02 January 2016


This is probably the most action-packed update so far, and is a reflection that we are now deep in the TAFTA/TTIP negotiations.  Of course, information about what exactly is happening behind the closed doors is still thin on the ground.  To its credit, the European Commission has recently published its negotiating positions in five areas: chemicals , cosmetics , pharmaceutical products , motor vehicles , textiles and clothing.  Significantly, though, it did not publish its proposals for energy.  That's because they are far more contentious than for those other areas.  How do we know that?  Thanks to some kind person who has leaked a draft negotiating text for that area [.pdf].  Here's how the Sierra Club and PowerShift describe the Commission's moves (they also offer a fuller analysis [.pdf]:

If enacted, the proposal would:

expand fossil fuel exports from the U.S. to the EU,

increase the EU’s reliance on fossil fuel imports,

limit the ability of governments to set the terms of their energy policy, and

restrict the development of local renewable energy programs.

“This proposal exposes the contradiction of policy makers who promise to do everything they can to act on climate and then push a trade and investment agreements that would devastate our climate,” said Peter Fuchs, Executive Director of PowerShift. “Europe should phase out the use of its own fossil fuels -- and it should not be importing fracked gas or any other fossil fuel from the U.S. This proposal is more evidence as to why trade negotiators are holding the details about this deal so close to the vest.”

In part because of the lack of real transparency - for example making all the EU's tabled documents publicly available - some people last week demonstrated peacefully outside a meeting at which both Karel De Gucht, the EU commissioner responsible for TTIP, and the US Ambassador to the EU, Anthony Gardner, were speaking.  Here's what happened:

This Thursday morning over a thousand people were in the streets of Brussels, attempting to peacefully protest against austerity and the proposed great transatlantic market (TTIP) which were being discussed in the absence of citizens at the European Business Summit.

In an unprovoked move 281 people were violently arrested, including Belgian and European parliamentarians and candidates, senior trade union officials, farmers and many elderly citizens.

And this was no genteel response to a genteel demonstration: water cannons were used, and many of those arrested were cable-tied with their hands behind their back.  That's an extraordinarily disproportionate response to a peaceful demonstration, and reveals the extreme nervousness of the authorities. However, it seems likely to backfire: it was precisely this kind of attempt to tough it out that led to the fall of ACTA in 2012.

Street protests by concerned citizens may be only just beginning, but civil organisations are increasingly waking up to the dangers of TTIP and sending warning messages in ever-larger numbers.  Here's one from over 250 groups calling for greater transparency:

"The European Commission has argued that secrecy in this process is inevitable because this is a matter of international relations. However, as these negotiations are highly likely to affect domestic regulations, standards and safeguards on both sides of the Atlantic, citizens have the right to know what is being put up for negotiation, and how decisions are being made.

All negotiating documents must be made public so that a democratic debate can take place. People – not just corporations – must be able to take part in discussions about what kind of economy, environment and future we want. Continued secrecy will only fuel suspicions that the negotiations are trading away citizens' protections for the benefits of powerful industry players."

That's a key point: by its own admission, most of TTIP's possible gains will come in the regulatory sphere; regulations are about want kind of society we want to live - what the rules are.  Changing those behind closed doors is simply subverting basic democratic principles.

Another letter, again from many dozens of organisations, also concerns itself with the regulatory sphere - specifically the possibility that some kind of transatlantic regulatory council will be set up, as discussed in a previous update.  Here's the concern [.pdf]:

The top-down coordination of these measures through an institutional framework for transatlantic regulatory cooperation, we feel, would likely become a significant source of delay and preempt a state, a country, or region’s ability to maintain or establish stronger standards when consumers demand such or to respond to emerging technologies, new scientific information, preferred policies by the public, and urgent crises. One of our main concerns is that regulatory cooperation as suggested by trade negotiators will allow business groups and their lobbyists to exert undue influence in the regulatory process.

With an objective to prevent transatlantic regulatory divergence and minimize impacts to international trade, the preemptive power and influence of this institutional framework for regulatory cooperation is of particular concern.

As proposed, this body is designed to prioritize potential trade impacts over other factors in decision making. Even without a focus on trade-related impacts, cost-benefit analysis can produce unreliable results and may be heavily tilted against the public interest. Proposals to add yet more layers of analysis and governance to the rulemaking process will increase delays and will impede achieving the central mission of most regulators: to protect the public and the environment.

Of course, there's a deep irony here.  One of the declared aims of TTIP is to reduce "trade frictions", so as to boost economies on both sides of the Atlantic.  And yet, as the quoted passage above rightly points out, the regulatory council would "add yet more layers of analysis and governance to the rulemaking process will increase delays" - adding "friction".  That's simply because TTIP is about making things easier for big business, and one way of doing that is to reduce the flow of new health and safety regulations, even though the public would suffer as a result.

The proposed regulatory council is about future convergence; but another suggestion is that "non-tariff barriers" - things like health and safety rules - could be eliminated through the process of mutual recognition.  The argument here is that since no rules would be abolished, there would be no race to the bottom.  To see why that is simply not true, it's helpful to consider the specific case of chemicals:

It might come as a shock to EU voters to learn exactly how weak US laws are when it comes to toxic chemicals, especially when the US’s chief negotiator for the Trans-Atlantic Trade and Investment Partnership (TTIP) has been claiming otherwise.  This unprecedented “trade” agreement is primarily about regulation, and threatens to create new and additional avenues for industry and government to use their influence to stall necessary action on toxic chemicals, climate change, and other critical issues that must be addressed by the EU and global community to protect human health and the environment.

How weak are US laws for toxic chemicals?  Only eleven ingredients are restricted from cosmetics in the US, versus over 1300 in the EU.  Under a law dating back to 1976, US regulators have only been able to restrict the use of merely five of over 60,000 industrial chemicals that were presumed safe when the law was adopted, including asbestos.  Under this law, and despite over a century of substantial evidence of serious adverse effects, US regulators were unable demonstrate sufficient “risk” to justify a ban on the use of asbestos, unlike EU counterparts.  Moving ahead of the US, the EU has started to implement legislation that has the potential to systematically substitute over 1000 toxic chemicals—including those linked to cancer, interference with hormone systems, reproductive harms, and other serious adverse health effects—with safer alternatives in a wide range of everyday products.  The US has no such law.

Mutual recognition of standards for cosmetics would allow some 1289 chemicals banned in Europe as toxic to be used quite legally in US-produced items.  It's easy to see that this would encourage manufacturers to move to the US where they could produce cosmetics subject to less stringent standards, and then sell them to Europe from there.

The text quoted above comes from an article on the EurActiv site, written by Baskut Tuncak, Chemicals Programme Attorney for the Center for International Environmental Law (CIEL).  That same organisation was asked by the US House subcommittee on Commerce, Manufacturing and Trade to provide answers to a variety of questions on TTIP regarding regulatory cooperation, investor-state disputes, confidential business info, and transparency.  The responses may not be for the general audience, but that offer a useful perspective on TTIP and ISDS from a US perspective.  Here, for example, is what CIEL has to say in response to a question on regulatory harmonisation and mutual recognition [.pdf]:

Whether regulatory harmonization or the mutual recognition of standards would diminish the regulatory sovereignty of the United States and the European Union, i.e., constrain the ability of the two entities to promulgate regulations it deems uniquely appropriate for the specific threats to the health and safety of their respective citizens.

Yes, regulatory harmonization or the mutual recognition of standards would diminish the regulatory sovereignty of both the United States and the European Union, both at the highest levels of government and, critically, at the subnational and subregional levels where regulatory innovations most often originate. Negotiators have stated that TTIP would not affect the right of the U.S. and the EU to regulate; however, TTIP would affect the ability of these Parties, including states and Member States, to exercise this right.

The proposed institutional framework for regulatory cooperation would be composed of representatives from both Parties, and cover “any planned and existing regulatory measures of general application” and “extend to regulations by US States and EU Member States.” It would have the unstated power to constrain the ability of the either Party to exercise its right to promulgate regulations it deems uniquely appropriate for the specific threats to the health and safety of their respective citizens. Some of the key elements of this implicit power include:

The use of “harmonization, recognition of equivalence, or mutual recognition” as tools for regulatory "cooperation"...;

The use of “cost-benefit” and “trade impact” analyses for proposed regulatory or legislative initiatives, with a special focus on international trade impacts, to be published with the proposed final measure;

A requirement for “regulatory dialogues,” with trans-Atlantic governments;

The creation of a trans-Atlantic scientific body to guide regulatory decision making ; and

The right of “stakeholders” to table “substantive joint submissions” for this body to consider.

These types of provisions are designed to weaken or delay the development and implementation laws that specifically address priorities of either U.S. or EU citizens that might not be reflected across the Atlantic. For example, the recent decision to abandon the EU’s Fuel Quality Directive, which sought to curb the use of dirty energy sources and encourage renewable, was abandoned due to U.S. government and industry interference over the potential trade-related impacts. An institutional framework would create a permanent avenue for foreign interference with the development and implementation of laws and policies sought by the public in the U.S. or EU to reflect their own values, judgments, circumstances and policy choices.

Although not exactly light reading, it's an impressive document with links to many useful sources.   It's a sign of the increasingly detailed and sophisticated response that organisations like CIEL are putting together as they gird their loins in the by-now intense battle over TTIP.

Full list of previous TTIP Updates.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

No comments: