We could have told them that

Nafta Tribunals Stir U.S. Worries

After the highest court in Massachusetts ruled against a Canadian real estate company and after the United State Supreme Court declined to hear its appeal, the company's day in court was over.

Or so thought Chief Justice Margaret H. Marshall of the Massachusetts court, until she learned of yet another layer of judicial review, by an international tribunal.

"I was at a dinner party," Chief Justice Marshall said in a recent telephone interview. "To say I was surprised to hear that a judgment of this court was being subjected to further review would be an understatement."

Welcome to our world, Judge Marshall. What she's referring to is a NAFTA tribunal which can overrule a sovereign nation's judicial system and for which there is no appeal. What this article suggests is that judges, politicians and legal scholars in the United States are only now waking up to the fact that the Chapter 11 section of NAFTA puts corporate interests ahead of sovereignty and democracy. It's about damn time, but it took two actual cases where American judicial rulings were threatened, one in Massachusetts and one in Mississippi, to get people looking at this.

Any Canadian or Mexican business that contends it has been treated unjustly by the American judicial system can file a similar claim. American businesses with similar complaints about Canadian or Mexican court judgments can do the same. Under the Nafta agreement the government whose court system is challenged is responsible for awards by the tribunals.

"This is the biggest threat to United States judicial independence that no one has heard of and even fewer people understand," said John D. Echeverria, a law professor at Georgetown University.

Where have these people been? More to the point, where were they when NAFTA was being negotiated?

"When we debated Nafta," Senator John Kerry of Massachusetts, now the presumptive Democratic presidential nominee, said in 2002, "not a single word was uttered in discussing Chapter 11. Why? Because we didn't know how this provision would play out. No one really knew just how high the stakes would get."

Senator Kerry spoke before the tribunal rulings concerning the Massachusetts and Mississippi judgments. He offered his comments in connection with legislation he had offered to limit the jurisdiction of the tribunals. His amendment was rejected by the Senate.

Here's another reason why a Kerry presidency might be a welcome change. Maybe this issue will get a closer look. But to say "we didn't know how this provision would play out" seems disingenous to me. It's not hard to figure out.

Abner Mikva, a former chief judge of the federal appeals court in Washington and a former congressman, is one of the three Nafta judges considering the Mississippi case. He declined to discuss it but did offer his perspective on Chapter 11.

"If Congress had known that there was anything like this in Nafta," he said, "they would never have voted for it."

Now that seems a little more to the point, but it suggests that American legislators don't read the legislation they're voting on. The finer points of the treaty, and their implications, were never publicized and debated as they should have been. Can we string Brian Mulroney up by his toes, now? (Attention RCMP: that's a joke!)

Similar tribunals existed in other trade agreements even before Nafta.

"Bilateral investment treaties went both ways," said Todd Weiler, a Nafta expert at the University of Windsor Law School in Canada, "but in practice there weren't that many Barbadians or Nicaraguans investing in the U.S."

But there is substantial Canadian and Mexican investment here. That means, judges and legal scholars said, that the tribunals have the potential to upset the settled American constitutional order.

"There are grave implications here," Chief Justice Ronald M. George of the California Supreme Court said in an interview. "It's rather shocking that the highest courts of the state and federal governments could have their judgments circumvented by these tribunals."

As I said, welcome to our world.