Just Before Round of Negotiations on the Proposed TISA, WikiLeaks Releases Updated Secret Documents

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Just Before Round of Negotiations on the Proposed TISA, WikiLeaks Releases Updated Secret Documents

Top civil society expert on TISA Deborah James (third from left) at a panel on global trade agreements. (Photo: Public Services International/flickr/cc)

Today, Wikileaks released a second batch of the most updated draft texts on the proposed TISA, along with substantive analysis, on each of four massive services sectors: Financial Services, Telecommunications Services, Electronic Commerce, and Maritime Transport. This follows on their release yesterday of cross-cutting annexes on Domestic Regulation, the “Movement of Natural Persons,” Transparency, and Government Procurement, and the Agenda for next week’s negotiations, along with what Wikileaks called the journalistic holy grail: the Core Text of the proposed agreement. The negotiating texts are supposed to remain secret for five years after the deal is finalized or abandoned.

The documents, along with the analysis, highlight the way that the TISA responds to major corporate lobbies’ desire to deregulate services, even beyond the existing World Trade Organization (WTO) rules. This leak exposes the corporate aim to use TISA to further limit the public interest regulatory capacity of democratically elected governments by imposing disciplines on domestic issues from government purchasing and immigration to licensing and certification standards for professionals and business operations, not to mention the regulatory process itself.

The Agenda indicates that other services will likely come under the jurisdiction of the proposed TISA – topics include energy services, environmental services, delivery services, and “patient mobility.”

Given the added dangers of the recently approved Fast Track provisions which would apply to a potential TISA, it is clear that governments should abandon negotiations on this corporate wish list and focus on strengthening public interest regulation and the democratic process.

“The Annex on Domestic Regulation is a serious threat to regulations that people really care about – like what kind of development is allowed in their neighbourhood or the standards for hospital care. Negotiators are using the excuse that these regulations are somehow related to trade in order to create a vast array of restrictions on the right to regulate,” said Ellen Gould, a Canadian - based consultant on trade agreements whose research accompanies the Domestic Regulation Annex. The existence of an annex restricting even non-discriminatory domestic regulations belies the claims by some TISA proponents that the agreement is only about promoting transparency and tackling discriminatory laws.

The existence of a Transparency Annex in a secret trade agreement is itself ironic. The annex shows that corporations are pushing far beyond how a normal person understands “transparency.” The sections on “prior notification of new measures” would mandate that any measure (including laws, regulations, agency rulings, etcetera) must be published in advance, with a “reasonable opportunity” for corporations to comment on them to the governmental entity. But it goes much further; the rationale for the measure must be included, and governments must set up an avenue by which it must respond to the comments. Some countries are even pushing for a mandatory “judicial or administrative review of decisions,” if corporation disagrees with a proposed measure. This Annex, then, proposes a direct pathway for foreign corporate input into the domestic policymaking process of parliamentary and also local elected officials.

The leaked TISA texts reveal the dangers of sweeping, so-called “trade” agreements that are negotiated outside of public scrutiny, providing a cautionary tale for the controversial Trans-Pacific Partnership and Trans-Atlantic Free Trade Agreement that are also being negotiated in secret. “As governments around the world implement the lessons of the 2008 financial crisis by re-regulating financial firms to prevent another crisis, the leaked TISA rules could require countries – including the world’s largest financial centers – to halt and even roll back financial regulations. Indeed, TISA would expand deregulatory “trade” rules written under the advisement of large banks before the financial crisis, requiring domestic laws to conform to the now-rejected model of extreme deregulation that led to global recession,” noted Ben Beachy, Research Director at Public Citizen’s Global Trade Watch and author of the analysis on the leaked Financial Services proposed text.

According to analysis provided by the International Transport Workers' Federation (ITF), the secret documents predict a power grab by transport industry players at the expense of the public interest, jobs and a voice for workers. Specifically they reveal a potential and continuing threat to seafarers’ wages and conditions, should the agreement be adopted. The Maritime Annex does acknowledge the sectoral standards adopted by the UN bodies but fails to recognise these are minimum protections, stating that in cases where parties ‘apply measures that deviate from the above mentioned international standards, their standards shall be based on non-discriminatory, objective and transparent criteria.’

ITF president Paddy Crumlin stated: “Who decides the criteria? What will happen to safety provisions, pay or qualifications which are better than the minimum? The ILO Maritime Labour Convention explicitly sets minimum standards, with member states being encouraged to go above and beyond its provisions. This fact appears to have escaped those drawing up the plans.”

The Annex on the “Movement of Natural Persons,” called Mode 4, makes crystal clear that immigration policy would be an integral part of the TISA, notwithstanding certain governments’ protestations to the contrary. A labor lawyer with IDEALS in the Philippines, Tony Salvador said that “we oppose trade agreements that include migrant workers, rather than just bona fide service suppliers, as migrants should instead be protected by the domestic labor and employment laws of the host country where they work. Having the status of a worker/employee guarantees that she/he is also covered by ILO Conventions,” referring to the International Labor Organization. He added, “however, the host country should maintain its prerogative to pass and implement immigration and national security laws, and apply them to both migrant workers and foreign service suppliers, even as the home country of the migrants may continue to have laws that protect migrants from recruiters and their purported employers in the home country.”

The leaked documents include a previously unpublished annex on state purchasing, which, according to analysis published by Wikileaks provided by Sanya Reid Smith of the Third World Network, “would require extreme opening of services government procurement (GP) of TISA countries, beyond the level required by the optional rules at the WTO or in free trade agreements involving the EU, U.S. or others. If accepted, this proposal is predicted to undermine programs in developed and developing TISA countries that facilitate development, help create local jobs and assist disadvantaged communities including indigenous peoples and Small and Medium Enterprises (SMEs).”

Perhaps the most explosive text is that on Electronic Commerce. “You can’t negotiate an open internet behind closed doors. The recent leak of the TISA Annex on e-commerce once again demonstrates that trade negotiations are playing an important role in shaping the future of internet governance. Because these negotiations are closed, they are a poor forum for making internet policy, leading to policy that naturally favors businesses with major lobbying operations in Geneva and Washington DC, rather than the sort of open and multi-participant forums deciding issues on the merits we would prefer,” said Burcu Kilic, a lawyer at Public Citizen, who co-authored the analysis on the subject. “Privacy is a fundamental human right central to the maintenance of democratic societies. TISA includes requirements that could damage privacy protections. TISA should be debated publicly, in order to ensure that adequate, express privacy safeguards are included. Multistakeholderism requires this,” she added.

The documents show that the TISA will impact even non-participating countries. The TISA is exposed as a developed countries’ corporate wish lists for services which seeks to bypass resistance from the global South to this agenda inside the WTO, and to secure an agreement on services without confronting the continued inequities on agriculture, intellectual property, cotton subsidies, and many other issues.

Deborah James

Deborah James is the Director of International Programs of the Washington, DC-based Center for Economic and Policy Research, and coordinates the WTO campaign of the OWINFS network. Prior to CEPR, she was the Director of the WTO Program of Public Citizen's Global Trade Watch, where she worked to inform civil society and governments worldwide about the potential impacts of the WTO's proposed Doha Round expansion. She was also the Global Economy Director of Global Exchange, where she did similar work around the proposed Free Trade Area of the Americas. She can be reached at djames@cepr.net.

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