As the hard fight over the Trans Pacific Partnership ("TPP") proceeds, it is important not to confuse the foulness of the TPP's proposed rules with the otherwise difficult, but not altogether undesirable, prospect of super-national rules of law. To put it bluntly, we should reject the TPP but we should embrace the idea of international cooperation. When we generically decry "globalization", we are throwing the baby out with the bathwater. We actually want globalization, just not the kind of pro-corporate globalization that we've grown to despise. Instead, let's rethink what good can come from a new notion of globalization that works for the 99%.
As we now know, TPP brings countries representing 40% of the world's economic activity closer in-line with an American-style legal regime, which values above everything else increased GDP achieved through super-powered multi-national corporations. While there is hollow talk from TPP supporters about the elevation of labor and environmental standards, in reality, the agreement will suppress, if not outlaw, many local efforts to raise standards. When disputes arise among countries and corporations regarding the application of the deal, they will be resolved by arbitrators picked from corporate elites. Companies will be entitled to bring enormous claims for lost profits which poorer countries usually cannot responsibly hold-out against for fear that losing will bring political and economic instability. So the countries usually settle, often abandoning progressive policies. Corporations mostly risk high legal fees, which is built into their business model anyway.
In a nutshell, TPP pits corporations against countries, and generally speaking the corporations win.
But should this mean that we oppose TPP because of its global character? We argue--if somewhat cautiously--no. Ignoring for a moment the rottenness of TPP's substantive rules, there is something striking about such a far-reaching effort to establish legal norms among multiple diverse countries, with real enforcement mechanisms to back them up.
That kind of structure, albeit with different rules inside, has been the dream of some of history's greatest social thinkers, such as Emanuel Kant, Albert Schweitzer, and Albert Einstein. Their efforts have little modern resonance, not because they came up with bad rules, but because in earlier eras the notion of establishing binding judicial mechanisms to resolve any kind of international disagreement was just too utopian to warrant serious consideration by diplomatic professionals. The motivations of these earlier thinkers was no doubt to end the constant warring among great powers. And although this particular concern has blissfully receded (if certainly not been eliminated) as a threat today, others have arisen.
The world is now facing the collective action problem of its life: climate change. A few of our group members recently read Naomi Klein's This Changes Everything and were simultaneously horrified by the direness of her reports on the latest climate catastrophe predictions and depressed by the silliness of most of Klein's economic policy suggestions. While she is absolutely right to lay blame for climate change at the door of capitalism, her notion that organic farming cooperatives run by First American tribes will provide a path forward is even more quixotic than Einstein's call for world government.
Let's be realistic: it took the world a few centuries to develop the current mega-corporate capitalistic order, and the unwinding of that process through the advent of thousands of local green initiatives can't possibly come in time to save the planet. Instead, we need an international commercial law that imposes penalties on polluting companies commensurate with the huge social costs their run-away consumption and emissions impose. Such a law, if enforced, might actually be our best remaining chance to avoid the worst predictions about climate change.
And climate change is just one example of the international issues that can now only be solved on a global scale. Here's another: labor. Unions (and quite a few of us are members) may not like trade deals, but killing them is not going to stop monster cargo ships from delivering products made by highly exploited labor on the other side of the world. What might make a difference, however, are real labor laws.
Take the U.S. states as an example. When local political bodies are left to make these decisions independently, they have every reason to vie to underbid each other in a feeding-frenzy for the largely bad jobs corporations dangle above their heads. The states deregulate their labor markets, keep minimum wages out-of-step with inflation, and adopt "Right to Work (in terrible jobs)" laws, all of which basically sell off their people at low cost to corporate behemoths. It is, again, the classic race-to-the-bottom problem that more universal laws are really good at solving.
Why do we say that? One of our favorite examples of how enforceable norms stop arms races comes from American professional hockey. Apparently, when NHL players were asked whether they would wear a helmet if the league did not require them to, almost all said no. Individually, they didn't want to give up the slight competitive advantage apparently gained by playing without one. But when they were instead asked if they favored a league rule that would require all players to wear helmets, they in similar numbers said yes.
We now have a hockey league in which everyone wears helmets. And perhaps the level of play suffers infinitesimally, but the safety benefits are overwhelming. It is just a better system, and it only happened because we disallowed a certain form of competition, namely competition to play slightly better by playing unsafely.
The same kind of logic regularly applies in labor contexts. The only real way to combat an arms-race to the bottom in a labor market is to adopt rules that prevent any one actor from putting pressure on others to race to a new equilibrium in which everyone is worse off. In an increasingly global labor market, it is similarly only global labor rules that can stop the nation-by-nation competition to attract investment dollars by offering-up workers on ever-more exploitive terms. This should take the form of international rules--maybe reached through trade deals--that address the effective trade in labor services that the globalized economy is largely now about. This would not be your uncle's free trade deal we're talking about; but one that (remarkably) safeguards, rather than erodes, the terms under which the residents of any participating country may be required to go to work.
Next, let's think about the human rights abuses that continue to rage globally. The only way to address them is through international norms with real teeth. International human rights lawyers made progress establishing such standards back in the aftermath of World War II, for example when the UN in 1948 adopted the International Declaration of Human Rights. But as we saw in the shameful Bush-era War on Terror, the United States can't even get itself to abide by those kinds of rules, let alone sign new International human rights accords with still higher standards.The Bush-era strategy was that you deal with "bad guys" by stooping to their level; and Donald Trump would only have us stoop still further. But we should know by now that this just leads to the same toxic creep of a race to lower standards. Yes, it is impossible to get non-state actors like ISIS and Al Qaeda to adhere to basic humanitarian principles, and we probably don't even want to give them the recognition it would take to try. But that does not put in doubt for a moment the need for those international standards to exist, have teeth, and be enforced within the global community. To the contrary, the fact that supposedly "legitimate" world actors will so quickly chase entities like ISIS over the moral abyss highlights the need for (rather than the futility of) international law that quickly and effectively checks these tendencies
How international rules might look, across so many disciplines, is more work than this essay is prepared to take on. Luckily, institutions like the International Labour Organization and the International Court of Justice have already made real progress establishing such norms. American political leaders seem like nothing better than to scoff at their efforts--and no doubt a ton of work remains to be done--but the continued advancement of these kinds of institutions is critical to our collective futures.
Having said that, there is another substantial obstacle to sound international law (as if there were not already enough). Namely, that the very idea of international law sounds and is highly undemocratic. It was after all outrage over the undemocratic nature of structures like the World Bank and IMF that incited the anti-globalization movement of the late 90s. And while it would be a huge accomplishment to change the mission statements of those institutions or the goals of trade deals to make them more people--rather than corporation--protective, that actually does not solve the democracy problem. It is just really tough, maybe meaningless, to have a world democracy. Seven billion people and counting is just too big a community.
That does not mean that balances between fair process and good rules cannot be found. For example, perhaps we should be much less concerned about labor or environmental conditions in states with robust democracies, because if the vast majority of people in a political union have power, they are probably less likely to pass local laws that erode labor standards, permit human rights abuses, or tolerate lots of pollution. For that reason, an international order that granted democracies more leeway to set environmental, labor, and other standards might make sense.
Similarly, when you have a credible federal authority, it is not uncommon for sound local initiatives to become models for adoption by the higher governing body. Think of the way California has pioneered environmental laws, or how German food-safety standards influenced EU law. Sometimes a race to the top happens when local democracy is allowed to flourish and, in turn, informs the processes of multi-state federations.
But regardless, the laws of the world are not going to be set by world votes. Instead, those kinds of decisions are going to have to be bargained for by large institutions. Right now, those institutions are massive corporations, large nation states, and sometimes even larger super-nation states like the EU. We need to get in the room.
For that to happen, we will probably need new extra-national institutions like international labor federations, world environmental congresses, the Occupy Movement, or perhaps new coalitions of under-represented states. Hopefully, these new institutions will have open and reasonably democratic ways of making decisions and choosing their representatives. Regardless, the breadth of humanity has to be at the table when International bargains are struck to set the new global norms.
Then we will have power; and when we do, we probably - hopefully - won't feel nearly so worried about the non-democratic aspects of some of our new processes. One of the big problems with the Occupy movements' focus on democracy, as important as it may be, is that democracy is ultimately a process in which people exercise small bits of power by doing very little (pulling a switch in a booth); and even then, only to get a soft voice in a frequently calcified government bureaucracy. Given the scale of present-day world problems, that is just not going to get it done.
The biggest problem with the TPP is that we were not at the table and so our interests are nowhere reflected in the negotiated outcome. But in a world of ever-increasing international connectivity, we urgently need better organizing principles. Fair and enforceable laws remain the best way to solve collective action problems, and that's what we should think of when we think about trade deals.
What does this mean for Progressives? It means this: we need to focus not just on democracy, but more on building institutions that serve as vehicles for exercising power on an international level. We need to build something that will deliver a seat at the table and a real voice when we get there. Perhaps then the outcome of massive international deals, like the TPP, that re-set the rules about how the people of the world trade with each other will be a cause, not for despair and outrage, but celebration.