A TPPA conspiracy we can all get behind

The Trans-Pacific Partnership Agreement (TPPA) was just signed in Auckland today, despite well-organised protests, and reasonable disagreements (excepting, naturally, the hyperbole of one Matthew Hooton, who – to ape his style of discourse – is an ‘insane and embittered right-wing PR hack’) between various bodies in Aotearoa. The fact that it has been signed doesn’t in itself change our world; now the treaty has to be ratified via legislation, and it is quite possible that even at this late stage everything could collapse because – despite the assurances of US negotiators – the Congress of the United States of America may decide to either change the terms of the deal, or just not ratify it on their end.

Will that happen? Well, indications are that Congress wants ‘clarification’ on some key points (read: they want to change some of the details and requirements their negotiators committed them to), and given that President Obama has signalled that the TPPA’s signing is something he is keen on, its even possible that Republican-controlled Congress might decide not to ratify the treaty through legislation just out of sheer spite. ((The power of spite in US politics is strong at the moment; I suspect it will be granted the status of a person any day now, and will promptly sue all and sundry.)) Some have speculated that as the US never really have played fair when it comes to trade agreements – the Land of the Free likes other nations to drop tariffs; it just doesn’t think that should be a two-way street – expecting the US to sign away even the most minor concessions is laughable.

The chief complaint about the TPPA has been the secrecy under which it was negotiated, after all. Only the negotiators knew what their respective governments were willing to trade away or compromise on for potential benefits. This was not a trade deal in which the public were asked ‘What do you think?’ Rather, it was handed to them, under the idea ‘This is the best we could do!’ Most of the conspiracy theories surrounding the TPPA either have it governments like ours (Aotearoa) were always seeking to serve US interests, or the negotiators were so captured by the idea of needing to not lose face and admit the deal is bad that they have lied about the pros out weighing the cons. I’m not going to speak directly to either of those possibilities here.

No; indulge me, if you will, in a bit of ideation about another potential conspiracy. We all know (or, at least, we pretend to know) that if the TPPA was ever worth undertaking, the day the US was invited to the table was the day it got bent out of shape. The US is an economic juggernaut, whilst the original parties to the TPPA (Aotearoa, Brunei, Singapore, and Chile) were small trading partners with a few shared economic interests. The US’ demands required significant concessions of these small parties just to get them in the room. What if, then, the US never intended to give anything up at all? What if joining in the negotiations – and requiring the other players do things they didn’t want to, like extending copyright terms and the like – was merely a useful way to encourage foreign nations to adopt US-style laws without having to advocate for them through open processes?

Think of it this way: ((This is a stylistic quirk I’m considering ridding myself of, given that I feel I use it a lot in my writing.)) Given that the TPPA covers 12 countries, one country – even a big one like the US – pulling out wouldn’t necessitate the agreement collapsing. The other countries could still ratify in the hope the US would eventually join, or because they think the benefits of the treaty can still be realised without engagement from the US. Or – and I’m fond of this bit of folk psychology – the negotiators and their respective governments, because they have spent so much time and effort convincing people – including themselves – that the TPPA is good, end up ratifying just to prove their detractors wrong.

Let’s assume the US proponents of ‘American laws overseas’ know this. They want US-style laws around copyright and the like, but have found that foreign governments have been loathe to adopt them, for a variety of reasons, including fear of public opprobrium. Having failed to win the war of ideas in the democratic space, US legal patriots decide that the best way to foster US-style laws overseas is by getting governments to agree to them for some greater good… Such as improved trade access to the US market. Rather than deal with hesitant governments, they decide to push for US-style laws and regulations with the negotiators of trade deals, knowing that if they can make the turn towards Americana a straight trade-off, governments will come around to their way of thinking.

So, the US – in this story – could have entered negotiations and pushed other nations to adopt US-centric proposals, knowing that they wouldn’t have to ratify the agreement. After all, once the treaty is signed, the other nations are likely to ratify even without the US. Not doing so would be tantamount to admitting that all that effort not only had been squandered, but that the US-style changes in law aren’t actually good in-and-of-themselves. As such, ((Another stylistic quirk.)) the US gets its way without having to commit to anything.

Is this conspiracy plausible? Maybe not; the theory requires that Congress would falsely oppose the TPPA, or that President Obama would exercise his powers to fast-track the TPPA knowing that it would not pass. However, I do think that, given so many of us have shaken our heads about the whole TPPA process, its plausible enough to think ‘That’s how it could have gone down.’ No one (read: not many) outside the government seems to think the TPPA brings much to the tale, but many of the nay-sayers say we still have to sup there, because missing out would be disastrous. That is to say ((A third quirk.)) – in the words of Douglas Adams – it’s a by-pass; you’ve got to build by-passes. The worry is that the US doesn’t have to do much of anything to get us to copy them; they just have to look like they might give us some concessions.


Mark Harris says:

Nice try but no. If the yanks aren’t in, it’s pretty much busted


“If two years elapse and all signatories still haven’t ratified the agreement, the following conditions need to exist in order for the TPP to come into force:

At least six original signatories have to have successfully ratified the agreement.
Those six signatories, between them, must represent 85 percent of the total GDP of the twelve originals signatories.

That last clause is important. The United States and Japan between them represent just shy of 80 percent of the GDP of the twelve original TPP signatories (specifically, the U.S. represents nearly 62 percent of TPP GDP and Japan accounts for 17 percent). Basically, the TPP can’t come into force if either of these states fail to ratify the agreement in their domestic legislatures because there would be no way for the remaining signatories to fulfill the 85 percent of GDP requirement (even if the United States and all states but Japan ratify, the eleven would stand at 83 percent of GDP).”

Ah, but there’s ratifying and there’s ratifying. You can still bring in changes to law, etc. if you have control of the House, and want a pro-TPPA series of law changes in order to satisfy US demands. After all, the PM has said he will ratify the TPPA, even if the US does not.

Mark Harris says:

Well, that wasn’t the question you asked 😉
Sure, our government can change laws to create an environment that complies with the TPPA, but the agreement itself won’t be in force (or existence) and a later NZ government can repeal those changes. We’re already belly up to the world as far as tariffs are concerned – the worry is all the restrictions that Key’s Mob might put in place without any of the claimed benefits and without any of the access to foreign markets that they are trumpeting.

I think the USTR and the President do want it ratified. For the USTR, it sort of justifies their existence, especially after the ACTA debacle.

Hold on; this all perfectly congruent with the original idea that the US would enter into negotiations in ‘bad faith’; my hypothetical conspiracy theory is simply that the US would use the TPPA to push through or encourage US-style laws.

Mark Harris says:

But those laws will only stay changed if a) there seems to be an advantage for the country that changed them (not likely if the only advantage is for corporations) or b) the TPPA is in place so that “international obligations” must be complied with. Without the TPPA, any law changes may only be temporary.

Whilst I get where you are coming from, any law change will be temporary anyway; there are significant penalties and the like if a country breaks a treaty, but it’s not unheard of. Indeed, international law is filled with examples of ‘We agreed to x, and now you’re reneging! To the international courts! What do you mean you aren’t even going to bother to turn up?’

The case I’m hypothesising about is simply this; the US has failed repeatedly to get certain nations to adopt US-centric laws about copyright and the like. I can see some plausibility to a conspiracy theory that says the US negotiating in bad faith in re the TPPA is just another example of this ‘diplomacy’. If countries start legislating for TPPA provisions before, say, the US ratifies the treaty in Congress (which John Key has said he is committed to), then the US gets what it wants (if we believe the conspiracy theory) without having to commit to anything itself. Sure, without the TPPA enacted by all parties, changing the laws back is relatively trivial. Still, should National get a fourth term, that means five or so years at least of laws which favour US interests. The hope would be (for the hypothetical conspirators) that that would be enough time for the law to be bedded in that changing it would be considered a low priority compared to some other issue.

Mark Harris says:

I get where you’re coming from too and, whilst I doubt that many in the US corporatocracy would argue with those results, I find it difficult that 600 advisers could come up with agreement on where to have lunch, let alone conspire towards a hoax on this scale and not have that fact leak. Then again, we’re supposed to believe that jet fuel can melt steel 😉