[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. Con. Res. 12 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
S. CON. RES. 12

 Providing that any agreement relating to trade and investment that is 
  negotiated by the executive branch with another country must comply 
                    with certain minimum standards.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2005

 Mr. Feingold submitted the following concurrent resolution; which was 
                  referred to the Committee on Finance

_______________________________________________________________________

                         CONCURRENT RESOLUTION


 
 Providing that any agreement relating to trade and investment that is 
  negotiated by the executive branch with another country must comply 
                    with certain minimum standards.

Whereas there is general consensus among the American public and the global 
        community that, with respect to international trade and investment 
        rules--
            (1) global environmental, labor, health, food security, and 
        other public interest standards must be strengthened to prevent 
        a global ``race to the bottom'';
            (2) domestic environmental, labor, health, food security, 
        and other public interest standards and policies must not be 
        undermined, including those based on the use of the 
        precautionary principle (the internationally recognized legal 
        principle that holds that, when there is scientific uncertainty 
        regarding the potential adverse effects of an action, a product 
        or technology, a government should act in a way that minimizes 
        the risk of harm to human health and the environment);
            (3) provision and regulation of public services such as 
        education, health care, transportation, energy, water, and 
        other utilities are basic functions of democratic government 
        and must not be undermined;
            (4) raising standards in developing countries requires 
        additional assistance and respect for diversity of policies and 
        priorities;
            (5) countries must be allowed to design and implement 
        policies to sustain family farms and achieve food security;
            (6) healthy national economies are essential to a healthy 
        global economy, and the right of governments to pursue policies 
        to maintain and create jobs must be upheld;
            (7) the right of State and local and comparable regional 
        governments of all countries to create and enforce diverse 
        policies must be safeguarded from imposed downward 
        harmonization; and
            (8) rules for the global economy must be developed and 
        implemented democratically and with transparency and 
        accountability; and
Whereas many international trade and investment agreements in existence and 
        currently being negotiated do not serve these interests, and have caused 
        substantial harm to the health and well-being of communities in the 
        United States and within countries that are trading partners of the 
        United States: Now, therefore, be it
    Resolved by the Senate (the House of Representatives concurring), 
That any agreement relating to trade and investment that is negotiated 
by the executive branch with another country should comply with the 
following:
            (1) Regarding investor and investment policy.--No such 
        agreement that includes any provision relating to foreign 
        investment may permit a foreign investor to challenge or seek 
        compensation because of a measure of a government at the 
        national, State, or local level that protects the public 
        interest, including, but not limited to, public health, safety, 
        and welfare, the environment, and worker protections, unless a 
        foreign investor demonstrates that the measure was enacted or 
        applied primarily for the purpose of discriminating against a 
        foreign investor or foreign investment.
            (2) Regarding services.--Any such agreement, to the extent 
        applicable, shall comply with the following:
                    (A)(i) The agreement may not discipline a 
                government measure relating to--
                            (I) a public service, including public 
                        services for which the government is not the 
                        sole provider;
                            (II) a service that requires extensive 
                        regulation;
                            (III) an essential human service; and
                            (IV) a service that has an essentially 
                        social component.
                    (ii) A service described in clause (i) includes, 
                but is not limited to, a public benefit program, health 
                care, health insurance, public health, child care, 
                education and training, the distribution of a 
                controlled substance or product (including alcohol, 
                tobacco, and firearms), research and development on a 
                natural or social science, a utility (including an 
                energy utility, water, waste disposal, and sanitation), 
                national security, maritime, air, surface, and other 
                transportation services, a postal service, energy 
                extraction and any related service, and a correctional 
                service.
                    (B) The agreement shall permit a country that has 
                made a commitment in an area described in subparagraph 
                (A) to revise that commitment for the purposes of 
                public interest regulation without any financial or 
                other trade-related penalty.
                    (C) The agreement shall ensure that any rule 
                governing a subsidy or government procurement fully 
                protects the ability of a government to support and 
                purchase a service in a way that promotes economic 
                development, social justice and equity, public health, 
                environmental quality, human rights, and the rights of 
                workers.
                    (D) The agreement shall not make a new commitment 
                on the temporary entry of workers because such policies 
                should be determined by the Congress, after 
                consideration by the congressional committees with 
                jurisdiction over immigration to avoid an array of 
                inconsistent policies and any policy that fails to--
                            (i) include labor market tests that ensure 
                        that the employment of temporary workers will 
                        not adversely affect other similarly employed 
                        workers;
                            (ii) involve labor unions in the labor 
                        certification process implemented under the 
                        immigration program for temporary workers under 
                        section 101(a)(15)(H)(i) of the Immigration and 
                        Nationality Act, including the filing by an 
                        employer of an application under section 
                        212(n)(1) of that Act; and
                            (iii) guarantee the same workplace 
                        protections for temporary workers that are 
                        available to all workers.
                    (E) The agreement shall guarantee that all 
                governments that are parties to the agreement can 
                regulate foreign investors in services and other 
                service providers in order to protect public health and 
                safety, consumers, the environment, and workers' 
                rights, without requiring the governments to establish 
                their regulations to be the least burdensome option for 
                foreign service providers.
            (3) Regarding policies to support american workers and 
        small, minority, and women-owned businesses.--Any such 
        agreement shall preserve the right of Federal, State, and local 
        governments to maintain or establish policies to support 
        American workers and small, minority, or women-owned 
        businesses, including, but not limited to, policies with 
        respect to government procurement, loans, and subsidies.
            (4) Regarding environmental, labor, and other public 
        interest standards.--Any such agreement--
                    (A) may not supersede the rights and obligations of 
                parties under multilateral environmental, labor, and 
                human rights agreements; and
                    (B) shall, to the extent applicable, include 
                commitments, subject to binding enforcement on the same 
                terms as commercial provisions--
                            (i) to adhere to specified workers' rights 
                        and environmental standards;
                            (ii) not to diminish or fail to enforce 
                        existing domestic labor and environmental 
                        provisions; and
                            (iii) to abide by the core labor standards 
                        of the International Labor Organization (ILO).
            (5) Regarding united states trade laws.--No such agreement 
        may--
                    (A) contain a provision which modifies or amends, 
                or requires a modification of or an amendment to, any 
                law of the United States that provides to United States 
                businesses or workers safeguards from unfair foreign 
                trade practices, including any law providing for--
                            (i) the imposition of countervailing or 
                        antidumping duties;
                            (ii) protection from unfair methods of 
                        competition or unfair acts in the importation 
                        of articles;
                            (iii) relief from injury caused by import 
                        competition;
                            (iv) relief from unfair trade practices; or
                            (v) the imposition of import restrictions 
                        to protect the national security; or
                    (B) weaken the existing terms of the Agreement on 
                Implementation of Article VI of the General Agreement 
                on Tariffs and Trade 1994, or the Agreement on 
                Subsidies and Countervailing Measures, of the World 
                Trade Organization, including through the domestic 
                implementation of rulings of dispute settlement bodies.
            (6) Regarding food safety.--No such agreement may--
                    (A) restrict the ability of the United States to 
                ensure that food products entering the United States 
                are rigorously inspected to establish that they meet 
                all food safety standards in the United States, 
                including inspection standards;
                    (B) force acceptance of different food safety 
                standards as ``equivalent'', or require international 
                harmonization of food safety standards, which undermine 
                the level of human health protection provided under 
                domestic law; or
                    (C) restrict the ability of governments to enact 
                policies to guarantee the right of consumers to know 
                where and how their food is produced.
            (7) Regarding agriculture and food security.--No such 
        agreement may, with respect to food and other agricultural 
        commodities--
                    (A) contain provisions that prevent countries 
                from--
                            (i) establishing domestic and global 
                        reserves,
                            (ii) managing supply,
                            (iii) enforcing antidumping disciplines,
                            (iv) ensuring fair market prices, or
                            (v) vigorously enforcing antitrust laws, in 
                        order to guarantee competitive markets for 
                        family farmers; or
                    (B) prevent countries from developing the necessary 
                sanitary and phytosanitary standards to prevent the 
                introduction of pathogens or other potentially invasive 
                species which may adversely affect agriculture, human 
                health, or the environment.
            (8) Regarding transparency.--(A) The process of negotiating 
        any such agreement must be open and transparent, including 
        through--
                    (i) prompt and regular disclosure of full 
                negotiating texts; and
                    (ii) prompt and regular disclosure of negotiating 
                positions of the United States.
            (B) In negotiating any such agreement, any request or offer 
        relating to investment, procurement, or trade in services must 
        be made public within 10 days after its submission if such 
        request or offer--
                    (i) proposes specific Federal, State, and local 
                laws and regulations in the United States to be 
                changed, eliminated, or scheduled under such an 
                agreement, including, but not limited to, subsidies, 
                tax rules, procurement rules, professional standards, 
                and rules on temporary entry of persons;
                    (ii) proposes for coverage under such an 
                agreement--
                            (I) specific essential public services, 
                        including, but not limited to, public benefits 
                        programs, health care, education, national 
                        security, sanitation, water, energy, and other 
                        utilities; or
                            (II) private service sectors that require 
                        extensive regulation or have an inherently 
                        social component, including, but not limited 
                        to, maritime, air transport, trucking, and 
                        other transportation services, postal services, 
                        utilities such as water, energy, and 
                        sanitation, corrections, education and 
                        childcare, and health care; or
                    (iii) proposes a discipline or process of general 
                application which may interfere with the ability of the 
                United States or State, local, or tribal governments to 
                adopt, implement, or enforce laws and regulations 
                identified in clause (i) or provide or regulate 
                services identified in clause (ii).
            (C) The broad array of constituencies representing the 
        majority of the people of the United States, including labor 
        unions, environmental organizations, consumer groups, family 
        farm groups, public health advocates, faith-based 
        organizations, and civil rights groups, must have at least the 
        same representation on trade advisory committees and access to 
        trade negotiators and negotiating fora as those constituencies 
        representing commercial interests.
            (D) Any dispute resolution mechanism established in any 
        such agreement must be open and transparent, including through 
        disclosure to the public of documents and access to hearings, 
        and must permit participation by nonparties through the filing 
        of amicus briefs, as well as provide for standing for State and 
        local governments as intervenors.
            (9) Regarding governmental authority.--No such agreement 
        may contain provisions that bind national, State, local, or 
        comparable regional governments to limiting regulatory, 
        taxation, spending, or procurement authority without an 
        opportunity for public review and comment described in 
        paragraph (8), and without the explicit, informed consent of 
        the national, State, local, or comparable regional legislative 
        body concerned, through such means as is decided by such 
        legislative body.
            (10) Regarding access to medicines and seeds.--(A) No such 
        agreement may contain provisions that prevent countries from 
        taking measures to protect public health by ensuring access to 
        medicines.
            (B) No such agreement may constrain the rights of farmers 
        to save, use, exchange, or sell farm-saved seeds and other 
        publicly available seed varieties.
            (11) Regarding developing countries.--Any such agreement 
        must grant special and differential treatment for developing 
        countries with regard to the timeframe for implementation of 
        the agreement as well as other concerns.
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