By Puneeth Nagaraj
This author was one of the participants in the strategy meeting at the invitation of the Electronic Frontier Foundation
The Strategy Meeting on Catalyzing Reform of Trade Negotiation Processes was held last week in Brussels. Convened by the Electronic Frontier Foundation (EFF), it brought a diverse group of actors to chart an agenda to engage with trade negotiations in the emerging area of Digital Trade. Representatives from civil society groups, academia and the private sector met together to suggest solutions to make trade negotiations more transparent and accessible.
The meeting was prompted by the recent conclusion of the Trans Pacific Partnership and its inclusion of an e-commerce chapter. The TPP is the first of many new generation trade agreements- which include both mega regional and plurilateral agreements- which are increasingly making trade rules that affect the internet. Given that there is a global internet governance regime which does not create any hard law obligations, there is a danger of the trade law regime becoming the de facto international rules on the subject.
To address this pressing concern, the EFF convened policy practitioners and experts from both the internet governance and trade fields. Participants highlighted the need for research at the intersection of these diverse fields to understand the impact of trade agreements on the internet and the information society. The larger and more immediate concern of all participants was of the confidentiality under which these negotiations are being conducted. This is also at odds with the participatory norms of various internet governance institutions which count for openness, transparency and accountability as their governing ideals.
Aside from the diverging approaches to participatory norms and governance, trade agreements are also at odds with internet governance frameworks. For instance, many internet governance fora are multistakeholder platforms which allow for the participation of the civil society, private sector and technical communities on equal footing with governments. Trade agreements or even institutions like the World Trade Organization are multilateral and allow for very little access to other stakeholders.
The approach of trade agreements to substantive issues reduce the regulatory space available on many internet-related rules. Trade agreements aim to promote trade through liberalization. This often leads to a commercialised or commoditised approach to many of the issues they make rules on. This is evidenced from the debates and cases on issues like environment and intellectual property where policies of national governments taken in public interest have come in to question. Such a commoditized framework of rules has already been extended to the internet by the TPP. It is perhaps telling that the chapter that deals with internet related issues is called the ‘E-commerce’ chapter. However, many of the provisions of the chapter go beyond e-commerce and contains rules on issues like privacy, data transfers and net neutrality- which are core internet governance issues. Coupled with a dispute resolution mechanism, the trade regime on the internet could potentially subsume internet related policy making at the international level.
With these problems in mind, the participants at the meeting, had to come up with workable strategies to engage with trade negotiations on internet-related issues. The meeting split into breakout groups that looked at 3 broad issues: 1) transparency and new norms, 2) advocacy and liaison with allies and 3) civil society funding, capacity building and coordination. Some solutions like creating a civil society coordination group and creating a space for multistakeholder engagement were on process. Others, like creating expert groups and producing research at the intersection of these two new areas were on substance.
The strategy meeting was very useful in terms of bringing together a group of experts from two different fields. It also made everyone alive to the challenges that lay ahead in the intersectional area of internet and trade. The strategies that were suggested also reflected this diversity of thought with a mix of ideas from the trade and internet governance worlds. The meeting concluded with efforts to draft a common statement which left the participants with a rich agenda for future work on internet and trade issues.
Puneeth Nagaraj is a Project Managers at the Centre for Communication Governance at National Law University Delhi