III 

109TH CONGRESS 

1ST SESSION S. CON. RES. 12 

Providing that any agreement relating to trade and investment that is negotiated by the executive branch with another country must comply with 

certain minimum standards. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 15, 2005 

Mr. FEINGOLD submitted the following concurrent resolution; which was 

referred to the Committee on Finance 

CONCURRENT RESOLUTION 

Providing that any agreement relating to trade and investment that is negotiated by the executive branch with 

another country must comply with certain minimum 

standards.

Whereas there is general consensus among the American public and the global community that, with respect to international trade and investment rules—

(1) global environmental, labor, health, food security, and other public interest standards must be 

strengthened to prevent a global ‘‘race to the bottom’’; 

(2) domestic environmental, labor, health, food 

security, and other public interest standards and 
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policies must not be undermined, including those 

based on the use of the precautionary principle (the 

internationally recognized legal principle that holds 

that, when there is scientific uncertainty regarding 

the potential adverse effects of an action, a product 

or technology, a government should act in a way 

that minimizes the risk of harm to human health 

and the environment); 

(3) provision and regulation of public services 

such as education, health care, transportation, energy, water, and other utilities are basic functions of 

democratic government and must not be undermined; 

(4) raising standards in developing countries requires additional assistance and respect for diversity 

of policies and priorities; 

(5) countries must be allowed to design and implement policies to sustain family farms and achieve 

food security; 

(6) healthy national economies are essential to 

a healthy global economy, and the right of governments to pursue policies to maintain and create jobs 

must be upheld; 

(7) the right of State and local and comparable 

regional governments of all countries to create and 
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enforce diverse policies must be safeguarded from 

imposed downward harmonization; and 

(8) rules for the global economy must be developed and implemented democratically and with 

transparency and accountability; and

Whereas many international trade and investment agreements in existence and currently being negotiated do not 

serve these interests, and have caused substantial harm 

to the health and well-being of communities in the United 

States and within countries that are trading partners of 

the United States: Now, therefore, be it

1 Resolved by the Senate (the House of Representatives 

2 concurring), That any agreement relating to trade and in3 vestment that is negotiated by the executive branch with 

4 another country should comply with the following: 

5 (1) REGARDING INVESTOR AND INVESTMENT

6 POLICY.—No such agreement that includes any pro7 vision relating to foreign investment may permit a 

8 foreign investor to challenge or seek compensation 

9 because of a measure of a government at the na10 tional, State, or local level that protects the public 

11 interest, including, but not limited to, public health, 

12 safety, and welfare, the environment, and worker 

13 protections, unless a foreign investor demonstrates 

14 that the measure was enacted or applied primarily 

15 for the purpose of discriminating against a foreign 

16 investor or foreign investment. 
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1 (2) REGARDING SERVICES.—Any such agree2 ment, to the extent applicable, shall comply with the 

3 following: 

4 (A)(i) The agreement may not discipline a 

5 government measure relating to— 

6 (I) a public service, including public 

7 services for which the government is not 

8 the sole provider; 

9 (II) a service that requires extensive 

10 regulation; 

11 (III) an essential human service; and 

12 (IV) a service that has an essentially 

13 social component. 

14 (ii) A service described in clause (i) in15 cludes, but is not limited to, a public benefit 

16 program, health care, health insurance, public 

17 health, child care, education and training, the 

18 distribution of a controlled substance or product 

19 (including alcohol, tobacco, and firearms), re20 search and development on a natural or social 

21 science, a utility (including an energy utility, 

22 water, waste disposal, and sanitation), national 

23 security, maritime, air, surface, and other 

24 transportation services, a postal service, energy 
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1 extraction and any related service, and a correc2 tional service. 

3 (B) The agreement shall permit a country 

4 that has made a commitment in an area de5 scribed in subparagraph (A) to revise that com6 mitment for the purposes of public interest reg7 ulation without any financial or other trade-re8 lated penalty. 

9 (C) The agreement shall ensure that any 

10 rule governing a subsidy or government pro11 curement fully protects the ability of a govern12 ment to support and purchase a service in a 

13 way that promotes economic development, social 

14 justice and equity, public health, environmental 

15 quality, human rights, and the rights of work16 ers. 

17 (D) The agreement shall not make a new 

18 commitment on the temporary entry of workers 

19 because such policies should be determined by 

20 the Congress, after consideration by the con21 gressional committees with jurisdiction over im22 migration to avoid an array of inconsistent poli23 cies and any policy that fails to— 

24 (i) include labor market tests that en25 sure that the employment of temporary 
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1 workers will not adversely affect other 

2 similarly employed workers; 

3 (ii) involve labor unions in the labor 

4 certification process implemented under 

5 the immigration program for temporary 

6 workers under section 101(a)(15)(H)(i) of 

7 the Immigration and Nationality Act, in8 cluding the filing by an employer of an ap9 plication under section 212(n)(1) of that 

10 Act; and 

11 (iii) guarantee the same workplace 

12 protections for temporary workers that are 

13 available to all workers. 

14 (E) The agreement shall guarantee that all 

15 governments that are parties to the agreement 

16 can regulate foreign investors in services and 

17 other service providers in order to protect pub18 lic health and safety, consumers, the environ19 ment, and workers’ rights, without requiring 

20 the governments to establish their regulations 

21 to be the least burdensome option for foreign 

22 service providers. 

23 (3) REGARDING POLICIES TO SUPPORT AMER24 ICAN WORKERS AND SMALL, MINORITY, AND WOMEN25 OWNED BUSINESSES.—Any such agreement shall 
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1 preserve the right of Federal, State, and local gov2 ernments to maintain or establish policies to support 

3 American workers and small, minority, or women4 owned businesses, including, but not limited to, poli5 cies with respect to government procurement, loans, 

6 and subsidies. 

7 (4) REGARDING ENVIRONMENTAL, LABOR, AND

8 OTHER PUBLIC INTEREST STANDARDS.—Any such 

9 agreement— 

10 (A) may not supersede the rights and obli11 gations of parties under multilateral environ12 mental, labor, and human rights agreements; 

13 and 

14 (B) shall, to the extent applicable, include 

15 commitments, subject to binding enforcement 

16 on the same terms as commercial provisions— 

17 (i) to adhere to specified workers’ 

18 rights and environmental standards; 

19 (ii) not to diminish or fail to enforce 

20 existing domestic labor and environmental 

21 provisions; and 

22 (iii) to abide by the core labor stand23 ards of the International Labor Organiza24 tion (ILO). 
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1 (5) REGARDING UNITED STATES TRADE

2 LAWS.—No such agreement may— 

3 (A) contain a provision which modifies or 

4 amends, or requires a modification of or an 

5 amendment to, any law of the United States 

6 that provides to United States businesses or 

7 workers safeguards from unfair foreign trade 

8 practices, including any law providing for— 

9 (i) the imposition of countervailing or 

10 antidumping duties; 

11 (ii) protection from unfair methods of 

12 competition or unfair acts in the importa13 tion of articles; 

14 (iii) relief from injury caused by im15 port competition; 

16 (iv) relief from unfair trade practices; 

17 or 

18 (v) the imposition of import restric19 tions to protect the national security; or 

20 (B) weaken the existing terms of the 

21 Agreement on Implementation of Article VI of 

22 the General Agreement on Tariffs and Trade 

23 1994, or the Agreement on Subsidies and Coun24 tervailing Measures, of the World Trade Orga25 nization, including through the domestic imple-
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1 mentation of rulings of dispute settlement bod2 ies. 

3 (6) REGARDING FOOD SAFETY.—No such 

4 agreement may— 

5 (A) restrict the ability of the United States 

6 to ensure that food products entering the 

7 United States are rigorously inspected to estab8 lish that they meet all food safety standards in 

9 the United States, including inspection stand10 ards; 

11 (B) force acceptance of different food safe12 ty standards as ‘‘equivalent’’, or require inter13 national harmonization of food safety stand14 ards, which undermine the level of human 

15 health protection provided under domestic law; 

16 or 

17 (C) restrict the ability of governments to 

18 enact policies to guarantee the right of con19 sumers to know where and how their food is 

20 produced. 

21 (7) REGARDING AGRICULTURE AND FOOD SE22 CURITY.—No such agreement may, with respect to 

23 food and other agricultural commodities— 

24 (A) contain provisions that prevent coun25 tries from— 
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1 (i) establishing domestic and global 

2 reserves, 

3 (ii) managing supply, 

4 (iii) enforcing antidumping disciplines, 

5 (iv) ensuring fair market prices, or 

6 (v) vigorously enforcing antitrust 

7 laws, in order to guarantee competitive 

8 markets for family farmers; or 

9 (B) prevent countries from developing the 

10 necessary sanitary and phytosanitary standards 

11 to prevent the introduction of pathogens or 

12 other potentially invasive species which may ad13 versely affect agriculture, human health, or the 

14 environment. 

15 (8) REGARDING TRANSPARENCY.—(A) The 

16 process of negotiating any such agreement must be 

17 open and transparent, including through— 

18 (i) prompt and regular disclosure of full 

19 negotiating texts; and 

20 (ii) prompt and regular disclosure of nego21 tiating positions of the United States. 

22 (B) In negotiating any such agreement, any re23 quest or offer relating to investment, procurement, 

24 or trade in services must be made public within 10 

25 days after its submission if such request or offer— 
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1 (i) proposes specific Federal, State, and 

2 local laws and regulations in the United States 

3 to be changed, eliminated, or scheduled under 

4 such an agreement, including, but not limited 

5 to, subsidies, tax rules, procurement rules, pro6 fessional standards, and rules on temporary 

7 entry of persons; 

8 (ii) proposes for coverage under such an 

9 agreement— 

10 (I) specific essential public services, 

11 including, but not limited to, public bene12 fits programs, health care, education, na13 tional security, sanitation, water, energy, 

14 and other utilities; or 

15 (II) private service sectors that re16 quire extensive regulation or have an in17 herently social component, including, but 

18 not limited to, maritime, air transport, 

19 trucking, and other transportation services, 

20 postal services, utilities such as water, en21 ergy, and sanitation, corrections, education 

22 and childcare, and health care; or 

23 (iii) proposes a discipline or process of gen24 eral application which may interfere with the 

25 ability of the United States or State, local, or 
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1 tribal governments to adopt, implement, or en2 force laws and regulations identified in clause 

3 (i) or provide or regulate services identified in 

4 clause (ii). 

5 (C) The broad array of constituencies rep6 resenting the majority of the people of the United 

7 States, including labor unions, environmental organi8 zations, consumer groups, family farm groups, pub9 lic health advocates, faith-based organizations, and 

10 civil rights groups, must have at least the same rep11 resentation on trade advisory committees and access 

12 to trade negotiators and negotiating fora as those 

13 constituencies representing commercial interests. 

14 (D) Any dispute resolution mechanism estab15 lished in any such agreement must be open and 

16 transparent, including through disclosure to the pub17 lic of documents and access to hearings, and must 

18 permit participation by nonparties through the filing 

19 of amicus briefs, as well as provide for standing for 

20 State and local governments as intervenors. 

21 (9) REGARDING GOVERNMENTAL AUTHORITY.—

22 No such agreement may contain provisions that bind 

23 national, State, local, or comparable regional govern24 ments to limiting regulatory, taxation, spending, or 

25 procurement authority without an opportunity for 
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1 public review and comment described in paragraph 

2 (8), and without the explicit, informed consent of the 

3 national, State, local, or comparable regional legisla4 tive body concerned, through such means as is de5 cided by such legislative body. 

6 (10) REGARDING ACCESS TO MEDICINES AND

7 SEEDS.—(A) No such agreement may contain provi8 sions that prevent countries from taking measures to 

9 protect public health by ensuring access to medi10 cines. 

11 (B) No such agreement may constrain the 

12 rights of farmers to save, use, exchange, or sell 

13 farm-saved seeds and other publicly available seed 

14 varieties. 

15 (11) REGARDING DEVELOPING COUNTRIES.—

16 Any such agreement must grant special and dif17 ferential treatment for developing countries with re18 gard to the timeframe for implementation of the 

19 agreement as well as other concerns.

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