Today the United States released its third National Action Plan (NAP) setting out its latest commitments as a member of the Open Government Partnership (OGP). The OGP is a voluntary initiative in which participating governments agree to certain high-level aspirations to improve transparency and public participation in government, and then individually back up those loose goals with more concrete commitments. A NAP is a set of such commitments for the following two years developed in consultation with civil society.
At least two important areas in which U.S. government transparency could be improved are immediately obvious—national security and trade. Therefore these are among the key areas that a civil society coalition advocated for inclusion in the U.S. government's third NAP. EFF's contribution in particular was about increasing transparency and participation in trade negotiations, such as those over the Trans-Pacific Partnership (TPP), Trans-Atlantic Trade and Investment Partnership (TTIP), and Trade in Services Agreement (TISA). In the civil society model NAP on which we collaborated, we pointed out:
All of these negotiations are being conducted in secrecy. The texts under discussion are confidential, and there has been no public release of text, even in redacted form that eliminates references to specific countries' negotiating positions. … The argument made by the USTR in favor of such secrecy and lack of public participation is that trade agreements have always been negotiated in secret. This may have been a valid argument when trade agreements were confined to the negotiation of mutual reductions in rates of tariffs and subsidies. But today, trade agreements look very different to this, extending to include a wide range of “behind the border” issues, including those that have an impact on the Internet.
We therefore called on the U.S. to adopt new commitments to remedy these deficiencies, which include establishing "minimum benchmarks for transparency and public participation in trade negotiations that cover Internet-related issues," and developing "a policy for the USTR [U.S. Trade Representative] that meets these benchmarks, including timetables for the release of text to the public, and methodologies for the participation of all stakeholders in trade text negotiations."
How does the final NAP stack up against these demands? Rather poorly. The document does at least include trade transparency as an issue for the first time. But the actual measures that it proposes are nothing new, and don't go far enough. The relevant text states, in full:
In September 2015, the Administration appointed a Chief Transparency Officer in the Office of the United States Trade Representative who will take concrete steps to increase transparency in trade negotiations, engage with the public, and consult with Congress on transparency policy. This work builds on previous steps to increase stakeholder engagement with trade negotiators, expand participation in trade advisory committees, and publish more trade information online. To further increase public access to U.S. trade policy and negotiations, the Office of the United States Trade Representative will also continue to promote transparency and public access to international trade disputes in the World Trade Organization and under regional trade agreements, and encourage other countries to similarly increase transparency in this regard. The Office of the United States Trade Representative will also continue to encourage posting video of trade dispute hearings to give the public insight into these processes.
Let's break them down (which won't take long, because there are really only two points). First, the appointment of a Chief Transparency Officer has already happened and hence isn't a new commitment. Since this officer, Timothy Reif, is one of the USTR's own lawyers, it is far from clear that he will have either the authority or the inclination to make major changes to the agency's transparency, such as releasing text proposals to the public as the European Commission has done.
Second, the administration promises to work to increase public access to international trade disputes and to have videos of trade dispute hearings posted online. This is a neat diversion, because nowhere in our model NAP did we talk about the transparency of trade dispute hearings, but of trade negotiations. We fully agree that trade dispute settlement (especially for investor-state disputes) should also be more transparent to the public, but there is after all already an international convention about that, and as yet no equivalent covering the transparency of negotiations.
The administration's failure to address these core issues in its latest NAP is a disappointment, but not a surprise. Despite a growing consensus that the manner in which trade negotiations are being undertaken is significantly out of step with the public's expectations, the USTR again finds itself unable to meet this need for change. Having failed to seize the initiative to self-improve through its OGP commitments, this leaves trade negotiation processes as delegitimized as ever, casting a stain on the TPP, TTIP, and TISA and leaving civil society to pursue alternative avenues to catalyze the necessary changes.