US demanded additional legislation on copyright before it would certify Australia’s FTA compliance
In August 2014 a memorandum and supporting documents published on the website www.tppnocertification.org exposed how the United States uses a process called ‘certification’ to require other countries to implement the US’s interpretation of those other countries’ obligations under their free trade treaties.
Unless those countries’ comply, the US will not exchange the diplomatic notes that are necessary to bring the agreement into force. A number of examples showed how the US has used certification to intervene actively in other countries’ legislative processes in recent years.
A new memorandum published on http://tppnocertification.org/australias-experience/ sets out how the US demanded additional legislation on copyright before it would certify Australia’s compliance with the Australia US Free Trade Agreement (AUSFTA).
That legislation was the subject of an exchange of letters between the trade ministers of each country. The responsible parliamentary committee was given only twenty-four hours to consider, receive submissions and report on the Bill. Stakeholders had three hours in which to make submission.
The Bill Digest prepared by Australia’s Parliamentary Library said ‘Parliament might note with concern the process that has preceded this Bill. Through the Vaile–Zoellick correspondence, the Government has effectively created new obligations for Australia. … The lack of Parliamentary involvement or scrutiny of the negotiations leading to the Vaile–Zoellick correspondence stands in sharp contrast to the involvement in the decision to ratify the Agreement.’
Copyright law experts Robert Burrell and Kimberlee Weatherall describe ‘the level of detail in this November exchange’ as ‘striking: it effectively made the agreement conditional on a specified form (at that time, a draft) of implementing legislation. Even more remarkable, however, is the overtly grudging, even threatening tone of the USTR letter’.
The US Trade Representative’s ‘disregard for Australian parliamentary processes and only curmudgeonly accepting Australia’s right to choose how to implement treaty provisions, had implications for the Australian response to the agreement’.
Australia’s experience confirms that the countries negotiating the Trans-Pacific Partnership Agreement cannot assume that their understanding of any final agreement will be shared by the US, and that the US will show little respect for the sovereign authority of the other parties’ legislatures.
Contact:
Associate Professor Kimberlee Weatherall + 61 2 9351 0478
Professor Jane Kelsey, +64 21 765055
Parliament of Australia, Parliamentary Library, Bills Digest No. 71 2004–05, Passage History, Copyright Legislation Amendment Bill 2004 http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0405/05bd071
Robert Burrell and Kimberlee Weatherall, ‘Exporting Controversy? Reactions to the Copyright Provisions of the U.S.- Australia Free Trade Agreement: Lessons for U.S. Trade Policy, The Journal of Law, Technology and Policy 2008, 259-317, 267 and 275.
