April fool–but secrecy in Trans Pacific trade negotiations is no joke

I was working away on my computer late last Saturday night, March 31, when suddenly this dramatic report from New Zealand came across on my e-mail:

“End to Secrecy and Release of Draft TPP Text Hailed as ‘Triumph for Democracy.’  The nine parties to the Trans-Pacific Partnership agreement (TPPA) negotiations have made a dramatic and unexpected u-turn, agreeing to lift the veil of secrecy on their draft texts and background documents.  Critics of the obsessive secrecy that surrounds the negotiations hailed the decision as a triumph for democracy.”

I was overjoyed.  Back in October of last year, Friends of the Earth joined 20 other civil society groups to call for an end to secrecy regarding the negotiating text of the Trans-Pacific Partnership, a trade pact that would be the largest since the North American Free Trade Agreement and would impact everything from the environment to workers’ rights to consumer safety to access to medicines. Bringing these negotiations into the light of day is critical because any meaningful public debate on the TPP’s potential environmental and other consequences requires access to the details in the draft language of the agreement.

Friends of the Earth knows for sure that the U.S. Trade Representative is demanding a NAFTA-style investment chapter.  This would authorize big oil, mining multi-nationals and other global investors to circumvent domestic courts and sue governments before business-friendly tribunals. Companies could seek millions in money damages from governments as compensation for complying with environmental and other regulations designed to protect the public interest.

We know much less about the proposed language for many of the other 25 chapters of the TPP.  For example, environmentalists need to confirm the details of an unprecedented “regulatory coherence” chapter of the TPP.  Leaks from the negotiations suggest it could include encourage cost-benefit analysis of environmental policies, threatening regulatory measures in areas such as genetically modified life forms, which can pose serious but not easily quantifiable risks to public health and the planet.  Other chapters of the TPP could put at risk green standards for public purchasing, efforts to block dirty energy projects such as oil drilling and coal mining, environmental labeling of consumer products, at-the-border regulations related to food safety, feed-in tariffs for renewable energy and the list goes on.

So Saturday night, I was eager to get my hands on the draft text of the TPP agreement.  But guess what?  April Fools!  The press release was a joke. The negotiating text for the TPP was not going to be released.  But, the point of the jokester is well made: if there is nothing to hide, why all the secrecy?

I should have known and so should have a few other advocates and media outlets that were also momentarily fooled. I should have realized that while it was March 31 on the U.S. east coast, it was April 1 in New Zealand. And, if I had read the news report with a more critical eye, immediate questions should have come to mind about some of the language — like the claim that the text was being released in order to observe “the Dracula principle” and  let the sunlight shine on the negotiations. Only someone who believes that bringing the draft text into the light of day would kill the Trans Pacific Partnership deal would use such an analogy.

The back-story here is that the nine countries initially participating in the TPP negotiations, Australia, New Zealand, Singapore, Brunei, Vietnam, Chile, Peru, Malaysia and the United States, apparently signed a confidentiality agreement in 2010.  This secrecy pledge would presumably apply to Japan, Mexico, Canada or any other country that is seriously considering joining the TPP talks.

Given the confidentiality agreement, the TPP text, at least in the United States, is secret to all except “cleared advisors.” Under the U.S. system of trade advisory committees, over 600 official “cleared” trade advisors, most of whom represent corporations or industry groups, are allowed full access to read, comment on and suggest revisions to negotiating text, while promising not to leak it to the public.  Fewer than 40 of the cleared trade advisors come from outside the corporate community: most are representatives of state and local governments who sit on one advisory committee and union representatives who sit on another.

At the same time, the public, the press, most environmental and civil society groups, and even most members of Congress are largely left uninformed.  The rationale for this secrecy can perhaps be found in the grandiose ambitions of the TPP and similar agreements.

Modern trade agreements such as the TPP no longer exclusively regulate “trade policy” as the phrase  is understood in common sense terms — meaning customs, tariffs and policies that discriminate against foreign imports at the border.  Ever since NAFTA and the World Trade Organization agreement were adopted in the early 1990s, such international pacts have focused on so-called “non-tariff barriers to trade”: in other words, governmental measures such as business regulations, taxes, economic development policies and intrusions on corporate “property rights.”

The underlying theory, which might be described as market fundamentalism, appears to be that the most significant barrier to expansion of international trade is government.  So, modern trade agreements put all sorts of restrictions on the ability of governments to enforce laws and regulations intended to protect the public – the types of policies that ensure farmers can sustain their livelihoods, that people can access essential medicines and that corporations clean up their toxic pollution. Market values, too often, trump public interest concerns including the environment.

How can governments negotiating the TPP justify a system in which major decisions about domestic public policy, including environmental policy, are made in secret?  And, how can they explain why corporate representatives are on the inside guiding the negotiation of the agreement, while the rest of us are on the outside and in the dark? There can be no good defense – except the self-interested one that you don’t want your citizens to have a chance to debate what’s on the line.

Maybe it is time to adopt “the Dracula principle” for the TPP and other trade negotiations.

By Bill Waren 4/3/2012