With President-elect Trump's victory, the last hopes of the Obama administration passing the Trans-Pacific Partnership (TPP) during the lame duck session of Congress have evaporated. The passage of the TPP through Congress was dependent upon support from members of the Republican majority, and there is no realistic prospect that they will now pass the deal given their elected President's firmly expressed opposition to it. Even if they did so, the new President would presumably veto the pact's implementing legislation.
Moreover, it's not possible for the other eleven countries to forge ahead without the United States on board. This is because of a condition that the TPP will not enter into effect unless at least six of the original signatories have ratified the deal, and only if their combined GDP amounts to at least 85 percent of the total GDP of all the original signatories. It is impossible for this condition to be met without both the United States and Japan ratifying the deal.
We're calling it: the TPP is dead.
This article is by Jeremy Malcolm and was originally published on EFF's Deeplinks blog on 9th November 2016. It has been edited to include additional information about Australia and to reflect the date of republication. See the original article. The image above is based on EFF's 'What is TPP' image (CC-BY).
Nevertheless, the battle against the deal is not over. Why not? Because many of the other TPP countries are still in the process of passing their implementing legislation, which contains all of the worst measures in the TPP that we have been fighting against for the last six years—including the extension of the term of copyright, the strict rules against DRM circumvention, the tough criminal penalties against those who infringe copyright or who leak trade secrets, and the prohibition against mandates to review source code for bugs and backdoors. Countries that continue along the path of passing their implementing legislation will end up in the worst of all possible worlds—having accepted all the US demands on copyright and other digital policies, but without receiving any trade benefits from the United States in exchange.
Here are the "red light countries" in which ratification of the TPP is imminent:
- Japan's House of Representatives is literally due to ratify the TPP this week, though we have no news that this has in fact happened.
- New Zealand has already introduced its enabling legislation, which is awaiting only its third reading before it attains the force of law.
- The Malaysian Senate already ratified the agreement on January 28, though the actual implementing legislation has not yet been introduced.
In the remaining countries, ratification of the deal is less far advanced:
- Until January 27 Canada's House of Commons Committee on International Trade is receiving submissions on the question of ratification of the TPP.
- Mexico also began Senate hearings on the TPP this week [Spanish], but has yet to introduce implementing legislation.
- Vietnam has decided to hold off ratifying the TPP for now, and yesterday's news will likely have strengthened that position.
- Although Singaporean Prime Minister Lee Hsien Loong has been one of its chief cheerleaders, no legislation implementing the TPP has yet been introduced.
- Brunei's government has indicated that it intends to ratify the TPP within two years, but has taken no steps towards doing this yet.
- In Peru, the TPP is being debated in the Foreign Relations Committee of the Congress, where it reportedly faces tough odds.
- Chile's trade ministry has been promoting the benefits of the TPP domestically, but it has not yet been introduced to Congress for ratification.
The death of the TPP in the United States does not necessarily mean that these implementation plans will be scrapped. Even without the force of law of an international agreement, the US Trade Representative can use soft pressure such as its annual Special 301 Report to encourage other countries to follow through with their unilateral commitments under the TPP, on the premise that these implement supposed international best practices. Industry lobbies such as the International Intellectual Property Alliance (IIPA) and its national affiliates will also be likely to maintain their pressure for the ratcheting up of levels of foreign copyright protection and enforcement, regardless of the TPP's demise.
Pressure from rights holder lobby groups will now shift from the TPP to alternative trade agreements, most notably the Regional Comprehensive Economic Partnership (RCEP) which remains under negotiation between many of the same countries—but excluding the United States, and including China and India. It is ironic that Donald Trump's position against the TPP was largely premised on the assumption that it would benefit China. In fact, it is the TPP's demise that will benefit China more, by elevating the importance of the RCEP. We can now expect that the remaining RCEP negotiating rounds will become the focus of intense lobbying to transplant the TPP's copyright and e-commerce rules into that alternative instrument in an effort to salvage some benefit to US rights holders from an agreement that excludes the United States as a party.
There is also the likelihood that the Trump administration will begin the lengthy process of renegotiating the TPP (perhaps even under a new name), and he has also expressed his intention to renegotiate the existing North American Free Trade Agreement (NAFTA), which would involve TPP countries Canada and Mexico. Lobbyists will certainly descend on these new negotiations just as they did the original TPP, and the fight to preserve users' rights will begin all over again.
There are two parliamentary inquiries underway into the TPP:
- the Inquiry by the Joint Standing Committee on Treaties (JSCOT). JSCOT reviews all treaties entered into by Australia, and this inquiry is a continuation of work begun prior to the last election. See EFA's submission to this JSCOT inquiry.
- a Senate Inquiry on implementation of the TPP began in September and is due to report on 7th February 2017. See EFA's submission to this Senate inquiry (spoiler alert: it's basically the same submission we sent to JSCOT).
It's unclear what the numbers in the Australian Senate would be for any enabling legislation relating to the TPP, however it's likely that the Investor-State Dispute Settlement (ISDS) provisions would generate strong opposition from the cross-bench. Given the new reality of President-elect Trump, the Australian government may decide not to proceed with any such legislation.
Where to from here?
With the TPP off the agenda for now, our efforts will be directed to ensuring Australia does accept TPP-like rules by stealth, as part of new agreements such as RCEP and others. We'll also continue working with our international partners to promote reforms that would make trade negotiation processes more transparent and inclusive.
You can help us to fight this continuing battle by supporting EFA.