The Trans-Pacific Partnership (TPP)

Introduction

A note on the text

In January 2017, the United States pulled out of negotiations for the Trans-Pacific Partnership (TPP). Without its involvement, it is highly unlikely – perhaps impossible – that the agreement will come to fruition in any recognisable form.

In spite of this, we think the below case study, examining the experience of digital rights groups engaging in the TPP negotiations, still offers valuable guidance and insight for human rights defenders interested in getting involved in future trade agreements, as well as other internet-related public policy debates.

Dates

The Trans Pacific Partnership (TPP) negotiations began on 15 March 2010 and concluded on 5 October 2015. During this time there were 19 formal negotiation rounds and over 20 issue-specific meetings of ministers and chief negotiators.

Type of mechanism

The TPP process would have been the largest plurilateral trade agreement in history outside of the World Trade Organization (WTO). Because of its inclusion of rules on e-commerce, it was characterised as a ‘21st Century trade agreement’.

Background

The TPP was framed as a means of increasing trade liberalisation, following the failure of the Doha round of the WTO negotiations.

In 2005, Brunei, Chile, New Zealand and Singapore (the Pacific 4 or P4) signed a free trade agreement called the Trans-Pacific Strategic Economic Partnership Agreement. In 2008, the US began talks of trade liberalisation with the P4 countries; Australia, Peru and Vietnam soon followed suit, initiating negotiations around what was now called the Trans Pacific Partnership (TPP). Malaysia, Canada, Mexico and ultimately Japan joined at different stages of the process.

The agreement was highly controversial from its inception. The wide scope of its provisions, covering everything from labour rights to intellectual property, mobilised human rights defenders from a range of communities – including those working on digital rights.

Structure and decisionmaking processes

Unlike the WTO, the TPP process had no central body. Most of the negotiations between the 12 member countries took place in ‘negotiation rooms’, corresponding to specific issue areas. Advisory committees – 28 in total – advised the US Trade Representative (USTR) on issues relevant to their area of expertise. In most cases, negotiations were based on a draft chapter provided by the United States; though on some occasions, other parties tabled part of a chapter as an alternative to a US proposal.

Each chapter of the treaty was negotiated individually by negotiators with specific expertise on the issue area in question. Due to the complexity of the issues under negotiation, negotiators often consulted with their staff advisors, as well as informally with members of the public and advocacy networks. Each country had its own process for engaging with members of civil society and the private sector. Only advisors who were registered with the country’s government by signing non-disclosure agreements could access the text to provide advice. The agreement was designed as an “all or nothing”, single undertaking; in other words, “nothing agreed until everything is agreed”.

Negotiations took place entirely behind closed doors. Country positions and intentions were not initially released formally to the public, although some parties – including the US Trade Representative – started to release their positions in later stages of the negotiations.

Remit

The TPP set out to establish a free-trade zone between its 12 signatory parties, by establishing binding agreements on a range of trade and more loosely defined “trade-related issues” – including trade in goods, customs, sanitation, investment, e-commerce, intellectual property, labour, the environment, exceptions, dispute settlement and barriers to trade.

What was at stake

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The TPP negotiations were marked by sustained opposition from human rights defenders working across a wide range of policy areas. From a digital rights perspective, the key areas of concern included:

  • Intellectual property. The chapter on intellectual property chapter was identified as particularly problematic, because it would have enacted longer copyright terms for some of the states party to the agreement, and introduced intermediary liability rules which could have made it easier for private stakeholders with rights to protected copyright, trademark or patent (or ‘rights holders’) to remove content from the internet. This was flagged as a potential risk for freedom of speech.
  • Rules around trade secrets. Also of concern were new, expansive rules on trade secrets, which could have criminalised mere unauthorised access to confidential information through a computer system – potentially enabling the prosecution of whistleblowers, journalists, and others.
  • Investor-state disputes. Another concern broadly shared by opponents of the TPP related to the investment chapter, which proposed to grant private companies the right to bring lawsuits against a government for adopting rules or policies that detracted from the expected value of the company’s investments. These so-called investor-state disputes (ISDs) would be heard by a body of international arbitrators, whose decisions could overrule the highest courts of signatory countries. Many criticised this for being undemocratic, and for bestowing excessive power on private companies.
  • Broader struggles for transparency and participation. Some critics argued that countries party to the TPP were seeking to use the agreement to rush through measures that had been stalled in more inclusive, democratic forums. In this respect, the TPP was seen as symbolic of a broader democratic deficit and lack of transparency in political systems and structures around the world.

Challenges for civil society engagement

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  • High cost of participation. The negotiation process consisted of around 40 meetings spanning almost all of the 12 member countries, with dates and locations  provided at very short notice. This – combined with the need for sustained advocacy through several rounds of negotiations, and the complexity of the structures and issues involved in the negotiations – put direct engagement in TPP out of the reach of most civil society organisations.
  • Limited opportunities for input. For those civil society actors who could attend, little time was allotted for direct engagement with negotiators. Some advocates spent much of the five years of TPP negotiations waiting in lobbies for the chance to speak to negotiators during their coffee or lunch breaks.
  • Secretive nature of negotiations. For those rare human rights defenders with the resources to attend negotiation rounds, the required knowledge and expertise to establish a meaningful rapport with negotiators, and the good fortune to actually gain a hearing, a further challenge presented itself: secrecy. Because civil society actors were not allowed to know anything whatsoever about the draft text of the agreement, they were often unable to offer useful, relevant information to negotiators, even on issues where they had expertise. This was heavily criticised by advocacy groups, who pointed to forums such as the World Intellectual Property Organization (WIPO), where treaties are negotiated with more transparency. Many advocacy groups, such as Derechos Digitales in Chile, filed formal requests to their governments seeking access to the text, and were denied.

What happened

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Despite the constraints listed above, civil society actors used methods both inside and outside the formal negotiation process to seek to influence the final text.

The more ‘insider’ civil society groups – in addition to presenting at designated spaces for civil society input (‘stakeholder days’) – also sought meetings with negotiators in restaurants, cafes and lobbies near the negotiations, with the aim of influencing text on specific issues.

In parallel, civil society actors on the periphery of the negotiations – ‘outsiders’ – deployed a variety of advocacy strategies to build awareness among the wider public and media on the threats posed to human rights by the negotiations, and to pressure negotiators into engaging with insider civil society groups. Their tactics included protests, demonstrations, blogging, engaging with local media, digital sign-on campaigns aimed at the public, sign-on letters aimed at industry experts, lobbying of domestic politicians, and community organising.

Given the secrecy of the process, leaked drafts of the text played a crucial role in civil society’s engagement in the TPP. They enabled insider civil society groups to discern the views and positions of specific parties within the negotiations and tailor their advocacy efforts accordingly, as well as giving outsider groups useful fodder for analysis and awareness raising. On a few occasions, a chapter was leaked more than once, allowing civil society to observe how the language of the text was evolving, and offering a way to roughly measure  the success of their efforts.

Civil society organisations from the global South benefited by coordinating with civil society from the global North, and vice versa. For example, the US-based Open Society Foundations allowed Knowledge Ecology International (KEI) to manage a travel fund which was used to cover the travel cost of sending advocates from various countries to negotiation rounds. KEI directed the grants to key players from several countries who did not have the resources to attend.

And Open Media, a Canadian non-profit advocating for open communication systems, created an alliance of organisations called Our Fair Deal. Members used the coalition to share information, expertise and resources, connect ‘insider’ and ‘outsider’ groups and different skill sets, and deploy innovative advocacy activities – such as inviting the public to participate in a crowdsourced chapter proposal for the TPP. In Chile, a Digital Rights advocacy organisation called Derechos Digitales created a similar coalition called TPP Abierto.

While coalitions like Our Fair Deal and TPP Abierto were mostly public and outward-facing, the work of unannounced coalitions was equally important. These typically comprised ‘veterans’ of the digital rights field, and were coordinated on the backend of a website, an invite-only Google Doc, or a weekly phone call.

Outcomes

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  • A more transparent process. The creation of a designated space for civil society input – ‘stakeholder days’ – was a significant procedural change won by civil society. While many questioned the effectiveness of this process, particularly since civil society couldn’t access the drafts under negotiation, it was clearly an example of civil society demanding, and being granted, more space for participation. Another attempt to include public interest voices in the TPP – the suggested creation of a Public Interest Trade Advisory Committee (PITAC) – never came to fruition, but could also be taken as evidence of an increasing acknowledgement of the importance of transparency.
  • Broader and deeper civil society networks. Grants from large foundations allowed civil society to create programs and host events around negotiating rounds overseas. New transnational links were formed among organisations and actors interested in similar issues. Existing networks were deepened through increased cooperation and resource sharing. Some members of civil society who were specifically focused on the TPP joined forces with academics and occasionally politicians. In some instances, advocacy networks held weekly calls, and communicated in private online groups to coordinate their lobbying and public campaigning. In their shared desire for increased participation and transparency, advocacy groups were able to look past their differences to share knowledge, information and even in some cases fundingThe five years of negotiations also enabled some civil society insiders to form close, trusting relationships with negotiators – who would then sometimes come to them for advice.
  • Potential shift in norms around trade agreements. The ultimate failure of the TPP, due in part to the impact of civil society advocacy on public sentiment around the deal, may have wider ramifications for future trade agreements. From now on, parties will likely be required to seriously consider the transparency and inclusiveness of their negotiation practices, and to more critically review the most controversial provisions of such agreements, such as investor-state dispute settlement provisions.
  • Possible influence on wording of the final text. While the secrecy of the negotiations makes it impossible to uncover a direct causal pathway to outcomes on specific issues, first-hand accounts from public interest lobbyists note specific changes in the leaked drafts which are consistent with their recommendations with negotiators. For example, at one stage of the negotiations, the original US text proposal to extend copyright protection to temporary copies in computer memory was dropped; a development consistent and coincidental with civil society advocacy.

Lessons learned

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  • Where opportunities for input don’t exist, civil society actors can carve out their own. While some critics questioned the effectiveness of the stakeholder days process, the fact that it was established, following pressure from civil society, shows that there is a certain malleability inherent in preferential trade agreement negotiations, which can be productively leveraged by civil society. While trade specialists and negotiators sign up to general procedural guidelines at the outset of negotiations, the rules of each treaty negotiation can shift and evolve with pressure.
  • Relationship building is key. The advocacy groups who had the resources to send representatives to negotiation rounds were probably in the best position to impact the final text of the trade agreement. All methods of advocacy are useful, but in the context of trade negotiations, building a direct relationship with the negotiators proved crucial – giving actors a means of bypassing official layers of secrecy, which were so profound that even parliamentarians, courts and national transparency councils had their formal requests for information denied.
  • Transnational advocacy networks are a valuable tool. Some of the same concerns around human rights raised during the TPP process had already been raised in the negotiations of the Stop Online Piracy Act (SOPA), Protect IP Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA), and many advocates working on IP and e-commerce issues in the TPP had existing relationships from these prior forums. Domestic organisations can also benefit from coordinating with foreign organisations, which creates opportunities for resource sharing and strategic amplification. Derechos Digitales is an example of a Chilean NGO that both assisted US and Canadian organisations, and directly benefited from international networking.

Acknowledgments

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This text was authored by Austin Ruckstuhl on the basis of academic research and observations. A special thanks goes to Jeremy Malcolm (EFF) and Burcu Kilic (Public Citizen) who provided feedback. It was edited by Global Partners Digital.