Vermont Water, Foreign Trade, Death Penalty

Is the treaty legally a treaty under US law? Sounds like it's probably a Congressional-Executive Agreement. (0.00 / 0)

Otherwise, a treaty would overrule a state law, just like the federal Constitution would.

Meanwhile, Republicans like whichever level of government they control to be in charge.  Remember, before the Gingrich revolution, when it was all about states' rights?

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by: Douglas E. Lindner @ Thu Apr 03, 2008 at 09:32:08 AM CDT

No. (0.00 / 0)

Neither a treaty nor the US Constitution necessarily overrules state law.

Examples:
1. State constitutions can provide more guarantees of privacy rights than SCOTUS recognizes in the federal Constitution
2. Some parts of the Bill or Rights, which was written to limit federal power, have now been "incorporated" into limits on state power - but others have not.

Where the US Constitution specifically limits state power, yes. But that is usually not the case.

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by: elwood @ Thu Apr 03, 2008 at 09:49:03 AM CDT

[ Parent ]

"and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" (0.00 / 0)

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by: Douglas E. Lindner @ Thu Apr 03, 2008 at 09:57:06 AM CDT

[ Parent ]

Though I suppose this could be an 11th amendment issue. (0.00 / 0)

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by: Douglas E. Lindner @ Thu Apr 03, 2008 at 09:58:03 AM CDT

[ Parent ]

Irrelevant. (0.00 / 0)

Re-read.

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by: elwood @ Thu Apr 03, 2008 at 09:59:48 AM CDT

[ Parent ]

New Hampshire already protects water... (4.00 / 2)

...as a "Public Trust" resource, as I understand it. What that specifically means has been vetted out in litigation, as opposed to legislation.

Consider the proposed water bottling operation proposed for Claremont... the plant will be built in NH (avoiding Vermont's comprehensive development regime under our Act 250), but will pull water from a spring across the river in Vermont, avoiding the implications of New Hampshire's public trust doctrine. Clever, that.

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by: odum @ Thu Apr 03, 2008 at 12:17:14 PM CDT

Here's some background: (0.00 / 0)

Linky.

As of mid-2006 NH case law was unsettled.

And the question of how the law, from legislation or from precedents, survives versus treaty provisions is still in question.

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by: elwood @ Thu Apr 03, 2008 at 12:54:04 PM CDT

[ Parent ]

Sadly true n/t (0.00 / 0)

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by: odum @ Thu Apr 03, 2008 at 15:13:29 PM CDT

[ Parent ]

I think that the issue in the death penalty case (4.00 / 1)

was that the provisions of the treaty hadn't been implemented by legislation and the blanket provision in the treaty wasn't adequate.

Who actually owns and control natural resources of all kinds is an unsettled issue.  It's my sense that foreign corporations are being used as beards to circumvent environmental regulations that American corporations are trying to avoid.

We have a very long history of using government (the repository of the legal use of force) to transfer public assets into private wealth via the doling out of various 'rights.'  Keep in mind that all of the United States have been apportioned to owners on the basis of 'grant' from various European potentates.  Only a very small portion was acquired by purchase from the natives.

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by: hannah @ Thu Apr 03, 2008 at 14:33:59 PM CDT

Water Mining (4.00 / 3)

The bottom line is that under Treaties such as NAFTA, though not spelled out specifically, Water is a Good, listed in the Goods section.
Therefore companies in NAFTA countries, as well as from WTO, are mining for water on a world scale. New Englanders don't grasp how wealthy they are in water, compared to the global water hunters who are snapping up our aquifers, and pumping them dry with impunity.
Legislation is being introduced saying that water should be treated as air, part of the commons, and it should not be commoditised and treated as a Good. This is the where an uphill battle is taking place, where States' sovereign rights have been diminished under the Treaties. NAFTA is especially onerous because of the money damages provisions under Chap.11, damages that can be and are assessed for 'future profits lost' by the multinationals who claims successfully that an investment they made was caused to not be profitable. The Multinational companies have standing as Nation States under the treaty, so they think their right to commerce is being blocked they bring action against the Federal Govt. of the country in which they feel their free trade rights are being impeded.

A current concrete example is taking place in Northern Alberta, CA where many multinationals use pressure steam/water to blast into the oil sands to recover and refine petroleum products. T. Boone Pickens is in that space as well as beingh a water business owner in Texas. As a foreign national company under the Treaty, they are requesting a quintupling of the amount of water they can use. The Canadian Companies cannot even ask, because under current Canadian Law the takings are not legal, but Pickens et al can sue Canada in a chap.11 NAFTA Tribunal, in private, with no oversight, and by the Treaty Rules, the tribunals don't even have to make Public their results.
We don't elect the NAFTA Governors and they are not beholden to We the People, only to the Companies whose Trade they promulgate.

When the going gets weird, the weird turn pro.
Hunter S. Thompson  

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by: JonnyBBad @ Thu Apr 03, 2008 at 17:35:42 PM CDT

When you say Pickens, et al., "can sue" (0.00 / 0)

under these terms, do you have any examples of this actually being done?

I think the number of suits actually brought to a NAFTA tribunal are relatively few, and successful ones that show a government is in violation of the treaty are fewer still. I tried to find a statistical analysis, but didn't come across one. Given the close relationship between the parties to the treaty, even if a country is found in violation of the treaty, the ability to "enforce" it/bring it into compliance is pretty limited.

The NAFTA tribunal ruled against the United States tariff on softwood lumber, but there was no policy effect, and the issue was dealt with through bilateral negotiations between the US and Canada and still remains somewhat unresolved.

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by: gallichon @ Fri Apr 04, 2008 at 11:45:04 AM CDT

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Freedom's Just Another Word For Nothing Left to Drink (0.00 / 0)

I wasn't sure if you'd want to recreate our earlier disputation, which was centered on Edwards vs Hillary and Obama on Peru, Colombia, and Korea. Since your candidate is pro the anti NAFTA rhetoric right now, pre-PA, and with her adviser Penn advising the Colombians on how to get the stalled Treaty passsed, I was'nt sure you'd show. There's always hope...you are doctrinaire for the so called Free Trade without ever addressing the human and environmental aspects to these debacles.
Check out Glamis Gold Case. Never say never.

http://www.foe.org/camps/intl/...

Canada: Losing Water Through NAFTA
by Stephen Leahy
Global Research, September 23, 2007

Under the North American Free Trade Agreement, Canada lost control over its energy resources. Now, with "NAFTA-plus", it could also lose control over its freshwater resources, say experts.Canada's water is on the trade negotiating table despite widespread public opposition and assurances by Canadian political leaders, said Adèle Hurley, director of the University of Toronto's Programme on Water Issues at the Munk Centre for International Studies.

A new report released Sep. 11 by the programme reveals that water transfers from Canada to the United States are emerging as an issue under the auspices of the Security and Prosperity Partnership (SPP). The SPP - sometimes called "NAFTA-plus" - is a forum set up in 2005 in Cancún, by the three partners, Canada, United States and Mexico.Economic integration as envisioned by the powerful but little-known SPP is slowly changing the lives of Canadians, says Andrew Nikiforuk, author of the report "On the Table: Water Energy and North American Integration".

The SPP is comprised of business leaders and government officials who work behind the scenes and are already responsible for changes to border security, easing of pesticide rules, harmonisation of pipeline regulations and plans to prepare for a potential avian flu outbreak, Nikiforuk writes."The SPP is run by corporate leaders; governments are irrelevant," said Ralph Pentland, a water expert and acting chairman of the Canadian Water Issues Council.

snip

Most of Canada's oil comes from the tar sands, a 125-billion-dollar capital project in the boreal forest of northern Alberta province. One million barrels of oil flow south each day to the U.S. making Canada its largest supplier. However, it takes three barrels of freshwater to produce one barrel of oil from the tar sands, says Nikiforuk.

The project already consumes 359 million cubic metres of water, enough for a city of two million people in Canada. Ninety percent of the water becomes contaminated and has to be stored in vast tailings impoundments. More than 10 of these exist, covering an area of 50 square km.

Members of the SPP North American Energy Working Group met in Houston, in the southern U.S. state of Texas, in 2006, where they talked about the "pipeline challenge", a proposed a five-fold increase in production at the tar sands, said Nikiforuk.

"No mention was made of water at the meeting, but there isn't nearly enough water in the region for this kind of expansion," he said.

Under NAFTA rules, Canada cannot reduce its energy exports to the United States, according to Gordon Laxer, director of the Parkland Institute, a research network at the University of Alberta. "The U.S. is the most energy wasteful nation on Earth. And Canada is sacrificing its environment to feed America's addiction to oil," Laxer said in an interview.

"Respected energy analyst Matthew Simmons told me Canada should stop furthering the U.S. addiction to liquid fuels and make it illegal to use fresh water in tar sands," said Nikiforuk.

When the going gets weird, the weird turn pro.
Hunter S. Thompson  

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by: JonnyBBad @ Fri Apr 04, 2008 at 21:30:28 PM CDT

[ Parent ]

If there was no NAFTA (0.00 / 0)

the tar sands would still exist. If oil couldn't be exported to the US, it would be exported elsewhere, either internationally or sent east to the Maritimes (like under the Trudeau energy plan). In fact, whether the US will continue to be able to import tar sands origin oil is already somewhat of an issue. Free trade agreements are fairly weak and pretty much enforceable only through trade sanctions, which are unpopular because they affect jobs in other industries.

I think Canada is in a strong enough economic position to be able to "make it illegal to use fresh water in tar sands." I don't think the political will is there, but It's not exactly an energy dependent country and it is less and less reliant on trade with the US.

Also, I voted for Obama and I hope Obama receives the Democratic nomination. I think both Clinton and Obama need to rethink their trade positions.  

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by: gallichon @ Sat Apr 05, 2008 at 13:17:25 PM CDT

[ Parent ]

Yet another reason to consider new alliances (0.00 / 0)

The founders clear intention for self-government has become impossible, the country is simply too big to govern. The wild primary season has demonstrated the diverse interests of different regions. The most economically successful European republics are the smaller ones. The northeast has its interests, Texas its own, California has about three separate regions, etc.  Maps of the US often divide into five or six disparate regions. Our founders envisioned a voluntary association of states. We need to consider that intention as we look to regaining our lost self-determination. Stay tuned, friends.

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by: Burt Cohen @ Fri Apr 04, 2008 at 20:56:05 PM CDT

Balkanize the US? n/t (0.00 / 0)

The groggy giant grapples

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by: Jack Mitchell @ Fri Apr 04, 2008 at 21:37:12 PM CDT

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Well, it's an interesting point (0.00 / 0)

why is it dangerous to have free trade between Texas and Mexico and New Hampshire and Canada, but not dangerous to have free trade between New Hampshire and Texas?

How awful was it for our manufacturing industry that we couldn't impose tariffs on textiles originating from the South? The same trade issues that exist internationally also exist domestically.  

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by: gallichon @ Sat Apr 05, 2008 at 12:52:57 PM CDT

[ Parent ]

Simple answer: (0.00 / 0)

Both New Hampshire and Texas must comply with federal minimum wage, right to organize, OSHA, and environmental legislation.

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by: elwood @ Sun Apr 06, 2008 at 11:30:49 AM CDT

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Maybe (0.00 / 0)

Texas is a right to work state with only the federal minimum wage. Quebec is nearer to us, has a higher minimum wage, stronger labor protections, etc., yet Texan goods are treated preferentially in New Hampshire.

Overall you make a fair point, but it raises questions about under what set of circumstances you can trade with other countries or what goods can be imported ever. And then what level of trade restrictions should be imposed on US territories, like the Northern Marianas, Guam, etc., that are exempt from some level of federal regulation.

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by: gallichon @ Sun Apr 06, 2008 at 20:07:18 PM CDT

[ Parent ]