindrances to free trade.
My reading of NAFTA is that NAFTA would supercede those Maine laws, and would require our federal government to force their repeal. I ran my suspicion by state Attorney General Michael Carpenter, and he agreed. He added that the way the treaty is structured, he could well be prevented, as state attorney general, from defending our state laws before a NAFTA review panel - and he quite possibly would be barred from the hearing itself.
Which leads me to my second major concern - the secrecy, confidentiality, the inaccessibility of information built into this document.
NAFTA says: "the special committee's hearings, deliberations, and initial report, and all written submissions to and communications with the special committee shall be confidential" (Annex 1905.7.1.c). The same language is used in the the proceedings for the arbitral panel (Article 2012.1.a)
We in Maine are used to functioning under a Right to Know law that is now in its third decade. We also have a federal Freedom of Information Act which requires disclosure of a broad range of governmental information.
When someone grows up with a piano in the house, they tend to think that everyone grows up with a piano in the house. Not only does NAFTA not have a piano, it doesn't even want to carry a tune.
NAFTA will have a profound effect on the laws, regulations and businesses of three countries. Yet, the way NAFTA is structured, citizen involvement is either discouraged or barred. What happened in Bucksport, where a group of concerned citizens used common sense, local regulations, and dogged hard work to defeat an ill-conceived AES coal-fired power plant, could not possibly happen under NAFTA.
I think NAFTA is like bad architecture - it lacks balance and clarity, its scope is probably broader than we want, and I worry about hidden structural problems and hidden agendas. It is at the same time too much, and not enough.
But I am delighted by the attention this is getting. We now have specific input from a lot of people and groups as to why they don't like this agreement. That fact gives us an excellent opportunity to redo this document relatively quickly, keeping the good parts and reworking the bad ones - all the while changing our perspective so that free trade is a means rather than an end in itself.
I say we recycle the good parts of this agreement and take the rest to the dump. Since this current agreement is non-amendable by Congress, that means voting this document down and starting over.