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

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.