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Fixing Trade Agreements In Five Simple Steps

Trade experts agree that without five simple fixes, Americans will continue to reject new trade deals, just as they rejected the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP). No new trade deals means surrendering global economic leadership to America's competitors, which will destroy American jobs and hold back our world-leading innovative industries.

How can America restore public confidence in trade, and stop the next trade deal going the way of ACTA and TPP?

Five Simple Steps

EFF and OpenTheGovernment.org convened a meeting of American trade experts in January 2017 to ask what they would do to fix future trade agreements, and here is what they came up with:

1. Publish U.S. textual proposals on rules in ongoing international trade negotiations

USTR should immediately make available on its website the textual proposals related to rules that it has already tabled to its negotiating partners in the context of the TTIP, TiSA, and any other bilateral, regional, or multilateral trade and investment negotiations it undertakes.

Why? Because it's already a global best practice, adopted by the European Commission for its trade negotiations since 2014... and it's what citizens expect. Failing to publish text also fuels leaks, which allows the leaker to control the media narrative.

2. Publish consolidated texts after each round of ongoing negotiations

USTR should impose as a prerequisite to any new or continuing trade negotiations that all parties agree to publish consolidated draft texts on rules after each negotiating round, including negotiations conducted on the entire agreement or a specific element or chapter and among trade ministers or other officials of every party to such negotiations or of a subgroup of the parties to such negotiations.

Why? It's good practice, and many similar international negotiating bodies already do it. For example, copyright rules are dealt with both in trade negotiations, and at the World Intellectual Property Organization (WIPO). But only at WIPO are the texts open to public review. By no coincidence, the last successfully concluded copyright treaties were WIPO's.

3. Appoint a "transparency officer" who does not have structural conflicts of interest in promoting transparency at the agency

USTR should immediately appoint a transparency officer who does not have any structural conflicts of interest in promoting transparency at the agency.

Why? Because the current Transparency Officer at the U.S. Trade Representative (USTR) is its own General Counsel. He is expected to defend the office's current practices around transparency, at the same time as reforming those practices. This is an impossible ask, which points to the need for an independent officeholder.

4. Open up textual proposals to a notice and comment and public hearing process

USTR should initiate on-the-record public notice and comment and public hearing processes—at least equivalent to that normally required for other public rulemaking processes—at relevant points during the generation of government positions.

Why? Because the USTR, and even the Trade Advisory Committees, currently lack the broad perspective needed to catch potential problems with proposed trade rules. For example, their recommendations on keeping software source code secret completely disregarded the contrary views of 260 U.S. and international cybersecurity experts.

5. Make Trade Advisory Committees more broadly inclusive

If proposed U.S. texts and draft texts from negotiations are made publicly available, the main official advantage of the Trade Advisory Committee system – access to that information – would disappear. However, if Trade Advisory Committees are to be retained in addition to public notice and comment and public hearing processes, then resources must be devoted to making membership and effective participation in these committees more accessible to all affected stakeholder groups, including non-industry groups.

Why? Because participation in the existing Industry Trade Advisory Committees (ITAC) is slanted towards certain legacy industries, and strict confidentiality rules ensure that most public interest groups cannot participate. For example, there are no public interest representatives on ITAC 8 on Information and Communications Technologies, Services, and Electronic Commerce.

Resources

If you are interested in digging deeper, we have lots more background information on why and how trade agreements should be reformed.

Questions? Ask Us.

Despite our opposition to the secretive trade agreements of the past, EFF isn't against free trade. We would like to see future trade agreements that work for Internet users and innovators, as well as for traditional trade stakeholders. If your efforts might be part of making that happen—even if you're still skeptical—we want to hear from you to talk about it. Call Jeremy Malcolm at +1 415 436 9333, extension 161, or email trade@eff.org.

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