While trade negotiations have long involved some level of secrecy, the Trans-Pacific Partnership (TPP), a proposed regional free trade agreement between the United States and Asia-Pacific partner countries, involves unprecedented levels of work being done behind closed doors. This agreement could curtail crucial activities of state and local governments and would cover profoundly important public policy issues – access to essential medicines, food security, and natural resource management – that deserve extensive public review and discussion. However, intense efforts are being made to block the public from knowing even the most basic content of the agreement.

Background

The Trans-Pacific Partnership Agreement (TPP), also known as the Trans-Pacific Strategic Economic Partnership Agreement, aims to create an expansive free trade zone between the United States and partner countries in the Asia-Pacific region. Conceived in 2003, the proposed agreement builds on an existing free trade agreement between New Zealand, Chile, Singapore, and Brunei Darussalam. The negotiations now include the United States, Australia, Peru, Vietnam, and Malaysia. Several other countries, including Japan, have already expressed interest in joining. President George W. Bush notified Congress of his intention to participate in the TPP negotiations in 2008, and in November 2009, President Obama pledged that the TPP would result in "high standards worthy of a 21st century trade agreement."

Calls for Transparency

Unfortunately, what we have seen so far is the highest standards of secrecy in a 21st century trade agreement. Portions of the agreement have been leaked (despite draconian punishments for such activity), and the cover page of one chapter shows the text of the agreement contains an unprecedented Classification Guidance that would prevent the document from being declassified for "four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations."

At the Chicago round of negotiations in September 2011, TPP negotiators admitted that they had signed a special pact to keep all documents related to these trade talks secret – despite the fact that the World Trade Organization (WTO) and the recently completed Anti-Counterfeiting Trade Agreement (ACTA) have set precedents by releasing draft trade negotiation texts before the agreements were finalized. The main outreach efforts for the TPP have been conducted quietly and have focused on companies and industry groups. Reports on the agreement process indicate that 600 corporate representatives will have access and the opportunity to comment on the trade agreement, while only between 12 and 16 labor and environmental representatives will have a chance to make their voices heard.

As a result of the unprecedented secrecy surrounding the content of these agreements, campaigns have been launched across all the Trans-Pacific countries, including the United States, to educate the public about the potential impacts of this agreement and to demand that governments release the working texts of the trade agreement. In addition, campaigns have asked for the release of the Classification Guidance or the Memorandum of Understanding the negotiating countries signed to establish the restrictive classification.

In February and October 2011, U.S. labor, consumer, faith, environmental, and human rights organizations wrote to U.S. Trade Representative Ron Kirk, requesting that the U.S. government implement the administration’s transparency pledges and release draft negotiating texts. In the letters, groups asked the United States to create a website with other countries and post all documents related to the negotiations, including contact information for key negotiating personnel.

Congressional leaders have also urged the Obama administration to create mechanisms for broad public participation in the process before negotiations move forward. "I firmly believe that the public has a right to monitor and express informed views of proposals of such magnitude as the TPP," stated Sen. Bernie Sanders (I-VT). He further explained, "Without access to actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed."

What's at Risk

If approved, this agreement, like prior international trade agreements, would create legally binding obligations on the U.S. government, which could threaten domestic environmental laws, various other rules and regulations, and constrain the actions of state and local governments.

A myriad of organizations have raised concerns over the substance of the Trans-Pacific Partnership, including how it would affect environmental protections, essential public services, and access to affordable medicines. Leaked portions of the agreement indicate that intellectual property proposals being negotiated could severely restrict access to essential medicines for millions of people in developing countries. Numerous organizations, including Doctors without Borders, have warned that the TPP would make it difficult for countries to ensure access to affordable medicines for their peoples by making it more difficult to bring generic drugs to market. Such provisions could increase the price of medicine globally and endanger millions of people suffering from life-threatening diseases. (For example, generic production of first-generation HIV drugs dropped the annual cost per person from $10,000 in 2000 to around $60 in 2011.)

Sanders has argued that the TPP would threaten the health of vulnerable populations in the U.S., too. He believes the trade agreement could undermine the U.S. Public Health Service Act, which "enables safety-net hospitals and clinics to provide access to low-cost life-saving drugs to millions of low-income and disabled Americans."

Studies have shown that trade agreements have undermined public health protections in a number of countries. For example, a 2007 Oxfam study found that five years after implementing a U.S.-Jordan trade agreement, medicine prices had risen 20 percent in Jordan, without any corresponding benefit in terms of domestic innovation or access to new products. In a 2009 study, the Center for Policy Analysis on Trade and Health concluded that prices for some medicines also rose significantly in Guatemala under provisions in the U.S.-Central America and Dominican Republic (CAFTA-DR) trade agreement.

Public interest organizations argue that investor protections in the TPP could also allow claims that environmental standards in the U. S. and other countries are trade barriers. None of the current environmental provisions have been leaked, but the North American Free Trade Agreement (NAFTA) provides a good example of how environmental safeguards can be put at risk by trade agreements. NAFTA has been used by foreign companies to challenge U.S. environmental laws as "barriers to trade." In 2003, Glamis Gold, a Canadian mining company, used NAFTA provisions to sue the U.S. over California laws protecting the environment and cultural sites sacred to a Native American tribe. Though the United States ultimately won, the case dragged on for six years. As a result of NAFTA, the United States has had to battle corporate lawsuits totaling more than $1 billion.

Investor rights in trade agreements can be used by foreign corporations to challenge federal, state, and local governments over a myriad of issues, such as natural resource management, food labeling, and safety standards. "Investment provisions tend to be designed to give transnational corporations a win-win," explains Baskut Tuncak, an attorney for Center for International Environmental Law (CIEL). Challenges often either successfully lower protection standards or get multimillion dollar judgments from a state. "Either way," Tuncak concludes, "the public loses big."

Next Steps

The 11th round of the TPP negotiations will occur in Australia from Mar. 1-9. The TPP is expected to be finalized at the end of the year. For the TPP agreement to become U.S. law, Congress must pass legislation implementing the agreement. Trade agreements have typically been viewed as agreements, rather than as treaties. As such, they have been approved by a majority vote of each chamber rather than by a two-thirds treaty ratification vote in the Senate.