A group of law professors has written a letter criticizing the lack of transparency in the TPP negotiations. Here's an excerpt:
Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. Democratic values demand that, at minimum, the promulgation of such restrictions on domestic law making processes afford the full range of participatory inputs as similar initiatives at the domestic level.
Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e. publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. Yet, we only know these things because the highly secretive law making process USTR established, including a ban on the release of all negotiation proposals until four years AFTER the conclusion of the agreement, has failed to prevent the US proposals from leaking to the public.
The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. We would never create US law or regulation through such a biased and closed process.
Let me say a couple things here:
- I agree that the expansion of "trade" agreements far beyond traditional issues of protectionism creates a lot of problems and concerns in relation to transparency in trade negotiations.
- I think domestic policy-making is somewhat of a mixed bag in terms of opportunities for participatory input. Sometimes the public has an important say in laws and regulations, but other times things just happen and it's not really clear why.
- Giving special access to US proposals to members of ITAC seems like a bad idea, for many reasons, in terms of both the substantive result and the perception it creates.