from the does-it-have-to-be-said? dept
Now that the US and EU have officially announced the start of talks on a new bilateral free trade agreement -- sorry, a "trade and investment partnership" -- groups in both regions are trying to work out what this will mean for them and their constituents. Arguably the most important constituency of all is the public, and yet it is also the one that until now has been systematically shut out of previous negotiations for things like ACTA or TPP. One representative of that huge group -- though not, obviously, the only one -- is the Transatlantic Consumer Dialogue (TACD), which describes itself as follows:
a forum of US and EU consumer organisations which develops and agrees on joint consumer policy recommendations to the US government and European Union to promote the consumer interest in EU and US policy making.
With commendable speed, it has submitted an open letter on the proposed agreement, addressed to Ron Kirk and Karel de Gucht, who are leading their respective delegations (pdf). Early on, it states the TACD's basic position:
We believe that advancement of consumer well-being must be the primary measurement of whether such a trade pact should be adopted or not. We are very sceptical that a trade partnership built around regulatory convergence will serve consumer interests, and we will vigorously oppose a deal that dismantles existing EU and US consumer protection.
The concern here is that the trade pact will have the effect of levelling consumer protection downwards, to the lower of the two standards found in the US and EU. That might be convenient for industries looking to cut costs and boost profits, but as TACD points out, consumer interests are unlikely to be served. It then goes on to address several particular areas of concern, including copyright and patents:
Provisions on intellectual property (IP) rights should ensure governments may enact robust limitations and exceptions to rights, and limitations on remedies. IP enforcement should be proportionate and respect the right to a judicial remedy. In some areas, mandatory minimum exceptions should be addressed, such as robust cross-border exceptions for disabilities or distance education. Access to medical technologies and knowledge should not be undermined.
It also has strong views on the increasingly-problematic area of investor-state disputes:
Investors should not be empowered to sue governments to enforce the agreement in secretive private tribunals, and to skirt the well-functioning domestic court systems and robust property rights protections in the United States and European Union. Experience elsewhere shows how powerful interests from tobacco companies to corporate polluters have used investor-state dispute resolution provisions to challenge and undermine consumer and environmental protections. Investors must not be empowered to sue governments directly for compensation before foreign investor tribunals over regulatory policy (including "indirect" expropriation), contract disputes, nor guarantee a Minimum Standard of Treatment for foreign investors.
It concludes by raising the key issue mentioned at the start of this post: the fact that the public has been comprehensively excluded from previous trade negotiations, even though the latter are supposedly conducted in its name.
With talks now slated for a fully-fledged Transatlantic trade agreement, it is vital that governmental negotiators reform their engagement with consumer organisations and civil society. We must have a fully open process. Citizens in Europe and the United States will not accept a closed, secret process, with the results revealed only when negotiations are concluded for an up or down vote.
That last point is important. Once texts have been discussed during the negotiations, there is no reason not to publish them: after all, there are no "secrets" that might be revealed to the other side -- the usual excuse for not allowing the public to see texts as negotiations are being conducted. Industry insiders already have access, so the only people that would be kept in the dark by not publishing them are the 800 million citizens of the US and EU.
Nothing is more important to an open process than publication of negotiating texts as they are developed.
Just as the advancement of consumer well-being should be the "primary measurement" of whether the trade agreement should be signed or not, so the public must be recognized as the primary stakeholder that has a right to see all texts once they have been discussed. If they don't, then those negotiations simply forfeit any claim to real legitimacy in a world where basic transparency can be achieved instantly, and for almost zero cost, by publishing materials on the Web.