Sean Flynn, American University Washington College of Law, 202-294-5749, sflynn@wcl.american.edu
David Levine, Elon University School of Law, 336-279-9298, dlevine3@elon.edu
Senators Blumenthal, Brown, Baldwin, and Udall introduced today a trade negotiation transparency bill that would require that all formal U.S. proposals for trade agreement restrictions on domestic regulations be posted on a website. This is a common sense policy that should be broadly supported. The bill would require policies similar to the transparency policies currently followed by the European Union and by intergovernmental organizations that set similar minimum regulatory standards. But it would be a major change in the current process for trade negotiations followed by the U.S. Trade Representative, which are infamously secretive (See today’s Financial Times).
We all have an interest in the scope of international rules that would subject our intellectual property and other laws to challenge for failing to adhere to an international law standard — as trade agreements in the post-NAFTA period do. And therefore the setting of those standards – and especially what our government proposes such standards to be – should not be done out of public view. This is the basic tenet of the Blumenthal bill – which is one we endorse.
Adding this basic layer of transparency is also sorely needed to encourage the process to produce the kind of balance and regulatory flexibility that our past trade agreements have lacked.
We offer the following comments on the specific provisions of the bill.
SECTION BY SECTION ANALYSIS
The bill states its purpose as “to increase the public accessibility of information relating to trade negotiations.” It does so by requiring the USTR to publish on a website (the Federal Register would qualify) all of its proposals for new international law standards that would bind Congress to change or to not change U.S. law.
United States Trade Representative shall make available to Members of Congress and the public, through means including publication on a publicly available Internet website, all formal proposals advanced by the United States in negotiations for a trade agreement pursuant to this title not later than 5 calendar days after the earliest of—
(i) the date on which the proposal is shared with another party to the negotiations;
(ii) the date on which the proposal is submitted to an advisory committee established under section 135 of the Trade Act of 1974 (19 U.S.C. 2155); or
(iii) the date on which the proposal is cleared through the interagency process established to approve official positions in trade negotiations.
The bill defines a “formal proposal” as one shared with other negotiating parties as the official position of the U.S.
(i) IN GENERAL.—In this paragraph, the term “formal proposal advanced by the United States in negotiations for a trade agreement”—
(I) means any proposed language, position paper, summary of position, or other document that—
(aa) includes analysis or other language intended to inform negotiations for a trade agreement;
(bb) is offered or intended to be offered on behalf of the United States to any party to the negotiations; and
(cc) reflects the official position of the United States with respect to the negotiations;
The bill also extends to any information shared with lobbyists and corporate advisors on Industry Trade Advisory Committees. Formal proposal –
(II) includes any communication regarding the negotiations that is shared with other parties to the negotiations after being cleared through the interagency process established to approve official positions in trade negotiations or that is submitted to an advisory committee established under section 135 of the Trade Act of 1974 (19 U.S.C. 2155).
The bill stops far short of requiring that trade negotiations be performed in the proverbial fish bowl. It exempts all of informal exchanges between negotiators, with stakeholders and within the government.
(ii) EXCLUSION.—The term “formal proposal” does not include any communication between negotiators or other officials participating in negotiations for a trade agreement that is not intended to reflect the official position of the United States, including any communication not cleared through the interagency process described in clause (i)(II).
All of these kinds of protections would be present if USTR was a normal agency engaging in binding rulemaking processes. That is what the Federal Register, Administrative Procedure Act, Freedom of Information Act and Federal Advisory Committee Act are all about. But every President since NAFTA has insulated USTR from sharing its work under these laws by classifying trade proposals as national security secrets. The bill would end this practice — halting all national security classifications at the moment the information is shared as an official position to another foreign government.
(B) CLASSIFIED PROPOSALS SHARED WITH FOREIGN GOVERNMENTS.—If text proposed by the United States Trade Representative to be included in a trade agreement is classified and is shared with any official of a foreign government, that text shall be declassified when the text is shared with that official and made available to Members of Congress and the public in accordance with subparagraph (A).
The bill could be improved. For example, it could add a mandate that the USTR promote agreements between negotiation parties to routinely release consolidated text of negotiation documents, as is provided in most intergovernmental negotiations such as at the World Intellectual Property Organization. The EU resolution of March 2010 which broke down secrecy in the Anti-Counterfeiting Trade Agreement contained such a requirement:
4. [The Parliament] Calls on the Commission and the Council to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course and to inform Parliament fully and in a timely manner about its initiatives in this regard; expects the Commission to make proposals prior to the next negotiation round in New Zealand in April 2010, to demand that the issue of transparency is put on the agenda of that meeting and to refer the outcome of the negotiation round to Parliament immediately following its conclusion;
Congress has passed such commands in other areas. For example, it recently ordered our representatives to the World Bank to take positions protecting the Bank’s social safeguards policies.
BACKGROUND DOCUMENTS FROM INFOJUSTICE.ORG
Trade Promotion Authority Bill Falls Short of Ensuring Transparency and the Public Interest, Statement by Flynn, Kaminiski, Levine, http://infojustice.org/archives/31877
USTR rejecting EU bids for more transparency in TTIP, http://infojustice.org/archives/32290
WIPO Treaty for the Blind Shows that Transparency Can Work (and is Necessary), http://infojustice.org/archives/30027
Senators Call for Increased Transparency, Including Broader Consultation on Internet Freedom
