TTIP transparency debated at Yale

Over
the last years, NSA spying revelations and anxieties over the “Pivot
to Asia” have cast a new shadow over the transatlantic relationship. In
response, US and EU policymakers are attempting to forge a comprehensive
Transatlantic Trade and Investment Partnership (or TTIP), which promises to
deepen trade and jumpstart the transatlantic economy. But to its seemingly
rising chorus of opponents, TTIP is an attempt by the powers-that-be to impose
a neoliberal agenda on Europe through the back door of opaque negotiations and
shadowy private courts.

The
participants of the European Students Conference (ESC) at Yale that took place
in February 2015 took stock of the debate and came to their own conclusions, seeing
TTIP as a unique opportunity to dramatically boost Europe’s economy while
upholding Europe’s commitments to transparency and regulation. What
follows is the first of two student presentations on their sub-theme’s
findings: here, Fil Lekkas argues that while the degree of formal transparency
is now both radical and sufficient, a truly effective TTIP debate requires
stronger efforts from the European Commission to engage with the public and
national constituencies.

ESC
formal conclusions can be accessed at the website of European Horizons, the
think tank founded at the conference, but the following text deepens and
contextualizes the positions taken. For more arguments—on ISDS, transatlantic
energy markets, and more—visit the conference homepage. The European Students
Conference was financially supported by the EU through the Erasmus+ program.

Since
it began negotiating the Transatlantic Trade and Investment Partnership (TTIP),
the European Commission has weathered immense criticism over the alleged opacity
with which it has conducted those talks. With nine rounds of negotiations now
behind them, accusations of secrecy continue to sound from what seems like
every corner. The Corporate Europe Observatory’s Pia Eberhardt, in an article
published last week in Politico.eu, suggested that the "so-called transparency initiative for TTIP” is "nothing but hot air”,
echoing criticisms heard within weeks of the start of negotiations.

But it
seems to the attendees of the European Students Conference at Yale that these
criticisms, probably valid at the beginning of the negotiating process, have
long since been overtaken by events—to Europe’s collective credit. Under the leadership
of new EU Commissioner for Trade Cecilia Malmström, the TTIP negotiation
process has profoundly changed tone: in November 2014, she took the brave step
of releasing to the public a slew of negotiation documents, including Europe’s
negotiating positions on all issues under discussion.

This
means that almost every document the EU has presented to its American
counterparts in the negotiations has also been made public, a decision that is
only infrequently acknowledged as entirely without precedent. And immense
efforts have been made to make this content as accessible as possible on the
European commission’s websites, with summaries and fact-sheets written in a
language anyone conversant in English can understand—even as the public shows
itself less interested in actually reading the documents than demanding they be
available, with the documents pertaining to hygienic standards in food being downloaded at the paltry rate of 87 clicks
per day in the two months following their release.

This
leaves only one remaining category of documents unreleased: positions papers
jointly drafted by the US and the EU in the course of the negotiations, known
as the consolidated negotiating texts. The European Commission has secured
access to these documents for members of the European Parliament and their national
counterparts, giving them state-of-play insights into the negotiations and
therefore allowing them to communicate reservations or enthusiasm about the
terms of the agreement immediately to their negotiating representatives.
Unilaterally releasing these texts to the public, while demanded by
transparency advocates, is not a prerogative of either negotiating party, and
so far has proved unacceptable to the American side. The European Ombudsman,
Emily O’Reilly, has criticized the EU’s apparent willingness to rest their case
without too much fuss: but she too seems to acknowledge that short of “interrogating”
the US position, there’s not that much that the European Commission could do.

And
even beyond the rhetoric of transparency, it seems unclear how tremendous
the discourse benefits of releasing these joint texts over the position papers
will be. While a draft final text experienced in the flesh could prompt a
stronger political response than the EU position papers have, since any final
text released in a year or so’s time that deviates too far from the position
papers already released will be roundly castigated as an immense failure on the
part of the European Commission and negotiating team—and those in the EP and
elsewhere who already have access to them—releasing the joint texts is unlikely
to be anywhere near as transformational to public debate as the currently
released documents have been.

Transparency and democracy

And
transformational the current documents have undoubtedly been. By dragging into
the limelight issues that had been left undiscussed in past free trade
negotiations, like Investor-State Dispute Settlement (ISDS) clauses, and
reaffirming European commitments to precaution in regulation, they are sparking
a vigorous debate about what sort of agreement Europe needs. More
interestingly, this public debate has already had high-level political
consequences: see the edits made to the European position paper on regulation
of cosmetics, where an earlier call for mutual recognition of standards was
reduced to "collaboration in scientific safety assessment methods.” The
European Consumer Organization’s Director General Monique Goyens, quoted by
EurActiv, attributes this edit to a European Commission which responded by
“acknowledging and acting” on concerns brought by public interest
organizations. This would categorically have been impossible had the Commission not opted for "access to documents
and engagement with civil society."

ISDS
has been the issue that has seen the most criticism—and generated the most responsiveness
from the European Commission. In response to an online public consultation concluded in July 2014, in which
over 150,000 people lodged (largely copy-pasted) concerns about ISDS, the
Commission suspended negotiations on the chapters pertaining to investor
protections with the stated objectives of finding a solution palatable to the offended parties in the interim. Cecilia Malmström’s
recent suggestion that ISDS could be watered down or replaced by a more
accountable international court shows that the European Commission, while not
necessarily thrilled by the prospect of being monitored this closely by the
public, is willing to play ball. It seems safe to
conclude that the release of documents, accelerated by organizational power of
social media, has clearing impacted on the negotiating process—and from there,
that European democracy has a pulse.

Even a
cynic has reasons to believe that the European Commission is taking these
concerns seriously. If this Commission has shown itself to be more responsive
than Commissions past, it’s probably in part due to lessons learnt from the
sudden death in 2007 of the Anti-Counterfeiting Trade Agreement, or ACTA. Then,
a negotiating process widely criticized as opaque generated a groundswell of
opposition to the treaty and ultimately led to ACTA’s resounding defeat in the European Parliament. Since the
negotiating team and its political minders know that a sufficiently harsh
public reaction harnessed in the same manner would spell the end of years of
their work, they have an interest in gauging what concessions are and aren’t
politically palatable—and for that, reading the responses of MEPs,
interest groups, and the public to the EU’s assumed positions is critical.

That
the public will ultimately have the last word should certainly be a source of
relief, but not of contentment. Yes, the directly elected European Parliament
would be able to vote down the proposed treaty, and the Council, composed of
the members of national cabinets, would also exercise a veto. But unfortunately
these institutional safeguards alone aren’t entirely sufficient: European
voters, few of them that make themselves heard every so many years, have only
one vote with which to hold their MEP’s accountable on a variety of issues, and
the disincentive of returning back to the negotiating table would make it
difficult for MEPs to vote down even a suboptimal agreement.

And it
is in this crucial aspect that ACTA and TTIP differ—while the best that an
anti-counterfeiting treaty could have done for Europe was to better protect
intellectual property and encourage cultural innovation, a free trade deal like
TTIP could dramatically boost economic growth. Hence the importance of a
vigorous debate before the text is presented—clear red lines drawn by the EP
would inoculate Europe from a fait accompli.

But
European democracy should not rest on the meager laurels of being able to
reject a proposal. Real democracies give representatives and the
public the ability to take control of and reform laws, and Cecilia Malmström’s
about face on ISDS shows that this could be the case for TTIP.

Europe’s
voters, especially in the south, are eager for any base point of growth they
can squeeze out of a deal, though they too want it to be fair, safe, and
sustainable. For their sakes those worried by aspects of TTIP should be wary of
reflexively rejecting a deal that seems bad at first glance, and should instead
take up the harder but nobler task of fixing it.

Serious,
thorough journalism will be critical in making this a possibility, and so good
on platforms like the Guardian and this publication here for bringing many of
TTIP’s original offenses to the public’s attention. But in a world where
thousands of people in Berlin, Brussels, and Madrid protested against TTIP in
late April, maybe its time to nod approvingly in the direction of the
Berlaymont, as awkwardly unpracticed at doing so as some might feel.

Encouragingly,
at a debate hosted by the Guardian, a large fraction of Guardian readers who entered
the debate as TTIP opponents indicated that they’d be open to supporting the
treaty if ISDS were taken out. While its unclear if that solution is the best
deal Europe could get, it is encouraging that a public engaged in an open
debate and given real choices about what kind of agreement it wants could potentially
be convinced of TTIP’s general benefits. In that spirit, if Habermas called the
continent wide protests over the US’ decision to invade Iraq the “signal for the birth of a European public”, then maybe the rejection of
ACTA was its teething period; and hopefully reforming TTIP will be its first
steps.

The
road ahead

Another
reason to start focusing on the substance of what is being discussed is that we
might be short on time. With tariffs having been eclipsed by barriers to market
access as the single largest impediment to global trade, encouraging global
trade by reducing those barriers while also maintaining the high level of
consumer protection that Europeans expect demands a good amount of public
scrutiny. Worryingly, this may be more scrutiny than the European Commission
has budgeted time for. An aggressive timeline of a handful of years for the
conclusion of negotiations on such a potentially high-impact topic seem overly
optimistic; especially as the 2016 US presidential elections draw nearer and
Obama has had to resort to name-calling to successfully push through
trade-promotion authority for TTIP’s Asian cousin TPP, higher on the US
priority list than even TTIP.

But
most importantly, accepting a longer timeline would allow the debate to run
deeper and wider, allowing the final text to better reflect the interests of
the public. Alternatively, surgically excising the question of investor
protections from TTIP’s mandate and shooting for a less comprehensive and
correspondingly less controversial deal whose benefits can be felt right away,
as proposed by the ECFR in a recent report, might be the right way to
go—but in both cases, lets not be overhasty about making sure the public’s
voice has been heard.

This
is especially true if the trade agreement proposed has consequences for policy
areas legally the prerogative of member states. Though trade is negotiated
exclusively by the European Commission, especially broad and ambitious treaties
sometimes need approval from national parliaments—and if nations aren’t closely
involved in the negotiation process early enough, the odds of a single national
veto derailing TTIP increase. Given that TTIP seems likely to be such a “mixed
agreement”, our sub-theme proposes that national parliaments be involved to the
same degree that the European Parliament is, with greater access to the reading
room and more prominent roles in consultative meetings.

And
though they’re surely mystified by the tenor and temperature of the public
backlash, more needs to be done by the European Commission, notoriously
inexperienced in the touchy-feely aspects of public diplomacy, to stimulate a
healthy debate. Maybe throwing its employees into the ring would help: letting
trade negotiators just zip around the Brussels and DC circuits adds to this
feeling of faceless oppression, and having seen him engage with a roomful of
European and American college students, I’m confident Ignacio Garcia-Bercero could deliver just fine on
national television. With the furor over TTIP being what it is, a frequent
obstacle to coverage—that networks can’t afford to let alternately saccharine
and tepid European politicians eat up valuable airtime—shouldn’t be as
intractable as its usually is.

But
sadly, even if all this is done, the reality is that TTIP would rouse the
suspicion of certain political constituencies no matter what degree of formal
transparency the European Commission elects to uphold. See for example Green
MEP Molly Scott Cato’s February op-ed in the Guardian, which railed
against the degree of opacity without as much as acknowledging any of the
transparency innovations mentioned above. That does an immense disservice to those
members of the public who’d prefer that their representatives engage fairly and
constructively. At least Scott Cato concedes that she’d always oppose a vision
of “uniformity” and “order” constituted by TTIP, transparency or
no transparency.

This
matters: there are grounds on which to oppose TTIP that don’t needlessly
inflame the rhetoric of those more sophisticated eurosceptics who slur the EU
as a den of opacity and despotism.

In
conclusion: works remains to be done on the transparency front, but—in a
curious riff off Europe's theme of the last five years—credit needs to be given
where credit is due. The debate now needs to slowly move away from grumbling
about the degree of transparency, and turn to substantive issues, such as the challenge
of common regulatory standards.