Corporate Sovereignty Provisions Of TPP Agreement Leaked Via Wikileaks: Would Massively Undermine Government Sovereignty
from the dangerous-games,-played-out-behind-closed-doors dept
For years now, we've been warning about the problematic "ISDS" -- "investor state dispute settlement" mechanisms that are a large part of the big trade agreements that countries have been negotiating. As we've noted, the ISDS name is designed to be boring, in an effort to hide the true impact -- but the reality is that these provisions provide corporate sovereignty, elevating the power of corporations to put them above the power of local governments. If you thought "corporate personhood" was a problem, corporate sovereignty takes things to a whole new level -- letting companies take foreign governments to special private "tribunals" if they think that regulations passed in those countries are somehow unfair. Existing corporate sovereignty provisions have led to things like Big Tobacco threatening to sue small countries for considering anti-smoking legislation and pharma giant Eli Lilly demanding $500 million from Canada, because Canada dared to reject some of its patents noting (correctly) that the drugs didn't appear to be any improvement over existing drugs.The US has been vigorously defending these provisions lately, but with hilariously misleading arguments. The White House recently posted a blog post defending corporate sovereignty, with National Economic Council director Jeff Zients claiming the following:
ISDS has come under criticism because of some legitimate complaints about poorly written agreements. The U.S. shares some of those concerns, and agrees with the need for new, higher standards, stronger safeguards and better transparency provisions. Through TPP and other agreements, that is exactly what we are putting in place.There's something rather hilarious about saying that there needs to be "greater transparency" and promising that the secret agreement you're negotiating behind closed doors and won't share with the public has those provisions in them somewhere.
Either way, thanks to Wikileaks, we now have the "Investment" Chapter (or at least what it was as of January 20th), and it shows that, as per usual, the US is being entirely misleading in its claims. As Public Citizen highlights:
The leaked text would empower foreign firms to directly “sue” signatory governments in extrajudicial investor-state dispute settlement (ISDS) tribunals over domestic policies that apply equally to domestic and foreign firms that foreign firms claim violate their new substantive investor rights. There they could demand taxpayer compensation for domestic financial, health, environmental, land use and other policies and government actions they claim undermine TPP foreign investor privileges, such as the “right” to a regulatory framework that conforms to their “expectations.”As for all that "transparency" that the White House promised? Yeah, don't count on it:
The leaked text reveals the TPP would expand the parallel ISDS legal system by elevating tens of thousands of foreign-owned firms to the same status as sovereign governments, empowering them to privately enforce a public treaty by skirting domestic courts and laws to directly challenge TPP governments in foreign tribunals.
Existing ISDS-enforced agreements of the United States, and of other developed TPP countries, have been almost exclusively with developing countries whose firms have few investments in the developed nations. However, the enactment of the leaked chapter would dramatically expand each TPP government’s ISDS liability. The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government, while empowering more than 18,000 additional U.S.-owned firms to launch ISDS cases against other signatory governments. (These are firms not already covered by an ISDS-enforced pact between the United States and other TPP negotiating governments.)
As revealed in Section B of the leaked text, these tribunals would not meet standards of transparency, consistency or due process common to TPP countries’ domestic legal systems or provide fair, independent or balanced venues for resolving disputes. For instance, the tribunals would be staffed by private sector lawyers unaccountable to any electorate, system of precedent or substantive appeal. Many of those involved rotate between acting as “judges” and as advocates for the investors launching cases against governments. Such dual roles would be deemed unethical in most legal systems. The leaked text does not include new conflict of interest rules, despite growing concern about the bias inherent in the ISDS system.The basic concept behind early ISDS/corporate sovereignty provisions may have made sense -- in which companies that were afraid to invest in developing nations out of fear the government would come in and seize their factory or whatever -- but expanding it to cover basically all international trade, while the definitions are interpreted to mean companies can challenge any law they don't like in front of a set of private judges (who also work for those same companies in other cases) is ridiculously problematic.
Contrary to claims from the Obama administration that the TPP’s investment chapter would somehow limit the uses and abuses of the controversial ISDS regime, much of the leaked text would replicate, often word-for-word, the terms found in past U.S. ISDS-enforced agreements. However, some terms would widen the scope of domestic policies and government actions that could be challenged before extrajudicial tribunals, without offering meaningful new safeguards for those policies.
And, once again, we see why the USTR absolutely refuses to be transparent about this by releasing this information publicly. It knows that such a deal would be bad for the American public, so it keeps them secret until nothing can be done. I guess if you're undermining democracy by giving corporations power over lawmakers, you might as well go all the way and hide your proposals from the voting public at the same time.
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Filed Under: corporate sovereignty, isds, leaks, tpp, transparency
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I understand some country leaders go into those treaties due to incentive$ but really, when somebody comes that has nothing to do with those they can simply ignore the treaty or even scrap it. After all if it does more evil than good the supposed 'consequences' of getting out of them unilaterally can't be much worse.
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They would. You can't sue judge in his own court. That's why nobody takes such posts seriously.
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In terms of why they are accepted in the first place is likely a question of consistency: Developing countries will cry harder about western hypocricy when they are slaves of crappy ISDS provisions while the western nations don't bother with it in their bilateral agreements.
When that is said, the concept of modern ISDS seems problematically broad, lacks legitimacy, lacks transperency, lacks oversight (quis custodiet ipsos custodes?) and lacks standards beyond the limited legalese in the specific agreements. Thus, if ISDS is to be used at all in the future, you need some overarching agreement on how they can act and on what.
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It started there... and that's were it ends.
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This is how the world ends...
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You have no idea what this "Sovereignty" thing is, right?
I'm not exactly TPP fan, but how exactly TPP undermine sovereignty, I have no idea.
Corporation suing government of $country in same $country? Is _this_ supposed to "undermine sovereignty"? Like in:
>> The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government
Maybe TPP is a bad thing. But _this_ is bureaucratic bullshit.
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Re: You have no idea what this "Sovereignty" thing is, right?
>> The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government
No. It's not about "suing government of $country in same $country." It's about avoiding the court system altogether. It's about challenging laws in $country at a non-court tribunal made up of other lawyers who represent other multinational companies in similar cases and letting THEM decide if the laws of a country are "unreasonable."
In other words, giving a small group of corporate lawyers the ability to basically veto any country's laws.
That's what corporate sovereignty is about.
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Re: Re: You have no idea what this "Sovereignty" thing is, right?
One can argue that the progress of civilization is a function of limiting the power of rulers.
Think of Magna Carta, the separation of powers under the US Constitution, the Bill of Rights, the UN Declaration of Human Rights. These all limit the power of rulers - that's what we admire about them.
And they "undermine democracy". That's the point of rights - a majority can't vote them away just because they're a majority.
Obviously the details matter tremendously. But is TPP and ISDS necessarily a bad thing? Or is it the next step in limiting the power of rulers to treat people (corporations are made of people) unfairly?
I don't know the answer, but I do wonder if we're jumping to conclusions.
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
We don't want a society ruled by corporations whose own interests supersede the public interest or sovereign governments.
"That's the point of rights - a majority can't vote them away just because they're a majority."
They prevent a small minority of rulers from taking away the rights of the majority.
"Or is it the next step in limiting the power of rulers to treat people (corporations are made of people) unfairly?"
It's a step in giving more power to corporations to be rules, as if they don't have enough power already. In the U.S. it's obvious that copy protection laws were practically written by corporations. We don't need business interests having more power over writing laws.
"I do wonder if we're jumping to conclusions."
Keeping these negotiations secret from the public while allowing corporate interests to negotiate them until the last minute strongly suggests that this isn't about the public interest but about giving corporations more power to rule over us. I do not want corporations ruling over us.
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Re: Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
and rulers are made of people. The point is that corporate leaders and rulers are made of a very small minority of people yet it's only a very small minority of people given access and being allowed to negotiate these laws. Why? Because these laws are obviously in the interests of a very small minority.
and those representing the 'corporation' here aren't necessarily representing all the members and employees of the corporation. For instance Wal-Mart, or any corporation, would love the pay its employees less, or at least the leaders would, yet that position isn't representative of everyone working for Wal-Mart. It's only representative of a very small minority. The overwhelming majority of employees would love to be paid more. Just because a very small minority of corporate members holds a position doesn't mean they represent all or even most corporate employees/members. Just the leaders.
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Re: Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
A corporation that holds a position is nothing more than a small minority of people within the corporation that holds it. It hardly means the majority of corporate members holds it. So, even with the corporations are made of people argument corporate representation is hardly representative of the people.
Or if the government wants to pass various labor laws (ie: overtime pay, safety laws, etc...) the majority of the people would likely be in favor of those laws. It's only a very small minority within the corporation, the top executives and owners, that may wish not to have these laws.
Often times the interests of the overwhelming majority of corporate members conflicts with the interests of the top executives and owners. What these laws seek to do is to give more power to the overwhelming minority of top corporate leaders, not the majority or to the 'people' of the corporation. They don't represent the majority of 'people' even within their own organizations (yet alone within the broader scope of society), they only represent themselves.
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
- Raising minimum wage
- Worker protection laws
- Conservation (limiting the number of one species that can be hunted each year.)
- Environmental protection, including banning fracking
- Banning gasoline additives because of health concerns.
- Pharmaceutical drug laws, like requiring companies to prove that a new drug does what they say it does.
- Requiring plain packaging for cigarettes.
Limiting a government's legal authority is one thing. This is about shifting legal authority to unaccountable and non-democratic corporations at the expense of our elected government.
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
Exactly. Which is why corporate sovereignty is a bad thing. Corporations have become our rulers, and these provisions only give them more power.
What we need to strive for is government without rulers at all. That's the whole idea of the "American experiment". That experiment is failing. I want it to succeed.
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
Agreed. Neither do we want a society rule by individual people whose interests supersede...
Lots of people think certain kinds of speech should be prohibited because its "bad for society". Is that a valid argument against the right of free speech I don't think so.
There's a huge difference between ruling and having protected rights. I don't rule anybody, but I have rights protected by law. I think that's a good thing.
In democracies, the rights of majorities don't need protection (by definition).
On the contrary, rights protect minorities, and individuals, from being bullied by majorities.
I do agree the secrecy is a bad sign. On the other hand, as the comments here illustrate, it can be hard to introduce new protections for minorities in democracies. Nobody likes having power taken away, and that includes voters.
For example, this is much of the logic behind the EU - member states could free trade, allow labor movement, etc. without joining the EU. But it's politically impossible to do so because of protectionist instincts among voters. By joining the EU, member governments get to say "we have no choice, the EU made us do it."
Most corporations are not Walmart. My wife and I own a corporation - it employs 11 people including ourselves. The vast majority of corporations are like that. And anybody with $500 can form their own.
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Re: Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
In any society the rights of the majority need protecting. Otherwise you end up with a minority taking away the rights of a majority which erodes democracy.
"On the contrary, rights protect minorities, and individuals, from being bullied by majorities."
Rights also protect the majority from being bullied by a ruling minority that wants to prohibit them (ie: the right to free speech protects the majority, it applies to everyone).
"it can be hard to introduce new protections for minorities in democracies."
These laws aren't about protecting minorities from, say, discrimination. They're about giving a small minority special privileges over the majority in terms of what laws they want.
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Re: Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
and this agreement doesn't represent 'most corporations'. It represents, and is being disproportionately negotiated by, a very small minority of people.
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Re: Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
That's correct. I have had several such corporations like that myself. However, those kinds of corporations are horses of a different color and are affected by things like TPP in the same way that individual people are.
This is why I try to be careful to be specific and say "multinational" or "major" corporations.
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Re: Re: Re: You have no idea what this "Sovereignty" thing is, right?
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Re: You have no idea what this "Sovereignty" thing is, right?
- a country's independent authority and the right to govern itself
http://www.merriam-webster.com/dictionary/sovereignty
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Re: You have no idea what this "Sovereignty" thing is, right?
Indirectly. The Canadian mining company Lone Star Pine sued the Canadian government for $250 million after the province of Quebec banned fracking. They were able to do so under NAFTA’s investor protection clause, using their American subsidiary.
But usually it's a foreign corporation - or corporations with foreign investors - doing the suing.
Yes. Without ISDS, countries, provinces and states would be free to pass laws regarding the environment, minimum wage, worker safety, etc.. Now they face massive penalties for doing so. (And I can give examples for all three where this has happened.) At the very least this has a chilling effect on such laws.
It's also a state/provincial sovereignty issue:
Quebec never signed NAFTA; the federal government did. Newfoundland and Labrador never signed NAFTA; the federal government did. The provincial laws they passed that prompted ISDS lawsuits, were laws they always had the right to make. But since they never signed NAFTA, it was the federal government that was sued and had to compensate investors.
With TPP negotiations, while the details are scarce, the federal government has been ensuring that the provinces share liability. You can count on this happening behind the scenes in the US also.
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Re: You have no idea what this "Sovereignty" thing is, right?
When Mike uses the word "Sovereignty" in this context, it means giving companies the ability that other nations exclusively possess to drag other nations to court if they they so desire.
Meaning if say the US wants to establish plain packaging laws well Phillp Morris of Asia feels their profits are being undermined so they can drag the US to court and sue them for undermining expected future profits.
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Re: You have no idea what this "Sovereignty" thing is, right?
In terms of modern Westphalian political states, it means the right and power of a state to govern itself without any interference from outside sources or bodies (such as corporations).
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treason
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Re: treason
Anytime your definition of treason does not come from Vladimir Putin, and your equation does not contain imaginary values.
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I Hope TransCanada Pipeline is the First
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Re: I Hope TransCanada Pipeline is the First
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Re: Re: I Hope TransCanada Pipeline is the First
Quebec banned fracking under the (earthquake-prone) St. Lawrence Valley. But Quebec never signed NAFTA; the federal government did. And so it was the federal government that was sued, and has to compensate investors. Another law by Newfoundland and Labrador led to the federal government being sued and having to compensate investors.
Those treaties with American Indians won't be any problem at all for foreign investors. Because if they refuse to allow the pipeline, it's the federal government that's violating NAFTA's ISDS provisions and the federal government that gets sued.
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Re: Re: Re: I Hope TransCanada Pipeline is the First
Except that tribal lands are sovereign territories of the tribes themselves. It wouldn't matter if the US government is a signatory to NAFTA or whatever. It would matter if the tribe was.
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Re: Re: Re: Re: I Hope TransCanada Pipeline is the First
- Albert Einstein
Wikipedia: Tribal sovereignty in the United States
The government recognizes tribal nations as "domestic dependent nations"; they do not have full sovereignty equivalent to that of foreign nations. Their position is much like that of US states - they have some sovereignty, but they're still very much part of the US and subject to US federal law.
Their position similar to that of Quebec in the fracking case. Any refusal by them to bow to an ISDS ruling is the federal government's problem, not the investors'.
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Re: Re: Re: Re: Re: Re: I Hope TransCanada Pipeline is the First
For the purpose of international law and international treaties, the reserves are US territory and the federal government represents them and negotiates on their behalf, just like for other citizens.
Like Quebec they're not bound by NAFTA's ISDS provisions. But like Quebec that's the federal government's problem, not the investors'.
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Of course, US states have treaties with Canada and/or Canadian provinces regarding water conservation, trade, etc. They're technically not allowed to negotiate international treaties, so they use terms like "memorandum of understanding." Nothing stops tribes from doing this too.
And the first cross-border treaty in 150 years between tribes in the US and tribes in Canada was signed last year. (Aimed at restoring the bison.)
But independent treaties in the last century with other countries? Got an example?
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Re: I Hope TransCanada Pipeline is the First
I would not open the US Governments eyes - they're already willfully shut. Trillions in debt, $1B for them is just another minute of printing money.
It's the US taxpayers that need their eyes open.
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It's more like ukraine.
There are serious issues with giving ad hoc irresponsible parties (20 bucks to file to incorporate) large sovereignties through treaties and the "law of nations".
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Tell that to Central America, where US corporations competing for market share have engaged in a lot of violent slaughter of real people.
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So what's the safe word?
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Get wikileaks expose more by donation:
http://org.salsalabs.com/o/1439/content_item/freetpp
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You can't spell Liberals without L.I.A.R.S
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Re: You can't spell Liberals without L.I.A.R.S
ftfy
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Re: Re: You can't spell Liberals without L.I.A.R.S
I really enjoyed 2nd grade.
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One hand doesn't realize the danger the other is in
That scenario alone makes this whole mess w/ ISDS in new treaties beyond ridiculous! It's gone to Plaid!!
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There is another way to look at this...
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Re: There is another way to look at this...
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Re: only thinking of themselves
Of course, there's always an element of that (mostly self-delusion), but most people genuinely believe that whatever they're advocating is best for everyone.
(That doesn't make them correct, of course, but they believe it honestly.)
I'll bet you think that your political ideas are best for the common good. I do about mine, too.
Misunderstanding this leads to all kinds of problems, including wars. We need to talk to each other, understand the facts and values at stake, and find livable compromises.
Pointing fingers and shouting "evil!" is not productive.
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Re: Re: only thinking of themselves
And in terms of arguing against the actions of policies of others, it's unnecessary. It's sufficient to point out what is wrong with what they're saying or doing and leaving the motivations for those actions out of it.
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Re: Re: Re: only thinking of themselves
What's worse is that constantly saying that others are driven by self-interest (as a way of attack, whether it's true or not) gives others the idea that such behavior is normal.
The more that people think everyone else is ruthlessly selfish, the more they think they need to be the same (if only in self-defense).
That corrupts morals and wears at the ties that bind society together.
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I guess it's one way to get the money out of politics :)
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just as the European Commission. even though Karel de Gucht has been replaced, his desire to get ACTA into being is still echoed with TTIP. the world doesn't realise what is going on, that yet another attempt is being made to turn it into a giant corporation, run exclusively by ''the 1%'' to make them the overlords of the planet, with no come backs on them and all profits going into their coffers. this is the Conservative and like-minded parties greatest wish and it has never been closer to coming true than at this moment. there are so many Conservative-like governments in power at the moment, all striving for that undefeatable control whilst more or less enslaving everyone else!
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'Bias'? 'Conflict of interest'? What are those?
Oh yeah, you'd have someone arguing the case of a corporation in one case making the ruling on another case, I can't possibly see how that could lead to insanely one-sided rulings at all, as those making the rulings know that if you don't make the 'correct' ruling they're likely not to be hired by the companies to represent them in the future.
The entire thing is rotten, but this part in particular takes corruption to whole new levels. It's no wonder they've been doing everything in their power to hide the details of this corporate wish-list, they know that it's bad enough there isn't enough spin in the world to make it look good, as long as people can actually read what's actually in the documents, rather than just be told by a biased party.
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Re: 'Bias'? 'Conflict of interest'? What are those?
I wonder how many ISDS rulings so far have gone against the corporations? Or are the payouts secret as well?
Budget press releases in 5 years time: "Ahh that $10 billion dollar item on the budget this year.... a yeah we are legally not allowed to tell you what that is. "
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I would like
If something is WRONG/OFF/not correct/interpreted properly..
Someone can hit a button(Gong show) and Beep the person.
We could have Added lights above the podium, for those that catch the BS..(like whose got talent)
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TPP
Somebody who does not care whether you live or vs somebody who needs you alive to vote for them....
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The Sacred Institutions of Capital Addicition
I cannot think of a better description of Fascism.
All of these "treaties" are simply the means by which the billionaire fascists of the world plan to introduce global corporate control, legally.
They have succeeded in laying the ground work using the early versions of these treaties, like NAFTA, and all that is left now is to ratify the final legal basis for corporate sovereignty and legalize corporate exploitation and profiteering.
All that is left now is to place the final nail in the coffin and bury freedom and human rights permanently.
Fascists always work from behind the scenes, behind closed doors, in secrecy, because what they want is never good for anyone but the fascists and their corporations.
It is after all, the entire purpose and nature of corporate existence, to maximize profits and minimize expenditures by any means possible, continuously, forever.
While eternally escalating profit and zero expenditure is patently impossible in a closed system, corporate mentality must seek that utopia relentlessly, regardless, by any and every means that it can find, or manufacture.
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Chickens
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