08/05/2014 02:54 pm ET Updated Oct 05, 2014

Your Safety Is a Barrier to Trade

Industry lobbyists are working to ensure a new transatlantic trade deal gives commercial interests precedence over public health. Environmental lawyers at ClientEarth have shown that at least one part of the proposals is both anti-democratic and illegal.

Improving relations between Europe and the U.S. is a noble aim. Cooperation is in people's best interests, so breaking down barriers on matters like trade should be a positive step. Currently in negotiation, the Transatlantic Trade and Investment Partnership Agreement (TTIP) claims to be an attempt to do just that. "Good!" we might say, but if the chemicals industry has its way, this deal could prove toxic.

What happens when a "barrier to trade" is actually a law designed to keep you safe? What if it helps stop dangerous chemicals being used to make your deodorant, or keeps them out of your children's toys? These "barriers" are protections and standards that we need to maintain, for the health of people and the environment on which we depend.

In the TTIP negotiations, powerful voices are reframing laws that protect health, the environment, safety and security as "barriers to trade" to be overcome.

A Chemical Imbalance

Chemical safety laws in Europe are promising. My organization, ClientEarth, wants them strengthened and monitors their implementation to make sure they help protect our health. Although challenges remain, there is reason to be positive about their potential.

In contrast, U.S. chemical safety laws are much weaker. The basic law was passed nearly four decades ago, in 1976. The last time a toxic substance was restricted under the US law was in 1990. That compares poorly with the several substances restricted each year in the EU.

In December, ClientEarth and our U.S. partners CIEL were given a leaked TTIP document. It was a proposal from industry groups -- the American Chemistry Council and the European Chemical Industry Council. It sets out how industry would like to see "barriers to trade" overcome. If implemented, their proposals would undermine legislation designed to protect us from toxic chemicals by handing decisions to bodies with no democratic legitimacy.

We've found a particular example of this that's not only of serious concern, it's also illegal: Investor-State Dispute Settlements (ISDS).

ISDS: The "Secret" Ingredient

We believe it's important to debate TTIP, and chemicals safety, in public. We believe in the supreme importance of public safety in chemicals regulation, but of course there are other concerns as well and these should be aired.

The chemicals lobby clearly doesn't feel the same way, which is why they are working to shroud the business in secrecy. That's where our concern about ISDS comes in. It grants corporations the right to challenge, in front of private trade tribunals, government policies they say threaten their business.

We're worried about this, and you should be too. Europe and the U.S. already have some of the most advanced legal systems in the world, why can't chemical safety fall under their jurisdiction?

We're not the only ones who think this is worrying. Just last month, Jean Claude-Juncker, President-elect of the Commission, was asked about ISDS in TTIP. Here's what he had to say: "I don't understand why great democracies would not have faith in the judiciary. We have courts which are able to deal with cases that are brought to them, and so I'm not really in favour of what one could call "private courts" or arbitration bodies which may sometimes reach good decisions but don't always have to justify their decisions."

An Unhealthy Past

Has ISDS been used before? Yes. Most famously it was used by the tobacco company Philip Morris to challenge smoking bans in Uruguay and Australia after it failed to overturn the bans in the domestic courts.

That seems to be the point of ISDS. Don't succeed with the judicial system? Make a new, private and secret one.

Expensive and Illegal

ISDS is not just a threat to public health; it could become a financial burden as well. If commercial interests succeed in including ISDS in TTIP then government could end up using your tax money to compensate companies which have been inconvenienced by your government's health laws.

ISDS would create an alternative court system, exclusive to big corporations and out of public view. If a company wants to challenge decisions that are meant to keep you safe, you should be able to see why. Safety laws have been created by democratically elected, accountable governments. Democracy demands, at the very least, that you hear about it when they get it wrong.

In our submission to the Commission's public consultation we argued that ISDS is incompatible with the right of the European Court to decide matters of European law. Therefore, it would be inconsistent with the autonomy of the legal order of the EU.

The Future

The transatlantic trade deal is enormous in scope and ambition. Chemicals regulation is just one part. Considering the scale of these negotiations and the power of the forces at work it's easy to feel overwhelmed. However, by paying attention to the legal detail ClientEarth is showing that at least one element of the proposals is not only unethical, but illegal.

When they protect your health, the environment, and your finances, what some people choose to call 'barriers to trade' become vital for your future well-being. We believe they should be defended in front an open judicial system.

Your health is more important than a toxic deal.