Leaving the EU will not free us from TTIP

The only way to respond to globalised threats to democracy is as part of the EU, argues Sam Fowles

29th December 2015

TTIP photo to be acccredited to Global Justice Now

Since Syriza’s forced capitulation to the Troika the left has been lining up against the EU with some people people previously for ‘in’ now considering¬†arguing for exit. This, however, would be a mistake. We live in a world where the challenges we face are globalised. We must have a globalised response. The local can no longer be separated from the global. TTIP (the Transatlantic Trade and Investment Partnership) shows us why.

TTIP is a trade agreement currently under negotiation between the EU and the USA. Amongst other things, TTIP will allow companies to sue elected governments if democratic decisions threaten their future profits. At first glance it seems like this is an excellent reason to leave the EU. If membership of the EU includes membership of TTIP then surely Britain is better off out? But this argument misunderstands the nature of TTIP. Indeed the only way we can resist TTIP (and treaties like it) is through multi-national organisations like the EU.

The reality is that TTIP will bind the UK even if we leave the EU. The current draft of TTIP includes a “stablilisation clause“. This provides that, if a state leaves the treaty, then the investment protection provisions (the part that allows companies to sue governments) will remain in place for a further 20 years for any investment made while the treaty was in force. So, for example, a government would not be able to regulate healthcare if investments had been made in that sector under TTIP even if the UK had left TTIP 19 years ago. In short, leaving TTIP is not enough to free a state from its most anti-democratic aspects.

Furthermore, the UK would be bound by TTIP even after it left the EU. TTIP is a “mixed agreement” this means that it must both be ratified by the EU, as a whole, and also individually by each of the member states. As such the UK will be bound both “jointly and severally” i.e. as a member of the EU and in its own right. Therefore even if the UK was no longer a member of the EU it would still be bound by its individual ratification of TTIP.

It’s possible that the UK could argue that, considering it only ratified TTIP because it was a member of the EU, it should no longer be bound once its membership has ended. But this isn’t how international law works. International law is regulated by the Vienna Convention on the Law of Treaties. This is essentially a “meta-law” that it determines how we interpret other international law. The Vienna Convention prevents states using other treaties or domestic law to avoid their obligations under a particular treaty. So if a state argued, “I only ratified TTIP because another treaty made me” an international tribunal would reply “we don’t care why you ratified TTIP, the point is that you ratified it. Now you are bound by it”. It would probably also point out that the EU treaties do not compel member states to ratify TTIP. Put another way, although the EU is responsible for negotiating TTIP, once ratified, it will bind all parties regardless of their membership of the EU.

Some might say that this all shows that the UK should leave the EU before TTIP is completed. But even if a referendum was to be held tomorrow, the process of actually leaving the EU is likely to take a number of years. Moreover the Comprehensive Economic and Trade Agreement (CETA) is now complete and awaiting ratification. CETA contains similar provisions to TTIP (including investment protection and stabilisation clauses) but is between the EU and Canada. It is likely that CETA will be ratified before the EU referendum.

Of course TTIP and CETA (if ratified) will still bind the UK in the same way if it doesn’t leave the EU. But treaties can be renegotiated. If the UK leaves the EU then it is unlikely that the largest trade agreement in history will be renegotiated at the whim of a bit player. But if the UK remains in the EU then it will speak as part of the largest economy in the world. It’s much easier to renegotiate a trade deal when you represent over 20% of the world’s economy.

Many people have argued that Syriza’s experience shows that the left cannot change things within the EU. But the UK is not Greece. If the EU represents 20% of the world economy, the UK accounts for nearly 20% of that: minor in terms of the world as a whole, but essential within the EU. The UK could be a significant progressive voice within the EU. The reason it is not is that David Cameron has squandered a powerful position in order to appease his backbenchers. His priority has been distancing himself from Europe. A Prime Minister who went to Strasbourg with a positive vision for the EU would have a very different impact. Cameron won’t last forever; he can be voted out. The current EU leadership won’t last forever; they can be voted out too. The only way to ensure the UK has absolutely no chance of influencing a progressive EU is to vote to leave it. The best way to ensure that the UK has the potential to be a progressive voice on the global stage is to remain within the EU.

Sam Fowles is an anti-TTIP campaigner, spokesperson for Another Europe Is Possible, and researcher in International Law at Queen Mary University of London. 

Photo: Global Justice Now via Flickr