III 110th CONGRESS 1st Session S. CON. RES. 11 IN THE SENATE OF THE UNITED STATES February 13, 2007 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 comply with certain minimum standards.

Whereas there is general consensus among the people of the United States 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 a 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; Whereas many international trade and investment agreements in existence and currently being negotiated do not serve these interests; and Whereas many international trade and investment agreements in existence 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)

Requirements applying to all countries

(A)

Investor and investment policy

If the agreement includes any provision relating to foreign investment, the agreement may not 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 a measure that protects 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. (B)

Services

The agreement, to the extent applicable, shall comply with the following: (i)

In general

The agreement may not provide for disciplinary action against 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)

Services described

A service described in clause (i) includes 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. (iii)

Revision of commitments

The agreement shall permit a country that has made a commitment in an area described in clause (i) to revise that commitment for the purposes of public interest regulation without any financial or other trade-related penalty. (iv)

Subsidies and government procurement

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. (v)

Regulation of foreign investors

The agreement shall guarantee that all governments that are parties to the agreement may 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. (C)

Environmental, labor, and other public interest standards

The agreement— (i)may not supersede the rights and obligations of parties under multilateral environmental, labor, and human rights agreements; (ii)shall, to the extent applicable, include commitments— (I)to adhere to specified workers’ rights and environmental standards; (II)to enforce existing domestic labor and environmental provisions; and (III)to abide by the core labor standards of the International Labor Organization; and (iii)shall subject the commitments described in clause (ii) to binding enforcement on the same terms as commercial provisions. (D)

Food safety

The agreement may not— (i)require international harmonization of food safety standards in a manner that undermines the level of human health protection provided under the laws of a country; or (ii)restrict the ability of governments to enact policies to guarantee the right of consumers to know where and how food is produced. (E)

Agriculture and food security

The agreement may not, with respect to food and other agricultural commodities— (i)contain provisions that prevent countries from— (I)establishing domestic and global reserves; (II)managing supply; (III)enforcing antidumping provisions; (IV)ensuring fair market prices; or (V)vigorously enforcing antitrust laws, in order to guarantee competitive markets for family farmers; or (ii)prevent countries from developing the necessary sanitary and phytosanitary standards to prevent the introduction of pathogens or other potentially invasive species that may adversely affect agriculture, human health, or the environment. (F)

Governmental authority

The agreement may not contain provisions that bind national, State, local, or comparable regional governments to limiting regulatory, taxation, spending, or procurement authority— (i)without sufficient transparency as described in paragraph (4), including an opportunity for public review and comment; and (ii)without the explicit, informed consent of the national, State, local, or comparable regional legislative body concerned. (G)

Access to medicines and seeds

(i)

Medicines

The agreement may not contain provisions that prevent countries from taking measures to protect public health by ensuring access to medicines. (ii)

Seeds

The agreement may not constrain the rights of farmers to save, use, exchange, or sell farm-saved seeds and other publicly available seed varieties. (2)

Requirements applying to only the United States

(A)

Temporary entry of workers

The agreement may not— (i)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; or (ii)include 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 granted nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(H)(i)(b)), including the filing by an employer of an application under section 212(n)(1) of that Act (8 U.S.C. 1182(n)(1)); or (III)guarantee the same workplace protections for temporary workers that are available to all workers. (B)

Policies to support United States workers and small, minority, and women-owned businesses

The agreement shall preserve the right of Federal, State, and local governments to maintain or establish policies to support United States workers and small, minority, or women-owned businesses, including policies with respect to government procurement, loans, and subsidies. (C)

United States trade laws

The agreement may not— (i)contain a provision that modifies or amends, or requires a modification of or an amendment to, any law of the United States regarding 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 national security; or (ii)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. (D)

Food safety

The agreement may not— (i)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; or (ii)force the United States to accept different food safety standards as equivalent, in a manner that undermines the level of human health protection provided under domestic law. (3)

Treatment of developing countries

The agreement shall grant special and differential treatment for developing countries with regard to the timeframe for implementation of the agreement as well as other concerns. (4)

Transparency

(A)

In general

The process of negotiating the agreement shall 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)

Public availability of offers and requests

In negotiating the 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 that specific Federal, State, or local laws or regulations in the United States, including subsidies, tax rules, procurement rules, professional standards, and rules on temporary entry of persons, be changed, eliminated, or scheduled under the agreement; (ii)proposes to cover under the agreement— (I)specific essential public services, including 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 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 an action or process of general application that 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 (ii)(I) or to provide or regulate services identified in clause (ii)(II). (C)

Representation of interests

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 the same access to trade negotiators and negotiating fora as those constituencies representing commercial interests. (D)

Dispute resolution mechanisms

Any dispute resolution mechanism established in the agreement shall 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.