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In recent weeks there has been a lot of media coverage of the "Fast Track" bill the U.S. Congress is looking at which would allow President Obama to get the Trans-Pacific Partnership ratified more easily.

For context, the Trans-Pacific Partnership (TPP) is an international trade agreement being negotiated between 12 countries including the U.S., and Fast Track, also called the Trade Promotion Authority (TPA), is a proposed U.S. law that would allow the President to get an international trade agreement such as TPP ratified by Congress using a simplified procedure (no amendments being allowed, and a time limit on deliberations).

It's claimed that the U.S. passing Fast Track is essentially a prerequisite for the TPP being signed and ratified, because the other state parties are unlikely to be willing to put their best offers forward in the negotiations if said offers will still be subject to amendment and debate in the U.S. Congress.

If I'm understanding this correctly, the negotiating parties would basically like an assurance from the U.S. Congress that what they agree to will be ratified as-is and without delays (or else voted down wholesale, which presumably they believe to be unlikely), and Fast Track would give them that assurance.

My questions are:

  • Are similar assurances requested from the legislatures of the other state parties?
  • If yes, do they already have things similar to Fast Track in place?
  • If not, what makes the U.S. Congress different from other legislatures that special assurances are required of it?
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My guess would be that in most countries, international agreements cannot be "modified" by the legislature when ratifying it. The same is true, I believe, for the U.S. for what are called "treaties" in the Constitution, which are ratified by two-thirds of the Senate -- I don't think the Senate can amend those.

However, trade agreements are not traditionally ratified as "treaties" in the U.S. (perhaps due to the high supermajority needed); they are done as "congressional-executive agreements", which go through Congress as regular legislation, subject to all the normal lawmaking processes, including amendments. Therefore, fast-track, which modifies the House and Senate rules to disallow amendments, is needed to bring back this un-modifiability.

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One issue is possibly that, from an outsider's perspective, the US congress looks very unpredictable. In other countries, whatever the government negotiates will usually become the law and parliament is expected to fall in line.

Some signed treaties are left in limbo and never ratified, very few become contentious issues and fail (e.g. in a referendum) but for the most part, all the head of states/governments and their representatives around the table have a parliamentary majority behind them and can get whatever they agree on through their own parliament. Even commitments from previous majorities/governments are usually not considered fair game for political posturing and honoured by the next government.

I am not sure the same can be expected from the US Congress and other parties to the negotiation might therefore require extra guarantees to take the US administration seriously.

There is a vaguely related procedure in the European Union, which is called a “mandate”. The EU Commission has to seek such a mandate before negotiating treaties on behalf of all member states and other European institutions.

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