With no surprises, this Tuesday, November 11, with 27 votes in favor, 10 against and one abstention, the Senate approved the Comprehensive and Progressive Treaty for Trans-Pacific Partnership –better known as TPP11– in the last legislative process to give the go-ahead to the international agreement that Chile signed in March 2018. While the majority of the votes against came from the ruling party –especially from sectors of Approve Dignidad–, from the Government, Chancellor Antonia Urrejola reaffirmed that President Gabriel Boric will wait for bilateral letters (side letters), before enacting the treaty bullado.
Precisely from Approve Dignidad they assure that, after this vote, there are still steps left for the agreement to enter into force, because the country must deposit the pact. A source within this coalition explains that another country that is part of the pact must act as a “guarantee judge”, allowing the treaty to actually be signed, a role that in this case falls to New Zealand.
In that sense, the same source details that “once the approval is produced by all the powers of the State, President Boric is going to keep the signed document, and he is not going to make the deposit so that it begins to work and for it to rule, until we have the side letters or bilateral letters, which also have to be approved by Congress”.
An “invention-loophole” that saves time and delays the process, according to other sectors. However, from La Moneda they believe that it is an intelligent strategy, assuming that the President is not in a position to withdraw the project, understanding that said action would have caused an enormous overreaction from opposition and center-left sectors, from where they have demanded the approval of the treaty, after more than four years of processing. Now, Approve Dignity assumes that the President will not deposit the TPP11 while he does not have the commitment of the largest economies that conflicts are not arbitrated in international courts.
It should be remembered that, although at the beginning the Government had decided not to hinder the legislative process of the treaty -which is not part of the program with which it won the elections and arrived at La Moneda-, in recent weeks it has chosen to assume an active role through the negotiation of bilateral letters with the rest of the countries, so that the solution of controversies between the Member States and the investors (detailed in chapter 9 of the agreement) is not applicable.
In this regard, Foreign Minister Antonia Urrejola assured that what is sought is “to give a relative political signal in advancing in modernizing the standards that currently exist in terms of investor-State dispute resolution, also creating a critical mass within the TPP11 forum itself. , together with other countries, that allows to debate and perfect the mechanisms contemplated in this commercial agreement”.
In addition, the Minister of Foreign Affairs ratified that the bilateral letters must be approved by Congress, adding that the President “has decided, within his exclusive powers, to wait for the progress of the side letters before ratifying the agreement.
The attached letters are related to a mechanism widely used in the different preferential trade agreements, with different objectives. In this case, the proposal, which has already been used by New Zealand with 5 treaty countries, seeks to exclude the dispute settlement system between private investors and the State.
The deployment of the “reserve of constitutionality”
Since I Approve Dignity, sectors such as the PC, the FRVS and the Broad Front have shown their opposition to the approval of the TPP11. In addition, during the debate in the Chamber, the independent senator Karin Bianchi made a reservation of constitutionality, appealing to the fact that -in his opinion- the procedure incurred a “legality vice”, for not having consulted the opinion of the Supreme Court before reaching to a vote in the Upper House.
In this sense, the parliamentarian for the Magallanes Region assured that the “Constitution is categorical, insofar as it orders that all conflicts that are promoted within the territory of the Republic must be submitted to the jurisdiction of the national courts. (On) the chapters 9 and 28 of the treaty that provide for the submission of controversies to international arbitral tribunals, here the Supreme Court has not been heard, a requirement that is essential for this instance to be reached. of this, and I anticipate making the reservation,” he said.
However –acknowledged from different benches in the Senate–, it is unlikely that this strategy will have an effect, in the attempt to delay a discussion that has already been settled and that only has the side letters as the last barrier. In this regard, different academic voices and experts in international treaties believe that the debate around the TPP11 has become a banner of political struggle, rather than economic transformation.
Regarding how the Government headed by President Boric has managed the approval of this treaty, Senator Francisco Huenchumilla (DC) admitted that it was necessary “to give the Executive an opportunity to make complementary agreements”, in relation to some doubts that the ruling party might have regarding the resolution of conflicts and controversies with the application of the treaty. In addition, the parliamentarian was in favor of having granted the Government the power to process bilateral letters with the respective countries.
Let us remember that the TPP11 is the third largest Free Trade Agreement on the planet, after CETA (between Canada and the European Union) and the USMCA (Canada, the United States and Mexico) and is made up of 11 Asia-Pacific countries: Australia , Japan, Singapore, Vietnam, Brunei Darussalam, Canada, Malaysia, Mexico, New Zealand, Peru and Chile.
The agreement –according to its promoters– will allow the entry of Chilean products with zero tariff to markets that add up to 502 million people. The most benefited sectors would be the agricultural and fishing, dairy and meat sectors, as well as forestry. It also covers labour, gender and environmental issues. Even so, despite the benefits that it would eventually bring, its eventual ratification has numerous detractors, expressed in the demonstrations that have taken place in front of the National Congress, every time it is discussed in the Senate.
It should also be considered that the original TPP, promoted by the United States, was the subject of much criticism, and that when Donald Trump announced that his country was withdrawing from the treaty in March 2017, former President Michelle Bachelet summoned the United States He leaves for an appointment in Viña del Mar in order to analyze the scenario, after the American decision. After a series of negotiations by the remaining 11 States, the agreement was reformulated with the aim of revoking several controversial provisions –particularly in terms of intellectual property–, signing a new treaty in February 2018, with former Foreign Minister Heraldo Muñoz as one of its main propellants. Now, four years later, the discussion remains unresolved, waiting for the bilateral letters to settle a debate that, in recent times, has been more political than economic.
