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.
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’.
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.
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.