Transparency of FTAA negotiations, compared to ACTA

In a recent statement to Wired, USTR tried to justify the secrecy of the ACTA negotiations as follows:

The Administration also recognizes that confidentiality in international negotiations among sovereign entities is the standard practice to enable officials to engage in frank exchanges of views, positions, and specific negotiating proposals, and thereby facilitate the negotiation and compromise that are necessary to reach agreement on complex issues.

But is secrecy really a "standard practice"? As detailed in this and other memorandums, which were prepared at the request of USTR, the answer is clearly no.

The following is an illustration of one ongoing trade negotiation involving nearly all of the countries in the Western Hemisphere -- the Free Trade Area for the Americas (FTAA). Proposed as a giant expansion of NAFTA, the FTAA started off as a fairly non-transparent affair. (I attended one FTAA negotiation in Belo Horizonte Brazil where Lula, now President of Brazil but then a trade unionist, was tear gassed by the FTAA security). But following the demonstrations at the Seattle WTO Ministerial meeting in December 1999, governments began to open up.

With the support of Bob Zoellick, then George Bush's head of USTR (now the head of the World Bank), the FTAA released three drafts of the negotiating text, including all bracketed language. The three drafts are available on the Internet here.

http://www.ftaa-alca.org/ftaadrafts_e.asp.

These drafts covered a very wide range of issues, and included all bracket negotiating texts. The FTAA also maintained a web page with voluminous documents, and sponsored all sorts of meetings and opportunities for businesses, labor and the public to participate in the negotiations, as is evident from the FTAA web site.

http://www.ftaa-alca.org/Alca_e.asp

A particularly instructive document is the FTAA publication of the "best practices" for transparency.

http://www.ftaa-alca.org/SPCOMM/SOC/cs24r1_e.asp

Below are excepts from this report for Canada and the United States:

Canada: The FTAA section of the TNA website (www.ftaa.gc.ca) provides Canadians with accessible, accurate, reliable and up-to-date information on the FTAA negotiations. It includes, inter alia, the draft consolidated FTAA negotiating text, Canada’s positions and proposals, frequently asked questions (FAQs), an information kit, a list of key government contacts, and consultation notices. Interested parties are encouraged to visit this website and send their comments to the Government on an ongoing basis.

USA: In 2003, USTR notified domestic civil society of two Federal Register Notices: one soliciting public comments on the second draft consolidated texts of the FTAA agreement . . . Registration for the Americas Business Forum (ABF) and ATSDF is open to the public, and all FTAA government officials are encouraged to attend the parallel workshops to promote further dialogue. Representatives of the ABF and Americas Trade and Sustainable Development Forum (ATSDF) will meet with Ministers in concluding sessions for an exchange of views that, in an unprecedented effort to increase transparency and public access, will be broadcast to the public on the web and on closed-circuit television.

FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF CIVIL SOCIETY

BEST PRACTICES AND ILLUSTRATIVE EXAMPLES OF CONSULTATIONS WITH CIVIL SOCIETY AT THE NATIONAL/REGIONAL LEVEL

At the Seventh FTAA Ministerial meeting in Quito, Ecuador in November 2002, Ministers instructed the Committee of Government Representatives on the Participation of Civil Society (SOC) to “strengthen and deepen their consultations with civil society at the national level,” and “identify and foster the use of best practices for outreach and consultation with civil society.” (Paragraph 33, Quito Ministerial Declaration).

At the Thirteenth FTAA Trade Negotiations Committee (TNC) meeting in Puebla, Mexico in April 2003, Vice Ministers further directed the SOC to “develop a document on best practices for disseminating information to civil society to increase their participation in the FTAA process at the national and/or regional levels for consideration by the TNC,” (FTAA.TNC/22). Reiterated at the Fourteenth TNC meeting in San Salvador, El Salvador in July 2003 (FTAA.TNC/23).

[SNIP]

CANADA

The Government of Canada is fully committed to civil society participation in the FTAA negotiations. In Canada’s view, openness and transparency are key to an informed debate about this hemispheric initiative. Effective two-way communication channels between governments and citizens are vital to increase their understanding of free trade, and to build broad public support and confidence for trade negotiations and agreements. To that end, the Government of Canada, mainly through the Department of Foreign Affairs and International Trade, uses a range of permanent and ad-hoc consultative and outreach mechanisms and strategies to ensure that the views of industry, non-governmental groups, and Canadians at large are taken into account in the Canada’s trade policy agenda. These mechanisms include, but are not restricted to: the Federal-Provincial-Territorial Committee on Trade, the joint Government of Canada-Federation of Canadian Municipalities working group, the Sectoral Advisory Groups on International Trade, the Academic Advisory Council, as well as Multistakeholder Information and Consultations Sessions. In addition to these mechanisms, the Government of Canada also uses every opportunity to work with Canadian parliamentarians and with our trading partners with a view to strengthen public engagement at home and increase civil society participation within inter-governmental forums and entities. Consultations are productive and rewarding only if citizens are kept up-to-date and engaged on an ongoing and sustained basis with respect to Canada’s trade development and outcomes. The Government of Canada informs Canadians and solicits input on trade policy matters through the Trade Negotiations and Agreements website (www.ftaa.gc.ca), which includes, inter alia: the draft consolidated FTAA negotiating text with a description of each chapter of the agreement; Canada’s positions and proposals in these negotiations, and notably our market access offers; frequently asked questions (FAQ’s) and answers; an information kit; a list of key Government of Canada FTAA negotiators, with their contact information; and consultation notices. The input of interested parties is facilitate via the following email address: ftaa.zlea@dfait-maeci.gc.ca

[SNIP]

UNITED STATES OF AMERICA

The United States places a great deal of importance on outreach and consultations with domestic civil society throughout the course of trade negotiations, and employs several formal and informal consultative mechanisms to increase civil society awareness of and participation in the FTAA process. For example, the Office of the U.S. Trade Representative (USTR) has issued several public notices in the Federal Register and on its website inviting any interested organization or member of the public to comment on all aspects of FTAA negotiations, and has also notified the public via Federal Register and the USTR website of the SOC’s Open and Ongoing Invitation to hemispheric civil society to comment on the FTAA. All civil society responses to the Federal Register are transmitted to U.S. trade negotiators and disseminated throughout the government so that civil society views may be taken into consideration in the development of U.S. positions, and all Federal Register responses are available for public inspection to promote transparency.

In addition to the issuance of Federal Register notices, the U.S. periodically holds public Trade Policy Staff Committee (TPSC) hearings. Public TPSC hearings encourage civil society to provide oral testimony in addition to written comments on any issue related to the FTAA agreement. For example, on September 9-10 2002, the U.S. hosted a TPSC hearing on the effects of the elimination of tariffs and non-tariff barriers to trade and other market liberalization among FTAA participating countries. Sixty-three written responses were received from a broad range of groups representing agricultural, business, labor, environmental, consumer and other NGO interests. Thirty-three persons provided oral testimony on their written contributions to government officials from various U.S. agencies, including USTR and the Departments of State, Commerce, Agriculture, Labor, the Environmental Protection Agency and other agencies, during the two-day public hearing. Such public hearings give civil society stakeholders the opportunity to express their views directly to government policymakers, and allow government officials to seek clarifications and further explanation in person in order to better understand the various positions expressed by civil society. Beyond formal public hearings, USTR also holds periodic public briefings on the FTAA with senior government officials that allow for open question and answer sessions, and may provide teleconference capacity for members of the public who cannot attend in person. A recent FTAA public briefing was held on July 24, 2003 in Washington, D.C.

The United States also maintains a statutory trade advisory committee system mandated by the U.S. Congress, currently consisting of 33 private sector advisory committees, which provide input and advice to the U.S. Government from the perspective of industry sectors, agricultural sectors, labor, environment, state and local governments, and other interests. USTR also frequently consults with Congress on the FTAA.

ANNEX

BEST PRACTICES AND ILLUSTRATIVE EXAMPLES OF CONSULTATIONS WITH CIVIL SOCIETY AT THE NATIONAL/REGIONAL LEVEL

Additional information on best practices and illustrative examples of consultations with civil society at the national/regional level, as provided by delegations.

CANADA

Openness and transparency are fundamental to the way in which Canada approaches trade negotiations. The Government of Canada supports greater engagement with all the levels of government (provincial, territorial and municipal), as well as with parliamentarians, in the inter-American trade agenda. Canada’s position for all trade negotiations is developed by the Federal Government in partnership with provincial and territorial governments, and reflects the results of extensive consultations with non-governmental organisations (NGOs), businesses and the general public. These consultations are an important part of the Government’s overall commitment to ensure that Canada’s position continues to reflect Canadian interests, values and priorities. The Government has made a concerted effort to engage in an open and informed dialogue with Canadian stakeholders through a range of consultation and outreach mechanisms and strategies, which are described below.
Trade Policy Consultation and Outreach Mechanisms and Strategies 1

Parliamentarians:

To assist elected officials with their obligation to inform and exchange views with their constituents on public policy issues, the Government of Canada ensures that the Canadian Parliament is fully informed and consulted about the FTAA negotiations. The Minister for International Trade as well as senior government officials are regularly invited to appear at hearings of relevant Senate and House Committees on the state of Canada’s trade policies, programs and proposals. Since the launch of the FTAA negotiations in 1998, the House of Commons Standing Committee on Foreign Affairs and International Trade (SCFAIT) has already conducted three studies (in 1999, 2001 and 2002) related to the FTAA. The SCFAIT reports were prepared after extensive public testimonies and they provide valuable direction and guidance to Canada’s trade negotiations. The Government Response to the latest of these Reports, entitled “Strengthening Canada’s Economic Links with the Americas”, was tabled in the House of Commons in October 2002 and is available to the public on the Trade Negotiations and Agreement website of the Department of Foreign Affairs and International Trade: . Canadian parliamentarians also participate in information sessions and roundtable discussions.

Provinces and Territories:

Although the exclusive responsibility of the Federal Government, trade agreements and dispute settlements increasingly address areas of provincial jurisdiction and require provincial implementation. Provincial and territorial governments are fully consulted on the identification of issues, development of strategies and positions during the preparations for and during the course of negotiations. The Federal Government maintains a close relationship with the provinces and territories in the area of international trade policy by means of a variety of different mechanisms. Federal, provincial and territorial officials participate in the Federal-Provincial-Territorial Committee on Trade (C-Trade) which meets at least quarterly in order to exchange information, share perspectives and develop Canadian positions on a range of international trade policy issues, including negotiations. In addition to these regular meetings, Canadian Ministers responsible for trade as well as Deputy Ministers meet roughly once a year to develop further the cooperative relationship that exists with provinces and territories in trade policy, to update them on recent developments and to discuss further cooperation on key issues. The Government of Canada also maintains restricted federal-provincial-territorial websites, and schedules numerous conference calls with provinces/territories to facilitate the sharing of documents and current information.

Municipalities:

Municipalities have expressed a growing interest in promoting increased trade and investment opportunities for their communities, and, more recently, in trade policy issues. Over the past year, the Government of Canada has been working hard to address the concerns of municipalities. A joint Government of Canada/Federation of Canadian Municipalities (FCM) working group was established in November 2001. The working group provides an opportunity for information exchange, to hear the views of local governments through the FCM and build mutual understanding on issues of common interest. Further information on the relationship between the Government of Canada and Canadian municipalities with respect to trade negotiations and agreements can be found at: .

Trade Negotiations and Agreements (TNA) Website

Since its launch in May 1999, the TNA website has been critical to the Government of Canada’s capacity to meet demands for greater information and public participation regarding Canada’s international trade agenda. The FTAA section of the TNA website (www.ftaa.gc.ca) provides Canadians with accessible, accurate, reliable and up-to-date information on the FTAA negotiations. It includes, inter alia, the draft consolidated FTAA negotiating text, Canada’s positions and proposals, frequently asked questions (FAQs), an information kit, a list of key government contacts, and consultation notices. Interested parties are encouraged to visit this website and send their comments to the Government on an ongoing basis. Recently, Canadians have been invited to submit their views on the FTAA market access negotiations for agricultural and non-agricultural goods, on government procurement, and on Canada’s Strategic Environmental Assessment of the FTAA. Moreover, Canada publicly released via this website its market access offers on services, investment and government procurement, as well as a summary of its market access offers for agricultural and non-agricultural goods.

Government of Canada Public Access Programs

In addition to the TNA website, and in keeping with its commitment to finding new and innovative ways to consult with and engage Canadians on public policy issues, the Government has created a single-window access to a listing of consultations from selected government departments and agencies. The “Consulting Canadians” pilot site can be accessed through the following link: . The Government is also making greater use of Communications Canada’s customized information services, including free-of-charge 1-800 numbers and linkages via the Canada Site portal (www.canada.gc.ca). While it encourage the use of new technologies to reach Canadians, the Government continues to use the official Canada Gazette, as an instrument of public record, to post notices with a view to inform and elicit citizen’s comments on trade-related issues of importance to them.

Multistakeholder Information and Consultations Sessions

The Department of Foreign Affairs and International Trade, in partnership with other government departments and agencies, holds periodic information and consultation sessions with business and industry associations, NGOs and public interest groups; and the academic community to address issues of interest to a broad spectrum of Canadians, to which the Minister and the Deputy Minister for International Trade often participate, as well as parliamentarians engaged on the issues. The most recent multistakeholder consultation on the FTAA was held in Ottawa on 27 February 2003 and was Chaired by Mr. John Godfrey, Member of Parliament and Chair of the Inter-American Parliamentary Forum of the Americas (FIPA) Working Group on the FTAA. A full report of this session can be viewed at .

Sectoral Advisory Groups on International Trade (SAGITs)

Established in 1986, the Sectoral Advisory Groups on International Trade (SAGITs) are comprised of senior business executives with representation from industry associations, labour/environment, non-governmental organizations (NGOs) and academia. Members are appointed for a two-year renewable term by the Minister for International Trade to whom they provide confidential advice on matters pertaining to the Government of Canada’s trade policy agenda. Members serve in their individual capacities and not as representatives of specific entities or interest groups. There are currently ten active SAGITs representing various sectors (Agriculture, Food and Beverage; Apparel and Footwear; Cultural Industries; Energy, Chemicals and Plastics; Environment; Fish and Seafood Products; Information Technologies; Medical and Health Care Products and Services; Services; as well as Textiles, Fur and Leather), which conduct their work via restricted web sites, on conference calls and in face-to-face meetings.

Academic Advisory Council (AAC)

The Academic Advisory Council reports to the Deputy Minister for International Trade and calls together some of the leading Canadian experts on trade and related social and economic development matters for in-depth review of collaborative work and/or analyses that narrow the gaps on issues common to multilateral, bilateral and regional trade agreements and negotiations. Through their expertise and research, the Council has proven useful in contributing to fact-based, rational public discourse.

UNITED STATES OF AMERICA

U.S. Trade Policy Consultation Process

The United States Trade Representative's (USTR) Office of Intergovernmental Affairs and Public Liaison (IAPL) was created to expand and enhance USTR’s consultation process with state and local governments, the business and agricultural communities, labor, environmental, consumer, academic, and other domestic groups. The private sector advisory committee system, established by the U.S. Congress in 1974, falls under its auspices. The advisory committee system was created to ensure that U.S. trade policy and trade negotiation objectives adequately reflect U.S. interests. The USTR Office of IAPL also serves as the liaison to all state and local governments on the negotiation and implementation of trade agreements, including FTAA matters. Additionally, USTR issues frequent Federal Register Notices seeking public comment on ongoing trade negotiations, periodically convenes public hearings on trade issues, holds public briefings, regularly disseminates press releases and other trade information to domestic stakeholders, and meets with a broad spectrum of domestic groups at their request. All these mechanisms provide opportunity for domestic input, and the views expressed by civil society stakeholders are taken into consideration in the formulation of U.S. trade policy.

Advisory Committees

The advisory committees were established by the U.S. Congress and provide information and advice with respect to U.S. negotiating objectives and bargaining positions before entering into trade agreements, on the operation of any trade agreement once entered into, and on other matters arising in connection with the development, implementation, and administration of U.S. trade policy. The private sector advisory committee system currently consists of 33 advisory committees, with a total membership of approximately 700 advisors. Recommendations for candidates for committee membership are collected from a number of sources including members of Congress, associations and organizations, publications, and other individuals who have demonstrated an interest or expertise in U.S. trade policy. Membership selection is based on qualifications, geography, and the needs of the specific committee. Advisors are not compensated and serve at their own expense. Members of the committees obtain security clearances and have access to U.S. draft proposals and papers in order to be able to provide civil society input and advice from the perspective of their particular sectors.

By statute, the system is arranged in three tiers: the President's Advisory Committee for Trade Policy and Negotiations (ACTPN); policy advisory committees; and numerous technical, sectoral, and functional advisory committees. The President appoints up to 45 ACTPN members for two-year terms. The 1974 Trade Act requires that membership broadly represent key economic sectors and groups affected by trade. The committee considers trade policy issues in the context of the overall national interest. ACTPN’s diverse membership includes, for example, the National Association of Manufacturers, the International Brotherhood of Teamsters, the Nature Conservancy, the Global Environment and Technology Foundation, the Small Business Exporters Association, the National Cattlemen’s Beef Association, the Governor of the State of Connecticut, the Brookings Institute, and the University of Oklahoma.

The four policy advisory committees are appointed by the USTR alone or in conjunction with other cabinet officers. The Intergovernmental Policy Advisory Committee (IGPAC), which provides trade advice from the perspective of state and local governments, is managed solely by USTR. Policy advisory committees managed jointly by USTR with the Departments of Agriculture, Labor, and the Environmental Protection Agency, are, respectively, the Agricultural Policy Advisory Committee (APAC), Labor Advisory Committee (LAC), and Trade and Environment Policy Advisory Committee (TEPAC). Each committee provides advice based on the perspective of its specific sector or area. For example, the LAC has 58 representatives of union interests, including the AFL-CIO, Union of Needle trades, Industrial and Textile Employees (UNITE), United Steelworkers of America, International Longshoremen’s and Warehousemen’s Union, Service Employees International Union, and others. The TEPAC has 29 members, including groups such as the Center for International Environmental Law, the Humane Society of the United States, the Endangered Species Coalition, Oceana, Transparency International, the Consumers Union, and George Washington University. TEPAC has been particularly involved in the U.S. FTAA environment proposal and environmental reviews policy. All cleared advisory committee members have access to U.S. FTAA negotiating proposals in market access and other areas, and are afforded ongoing opportunity for comment and input.

The 26 sectoral, functional, and technical advisory committees are organized in two areas: industry and agriculture. Representatives are appointed jointly by USTR and the Secretaries of Commerce and Agriculture, respectively. Each sectoral or technical committee represents a specific sector (for example, aerospace, electronics, chemicals, services industries, textiles) or commodity group (for example, “grains, feed and oilseeds,” “fruits and vegetables,” and “animals and animal products”) and provides specific technical advice concerning the effect that trade policy decisions may have on its sector. The four functional advisory committees provide cross-sectoral advice on customs, standards, intellectual property issues, and electronic commerce.

The committees meet on a regular basis, receive confidential information about ongoing trade negotiations and other trade policy issues and development, and are required to report to the President and Congress on any trade agreement entered into under the Trade Act of 2002. Advisory committee reports on finalized trade agreements are also made available to the public. Committee membership lists are available to the public on the USTR website at www.ustr.gov.

Public Consultations and Outreach on FTAA

In 2002 and 2003, the U.S. Government has participated in over 120 meetings, briefings and consultations regarding the FTAA negotiations with the trade advisory committees; Congressional committees of jurisdiction including the Senate Finance Committee, House Ways and Means Committee, the House and Senate agriculture committees and others; business, agricultural, labor, environment, consumer, and academic groups, states and localities, and members of the public.

For example, U.S. officials continually briefed and facilitated consultations with advisory committees, Congress, and other domestic stakeholders on the FTAA agenda leading up to the 2002 FTAA Ministerial in Quito, Ecuador. Prior to Quito, USTR and domestic groups participated in the first-ever North American civil society forum on FTAA held in Merida, Mexico in July 2002. USTR also organized public briefings in advance of the Quito Ministerial, and conducted several taped webcasts with daily updates from the negotiating site in Quito for advisors and members of the public. In addition, officials met with representatives of business and civil society groups in Quito, and participated in a workshop organized by Centro Ecuatoriano de Derecho Ambiental (CEDA) and environmental groups from throughout the Hemisphere. USTR facilitated the public dissemination of the second draft text of the FTAA agreement on its website on the same day that the Ministerial concluded, continuing a precedent set by Ministers at the FTAA meeting in Buenos Aires in 2001. At Quito, USTR also took note of recommendations made by the Americas Business Forum, and met with and received recommendations from organizers of Civil Society Fora.

In 2003, USTR notified domestic civil society of two Federal Register Notices: one soliciting public comments on the second draft consolidated texts of the FTAA agreement, and another encouraging the public to respond to the FTAA Open and Ongoing Invitation issued by the SOC committee, for inclusion of civil society views in the SOC Report to Ministers. USTR consulted broadly with advisory groups, Congress, and other domestic stakeholders regarding FTAA U.S. market access offers, a summary and fact sheet of which was published on the USTR website in February 2003. USTR took steps to ensure U.S. civil society participation in the FTAA-wide civil society issue meetings organized by the SOC in rotating host countries: the first in Sao Paulo, Brazil on June 25 on the topic of agriculture (U.S. participants included the American Farm Bureau Federation and Oxfam America, for example), and the second in Santiago, Chile on September 23 on the topic of services, and publicized these FTAA civil society meetings prominently on its website. In July, USTR held a public briefing on the FTAA with senior government officials, with an open question and answer session. Over 60 organizations attended, including diverse groups such as the Defenders of Wildlife, U.S. Chamber of Commerce, Public Citizen, International Gender and Trade Network, the Center of Concern, and the Information Technology Association.

Finally, the U.S. is coordinating with domestic civil society groups and state, county, and city officials in Florida regarding the November 2003 FTAA Ministerial in Miami. For U.S. and hemispheric civil society stakeholders, the Miami Ministerial will feature parallel meetings of the ninth Americas Business Forum (ABF), organized by hemispheric business groups, and the Americas Trade and Sustainable Development Forum (ATSDF), organized by the North-South Center at the University of Miami in conjunction with hemispheric NGO groups, academics and think tanks (including CEDA, Ecuador; PARTICIPA, Chile; FLACSO, Argentina; Canadian Foundation for the Americas (FOCAL), Canada; International Institute for Sustainable Development, Canada; Carnegie Foundation for International Peace, USA; Tulane University, USA; Transparency International, USA) Registration for the ABF and ATSDF is open to the public, and all FTAA government officials are encouraged to attend the parallel workshops to promote further dialogue. Representatives of the ABF and ATSDF will meet with Ministers in concluding sessions for an exchange of views that, in an unprecedented effort to increase transparency and public access, will be broadcast to the public on the web and on closed-circuit television.