Fast Track and TPP: A Recipe for Disaster for Women and LGBT Communities

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Fast Track and TPP: A Recipe for Disaster for Women and LGBT Communities

Pressured by corporate interests, the U.S. government is currently negotiating the Trans-Pacific Partnership (TPP), a sweeping trade agreement modeled after NAFTA, with 11 other Pacific Rim countries, including Brunei.  As with NAFTA, the agreement would give signatory countries privileged access to the U.S. market and the opportunity to challenge a broad array of U.S. domestic laws before special trade tribunals. The pact is being negotiated in secret, although drafts of its text have leaked.i

To force the controversial deal through Congress, TPP advocates are pressing Congress to adopt so-called “Fast Track” legislation, which would dramatically curtail the ability of Congress to shape the TPP and other trade agreements to protect the rights of women, LGBT communities, workers, or the environment.  If Congress were to approve Fast Track, it would abandon its constitutional power to determine the content of trade policy. Congress would be barred from amending trade legislation proposed by the president–whether in committee or by floor amendment– instead requiring an up-or-down vote after only 20 hours of debate.  It would also limit the ability of Congress to select the partners with whom the executive branch may initiate trade negotiations. Fast Track would likely apply not only to pacts negotiated by the Obama administration, but those negotiated by future administrations as well.ii

The TPP would provide Brunei with special access to the U.S. market months after its government adopted a new penal code that targets women and LGBT communities by making same-sex sexual relations and “adultery” punishable by death by stoning.  On May 1, 2014, Brunei began a phased implementation of a new penal code based on Sharia law, which will impose whipping or death by stoning for same-sex sexual relations, adultery, and extramarital sexual relations.iii Stoning is a gruesome punishment that violates human rights norms against torture. A person is buried so that only his or her head is exposed and is then pelted to death with rocks. Women have historically been the primary victims of this horrific practice.iv Additionally, the penal code calls for fines and imprisonment for women who have abortions or for women who give birth out of wedlock.v The law also provides that marital rape is legal, so long as the wife is not under 13 years of The United Nations High Commissioner for Human Rights has expressed deep concern about Brunei’s new penal code and called for its suspension.vii The law has also triggered a celebrity-backed boycott of the Beverly Hills Hotel, which is owned by the billionaire Sultan of Brunei.viii  Yet Brunei is moving forward with implementation anyway.

Absent Fast Track, Congress would have power to require that the TPP exclude Brunei and prevent its future inclusion until it repeals these heinous laws, so that the United States does not strengthen commercial ties with a country guilty of barbaric treatment of women and LGBT persons. But under Fast Track, the executive branch alone would get to determine the TPP’s members.

Moreover, if the TPP were to take effect, its rules would remove policy tools to pressure countries like Brunei to halt human rights violations.  The procurement provisions of NAFTA-style pacts forbid U.S. federal and state governments from treating foreign firms differently because of the human rights or labor rights records of the countries in which they operate or are based. This removes tools used in the past to demand corporate responsibility for human rights abuses, such as the successful Apartheid-era bans on doing business with companies operating in South Africa.  Thus, not only would the TPP allow human rights violators like the Sultan of Brunei to profit from duty-free access to U.S. markets, but U.S. states and municipalities would be forbidden from taking divestment actions to pressure these regimes to stop their abuses.

The TPP would also reduce affordable access to life-saving medical care, including HIV/AIDS medication. Doctors Without Borders has warned that “the TPP agreement is on track to become the most harmful trade pact ever for access to medicine in developing countries.”ix Under the TPP, pharmaceutical companies would have more power to keep generic versions of key drugs off the market. Competition from generic producers of antiretroviral medicines played a critical role in reducing the price of these medicines in poor countries, lowering costs by

approximately 99% and helping nearly 12 million people obtain HIV/AIDS treatment.x The TPP would undermine competition from generics by, among numerous other provisions, extending pharmaceutical companies’ patent rights and allowing such companies to extend their monopolies and continue to charge artificially high prices for key drugs.xi High prices mean more lives lost – already AIDS is the leading cause of death for women of reproductive age worldwide and discrimination against LGBT communities hampers their access to life-saving medical and health services.xii If Fast Track is adopted, it will be impossible to modify the TPP to ensure that the agreement does not put affordable access to crucial medicines out of reach for those who desperately need them.

In sum, the TPP and Fast Track are a dangerous attack on our democracy. The TPP would strengthen corporate rights and enable corporations to challenge democratically-enacted U.S. laws in special trade tribunals. The TPP would also strengthen our ties with states like Brunei that abuse their citizens, and prevent our own nation from using its policy tools to support human rights and oppose these despotic regimes. And rather than promoting American values and globalizing  justice and equal rights, Fast Track would lock-in the worst aspects of the TPP by eliminating our representatives’ authority to choose our trading partners and amend any pact that the executive branch negotiates. The rights of women, the LGBT community, the sick, and the poor should not be thrown under the bus to advance the agendas of multinational corporations.

ii For details concerning the history and provisions of Fast Track legislation, see LORI WALLACH, THE RISE AND FALL OF FAST TRACK TRADE AUTHORITY, PUBLIC CITIZEN, 2014,
iii Brunei Darussalam, Penal Code (2013), Sections 69, 70, 71, 82, 84; United Nations News Centre, UN Concerned at Broad Application of Death Penalty in Brunei’s Revised Penal Code, April 11, 2014 [“UNNC Report”],
iv Id.
v Brunei Penal Code, Section 94; Gail Sullivan, Sharia Law Gets Cool Reception in Beverly Hills [“Sharia Law, WASHINGTON POST”], WASHINGTON POST, May 6, 2014,; Kate Hodal, Brunei to Bring in Tough New Sharia Law, THE GUARDIAN, Oct. 22, 2013,; FREEDOM HOUSE, FREEDOM IN THE WORLD 2014: Brunei (2014),
vi Brunei Penal Code, Section 75; UNITED STATES DEP’T OF STATE, HUMAN RIGHTS REPORT: BRUNEI, 2013,; Int’l Commission of Jurists, Submission to the UN Committee on the Elimination of Discrimination Against Women in Advance of the Examination of Brunei Darussalam’s Initial and Second Periodic Reports under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women, Oct. 4, 2014,
vii See UNNC Report, supra note 3.
viii See Sharia Law, WASHINGTON POST, supra note 5.
x Id.
xi See id.
xii UN Women, Message from UN Women’s Executive Director for World AIDS Day, Dec. 1, 2014,