GCIP15 Day 2: Fixing the problems in Trade Negotiations

The post was published by SpicyIP on December 17, 2015. The panel was conducted under the Chatham House rules, and hence no attribution has been made for the content herein.

One of the oft-repeated propositions in various panels in the GCIP, and even outside it, has been that the international trade negotiation process, particularly those leading up to agreements like the Trans-Pacific Partnership (‘TPP’), are broken. They are broken in many ways – they are overbroad, undemocratic, negotiated in secrecy, the list goes on. The theme discussed by this Panel was therefore how can the civil society fix this? (Check our Twitter feed for some of the most interesting bits of the conversation!). The behemoth of trade negotiations has, from the ACTA days, grown even bigger, and this conversation is part of figuring out how to deal with it.

Trade agreements, their name would imply, should deal with ‘trade’. But the first speaker noted that international trade negotiations nowadays involve far more than ‘trade’ alone. They spread into issues we would rarely have associated with ‘trade’ earlier, with new – and surprising – issues being included in every new trade agreement that comes to light. Moreover, trade agreements and their negotiations are becoming less inclusive, with their negotiation processes being shrouded in increasing levels of confidentiality.

The speaker attributes these failures of international trade negotiations to multiple causes, at both the domestic and geopolitical levels. The national level causes include the disconnection between trade agencies from other countries, a tendency to mission creep, revolving door policies and policy laundering. At the global level, causes include post-War architectures of global governance and international negotiations, the limitations of the options available to the US due to the actions of BRICS.

The speaker proposed multiple ideas to deal with these issues, including using governments’ own documents, statements, and promises, and holding them accountable when they breach these promises with trade agreements, or the creation of international standards to regulate such activities. The standards under the latter could require higher transparency and institute standards for participation in negotiation, or could be addressed in a white paper detailing the problems with trade negotiations. Other recommendations along this line included tabling alternative proposals for global rulemaking from organisations such as the IGF, human right impact assessments of trade agreements, and non-binding human rights based recommendations.

The most interesting idea, though, was that of ‘Idea Rating Sheets’, to be used to propose, comment on, and of course ‘rate’ ideas to facilitate collaboration among civil society participants.

Finally, the speaker argued that the civil society cannot deal with this issue alone, but needs the support of authoritative global institutions. The civil society has the tools it needs, but needs to apply them in effective ways.

Taking the point forward, the second speaker noted aptly the movement from the awe at the ‘democratising’ effect of the internet that captured the world’s imagination early in its life to today, where we create ‘artificial barriers’ in access to information on the internet. This, I would note, ironically results in position where the internet was more conducive to providing information to more people when it had far less information and was far less pervasive than than it is today.

The speaker called the TPP a sophisticated method of blocking and criminalising ‘access’ at all levels. If you’re on the list of the limited negotiators that pluri-lateral treaties have nowadays, it is negotiated with the mindset of ‘if you sign this agreement, you can gain all of ‘this’’, but if you don’t sign or if you aren’t on the list, you will suffer.

Secrecy of Negotiations

And these negotiations are, of course, secret. This ‘secrecy by default’ issue puts civil society in a weaker position, with big gaps in the information that they receive. On the issue of secrecy, the speaker raised some very interesting questions. Specifically, how limited is the civil society’s access that not only can we not access the proceedings, but even what the negotiators are basing their positions on? Moreover, how does a trade negotiator has more access than the Parliament itself? Where are the checks and balances on the Executive here? And while secrecy seems to be paramount, corporations do have access.

The next speaker, in very crucial contrast, spoke of why it is that negotiators engage in such secrecy. The speaker first pointed out that some documents as old as even the Uruguay rounds are still kept confidential, even though they are stored on obsolete media and are possibly being corrupted.

The speaker stated that international trade negotiations are different from other negotiations on one crucial count – these negotiations, more than the others, are about dollars and cents. If a State has everything to lose and nothing to gain, it will simply walk away. But, clearly, they stay because they have enough to gain. Moreover, reaching a consesus is really very, very difficult – and ‘consensus’ is a requirement for WTO agreements. Every country in a negotiation has some bottom line/red line that they won’t cross, and they, of course, don’t want to show them, just as in a game of poker. So, the speaker explains, secrecy becomes paramount.

Interestingly enough, it was pointed out that this secrecy is actually more important for smaller countries, as while you can kind of guess the bottom lines with the US or the EU, the red liens of smaller players are unpredictable.

Thus, and this was widened to cover all negotiations, while live, transparent coverage of such negotiations might be ideal from the perspective of the civil society, that is not going to happen. Most of the time, simply because the governments don’t want you to see what they’re doing, and negotiations become much more difficult if they’re open for everyone to comment on.

Whom Should Civil Society Target?

The speaker stated that the best way out for civil society would be to influence the key players, the few governments who actually make a difference, who can and will take as stand. In a democracy, that should be entirely possible.

This, however, was highly contested in the discussion following the panel. The example of WIPO was brought up in this context, with a speaker noting that even though it started off as a closed, hostile organisation, it is now one of the most open, transparent organisations we have.

It was also argued that for a good negotiator, transparency is key, even though they don’t share what their final decision or thoughts on the topic are. Countering the speakers argument, it was stated while it’s true that everybody sits to gain something, it’s not necessary that they sit down to gain what they are supposed to gain – which might be the cause for the lack of transparency.

The next speakers stated that in order to influence trade negotiations at all, you absolutely and persistently have to be there, have to be present. The modus operandi of the industry is that comes with lots of reports, numbers – their approach is not necessarily right, but it is appealing. Plus, as was discussed in the questions sessions, the ease-of-access of visual aids means that they are taken up quickly by multiple people engaged with the process, and slowly become ubiquitous. As compared to that, for the civil society, you raise your concerns once, twice, but then you don’t have anything new, and the people you are trying to convince lose interest. And that is what the civil society has to learn to compete with. Finally, the speaker noted – very validly, if I might add – that FTAs are the reality of international rulemaking, and we have to find a way to live with that.

Need to Obtain Relevant Information

The final speaker disagreed with the previous speaker to a certain extent, stating that the solution lies in remote monitoring of activities and crowdsourcing movements. The speaker noted that the civil society is usually called in at 4AM, after the deals are made and the fat cats are fed.

The second speaker stated that we need to figure start by asking the right questions – ‘who (is involved), when (is any event happening, to prepare in advance), what are their interests?’, and so on. The speaker recommended that we map relations beyond trade talks alone, involving journalists, coordinating regionally. The street-level politics that worked with ACTA are no longer enough – we need to overwhelm the systems of the government and negotiators and ask them about all the information that we can.

Moreover, the speaker stressed the importance and necessity of whistleblowers, noting that the few things we know and the scandals that have been caused have been caused by whistleblowers. When there is a leak, a journalism-friendly report should be released within 24 hours. Finally, the speaker stressed the idea of strategic and creative litigation to bring these issue up in the Courts.

In the final discussions, the participants noted the importance of multiple levels of awareness and engagement. One participant specifically noted that it is important to engage with parliamentarians and legislators – but we must first figure out who has the right levels of access – and journalists.