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Time to Overcome TTIP's many Informational Asymmetries
Published online by Cambridge University Press: 20 January 2017
On 1May 2016,GreenpeaceNetherlands released 248 pages of TTIP negotiating texts stemming from previous negotiating rounds. Although it is not the first (and will not be the last) leak since the inception of the negotiation in 2013, this is the first to reveal the US negotiating position regarding 13 out of the 24 TTIP chapters.
As such, the TTIP leaks provide an unprecedented opportunity to not only analyse the contrasting positions of the EU and US on several issues in the ongoing negotiations, but also to test the veracity of the competing narratives devised by opponents and proponents of the agreement. To what extent do their respective storylines find support in the actual texts?
Supporters of TTIP have proposed fact-checking as an antidote against them is information around TTIP. Yet, having been predominantly advocated and provided for by the EU Commission rather than by the media, institutional fact-checking failed to counter the massive misinformation characterizing the public and political discourse surrounding the negotiations. Unfortunately, when it comes to public perception, the line between pedagogy and propaganda is fuzzy.
1 Contrary to the initial claims, not all leaked texts date from March 2016, and some of them, like the regulatory cooperation chapter, appear as old as mid-2015.
2 Green Party leaks confidential TTIP document, Euractiv, March 11, 2014, available at http://www.euractiv.com/section/trade-society/news/green-party-leaks-confidential-ttip-paper.
3 Politico Europe, Playbook, 3 May 2016: “The success of a leak is not only a function of the quality and quantity of information revealed, but is also about its ability to prompt future change.” By this standard the impact of yesterday's leak is “embarrassingly modest,” says Alemanno. It revealed the U.S.'s insistence on secrecy but fell short of confirming the worst concerns raised by the anti–TTIP camp, Alemanno says. “Contrary to what has been claimed by Greenpeace — and blindly echoed by mainstream media — there's no proof that the EU is ready to give in to U.S. demands. As a result, the leak rather strengthens the EU negotiating position.”
4 All the documents are available here: https://www.ttip-leaks.org/.
5 The Rechercheverbund, which consists of different German media, has covered, amongst other big stories, the Snowden leaks and the recent Volkswagen emissions scandal.
6 This explains why Greenpeace Netherlands does not offer access to the original documents. By containing ‘markers’ in the form of deliberate typos or formatting, they might enable the identification of the documents’ origins.
7 See Press Release by Greenpeace Netherlands, available at http://www.greenpeace.org/international/en/press/releases/2016/Leaked-TTIP-documents-confirm-major-risks-for-climate-environment-and-consumer-safety/.
9 ACTA was rejected by the European Parliament in July 2012, and did not enter into force. European Parliament, ‘European Parliament Rejects ACTA, Press Release,’ July 4, 2012, http://www.europarl.europa.eu/news/en/news-room/20120703IPR48247/European-Parliament-rejects-ACTA.
10 Alemanno, Alberto, “The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences”, 18(3) JIEL 2015, pp. 625–640..CrossRefGoogle Scholar
12 The EU Ombudsman opened a case on the transparency and public participation in relation to the TTIP negotiations on 29 July 2014, and reached a decision on 31 October 2014. For all documents related to the EU Ombudsman's arguments in favour of transparency, see http://www.ombudsman.europa.eu/en/cases/caseopened.faces/en/54631/html.bookmark. See, in particular, European Ombudsman, ‘Letter to the Council of the EU Requesting an Opinion in the European Ombudsman's Own-Initiative Inquiry OI/11/2014/MMN Concerning Transparency and Public Participation in Relation to the Transatlantic Trade and Investment Partnership (TTIP) Negotiations,’ July 29, 2014, http://www.ombudsman.europa.eu/cases/correspondence.faces/en/54634/html.bookmark; European Ombudsman, ‘Letter to the European Commission Requesting an Opinion in the European Ombudsman’s Own–Initiative Inquiry OI/10/2014/MMN Concerning Transparency and Public Participation in Relation to the Transatlantic Trade and Investment Partnership (TTIP) Negotiations,’ July 29, 2014, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/54633/html.bookmark.
13 Report containing the European Parliament's recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP), (2014/2228(INI)). http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A8-2015-0175&language=EN.
14 European Ombudsman, “Letter to the Council of the EU Requesting an Opinion in the European Ombudsman's Own–Initiative Inquiry OI/11/2014/MMN Concerning Transparency and Public Participation in Relation to the Transatlantic Trade and Investment Partnership (TTIP) Negotiations,” July 29, 2014, http://www.ombudsman.europa.eu/cases/correspondence.faces/en/54634/html.bookmark.
15 The EU Ombudsman makes reference to the argumentation of the European Court of Justice in Judgment of the General Court (Second Chamber) of 19 March 2013. Sophie in 't Veld v European Commission. Case T-301/10, ECLI:EU:T:2013:135. See letter by EU Ombudsman to EU Commission in this regard, at http://www.ombudsman.europa.eu/cases/correspondence.faces/en/54634/html.bookmark.
16 Council of the European Union, Directives for the negotiations on the Transatlantic Trade and Investment Partnership between the European Union and United States of America, http://data.consilium.europa.eu/doc/document/ST-11103-2013-DCL-1/en/pdf.
17 Communication to the Commission concerning transparency in TTIP negotiations, http://ec.europa.eu/news/2014/docs/c_2014_9052_en.pdf.
18 Ibid.
19 European Commission, “The Transatlantic Trade and Investment Partnership (TTIP), List of Documents,” February 26, 2016, http://trade.ec.europa.eu/doclib/docs/2015/march/tradoc_153263.pdf.
20 The secrecy of the US approach to trade negotiations has been widely criticised, both in the context of the TTIP and the TPP agreements. The US has indeed argued in favour of confidentiality of trade negotiations because of the sensitive interests at stake. Therefore, it did not publish the negotiated texts or its official position papers, but rather fact sheets on the addressed issues and the corresponding US position. United States Trade Representative, ‘T-TIP Negotiating Document Procedures’, July 5, 2013, https://ustr.gov/sites/default/files/US%20signed%20conf%20agmt%20letter_0.pdf.
21 In the case of TPP, the text of the agreement was only disclosed a month after its conclusion. Regarding the negotiating documents, the New Zealand Chapter of Transparency International informed us that the parties to the TPP would be required to maintain information on the negotiations confidential for four years. This is confirmed in a letter released by New Zealand as depositary of the TPP Agreement to other parties for signature: http://www.mfat.govt.nz/downloads/trade-agreement/transpacific/TPP%20letter.pdf.
22 On the need for a new understanding of confidential trade negotiations, see V. Abazi, in this issue of the Journal.
24 The Obama administration has announced it would strengthen efforts to improve transparency, particularly in trade negotiations, and engage with the public and stakeholders. See United States Trade Representative, ‘Transparency and the Obama Trade Agenda’, January 2015, https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/january/fact-sheet-transparency-and-obama. Arguably, such ambitious transparency pledges may set the expectations of the general public too high, giving rise to more criticism when those promises are not implemented.