A Lesson from ACTA: Pro-Free Traders Need to be Pro-Transparency
The Anti-Counterfeiting Trade Agreement (ACTA) suffered from and ultimately failed because of the perception that it was restricting laws of domestic import through a secret process. Unless TTIP negotiators learn from this experience and open up negotiations to the public, as they have already done for many corporate advisors, any potential agreement that comes out of the process is likely to be seen as illegitimate and met with skepticism and rejection.
As the 7th Round of TTIP negotiations take place behind closed doors in Chevy Chase, Maryland, it is an opportune time to ask what proponents of a successful TTIP should learn from the latest failed trade agreement involving the US and Europe – ACTA.
ACTA was a plurilateral treaty negotiation between the EU, US, Japan and seven other countries between 2006 and 2010. The process was significantly marred by the (accurate) public perception that the treaty was setting new international legal rules restricting domestic intellectual property laws through an unprecedentedly secret process. Negotiation rounds were held in undisclosed locations and the text of proposals was not shared with the general public until the final days of the negotiation. Public access to ACTA texts was served by leaks for much of the process, until the EU parliament overwhelmingly demanded increased transparency, after which point negotiators released four public texts in the final 12 months.
The promotion of some transparency in the substance of the ACTA negotiation was too late. Although the public releases enabled some previously excluded stakeholders to read and criticize the agreement – leading to changes – the harm was already done. The agreement was effectively (and accurately) branded as an invidious secret law making process on matters of critical domestic import. After the text was finalized, hundreds of thousands of people marched across Europe in civil society led protests. Numerous parliaments across Europe, including the EU Parliament in an overwhelming vote, rejected ratification of the Agreement. The US President refused to submit the agreement to Congress. To date, only Japan has formally accepted the treaty through a ratification process – leaving it a dead letter.
What TTIP supporters should take from ACTA is the lesson that successful trade agreements (ones that can be ratified in the political process) require more open processes. The goal should be to negotiate the terms of international law that restricts domestic regulatory choices under similar processes as countries would follow in international organizations like the World Intellectual Property Organization (WIPO) or in domestic legislative or administrative rule making processes.
The core element of legitimate law making processes is that the public can gain access to proposals for legal change as they are formally considered. WIPO posts treaty text on the web. Legislators have public hearings and committee marks ups. Administrative agencies have notice and comment processes for proposed rules. These kinds of basic sharing of information about what legal changes are proposed before they are enacted are a minimum core of legitimate democratic process.
Unfortunately, there continues to be resistance to embracing minimum conditions for democratic legitimacy of trade negotiations. The US Trade Representative has reportedly rejected proposals to share text of TTIP proposals with the governments of European countries, much less their citizens. EU trade officials have been similarly mum on any proposals for TTIP to adhere to the standards for textual releases required by the EU Parliament of ACTA negotiation.
There are signs that some things are changing in the EU. The EU Court of Justice recently ruled that the EU Commission could not enforce blanket refusals to publicly release international negotiation documents to the public until the end of a negotiation. The Court admonished: "the public interest in the transparency of the decision-making process would become meaningless if, as the Commission proposes, it were to be taken into account only in those cases where the decision-making process has come to an end."
There have also been prominent European voices in favor of increased transparency in the TTIP specifically. German Economic Affairs Minister Sigmar Gabriel has stated forcefully that "confidential negotiations can and should not be allowed in democratic countries." President of the European Parliament Martin Schulz has similarly declared that "whoever wants to win greater trust must make the contents of negotiations public."
But these words have not yet been followed with concerted action to change the TTIP process. As the negotiators meet in a tony Washington suburb for the next round, they will do their work behind closed doors again and will not release the product of their work. At the end of the week, there will be an uncomfortable meeting with the chief ministers, with the press explicitly disinvited, where the negotiators will refuse to answer any substantive question about what TTIP might include. The public images of the treaty will be of the young protesters outside demanding to know what is going on inside. And people around the world will continue to feel that those protesters have a point. If there is nothing to hide – then why is everyone hiding?
The first step toward a successful TTIP should be to open it up. The US and EU could and should share with their general public, through a regulatory notice and comment procedure, the same proposals for new international law that are shared with hundreds of corporate advisors sworn to secrecy. Let public interest groups, academics, and the general public see what is being proposed. Most of the text will be mind-numbingly boring and will engender little controversy. If some proposals are controversial – let them be aired and the provisions removed if their backers cannot win a public debate. It is, after all, law that is being made here.
Only with such basic openness will people begin to accept that their interests are not being threatened by the process, which will better enable the final product to be accepted. And so those in favor of the TTIP should the loudest voices in favor of opening it up.
Sean Flynn, JD, is Associate Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law. He also blogs at infojustice.org.
This article was published in the first of three theme weeks for our project "TTIP: Myths vs Reality". An introduction of the articles for the week can be found here, and introductions of the other two weeks can be found at the top of the TTIP Forum.