Corporate Lobbyists Have Turned Human Rights into a Tradeable Commodity

It's our unfortunate duty here at EOT to have to read some truly mind-numbing trade law analyses of domestic regulation. For instance, have you ever really thought about whether electricity is a good or a service? Yesterday, I had to read through a 1998 WTO document that goes through this metaphysical question in excruciating detail. Short answer: if your electricity comes from coal, well then the coal itself is a good. But once it becomes electricity, it's probably a service, because you can't plop a piece of electricity down on your dinner plate.

Since the Bush I and Clinton I administrations committed many energy-related services to the restrictive WTO service sector agreements, there's a good chance that many of Clinton, McCain and Obama's proposals on energy could run afoul of WTO rules. So if the political reasons to talk fair trade weren't compelling enough, there's plenty of good policy reasons as well.

You may ask yourself, how did we get to the point where lawyers sat around thinking of basic human rights to turn into "tradeable commodities/services"? To paraphrase Larry the Cable Guy, this 1992 intellectual history article by William Drake and Kalypso Nicolaidis shows how corporate lobbyists "got-r-done":


The very act of defining services transactions as 'trade' established normative presumptions that 'free' trade was the yardstick for good policy against which regulations, redefined as nontariff barriers (NTBs), should be measured and justified only exceptionally. Members believing there to be many justifiable exceptions thus had to defend what their counterparts label 'protectionism.'… [the services trade lobby's] body of work took on the attributes of a social science literature in which authors cited, critiqued, and built on each other's analyses. But unlike most academic debates, in which contending theories and assumptions remain contested, the services discussion produced broad and lasting consensus on core concepts and objectives. Community members were by now unanimous in their dedication to the common policy project of placing services on the GATT agenda, and this relevance test precluded meta-theoretical differences of the sort familiar to political scientists. Disagreements were confined to the issue of which GATT principles and processes were right for which transactions, rather than to the question of whether services should be treated as trade in the first place.
This gets back to my point about how savvy corporate interests are at incrementalism. You don't have to totally commoditize everything in a single day or single WTO round: just getting some definitions on the table can get the corporate animal spirits spirited up. Before you know it, public interest advocates are on the defensive, having to articulate why they thought regulation was necessary in the first place. And unfortunately, even many of our best politicians attempt to strike a "middle ground" between the previously unthinkable corporate takeover and the public interest, leading to a continual rightward drift.

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