A footnote to the preceding on trade

One of the little-known things created by NAFTA is an international tribunal that can hear complaints by multinational corporations against a foreign government.

Any Canadian or Mexican business that contends it has been treated unjustly by the American judicial system can file a similar claim. American businesses with similar complaints about Canadian or Mexican court judgments can do the same. Under the Nafta agreement the government whose court system is challenged is responsible for awards by the tribunals.

So reports Sunday's New York Times.

These tribunals can overrule any court decision made by any court at any level - including the Supreme Court - and their judgments cannot be appealed.

"This is the biggest threat to United States judicial independence that no one has heard of and even fewer people understand," said John D. Echeverria, a law professor at Georgetown University. ...

"It's basically been under the radar screen," Peter Spiro, a law professor at Hofstra University, said. "But it points to a fundamental reorientation of our constitutional system. You have an international tribunal essentially reviewing American court judgments."

To his credit, in 2002 John Kerry introduced legislation - defeated in the Senate - to limit the jurisdiction of the tribunals. To his detriment, he said at the time

"When we debated Nafta ... not a single word was uttered in discussing Chapter 11. Why? Because we didn't know how this provision would play out. No one really knew just how high the stakes would get."

Well, why the flaming hell not? It's not like it was a secret protocol or something. It was, in fact, something that NAFTA opponents pointed to as presenting a threat to environmental and health regulations and that potentially raised the interests of corporations (the only ones who can bring such suits) above those of nations or their citizens. Wasn't he listening?