In the debate on the Transatlantic Trade and Investment Partnership (TTIP) all sides constantly refer to its consequences: some say there will be economic growth and wealth for both the European Union (EU) and the US which otherwise would not happen. Others warn that free trade would lead to genetically modified food swamping European supermarkets and cheap European tobacco tempting US consumers. But what is the basis of these claims? This post briefly introduces the publicly available sources for information on TTIP I know about. If you know more, please share your knowledge!
This post was supposed to shed some light on the content of TTIP: is it really a “free trade” agreement – or is there something else behind this claim? I started collecting material for a nice debate. Then I realized something: we are actually not supposed to talk about it at all. Until some people who were supposed to stay quiet started leaking information, nobody except some very special people – those who lobby for mega trade deals and those who negotiate them– knew it actually took place. Since first things have to come first, I’ll start the series on TTIP with a post on sources.
Clarifying the Basics: My Sources
It is extremely easy to get caught up in heated arguments where “left-wing fears” and “neo-liberal fantasy” clash in the boxing ring of public debate. You can find letters of editors, commentaries and ordinary media coverage along and in-between both of these corners easily thanks to google – or its green sibling ecosia.
My approach is different: in my posts on TTIP I aim at giving you the sources of my information as accurately as possible. The objective is to support my reasoning with facts, figures and experts’ opinions. I will continue placing my sources as hyperlinks within the words which gives these parts of my text a red colour in wordpress. Clicking on them opens a new page where you are presented with the source.
As you can only google what you know about, I feel obliged to state that I learn about these sources, and about ideas how to piece them together mostly in two ways: firstly, I am part of an email list where members of the activist group Bonner Bündnis gegen TTIP (alliance of citizens against TTIP in the German town Bonn) exchange information such as links to media reporting, background studies, government and EU statements, and the occasional leaked document on the status of negotiations. Secondly, I attend public lectures on aspects of TTIP. About the latter: I am going to state individual names if I directly refer to something an expert said. The remaining, “non-mostly” part of my sources comes from NGO newsletters and other publicly available information I heard on the facebook grapevine. At all times: If you have any questions, doubts or plain counter-evidence to content I post, feel cordially invited to post it below and/or to email it to our Bizolutioners inbox.
Leaked Documents + CETA = Main Information Sources about TTIP
The European Commission was not tasked by the European Parliament (EP) – or any other group of publicly elected representatives of the EU population – with conducting negotiations on any mega trade deal. It received its mandate for negotiating TTIP by the Council of the EU where national ministers pass legislation and coordinate political strategies. This mandate was leaked in June 2013 (you can find it in German and in English at this great blog on mega trade deals) and only officially declassified in October 2014.Whilst this is an issue in itself, I point it out to explain: the absence of reliable information is the reason why media coverage uses phrases like “is supposed to” and “is said to” when reporting on content and consequences of TTIP. In the absence of transparent communication, the available information is drawn from two major sources: leaked documents, and the now available text of the Comprehensive Economic and Trade Agreement (CETA).
The obvious problem with leaked documents is the difficulty to ensure they are authentic. Very often, like in the case of informal reports on the status of negotiations, confirming authenticity is impossible and would risk the informant’s well-being.
CETA, on the other hand, is an agreement negotiated between Canada and the EU. If you read the objectives which the EU pursues with CETA and compare it with the official mandate for TTIP, it becomes apparent that both agreements use the same key words in describing their aims (market access; reducing/removing custom duties; better conditions for investors). Free trade experts like Wolfgang Kessler, journalist at Politik Forum, think that CETA is a blueprint for TTIP. Moreover, many US companies have subsidiaries in Canada. They would immediately benefit from cuts in tariffs, legislation on labour law and environmental protection even if TTIP never entered into force.
CETA was negotiated 2009-2014 and its final version is available online since December 2014. The agreement has not yet entered into force: the Canadian parliament has yet to agree with it. On the other side of the Atlantic, the Council of the EU has to give its yes. Arguably, the EP also has a say. EU legislation on the EP’s say is mind-boggling if you are not a specialized lawyer. My research has led me to follow the interpretation of Articles 207 and 218 of the Treaty of Lisbon which is also supported by Mr Kessler and Mr Ertug, Member of the European Parliament: since the EU member states, through the Council of the EU, give the European Commission the mandate to negotiate a trade agreement, the EP has only the right to say “yes” or “no” to the final text after the negotiations were concluded. Changes on the text and on the course of negotiations can only be made by the governments of the EU member states.
At a lecture on TTIP and its impact on employees, democracy and the environment in Bonn on 28 May 2015, Mr Kessler explained that the impacts of CETA are so far reaching that all national parliaments would also need to agree with the text before the EU could give its official “yes” to turn the document into a legally binding treaty. Mr Ertug estimates that the same applies for TTIP. Mr Kessler also said that the final CETA text is currently translated in all EU languages. Further, the EP is supposed to agree to the text till the end of 2015. According to this expert this is very unlikely: until the 1634-page document is fully translated, the official debate cannot start. Moreover, Mr. Kessler said that the European Court of Justice may also be asked for advice on the compatibility of EU law with the CETA text.
EU Courts > European Court of Human Rights – on Trade and Commercial Matters
The European Court of Human Rights is likely to play no role in the whole TTIP debate – despite the likelihood of negative impacts on human rights and environmental protection which CETA and TTIP will have according to United Nations Special Rapporteurs Mr de Schutter and Mr de Zayas. There are at least two reasons for the silence of this regional court on human rights: firstly, the wording of the European Convention on Human Rights (ECHR) is limited to civil and political rights (e.g. the right to be free from torture and the right to vote). Economic, social and cultural rights – like the right to form a union, to have a job which pays enough for a decent standard of living, and the right to health care; these rights do not (!) explicitly form part of the regional treaty. Consequently, there have been next to zero decisions by the court on those issues which are also directly caused by mega trade deals like TTIP. With a dynamic interpretation of the wording this could change as this essay by Elizabeth Palmer suggests.
But and secondly: the EU has its own system of courts for legal questions on EU law. Very roughly speaking, EU law is anything around economy and trade, though it includes a set of human rights. With the Treaty of Lisbon the EU is obliged to accede to the ECHR. Arguably, the accession would have allowed the European Court of Human Rights to oversee human rights protection in the EU. However, in December 2014 the Court of Justice (i.e. the EU Court) declared a draft text on the accession to the ECHR as incompatible with the EU law: it said that the text would disregard the specific nature of the EU. For those enjoying a more profound analysis and a debate whether EU accession to the ECHR is actually doing human rights protection a favour, I recommend reading this blog by Professor Steve Peers. Here is a picture of how my mind looked after trying to figure out the potential distribution of competencies between the EU Court of Justice and the European Court of Human Rights. The artist named it “incomplete transparencies circle“. To cut short a very long story: currently, the system of EU courts enjoys the exclusive competence to decide upon matters which engage EU law. TTIP is regarded as engaging EU law, so the European Court of Human Rights has no say.
This post has refrained from presenting a balanced reasoning of arguments in favour and against holding free trade deals under full public scrutiny. In theory, it may be in the public interest to keep specific details about an industry or the economic strategy of a country secret: to avoid copy-cats from free riding on knowledge which had been created by costly investments. As well as allowing the inventor to be the only one selling a specific product or service in a particular way i.e. the so-called “competitive advantage”. Emma McClarkin, Member of the EP, is quoted by James Crisp for EurActiv as saying that “[t]rade deals by definition cannot be negotiated through the press (…).” . Whilst this may be true for deals with a very limited scope and predictable impact, this Bizolutioners series on TTIP and other mega trade deals argues:
The content of trade deals like TTIP is too comprehensive and their effects on our daily lives too far reaching to exclude public involvement and scrutiny in their negotiation.
The next post will show that the content of TTIP is more than mere regulatory cooperation for freer trade between the US and the EU. The text which is negotiated affects the rights of everyone living in the US and in the EU: each and every person who likes to drink clean water, needs affordable public transportation and limited working hours, and every human who gets sick and old.
For those who cannot wait:
For our friends in the UK who tend to forget that they are also affected by EU matters: UK artists have started a campaign saying no to TTIP.