Co-published on atlantic-community.org.
As the 7th Round of the Transatlantic Trade and Investment Partnership (TTIP) gets underway behind closed doors in Chevy Chase, Maryland, it is an opportune time to ask what proponents of a successful TTIP should learn from the latest failed trade agreement negotiation involving the U.S. and Europe – the Anti-Counterfeiting Trade Agreement (ACTA).
ACTA was a plurilateral treaty negotiation between the EU, U.S., Japan and seven other countries between 2006 and 2010. The negotiation was focused on trade-related intellectual property rules – setting new international standards for how countries set and enforce intellectual property rules at borders, in courts, on the internet and in our science laboratories. These are important topics with broad ramifications for myriad stakeholders in each of the negotiating countries. But rather than involve the full breadth of such stakeholders in consultation, the ACTA parties locked most of them out of the process. Negotiations took place in undisclosed locations. Text of the proposals being debated were kept secret using national security procedures. Negotiators only spoke about the agreement in private gatherings and exclusively off the record.
Of course, the negotiation was not secret from everyone. A dozen or so corporate advisors on a select intellectual property industry trade advisory committee received copies of the texts of the proposals and numerous private briefings with negotiators throughout the process. This is a recipe for agency capture – a point made repeatedly in the academic literature on ACTA.
Criticism of the secretive process used in the ACTA negotiation mounted until it was the main story defining the effort in the public eye. What the public came to know about ACTA was that it was a secretive law making process dominated by select corporate insiders. Some government officials reacted to the mounting criticism in an effort to bolster the legitimacy of the negoitation. The EU parliament overwhelmingly demanded increased transparency – after which point negotiators released four public texts in the final 12 months. But the efforts were too little too late. After the text was finalized, hundreds of thousands of people marched across Europe in civil society led protests. Numerous parliaments across Europe, including the EU Parliament in an overwhelming vote, rejected ratification of the Agreement. The U.S. President refused to submit the agreement to Congress. To date, only Japan has formally accepted the treaty through a ratification process – leaving it a dead letter.
In the negotiations of a proposed TTIP happening this week, the stakes are higher. Many of the same intellectual property rules included in ACTA are likely to re-appear in TTIP. But the subjects of TTIP are much broader – proposing to set new international rules about how countries can regulate everything from drug pricing to the regulation of banks.
What TTIP supporters should take from ACTA is the lesson that successful trade agreements (ones that can be ratified in the political process) require more open processes. The goal should be to negotiate the terms of international law that restricts domestic regulatory choices under similar processes that countries would follow to make those regulatory choices in the first instance. Legislators in democratic societies publicly release the text of proposals to change the law and discuss and amend those proposals in public forums open to all – often broadcast live. Administrative agencies in democratic societies have notice and comment processes for proposed rules in which drafts of the rules themselves are subject to comment from anyone affected and agencies must justify their post-hearing decisions.
These kinds of sharing of information and opportunities to meaningfully comment are a minimum core of legitimate democratic process. Democracy is more than a process of electing leaders. It is a process of engaging the subjects of binding laws in the law-making process so that those subjects – even if they did not get their preference enacted – see the ultimate result as the product of self-governance. That experience of self-governance leads to acceptance of the legitimacy of the new dictates.
Unfortunately, there continues to be resistance to embracing minimum conditions for democratic legitimacy of trade negotiations, including in the current TTIP negotiation. As the TTIP negotiators meet in a tony Washington suburb this week, they no longer do so in an undisclosed location, as in the early days of ACTA. And they do offer opportunities for stakeholders to address the negotiators and public, unlike in ACTA. But these hearings are all show – the parties are still refusing to release any text of the proposals for new laws being considered. Indeed, the US Trade Representative has reportedly rejected proposals to share text of TTIP proposals even with the governments of European countries, much less their citizens. And those select corporate advisors on industry trade advisory committees still have privileged access to text and forums to spread their influence. Indeed, the system has been changed to permit registered lobbyists to sit on those committees.
The extension of hyper-secrecy in relation to the public, combined with privileged access for corporate lobbyists, in the TTIP and other forums are encountering new resistance. The EU Court of Justice recently ruled that the EU Commission could not enforce blanket refusals to publicly release all international negotiation documents in real time, admonishing: “the public interest in the transparency of the decision-making process would become meaningless if, as the Commission proposes, it were to be taken into account only in those cases where the decision-making process has come to an end.” German Economic Affairs Minister Sigmar Gabriel recently called for increases in transparency in the TTIP process, admonishing that “confidential negotiations can and should not be allowed in democratic countries.” President of the European Parliament Martin Schulz similarly declared that “whoever wants to win greater trust must make the contents of negotiations public.” Id.
It is time to take such clarion calls seriously – by TTIP advocates. If the case for TTIP is strong, then it should be made in public. TTIP supporters cannot defend what they cannot describe. Secrecy begets rumors and rumors destroy credibility when they are countered only with more secrecy. If TTIP is not to go the way of ACTA – much spent and little gained – then the process has to get serious about becoming more democratic.
The mechanisms exist and are easily used. The US and EU both have public regulatory notice and comment processes. They should be used repeatedly to release and request comments on consolidated draft texts – or at least on each parties own proposals for texts. Or the process could follow the lead of Geneva-based international law making institutions, like the World Intellectual Property Organization, and publish draft proposals on the internet and allow the public (or registered stakeholders) to attend negotiations or listen to feeds of the in-room discussions. There are places for closed-door discussions – but those places should not be everyplace.
