May 22, 2017

The Error of Fast Tracking the Trans-Pacific Partnership Agreement

National media reported yesterday that a Congressional agreement has been reached on so-called “fast track” authority for the Trans-Pacific Partnership Agreement (TPP). This international agreement, having been negotiated under extreme secrecy by 12 countries including the United States, Australia, Canada, Japan, Malaysia and Singapore, is supposed to be an “ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. economic priorities and values.” Indeed, if it comes into effect, it will be the largest such agreement in history, covering some 800 million people. Unfortunately, its chances of meeting that laudable goal have been severely diminished by the aforementioned secrecy.

In theory, “fast track” authority should allow the President to more thoroughly and forcefully negotiate trade agreements with other governments by streamlining the domestic political process. By eliminating much of Congress’s review and amendment process that could force the TPP negotiators back to the table, “trade promotion authority” allows for complex international trade agreements to receive a swift and decisive Congressional sign-off. However, because the TPP has been negotiated largely in secret, with only a precious few outside the government (almost exclusively representing the entertainment and pharmaceutical industries) privy to its text, fast track will have the effect of eliminating the last possibility for anyone outside the above select few to change the contours of the agreement. That’s a significant concern, as the TPP (based upon leaks) covers issues ranging from access to medicine to liability for linking to allegedly copyright-infringing content on the Internet. Democracy deserves better.

To be sure, even without fast track, the chances of realistically being able to change the TPP once it hits Congress would be slim. Requiring negotiators to go back to the table after the TPP text is agreed upon in international negotiations is a significant undertaking that would be discouraged. But with fast track in place, the chances of offering any meaningful amendments to the final text are near zero. As a result, the moment that TPP’s negotiators announce that they have a final text will also be the effective end of the opportunity for small businesses, labor, civil society groups, and even the general public to impact the provisions of the agreement. Their only play will be to oppose TPP outright (which, in fairness, some may do regardless of how TPP was negotiated).

The very secrecy around TPP could be its undoing, as it was with the failed Anti-Counterfeiting Trade Agreement. Therefore, it is well past the time that the negotiators should make the text public. If it isn’t released, and soon, “fast track” could become a fast track to failure of this multi-year negotiating process – which, depending on the terms of the agreement, could be the right result.

Comments

  1. Rentalic says:

    It would be difficult if the agreement failed to the multi year negotiating process.

  2. Anonymous Coward says:

    While perhaps correct in argument, this post does not obviously connect to me to the main topic of the blog. Perhaps you could clarify the issues or potential issues at stake with respect to digital technologies?

  3. Anonymous, the TPP may cover a range of issues relevant to FtT’s readers, including amplified copyright law (which could lead to liability for linking to infringing websites or engaging in security research) and patent protections (causing increased ownership of ideas and access to medicine issues). A limited fair use defense could curtail criticism and analysis. Moreover, if trade secret law is strengthened, the ability to share information that would otherwise be public could be curtailed. However, all of this is speculative since I’ve never seen an official text.