The full text of the Trans Pacific Partnership became public Thursday, and there's a lot we still don't know about it. This deal isn't really about lowering tariffs, after all — much more importantly, it's the rulebook for trade across a giant region, and 2,000 pages of dense legalese can hide a lot of stuff. We don't yet have a comprehensive overview of how the agreement would change global commerce, but we did go looking for answers on a few issues that have been particular bones of contention for public interest groups, which until Thursday were mostly hypothetical, and have since become concrete. Here's what we know so far.
To companies that sell creative content — from record labels to drug makers — it's very important to ensure that their intellectual property won't simply get copied and resold when they sell it abroad. Those companies won strong protections in this deal, many of them replicating U.S. laws, which were already quite accommodating.
For example: Party nations agreed to protect copyright for 70 years beyond the death of the author, and trademarks for a total period of 10 years. The agreement criminalizes the circumvention of "digital rights management" software, and requires countries to allow their law enforcement authorities to destroy infringing goods.
The agreement does commit parties to "endeavor to achieve balance" in their copyright protection regimes, giving "due consideration" to uses such as news reporting and commentary. But while acknowledging some improvement from earlier drafts, groups like Fight for the Future and the Electronic Frontier Foundation found these and other provisions — such as legal "safe harbors" for Internet service providers that take down copyright-infringing material — to be excessively protective of copyright, at the expense of the public's ability to share and repurpose content.
The chapter also protects a newer kind of pharmaceutical called "biologics" for five to eight years. That's less than what the drug industry had sought, on the grounds that companies need a long period of exclusivity in order to cover the high cost of research; Senate Finance Committee Chairman Orrin Hatch (R-Utah) is so unhappy about it that he thinks the deal might have to be negotiated. But it's much higher than what groups advocating access to medical care wanted. For that reason, they fear the agreement "will deepen the global crisis of exorbitant drug prices here in the United States as well as abroad," said Judit Rius, of Doctors Without Borders.
2. Investor-State Dispute Settlement (ISDS)
This provision, which allows companies to sue foreign governments in an international court for violations of their rights to equal treatment under the agreement, became a flashpoint in congressional debate over the summer. Critics worried that it would chill governments' attempts to pass laws that might negatively impact the return on a corporation's investment.
The U.S. Trade Representative says the final draft made some improvements, including making the ISDS proceedings accessible to the public, allowing courts to quickly throw out frivolous claims, and ensuring that damage to a company's expected returns doesn't in and of itself constitute a violation of the agreement. It also includes a provision that protects governments' ability to regulate in the interest of health, safety, and the environment.
Lise Johnson, head of investment law and policy at the Columbia Center for Sustainable Investment, isn't impressed. She says the protections on regulating in the public interest are undermined by a clause saying those laws must be "otherwise consistent with" the rest of the investment chapter, and that even considering damage to expected investor returns as a relevant consideration in dispute settlement increases government liability relative to the rules under the North American Free Trade Agreement.
"The fundamental concern still exists that ISDS is a mechanism that generally allows disproportionate deregulatory pressure to be put on a government, and can sideline domestic concerns in developing and defining domestic law," Johnson says.
Also, while the agreement excludes tobacco products from the ISDS process, some advocates think that's only proof that it's dangerous for public health and the environment. "If a carveout exists for tobacco, why shouldn’t it exist for environmental policies?" asks Ilana Solomon, director of the Sierra Club's Responsible Trade Program. "It’s not sufficient to carve out one sector and leave exposure to risks in so many others."
The agreement extends commitments made in some of the U.S.' most recent trade deals to all countries in the TPP, including a requirement that their domestic laws allow labor unions to form and freely operate, eliminate forced and child labor, and prohibit employment discrimination.
In addition, the U.S. has negotiated side agreements with Vietnam, Malaysia, and Brunei that spell out exactly which laws need to change before the TPP goes into effect in order to achieve those goals, and what resources must be committed to enforce them. There are some important advances, such as a prohibition against weakening labor protections in "special economic zones" around export facilities. The Malaysia agreement also provides that outsourcing and subcontracting — which has undermined the effectiveness of previous labor chapters — not be used to evade new requirements.
Labor and human rights groups acknowledge the language all sounds nice on paper, but they're still concerned that the provisions won't be enforced. Although this chapter is subject to the same dispute settlement mechanisms available for the rest of the chapters, and the U.S. Trade Representative's fact sheet promises that the U.S. "will not hesitate to take action against any country that fails to live up to their obligations in the labor chapter," there's no guarantee that party nations will invest time and money into policing their neighbors if there isn't a strong commercial interest in doing so. Labor rights cases in previous agreements have taken years to build and adjudicate, which is why labor unions had pressed for provisions that would give workers the same rights that investors have to sue governments themselves for failing to uphold the agreement.
"There’s no stick or carrot hanging over these countries to make them show progress on trafficking or forced labor," says John Sifton, Asia advocacy director for Human Rights Watch. "It’s good that Malaysia’s going to fix this problematic law. But then you realize if they don’t do it, nothing’s going to happen."
Similar to the labor chapter, the environmental provisions of TPP appear an improvement upon previous trade agreements, but their effectiveness likely will depend on vigorous enforcement.
Fundamentally, the agreement requires parties to uphold pre-existing international agreements protecting endangered flora and fauna. It also provides for countries to stop subsidizing illegal fishing activity, promotes trade in environmental goods and services, and commits parties to combating the illegal wildlife trade. "It’s an important tool that can be used to enhance and augment other tools to try and address the problem,” U.S. Trade Representative Michael Froman told National Geographic, which has an in-depth dissection of the chapter.
But in contrast to many of the chapters taking down barriers to trade, the language in the environmental provisions is overwhelmingly vague, with lots of clauses like "shall endeavor to," "may include," and "recognize the importance" of various priorities. Even the availability of trade sanctions may not prove very effective in enforcement of such unspecific commitments. "The environment chapter is weak and fails to provide the necessary requirements and stronger penalties desperately needed to better fight poaching, protect wildlife habitat and shut down the illegal wildlife trade," said Defenders of Wildlife CEO Jamie Rappaport Clark.
In addition, even some groups that generally support the deal — such as the World Wildlife Fund — are concerned that the text does not explicitly mention climate change. The closest it comes is a couple paragraphs committing parties to "engage in cooperative and capacity-building activities related to transitioning to a low emissions economy." Although climate change is being addressed through other fora, environmental groups are disappointed that the TPP doesn't do more to support those efforts.
5. Currency
Prior to the TPP's conclusion, labor unions, domestic manufacturers, and lawmakers from production-heavy states had demanded that the agreement prohibit countries — most importantly Japan — from devaluing their currencies in order to make their exports cheaper. The White House pushed back, saying it was addressing the problem through bilateral pressure, and that binding commitments could constrain the U.S.' control over its own money supply.
In the end, the TPP parties did sign a separate agreement promising that they wouldn't manipulate their currencies for commercial advantage, and committed to publishing information about their exchange rates and foreign reserves. So now, if a country does try to devalue its currency, at least it will be easier to find out.
This article has been updated to reference some environmental groups that support the Trans-Pacific Partnership.