By Toby McIntosh
The explosive WikiLeaks disclosure of a draft text from the ongoing Trans-Pacific Partnership (TPP) trade talks has brought renewed attention to the secrecy of trade negotiations.
Calls to open up trade negotiations have grown steadily in the past decade, boosted by a rising tide of transparency advocacy and the growing breadth and importance of trade agreements.
The controversy has intensified in light of the strict confidentiality imposed on the TPP talks, which is being held among 12 Pacific rim countries: the United States, Canada, Mexico, Peru, Chile, New Zealand, Australia, Singapore, Malaysia, Brunei, Vietnam and Japan.
The traditional argument that openness will complicate and stymie intergovernmental negotiations is increasing under challenge. The shift is occurring in part because of examples in which international bodies have published draft documents and invited participation without disastrous consequences.
Also feeding demand for more openness is the significant potential effect of the outcome on domestic policies. Supporters of greater transparency argue that more public input improves outcomes and makes the ultimate approval of agreements more possible.
TPP Nations Pledge Confidentiality
The TPP talks are classic closed negotiations, with parties disclosing their positions to each other, but not the public.
To guarantee this, participating nations parties signed a Memorandum of Understanding in March 4, 2010, agreeing not to release any materials until four years after a deal is concluded.
The language is referenced in the text of a leaked draft chapter on intellectual property tabled by the U.S. government. The participants agreed not to declassify documents related to the negotiations for “four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations.” The 2010 memo itself is not public.
Apart from general public statements from national officials about progress in the 19 rounds of talks, the cloak of secrecy has been relatively effective.
The main breaches have occurred regarding the controversial intellectual property provisions.
New Models Emerging
In traditional diplomatic thinking, the notion has been that progress in negotiations occurs best outside the limelight, away from political pressures.
The validity of this model is eroding, transparency advocates say. Examples are emerging indicating that transparency in international negotiation is workable. Advocates say the availability of information throughout negotiations, and the opportunity to observe and participate, strengthen the eventual product, add to its credibility and help make it politically acceptable.
Exhibit A is the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The agreement provides exceptions and limitations to copyright laws designed to facilitate the creation and cross-border sharing of accessible works for persons with visual, learning or physical impairments.
Concluded after not inconsiderable difficulty, the treaty was developed under the auspices of WIPO, the World Intellectual Property Organization, with unusual openness.
It was negotiated with ongoing releases of draft negotiating documents. In addition, stakeholders could witness most negotiation forums either in person or through audio feeds.
“The successful outcome of the Marrakesh Treaty’s highly open process disproves any notion that transparency inhibits resolution,” wrote a group of law professors recently.
Greater transparency in international talks concerning the environment and the internet are described by Jeremy Malcolm in a 2010 article. His footnotes offer a window on academic work in the area that has steadily increased in the intervening years.
WTO Process Mostly Closed, by Porous
At the World Trade Organization, some draft texts now routinely get out through a variety of channels although they are not officially made public.
For example, on Nov. 19, differences on agriculture issues were narrowed in advance of a Dec. 3-6 ministerial conference in Indonesia. The draft texts on food security and several other topics, called “Unofficial Room Documents,” were reported on by Bloomberg BNA and the text was provided.
A summary of the WTO’s transparency policy (see page 179 here), however, indicates that room documents “are intended to be distributed only within a room and are not formally recorded, distributed or posted.”
They are posted on the WTO public website, but on “a restricted status” with access to these items “reserved for WTO Members and selected Observers.”
The titles and reference numbers of the documents show, but to access them, you need the password.
There is increasing interest in greater transparency in WTO negotiations, but actual progress appears limited.
When the Trade in Services Agreement negotiations started recently, the several dozen participants discussed making them as transparent as possible. However, they later decided that the market access offers will not be made public,
Fits and Starts
Curiously, the United States a decade ago initiated transparency for the ultimately unsuccessful effort to create a Free Trade Area of the America.
When the draft texts of the nine chapters of the FTAA were published in July of 2001, then USTR Robert B. Zoellick called the publication of the FTAA draft text an “unprecedented effort to make international trade and its economic and social benefits more understandable to the public,” according to a press release. A website was created to solicit and publish the views of civil society participants.
More recently, partial transparency eventually was provided for the Anti-Counterfeiting Trade Agreement (ACTA), which also failed, primarily based on objections to the policies being developed.
In an attempt to deal with the controversy over the lack of information about the talks, one U.S. official wrote a Feb. 10, 2010, memo entitled “Transparency soup.” In it, Stan McCoy, assistant USTR for intellectual property, laid out a seven-point strategy for co-opting transparency demands.
The pressure for transparency grew and leaks fueled intense debate about the policy directions being taken. The EU Parliament on March 10, 2010, voted 633-13 for a resolution that demanded transparency in the ACTA negotiations.
Subsequently, negotiators released four public texts in the final 12 months of the talks.
Interestingly, the United States was the “lone holdout” against releasing the drafts, in the words of a U.S. official in an email obtained through the FOI Act to the U.S. group Knowledge Ecology International (described here). (KEI also has a web page with extensive documentation on the ACTA transparency fight.)
Privileged Access Generates Controversy
The fact that some in the U.S. business community get preferred access to information about trade talks has fueled outrage over selective transparency.
This uneven access has been institutionalized in the United States in a system of advisory committees. “The advisory committee system consists of 28 advisory committees, with a total membership of approximately 700 citizen advisors,” according to the USTR website. Within this galaxy there are 16 Industry Trade Advisory Committees, and a Committee of Chairs, with over 375 industry executives.
Other advisory committees include representation from the business community, and also from labor unions, environmental groups and consumer groups.
“Cleared advisors” may see classified materials, including texts. The extent of this access is somewhat shrouded and not all advisers may be treated the same, according to persons familiar with their treatment. One close observer said: “We know that in some cases, they have the text. I know people who have gotten the text read to them, over the phone.”
In addition, USTR has in the past supplied information to persons outside the advisory committee system with the use of non-disclosure agreements, according to KEI.
Even members of Congress have very limited access to the draft texts. They can read them, but only at the USTR’s office, and they can’t make copies or take notes.
Jamie Love, director of Knowledge Ecology International, summarized:
The United States and other countries have defended the secrecy of the negotiations in part on the grounds that the government negotiators receive all the advice they need from 700 corporate advisors cleared to see the text. The U.S. negotiators claim that the proposals need not be subject to public scrutiny because they are merely promoting U.S. legal traditions. Other governments claim that they will resist corporate right holder lobbying pressures. But the version released by Wikileaks reminds us why government officials supervised only by well-connected corporate advisors can’t be trusted.
Few Forums for Comments
There have been limited opportunities for stakeholders to learn about the talks in any detail and to voice their opinions at the national levels.
At what public forums are held, the briefings “are vague status reports,” commented one U.S. academic who has followed the negotiations closely.
The perceived inability of civil society organizations to participate effectively in the absence of information is generating debate within many TPP countries.
In Korea, the Ministry of Trade, Industry and Energy sponsored of forum on TPP Nov. 15 at which “sharp divisions of opinion” were expressed, according to a media report.
In Australia, “Civil society groups were able to attend and make very short presentations to negotiators during most TPP negotiating rounds, but this practice has now ceased in the final stages,” according to recent blog post by Patricia Ranald, Research Associate at the University of Sydney and voluntary Convenor, Australian Fair Trade and Investment Network (AFTINET).
She reported that “negotiators have briefed civil society organisations twice a year, and have also been available for separate meetings on particular topics.”
In the United States, a series of public briefings have been held, including one in Dallas, Texas, in May of 2012 at which transparency was brought up from the floor and the confidentially standard was defended by a U.S. official.
Barbara Weisel, Assistant USTR for Southeast Asia and the Pacific and the lead negotiator for the U.S., “said that while the U.S. position is that constantly evolving TPP chapter texts cannot be released to the public, the Office of the U.S. Trade Representative has been and remains committed to discussing in-depth with a wide range of stakeholders the formation of U.S. positions, the substance of negotiations as they take place, and how issues should be handled by negotiators as talks continue,” according to a USTR description of the meeting,
Leaks Affecting the Debate
Leaks from trade negotiations have been sparse, but influential, and they have been widely reported in the press.
WikiLeaks on Nov. 13 released the draft Intellectual Property Rights Chapter, one of the most controversial areas under discussion. It’s 95 pages long, with 296 footnotes and 941 brackets in the text. Brackets indicate areas of disagreement. The text reveals the positions of each country.
Julian Assange, the founder of WikiLeaks, said, “I think this release will pretty much kill it [TPP]”
The leak came as the negotiators work toward reaching a conclusion by the end of the year, although that time frame is now considered unrealistic. The late-stage information garnered much more attention than earlier leaks. Previously, there was a February 2011 leak [pdf] of the same chapter and a July 2012 leak of the copyright section.
Although several months out of date, the August 2013 text from WikiLeaks was eagerly analyzed by experts of all stripes. One analyst did visualizations of the national positions.
Critics charged that the outlines of the agreement would expand the reach of intellectual property rights at the expense of consumers. Doctors Without Borders, for example, reacted: “The leak of the secret text confirms that the U.S. government continues to steamroll its trading partners in the face of steadfast opposition over terms that will severely restrict access to affordable medicines for millions of people.”
“From this text it appears that the U.S. administration is negotiating for intellectual property provisions that it knows it could not achieve through an open democratic process,” according to George Washington University political science professor Susan Sell. She said further, “In the short term, I expect that the release of this text will increase Congressional opposition to extending Fast Track negotiating authority to President Obama.
The lack of transparency in the TPP talks is coming under pressure, though there are few signs of potential change.
Groups in the intellectual property realm have been particularly vocal, but other policy groups have raised the transparency banner, too.
Sen. Elizabeth Warren (D-Mass) sent a letter in June to President Obama’s nominee to head the USTR, in which she said:
I have heard the argument that transparency would undermine the Administration’s policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.
On Nov. 13, 151 Democrats in the U.S. House of Representatives signed a letter decrying TPP secrecy. The day before, 23 Tea Party aligned Republicans sent a similar letter arguing that Congress should have a leading role in setting trade policy, and not allow the administration to “diplomatically” legislate policy.
The U.S.-based Sunlight Foundation and more than 30 civil society organizations on Nov. 21 urged leaders to conduct trade negotiations in “a manner consistent with the democratic principles and openness and accountability.”
In Japan, member of the Association of University Faculties (AUF) on April 10, 2013, held a press conference, announcing that they had established the association and submitted a letter with an 839 signature petition to Prime Minister Shinzo Abe to withdraw from the TPP negotiations, according to an article in Asia Times by Sachie Mizohata and the Association of University Faculties.
In Malaysia, the Ministry of International Trade and Industry in late August promised to be more open with the public and disclose two cost- benefit studies on national interests and Bumiputera (indigenous populations) small and medium enterprises affected by the TPP, according to a media account.
Adding future interest to the issue, is the start of so far equally secret US-EU discussions about a Transatlantic Trade and Investment Partnership (TTIP).
In Europe, the French minister of foreign trade July 29 called for the publication of the European Commission’s negotiating mandate in the TTIP talks in an editorial published in the daily newspaper Liberation (in French).
The Wikileaks disclosures has generated a few negative editorials. But, Love wrote several years ago, “An enduring mystery is the appalling acceptance of the secrecy by the working news media.”
Specific Demands Listed
A group of U.S. law professors in earlier in November sent a letter supporting more transparency. Some are affiliated with a U.S. group, Infojustice, that has made transparency a cause. The 80 professors said the TPP process “is amplifying public distrust and creating an environment conducive to an unbalanced and indefensible final product.”
They made three procedural suggestions:
- First, that the Administration work with other negotiating parties to immediately release for public comment the current official full text of the TPP intellectual property and related chapters, as was done for ACTA in April 2010, over a year before that agreement was concluded;
- Second, that the Administration voluntarily release to the public all future U.S. negotiation positions in the intellectual property and related chapters of the TPP at the same time as that information is shared with Industry Trade Advisory Committee members; cease withholding related information under the national security exemption of FOIA; and cease exempting ITAC meetings and deliberations from FACA open government requirements;
- Third, that Congress draft, and the Administration promote and endorse, language in any future Trade Promotion Authority legislation that would require the above requested disclosures as a matter of course , and require the USTR disclose to the public any documents previously shared with select industry advisers under the ITAC system (e.g. through application of FACA to the ITAC process).
Background of Pro-Transparency Activism
Transparency demands regarding trade have deep roots. Past demands also contain some of the most thorough transparency policy prescriptions.
In July 2009, eight public interest, consumer and public health organizations wrote to USTR with a 21 transparency recommendations, as described on the Knowledge Ecology International blog, which also includes an archive of research about transparency and participation options at other international organizations.
The recommendations include ideas on participation and other topics, but with regard to disclosure the main points are:
Negotiations are not transparent unless the following documents are public:
1. The dates and locations of negotiation meetings;
2. Objectives and rules of negotiations;
3. Agendas of meetings;
4. Lists of participants;
5. Reports or minutes of meetings;
6. Policy, research, background and other papers, including surveys, questionnaires and other negotiation-relevant documents, in cases where the documents have been
distributed to all members of the negotiation; and
7. Negotiating texts, when distributed to all members of the negotiation.
An October 2011 public interest group letter to USTR recommended creation of a joint website that would include all documents related to the negotiations, including contact information for key negotiating personnel.
In February 2012, “unprecedented levels of secrecy” around the TPP were lamented in a letter 20 public interest organizations wrote to President Obama, urging that he fulfill his pledge to greater transparency and release draft negotiating texts.
Legal Efforts Unsuccessful
Efforts to pry out more information using access laws have thus far been largely unsuccessful.
In the European Union, the Second Chamber of the European General Court March 19 ruled against an effort to obtain documents related to the proposed Anti-Counterfeiting Trade Agreement (ACTA). The decision went mostly against complainant Sophie in’t Veld, a member of the Liberal Party Group in the European Parliament. (See previous report in FreedomInfo.org.)
The USTR has cited national security concerns to prevent disclosures under the Freedom of Information Act.
In the United States, a U.S. appeals court June 7 denied access to a document concerning unsuccessful trade negotiations conducted in the 1990s and 2000s.
A three-judge panel overturned a lower court ruling giving deference to the opinion of the U.S. Trade Representative that disclosure of a past position could jeopardize future negotiations and limit the flexibility of U.S. negotiators. (See previous FreedomInfo.org report.)
In a blog post on the Center for Effective Government site, Sofia Plagakis wrote, “The court’s decision has dangerous implications for Americans, as it means that the public loses the ability to effectively weigh in on public policy decisions with significant quality-of-life impacts.”
Filed under: IFTI Watch