Too Many Precedents To Refuse To Release TPPA Text, Papers

Press Release – Professor Jane Kelsey

The New Zealand Ministry of Foreign Affairs and Trade claims the negotiating process for the Trans-Pacific Partnership Agreement is following the standard FTA model and there is no precedent for release of the draft texts or negotiating documents. That …

TOO MANY PRECEDENTS TO REFUSE TO RELEASE TPPA TEXT AND PAPERS
Prof Jane Kelsey, School of Law, University of Auckland

The New Zealand Ministry of Foreign Affairs and Trade claims the negotiating process for the Trans-Pacific Partnership Agreement is following the standard FTA model and there is no precedent for release of the draft texts or negotiating documents. That is not true. There are several very relevant precedents where draft texts of trade and investment agreements being negotiated plurilaterally by many of the same countries have been released. In addition, various documents have been released unilaterally by the New Zealand government in the context of the Doha round negotiations at the WTO.

Free Trade Area of the Americas (FTAA)

The closest analogy to the Trans-Pacific free trade negotiations is the multi-party Free Trade Area of the Americas – indeed, the ambition is ultimately to convert the TPPA into a Free Trade Area of the Asia Pacific. In 2001 the 34 participating governments agreed to release the draft text for public scrutiny and debate. The first negotiating text was released in July 2001. This 250-page document was a compendium of inputs from all countries, with square brackets to indicate wording that was not agreed although it did not indicate individual countries’ positions. The text was in all four official languages of the negotiations.

The US Trade Representative Robert Zoellick hailed the decision to release the text, saying, “This is an important step in an international trade negotiation-make [sic] public at such an early stage the text under negotiation [and] we believe that the availability of the text will increase public awareness of and support for the FTAA.” [ http://info.hktdc.com/alert/us0114c.htm ] The Office of the USTR invited comments on the draft text, although the 6-week deadline made any deep analysis problematic.

A second draft text was made public in November 2002 and a third in November 2003.

Multilateral Agreement on Investment (MAI)

Plurilateral negotiations among OECD countries for a Multilateral Agreement on Investment (MAI) began in secret in 1995. There are strong parallels with the investment chapter of the proposed TPPA, with demands from corporations extending far beyond the investor rights that were envisaged in the MAI. A draft bracketed text of the MAI was officially released and posted on the Internet in April 1998, a year after a leak of the text in March 1997 had generated a vigorous informed debate. The leaked text had indicated country positions, which were removed from the official draft. A number of participating governments tabled the document in their parliaments, along with their list of proposed reservations. In New Zealand, the availability of the draft text enabled detailed analysis and discussions with MFAT officials on the meaning and implications of the complex legal provisions.

Anti-Counterfeiting Trade Agreement (ACTA)

The Anti-Counterfeiting Trade Agreement was another highly relevant plurilateral negotiation. ACTA was proposed in 2006 and talks were formally launched in mid-2008, around the same time the US-P4 negotiations began. Three versions of draft texts were leaked between 2008 and 2010, generating in-depth analysis and an international controversy over US-led demands. The parties them agreed to demands from the public and politicians for greater transparency and released an official draft text of the agreement in April 2010. A second draft text was released in October, before the conclusion of negotiations in November of 2010.

As with the MAI, there is a direct parallel between the contact of ACTA and the proposals for the TPPA. Leaks of the proposed IP chapters from the US and New Zealand earlier this year have enabled experts to analyse their relative implications for crucial areas of domestic policy, such as medicine prices, access of materials by libraries and future control of the Internet. These documents have also informed a complaint to the UN Special Rapporteur on Health, which would have been extremely difficult without access to the text itself.

WTO Documents

All TPPA negotiating parties are members of the World Trade Organisation (WTO). The WTO has responded to criticisms about the lack of transparency in its processes by posting a range of documents on its website. [1] These include the minutes of meetings of sectoral and subject committees and sub-committees and formal Member communications. The WTO has also posted various documents relating to the Doha round negotiations, including those produced by the Trade Negotiations Committee, progress reports by chairs of the various sectoral and subject committees, and negotiating drafts on agricultural modalities, non-agriculture market access modalities, rules, including anti-dumping, horizontal subsidies disciplines and fisheries subsidies, and services, including the chair’s text on disciplines on domestic regulation.

Unilateral release of (GATS) 2000 negotiating documents

The General Agreement on Trade in Services (GATS) was one of the package of agreements that resulted from the Uruguay round of GATT negotiations and the creation of the World Trade Organisation in 1995. A new round of negotiations to extend the each Member’s sectoral coverage under the GATS began in 2000 and was incorporated into the Doha round negotiations when they were launched in 2001.

These negotiations generated international demands for transparency as people became concerned about the implications of the GATS for domestic law and policy. This pressure intensified following the leaking of requests that the European Union made of other WTO Members. Subsequently, a number of governments including New Zealand decided unilaterally to make public the schedules of their ‘offers’ of new commitments to other countries.

The New Zealand Ministry of Foreign Affairs and Trade launched a public consultation phase in 2003, which was informed by a summary of requests that other Members made of New Zealand Over 200 submissions were received. The March 2003 Cabinet paper concerning New Zealand’s initial services offer was released under the Official Information Act. The New Zealand government then unilaterally released the initial conditional offer itself, with a 10-page summary and request for further input. The government subsequently posted a summary of its revised offer with the actual text on the MFAT website and a guide on how to read GATS schedules. All these documents were posted on the MFAT website.
12 April 2011

[1] http://www.wto.org/english/tratop_e/dda_e/tnc_e.htm . The WTO website also hosts a number of commentaries and publications, although these rarely contain any critical content.

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