Analysis of the Situation after the Conclusion of the Negotiations for a TPP Agreement
By Leif Johan Eliasson*
While many European interest groups and national governments have been obsessing about the Transatlantic Trade and Investment Partnership (TTIP) since 2013, the American debate has focused predominantly on the Transpacific Partnership (TPP). Now that negotiations on TPP have been completed one could expect Americans to pay greater attention to TTIP. Conversely, TPP’s conclusion puts pressure on the EU to engage on TTIP in order not to lose out on shaping and benefitting from free trade deals (FTAs) reshaping the global trading system. However, reality is more complicated, and there is no guarantee that finalizing TPP negotiations unequivocally ensure progress on the larger and more technically challenging TTIP. Among the most important questions to consider when pondering this issue is the timing and uncertainty of the ratification of TPP, the precarious nature of support for trade in the US, the geopolitical implications of a completed TPP, and the desire for consistency and compatibility in chapter and sector specific agreements across TPP and TTIP (given the much greater focus on regulations in TTIP), Furthermore, one must also consider the steadfast opposition to TTIP amongst certain European interest groups and parties; objections only indirectly tied to TPP, and where the completed negotiations are unlikely to alter opponents’ positions.
I. The ratification of TPP
There are numerous hurdles, in several countries. Though not constitutionally required to do so, former Canadian PM Harper has committed to allowing a parliamentary vote of ratification on TPP, newly elected Prime Minister Trudeau has vowed to ‘scrutinize every part of TPP’ as his Liberal Party, though inherently pro-trade, is wary of the agreement. Japanese domestic opposition is growing in the wake of tightening of the rule-of-origin requirements on auto parts during the last throws of negotiations in order to gain approval from other countries. In the US the Trade Promotion Authority Act signed by President Obama includes detailed requirements for any FTA where negotiations conclude prior to 1 July, 2018. The President must wait 90 days after announcing his intention to sign an agreement, during which time the text is made public, public debate ensues, and consultations on the text occur between the Administration and Congress. Other actors such as the USTR advisory committee on TPP (and later TTIP) will also issue their recommendations. Though US chief negotiator Michael Froman insists TPP cannot be reopened because that threatens a delicate multilateral balance achieved in TPP, and that the agreed text will be that which is sent to Congress, the administration may need to approach treaty-partners and require modifications of the agreement in order to increase the likelihood of Congressional approval; demands for further concessions forced reopening of the last three FTAs signed by the US. After a deal is signed the Administration has 60 days to prepare a list of all US domestic laws which need alteration because of the FTA, and the U.S. International Trade Commission has 105 days to analyze the FTA’s impact on the US economy. When the final implementing legislation for the FTA is introduced in Congress the House has 60 days and the Senate 30 days to hold a vote.
President Obama will need bipartisan support since the far-flanks of both parties oppose FTAs generally, and both TPP and TTIP in particular. The Democratic Party candidates are tripping over each other opposing the deal; two leading Republican contenders (Trump, Huckabee) have also expressed serious doubts. Interestingly, a majority of Democratic voters support trade with developed countries, as long as there are strong labor provisions, and they support TTIP, whereas the leadership remains skeptical or opposed. The Republicans are equally divided, with a strong faction of Republicans (primarily protectionist, tea-party supporters) opposed to trade agreements. Thus you have the interesting coalition of far-left (trade unions) and far-right protectionists arguing for a common cause, albeit, ostensibly, for different reasons. Populist slogans by isolationist Republicans and union-backed Democrats reinforce such beliefs – even though every ratified agreement, on the whole, has benefitted the US economy. But even influential Republican trade advocates in Congress, like Senator Orrin Hatch and Representative Paul Ryan, have expressed serious concerns since the deal was announced. Absent their support TPP faces a nearly insurmountable path. We should expect a very contentious domestic debate as the ratification process overlaps with the 2016 US presidential campaign.
Perhaps surprisingly, there is much less detail known about TPP (the text will be released mid-November) than TTIP, since none of the participants have released negotiating texts, and leaks have been minimal. Although the 700 American advisers with access to the TPP text were briefed in a day long presentation on 14 October the release of the completed TPP text may still cause problems for ratification. We may see numerous American interest groups joining trade unions – the AFL/CIO launched its largest ever lobbying campaign in an attempt to defeat TPA and the completion of TPP, and remains determined to stop ratification – in opposing ratification in response to sector-specific concessions made by the US administration. While the particular issues of Congressional concern may differ (adherence to labor and environmental standards will not be an issue vis-à-vis Europe) most of the aforementioned legal and political hurdles apply also to TTIP. The possible exception being the debate on TTIP ratification during the presidential race, as it remains highly unlikely that even a skeleton TTIP text will be finalized by August 2016 (when Congress recesses for the election)
II. The precarious nature of support for trade agreements in the US
One, perhaps contrarian, way in which a rapid ratification and implementation of TPP may help TTIP is that American support for free trade tends to correlate with good economic times; support sunk during the financial crisis when Americans expressed concerns of being personally worse off due to international trade. In 2002 78 % of Americans thought trade was a good thing; by 2008 it was 53%, while two-thirds expressed support for trade in 2010, as the recovery took hold. When the recovery stalled in 2014 only 57% of Americans viewed trade as an economic opportunity, while 35% saw trade as a threat to jobs, and only 29% believed trade was good for them personally. Most difficult when trying to promote trade agreements is that only one in five believe trade creates jobs and 17% believe they raise wages; two-thirds are convinced that a purchase of an American company by foreigners is bad. Myths about NAFTA and KORUS causing job losses and negative trade balances help explain citizens’ and unions’ lingering resistance to trade agreements. Nevertheless, if TPP is ratified in 2016, the anticipation of immediate tariff removals on some products, easier investment regulations, and future tariff reductions and tariff-rate quota increases could help spur economic growth, rendering Americans more supportive of trade deals while countering opposition arguments of a negative impact on jobs and the economy.
III. The geopolitical implications of a completed TPP
American growth will also help European exports, but more importantly, the geopolitical reality of shifting tides towards Asia will only be reinforced with TPP. This should help focus European minds on whether they wish to set the terms and principles guiding China’s continued integration and participation in the global economy. As part of the American pivot to Asia TPP will serve to expand American presence and solidify a western-originating, rules-based, international trading system. China has built its economic success on entering and slowly adapting to this system – but with modifications away from key elements, such as copyright and patent protection, rule of law and dispute settlement for investors, labor laws, and product safety. The Chinese leadership is increasingly concerned with being sidelined and subjected to standards set by its economic rivals through agreements such as the TPP, TTIP, and the Trade in Services Agreement (TiSA). During the global financial crisis China showed some willingness to assume responsibility for international stability, engaging in the G20, refraining from new protectionism, and increasing the float of its currency – even if the latter was subsequently tightened. Nonetheless, China’s questionable adherence to international agreements is evidenced by WTO dispute panel rulings, especially on autos and parts, and neither the US nor the EU are today independently capable of convincing China to open markets, reject protectionism, cease discriminatory practices, and protect intellectual property. As another example, more than half of American and 60% of European recalls in 2013 were Chinese products.
China’s growing trade with both the US and Europe attests to their interests in “engaging China, not isolating it… [and] TTIP, TPP and related initiatives are important instruments to help frame Beijing’s choices…there is no denying that TTIP and related initiatives are injecting new movement and energy into efforts to open markets and strengthen global rules.” TPP is the first step of ensuring higher quality products entering signatories’ markets, and a TTIP would further ensure that two-thirds of the global market place is covered by compatible, higher quality standards, and lower tariffs. Chinese exporters will then have to comply with western based standards, while exporters to China adhering to these standards will be so numerous as to constitute a second level of external pressure on the Chinese authorities to improve domestic rules and regulations. Stated differently, producing lower quality products only for the Chinese market will no longer be viable. Large companies such as Samsung have welcomed unified standards across the Atlantic, but if TTIP fails may go with Chinese standards as the single largest market A completed TTP followed by a comprehensive TTIP signals western unity on an open international system, with high standards across all sectors.
IV. Consistency and compatibility across TPP and TTIP
The stalemate in the World Trade Organization means trade liberalization globally is occurring through megaregional and large bilateral agreements. There is a desire for consistency and compatibility in chapter and sector specific agreements across TPP and TTIP; though the latter will focus much more on regulatory compatibility vis-à-vis greater emphasis on market access and tariffs in TPP (Pascal Lamy, the former head of the World Trade Organization, called TPP “the last of big old-style trade agreements”). Many of the technical, regulatory, and tariff details of TPP (as they emerge) will likely be matched or exceeded in TTIP. According to reports, in the important area of automotive vehicles TPP includes two different methods and percentages for calculating Rule-of-Origin for finished vehicles and parts. One of each matches the EU-Korean (KOREU) and US-Korean (KORUS) agreements, resulting in a further global vehicle harmonization; TTIP will undoubtedly incorporate the same methods. KOREU and KORUS, as well as the EU-Canadian FTA (CETA), exclude the most “contentious” agricultural products from complete tariff elimination, including beef, pork, rice, and dairy. The same applies in TPP, cementing global standards based on reasons of “serious domestic interests,” while virtually guaranteeing an identical outcome in TTIP.
A major obstacle to pork and beef exports (in addition to tariffs) in both TPP and TTIP appears to be resolving itself. The American National Pork Board is urging members to consider whether the benefits of using ractopamine (a muscle-producing drug banned in over 160 countries) outweigh the costs of lost market shares. With increased anti-biotic, hormone free pork and beef voluntarily produced in the US, and the higher quota for tariff-free imports of such meat expected in TPP, TTIP negotiators may find a way to satisfy US Congressional concerns, the American farm lobby, and EU citizen groups and policy makers opposed to conventional American meat products by reducing tariffs and significantly raising the tariff rate quota to where American ranchers could export as much antibiotic and hormone free beef and pork the European market demands.
Progress on TTIP is largely premised on progress in two areas: geographical indicators (GIs; trademarks in the US) and an investor-state dispute settlement mechanism (ISDS). Both these are included in TPP, and depending on the exact language following “legal scrubbing” (lawyers cleaning up the text) may push TTIP negotiations in the same direction. According to leaked documents and analysis of the Intellectual Property Chapter of TPP “GIs protected under a trademark regime can be used for extension of protection in TPP Parties. [GIs] can be a sign or combination of signs, not merely a word or – even more specifically – a geographic place name…the TPP language ensures that Parties must extend protection to GIs [which] may incorporate or consist solely of designs or other source-identifying signs”, and there are detailed provisions for challenging infringements of GIs. The language should fall close to what Europeans desire for TTIP, but GIs have heretofore proven so contentious negotiators have not even broached the issue in a serious fashion.
The EU Commission’s September 2015 proposal for a new permanent investor-state court has thus far upset everyone and satisfied no one. It was summarily dismissed by American policy makers and businesses, as well as European Business, as a proposal which will “…effectively exclude smaller companies and lead to endless appeals and erode investor protection. [and] “In reality it won’t be possible for any investor to be compensated.” Conversely, European and American public interest groups oppose the proposal because it fails to completely eliminate ISDS.  Negotiators also confirm that a revised ISDS, combining the features of the 2012 US Model BIT and the EU Commission’s proposals for reform, is included in TPP, adding pressure for an ISDS in TTIP. Some scholars argue ISDS is unnecessary between two democratic regions with mature judicial systems. However, leaving cases to domestic courts or establishing a state-to-state (US-EU) system of dispute settlement for investors becomes legally challenging given differing domestic obligations and benefits ascribed to nationals and foreigners. Domestic legal contexts continuously change, making it extremely difficult for courts, and resulting in further uncertainty for investors. ISDS is arguably necessary in TTIP as a precedent and common model for ongoing EU and American bilateral investment treaty negotiations with China. The latter has also for years sought to be classified as a market economy by the US and EU, thereby making it legally much tougher to charge China with unfair trade practices; excluding ISDS from TTIP weakens western negotiators’ positions in negotiations with China, and sets a dangerous precedent if/when China achieves its desired status but retains a weak judiciary. Yet opponents deem even a completely revised ISDS in TTIP an unacceptable “price”, and they have successfully shaped public opinion and many policy makers to this effect. Though TPP appears to satisfy most of what advocates of “reform but keep ISDS” desire, much hard work and compromise will be required in both areas; participants confirm that ISDS has not even been discussed in any TTIP negotiating round since January 2014.
V. European opposition to TTIP
Most businesses and consumers recognize that most products and services on either side of the Atlantic are generally of equally high quality and safety standards; the fastest growing part of trade across the Atlantic is intra-firm, with most companies having extensive representation and/or incorporation on both sides of the Atlantic. The size of economic gains from an ambitious TTIP remains contested, but are estimated to boost EU and US GDP by 0.4 -0.8 percent annually, with roughly 80% of benefits stemming from removing non-tariff barriers (through e.g. mutual recognition and elimination of regulatory duplication and overlap).  Yet neither macroeconomic data nor models will determine the fate of TTIP. The latter is subject to a political debate anchored more in emotions and perceptions than empirics and geopolitical considerations, and anti-TTIP civil society interest groups thus far appear more successful in garnering support on key issues.
Europeans are generally more supportive of trade, and a majority supports TTIP, but significant opposition to TTIP has risen in key states such as Germany, France, Austria, and, increasingly, the UK, and the Socialist & Democrats group in the European Parliament is internally split on the agreement. European opponents of trade agreements are enthusiastic, well organized and vocal, and TPP has not affected their strategy. Modern trade agreements focus on regulations, and where they differ between partners, coordination or various types of mutual recognition can be used by interest groups to raise salience by claiming agreements will hurt consumers in the form of lower standards (‘race to the bottom’) or perceived harmful regulations. Dür and Mateo (2014) find that interest groups can increase public salience on an issue through public lobbying by arousing emotions and assigning blame for a ‘problem’ (the issue the group opposes).The process of raising salience by evoking fears of threats to peoples’ food and public services is visibly invoked in TTIP. The completion of TPP will do nothing to alter such perceptions; this can only occur by Europeans persuading fellow Europeans that an agreement with the US will ultimately deliver more benefits than living without one. As German Vice Chancellor Gabriel recently noted
Wenn es scheitert, werden wir uns anderen Standards anpassen müssen, vielleicht denen, die irgendwann zwischen China und den USA entwickelt werden. Da wird es weiter private Schiedsgerichte geben, keine oder nur geringe Verbraucherschutzstandards und ganz sicher keine Sozialstandards. Das sollten sich diejenigen, die jetzt „Stop TTIP rufen“ und sich jeder Verhandlung mit den USA verweigern, genau überlegen.
To change European perceptions the EU Commission, the member states, and leading pro-TTIP groups must engage a better message, combining the threat of exclusion from standard-setting as TPP moves forward, with appealing stories of the benefit of TTIP.
While concluding negotiations on TPP – keeping in mind a potential reopening due to Congressional concerns – may serve as a much needed push for TTIP negotiations by threatening to leave the EU behind in the ongoing reorganization of the international trading system, there are numerous developments, as outlined above, which may hamper a completion of TTIP. Given the timing and some controversial compromises struck in TPP (e.g. shorter patents for biopharmaceutical drugs) it faces a long and sluggish ratification process, and it remains uncertain to what extent TPP will influence the European debate on TTIP. There was a suspicion that the US was hesitant to offer extensive concessions in key areas such as agriculture in TTIP negotiations as long as TPP remained unfinished; conversations with negotiators reveal a European skepticism that anything will change. Some fear the US may have “offered what they can” in TPP; failing to gain unfettered access for pork and beef in TPP, why waste time on this with intractable Europeans? A completed TPP should spur TTIP opponents to consider TTIP a way of ensuing higher environmental, safety, regulatory, and labor standards vis-à-vis those in TPP, but this is unlikely due to widespread and deeply ingrained misperception, distortion, and myths about what these agreements entail. With a looming TPP ratification the EU needs TTIP more than the US, and it remains for Europeans advocates to convince European skeptics of the benefits of TTIP. This is a tall order.
*Leif Johan Eliasson (email@example.com) is professor of political science at East Stroudsburg University, Pennsylvania, USA, and the author of several articles on transatlantic trade and European integration.
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Regulations, and thus acceptable compromises on mutual recognition, equivalence, compatibility, or harmonization, reflect and affect domestic legal, socioeconomic, and cultural variables, are uneasily quantified but highly important to the public’s perceptions of an acceptable outcome.
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