Openness and the right to participate

July 5, 2013
By Ante

Monday the EU and US will start negotiations on a trade agreement. Today the FFII sent a comment to the EU Commission and the EU Parliament rapporteurs on this agreement, with a focus on openness and the right to participate.

See the PDF version or below.

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FFII Comment on TTIP: Openness and the right to participate

Introduction

The EU and US are negotiating a Transatlantic Trade and Investment Partnership (TTIP) Agreement, also known as Transatlantic Free Trade Agreement (TAFTA). This FFII comment on the agreement has a focus on openness and the right to participate.

We conclude that the negotiations will have to take place as openly as possible and as closely as possible to the citizen. Open negotiations will lead to better results than secretive negotiations. Without openness, essential aspects of regulations – legitimacy, quality and balance – are at stake. Furthermore, we conclude that secrecy of the trade negotiations with the US violates the human right to participate of about 500 million Europeans.

Legitimacy, quality and balance

The trade tariffs between the EU and US are already low, the parties will especially seek regulatory convergence. Legitimacy and quality are essential aspects of regulations. And regulations have to be balanced.

The Treaty on European Union (TEU) provides guidance on how to ensure legitimacy, quality and balance. Article 1 TEU formulates openness as an inextricable characteristic of the EU: “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”.

Article 1 of the TEU implies the Union can not take a path that leads to confidentiality, if a path leading to openness is available. The negotiations will have to take place as openly as possible and as closely as possible to the citizen.

Openness leads to better results

Negotiations in international organisations show that openness is possible. Geist (2012) noted regarding ACTA:

“Yet a closer examination of similar international IP negotiations reveals that ACTA’s opaque approach was not ‘an accepted practice’, but rather was out-of-step with many other global norm-setting exercises. The WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions were all far more open than ACTA.”

Openness is not only possible, it also leads to better results. Geist argues that confidentiality had a negative effect on the quality of the ACTA text:

“The damage created by the lack of transparency extends beyond public distrust of ACTA. The failure to include experts throughout the negotiation process has caused significant damage to the substance of the agreement with numerous legal concerns as a result. (…) While the public concern over these provisions appears to have resulted in changes to the ACTA text, the lack of transparency associated the negotiations meant that these cases constituted the rare instance of public feedback having an impact on the final text. Had the negotiations followed more conventional global norms, it is much more likely that the final text would better account for the remaining substantive concerns.”

Flynn (2013) compares the secrecy of ACTA (“dead on arrival”) with the openness of the negotiations on the WIPO treaty for the visually impaired. In the latter case, there were ongoing releases of draft negotiating documents, WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear break rooms where negotiators were working on specific issues. The openness led to the Miracle In Marrakesh. (Saez, 2013)

Discrimination leads to biased results

On the US side, KEI (2013) notes that several hundred “cleared advisors” have special privileges as regard access to the text, and that the current advisory board system focuses too much on big corporate interests, and provides almost no input from consumer and public interest groups.

KEI: “Without the text being publicly made available, it is almost impossible to provide appropriate feedback for the very proposals that will affect the general public the most. When negotiations are kept secret, the general public is denied access to important information and also denied the opportunity to effectively engage in the democratic process. The general public should not be forced to rely on leaks in order to access the text. Leaks are not a reliable or predictable source of information, and people should not have to risk jail terms or career ending sanctions just to enable to broader public debate. (…) The precise working of the provisions, references to other documents or international instruments, and cross­references throughout the text are vitally important to fully understanding the impacts of the agreement as a whole. Oral briefings, without benefit of the actual text, are therefore inadequate sources of information. The U.S. government is now ignoring the expertise of the plethora of individuals who specialize in particular areas.”

The EU also has a system of advisors with special privileges as regard access to texts. For instance, in the context of the EU – India trade agreement, the Commission created an advisory committee to assist it in the identification of barriers to market access in India. The committee is composed of representatives of the Member States and chaired by the representative of the Commission. Representatives of trade associations or companies were involved in this process and participated, as experts, in the work of the advisory committee and of working groups established on the basis of sector-specific expertise. The Commission denied Stichting Corporate Europe Observatory access to texts distributed among trade associations and companies. The General Court (2013) in Luxembourg allowed this discrimination, and failed to provide useful guidance that could have been found in TEU articles 1, 9 and 10(3).

Identification of barriers to market access is important, but it is only one aspect of regulatory convergence. In the case of India, the EU just tries to impose it rules on India. That will not be possible in the trade negotiations with the US. In these negotiations, legitimacy, quality and balance of regulations are at stake.

If the Commission creates an advisory committee like in the case of the EU – India negotiations, the EU will discriminate against its citizens, and create a real risk that the negotiations will lead to a biased result. If the EU does not create such a committee, the US will be better organised, and multinationals will have access to information from the US. This too creates a real risk on a biased result.

If the Commission creates an advisory committee, it will have to open it for consumer and public interest groups. But then the negotiations will still not take place as openly as possible and as closely as possible to the citizen.

Openness is necessary, possible and leads to better results. A human rights analysis leads to the same conclusion.

Participation is a human right

All EU member states have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). The EU’s obligation to respect, protect and fulfil the human rights enshrined in the ICESCR results from the constitutional traditions common to the Member States (article 6(3) TEU).

This was confirmed by the EU Court of Justice’s case law; in the case C-73/08 Bressol and Others, the Court gave a judgement on an alleged conflict between the Treaty on the functioning of the European Union and the ICESCR.

Citizens have a right to participate. Everyone has the right “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)” of the International Covenant on Economic, Social and Cultural Rights, according to the UN Committee on Economic, Social and Cultural Rights, in its authoritative General comment No. 21. (ECOSOC, 2009)

In an answer to a European Parliament question regarding this human right, the Commission (2013) states that it attaches great importance to economic, social and cultural rights, and refers to article 11 TEU. But the Commission’s structured dialogue with civil society is seen by civil society as a waste of time, as there is only superficial information available. These meetings are neither informative, nor is this process without discrimination, as we saw above that trade associations and companies, or at least multinationals, receive more information.

Furthermore, the Commission disregards article 4 ICESCR. States may limit ICESCR rights, but only under three cumulative conditions as defined in Article 4 ICESCR:

“The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”

The EU meets the first condition, with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents the EU limits access to documents by law. But the secrecy of trade negotiations is not compatible with the human right to participate. Nor is the secrecy solely for the purpose of promoting the general welfare in a democratic society – we saw above that openness is possible and leads to better results.

We conclude that the secrecy of the trade negotiations with the US is not compatible with the ICESCR, and thus violates the human rights of about 500 million Europeans.

References

Commission, 2013, Answer to Question on EU-US trade agreement and obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2013-003301&language=EN

ECOSOC, 2009, Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, http://www2.ohchr.org/english/bodies/cescr/comments.htm

Flynn, 2013, WIPO Treaty for the Blind Shows that Transparency Can Work (and is Necessary) http://infojustice.org/archives/30027

Geist, 2012, The Trouble with ACTA: An Analysis of the Anti-Counterfeiting Trade Agreement, European Parliament Policy Department DG External Policies, http://www.europarl.europa.eu/committees/nl/studiesdownload.html?languageDocument=EN&file=73311

General Court, 7 June 2013, Case T‑93/11, Stichting Corporate Europe Observatory versus European Commission http://curia.europa.eu/juris/document/document.jsf?text=&docid=138132&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=665977

KEI, 2013, Comments on the Administration’s Intention to Enter Into Negotiations for the Transatlantic Trade and Investment Partnership (TTIP) Agreement http://keionline.org/node/1718

Saez, 2013, Miracle In Marrakesh: “Historic” Treaty For Visually Impaired Agreed http://www.ip-watch.org/2013/06/26/miracle-in-marrakesh-historic-treaty-for-visually-impaired-agreed/

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