The Trans-Pacific Partnership: How Can We Ensure That It Will Be Beneficial?

In the past month or so, one of the biggest political news items from the United States has been the fight of the Trans-Pacific Partnership or TPP, a massive trade agreement that US President Barack Obama’s administration has been negotiating with around a dozen countries in the Asia-Pacific region. Obama has been trying to persuade Congress to grant him fast track authority, under which, once the agreement is finalized, Congress has to decide to approve or reject it by a simple up or down vote, thereby taking away Congress’s power to modify the agreement. The administration has pointed out that in the past, Congress has usually granted this authority to the executive branch, since if Congress modifies the agreement the other parties to the treaty may not agree to the amendments, forcing negotiations to be reopened and making it difficult to ever arrive at a final agreement. However, there has been considerable resistance against Obama’s push for fast track authority. What has made this particular fight unusual is that most (though not all) the opposition has come from Obama’s usual allies, including most of the Democrats in Congress and a wide array of labor and environmental groups, social activists, and other progressives, while most of his support has come from Republicans (who normally oppose almost everything he does), big business, Wall Street and similar interest groups.

On the surface, many of Obama’s arguments in favor of the trade agreement in general and fast track authority in specific seem persuasive. One of the strongest arguments in favor of the latter is the one mentioned above, namely that without it reaching a final agreement would be difficult. However, the fact that not only do most of Congress’s most progressive politicians but almost every single major progressive organization strongly opposes both the agreement and the granting of fast track authority is hardly reassuring. Of course, there are many on the left who will reflexively oppose any trade agreement of this sort, whereas I try to judge every public policy measure on its individual merits; if it can make the world a better place for ordinary people and ensure strict protection of the environment and human rights, than I am for it. But even if I didn’t know any of the specific arguments against the TPP, the fact that I have received email concerning the TPP from dozens of different organizations that I generally support and largely trust with respect to their particular areas of focus and every single one has been in opposition would make it hard for me to support it, despite the strong support of Obama himself (the only pro-TPP emails I've gotten have been from him), who I support on most issues. But in addition, some of the specific concerns raised by opponents indicate to me that their worries are well founded.

One of the most problematic parts of the TPP is the reported ISDS (Investor-State Dispute Settlement) provisions. These provisions would allow corporations to sue nations before special tribunals if the government took an action that deprived of anticipated profits, for example by imposing new regulations which hindered its ability to do business. Of course, it is certainly possible that there could be situations where a country unjustifiably put roadblocks in front of a company, perhaps for reasons of corruption (say to extract a bribe or to benefit a rival which the decision maker had ties to), so I am not entirely without sympathy with desire of corporations for some means of redress. However, such a system would be far too easy for corporations to abuse. Furthermore, we can already see instances of such abuse. Tobacco companies have sued or threatened to sue several countries over new health warnings. A mining company has sued El Salvador for stopping an environmentally harmful mining project. With such a system in place, fossil fuel companies could sue over new measures to fight climate change (a particularly dangerous possibility, considering how essential it is to take immediate, revolutionary action to avoid catastrophic changes to the climate), and multinationals of all sorts could sue over new laws to protect workers. Some of the opposition in the US has focused on the possibility of corporations or financial institutions using ISDS to overturn US regulations, with opponents countering that that hasn’t happened in the past, despite the existence of similar provisions in previous treaties. However, first of all, just because it hasn’t happened yet doesn’t mean it never will, unless the provisions are written in a way that completely precludes such a possibility. In one interview President Obama criticized his erstwhile ally Senator Elizabeth Warren, one of the most outspoken opponents of the TPP, for talking about hypothetical situations. But of course we are dealing in hypotheticals; if the treaty makes such a situation even hypothetically possible, then we should be worried about it. Furthermore, while this particular exchange was about potential effects on US law, I for one am not only concerned about the US and its people; if there is a strong possibility that such provisions will be used anywhere in ways that are detrimental to the environment or to ordinary people, then they are unacceptable.

But the ISDS provisions are far from the only disturbing rumored elements of the TPP. There are said to be many other provisions that have been written with corporate interests in mind. For instance, if passed, the TPP will apparently strengthen patent protections, making it more difficult and time-consuming to bring generic drugs onto the market. Since a majority of the world’s people cannot begin to afford brand name drugs but only their much cheaper generic counterparts, such a provision would be harmful to many people. The administration is also unaccountably fighting efforts to ensure that the US can still restrict trade with companies with poor records against human trafficking. People should also be asking how the TPP would impact efforts to hold multinational corporations accountable for disasters like the Rana Plaza collapse in Bangladesh, to stop fossil fuel companies from accelerating climate change, or tobacco companies from pushing their drugs on young people worldwide. In fact, there are many ways in which the TPP could potentially be very harmful to human rights, the environment, labor rights and many other very important issues.

Alert readers may have noticed that in the above discussion I refer to “rumored” provisions of the TPP. This is because of another very controversial aspect of this whole process, the fact that the negotiations are being conducted behind closed doors. While members of Congress can read the draft agreement, they can only do so under very strict conditions, and they are not allowed to reveal the contents in any detail. This secrecy is another major concern. Many have called on Obama to release the text of the agreement, but he has so far declined to do so. The chief excuse for not doing so seems to be that it would compromise negotiating positions for parts of the agreement that have not been finalized yet, though it is not clear why that would be the case, nor why parts of the agreement that have been finalized can’t be released immediately. Obama has said that the entire text will be made public before Congress actually votes on whether to approve it (I believe the specific time period is 60 days before it is sent to Congress), but of course this would be after he had obtained fast track authority, and so there would no longer be any possibility of actually changing the text. At most, if the draft agreement proves as bad as some fear it may be, civil society could put pressure on Congress to reject it entirely. But of course in that case there will be considerable pressure to pass it as well, especially since it will be a choice of all or nothing. Furthermore, 60 days is not really a great deal of time for even keenly interested parties to fully digest a massive agreement.

Now, I will admit that, as in the case of fast track authority, I can understand the administration’s position to some extent. It is true that it is a bit difficult to conduct delicate negotiations under the public eye. But on the other hand, a treaty negotiated in complete secrecy that potentially could have serious negative effects on all of us hardly seems acceptable either. This is why I have still been happy to sign petitions calling on the President to release the entire text. There is, however, another possible option that as far as I know no one has suggested, perhaps because it is impractical for some reason that has failed to occur to me. It seems to me that one of the problems is the negotiators themselves. According to opponents of the agreement, corporate lobbyists are doing the negotiating; more specifically, corporations have been allowed to weigh in on sections of the treaty of particular interest to them (e.g., pharmaceutical companies on patent issues). If this is accurate, then of course the final agreement is almost certain favor corporate interests, since we probably can’t rely on the government negotiators to stand firm for the interests of workers, ordinary citizens or the environment. President Obama is asking everyone to trust him not to abandon progressive principles in the negotiations, but while he has been pretty progressive on a number of issues and has taken firm stands on some issues recently, his overall record is not sufficiently reassuring, especially given all the forces dedicated to making the TPP as corporate friendly as possible. But if corporations are being invited to weigh in on aspects of the agreement, why not environmental groups, labor activists, human rights activists and others dedicated to fighting for the interests of ordinary people? If Obama invited a number of trustworthy activist groups to take part in the negotiating process, perhaps that would be sufficient to reassure everyone that the final agreement, even if negotiated in secret, would put the environment, human rights, workers, and the interests of ordinary people in general ahead of profits for a few. Absent the participation of a significant number of such groups in the negotiations themselves, we should continue to demand that the secrecy end and that fast track authority be denied to these unaccountable negotiators.

As an aside, it is interesting to note that when Taiwan’s current government was pushing the Cross-Strait Service Trade Agreement with China, giving rise to the Sunflower Movement in opposition, one of the supposed “merits” of the service trade agreement with China was that according to the government it was a necessary pre-condition for Taiwan to join the TPP. Even assuming that passage of the service agreement would really guarantee that Taiwan could join the TPP (and I doubt that either the US or any of the other governments has given Taiwan such a guarantee), this argument assumes that joining the TPP would be a good thing, an assertion that neither the government nor the media seems to question. But not only is the TPP, like the service trade agreement, a “black box” negotiated in secret without the participation of the public or civil society, there are many reasons to suspect that it would not be a good thing to be a part of. Likewise, the Taiwanese government seems to just assume that the TPP is essentially a done deal, completely ignoring the strong opposition in the US. In any case, many of the problems with the cross-strait service trade agreement and the TPP are quite similar: a lack of participation by the public, a noticeable tendency to favor business interests over the public interest, and attempts by the respective governments to rush the agreements through in the face of serious doubts about their potential effects. As citizens, while we may not necessarily have the time or ability to full understand these agreements and their potential consequences, at their very least, we have to put pressure on our governments to allow full participation by civil society in their formulation in order to prevent the possibility of waking up one day to find that without our knowledge, our rights and our environment have be dangerously or even fatally compromised.