U.S. Negotiations and Interest in the Trans-Pacific Partnership: The Licit and Illicit Economies

Posted: January 17, 2013 at 3:46 pm, Last Updated: April 11, 2013 at 5:06 pm

By Andrew Guth

Introduction:

The Trans-Pacific Partnership (TPP) is the latest version in a long list of regional free trade negotiations, the purpose of which is to encourage economic integration (Ministry of Foreign Affairs & Trade
(MFAT), 2005, p. 5).  This paper examines the possible effects of a successful TPP negotiation on both the licit and illicit economies in two sections.  First, it discusses the origins, development, and scope of the TPP.  The TPP currently consists of eleven countries with the purpose of removing trade barriers, establishing a trade dispute method, development of production and supply chains, and strengthening of economic and political institutions (MFAT, 2005, pp. 5–6; USTR, 2008, 2011).  The scope includes all goods, services, and investments with twenty-six chapters of legal text that cover issues such as ensuring competition; consumer, labor, environmental, and intellectual property protection; transparent electronic services; efficient Customs; and ‘Rules of Origin’ to name a few (Fergusson, Cooper, Jurenas, & Williams, 2012, p. 6; USTR, 2011).

Second, the political dynamics of the TPP are discussed as they pertain to the licit and illicit economies.  It determines that the effects on growth of the licit economy are, most likely, minimal.  However, there is potential for future benefits.  TPP countries represent the largest trading partner for the U.S., accounting for 34% of U.S. trade in goods (Fergusson et al., 2012, p. 10).  And if passed, the TPP will become the largest free-trade agreement (FTA) in U.S. history (Fergusson et al., 2012, p. 11).  Concerned industries include U.S. exporters of machinery, electronic machinery, autos, and refined petroleum products as well as importers of electronic machinery, autos, crude oil, agriculture, and natural resource products (Fergusson et al., 2012, p. 11).  Furthermore, two overarching political debates are discussed, one dealing with the Trade Promotion Authority (TPA) and the other with the transparency of the negotiations.  Naturally, there are many deliberations between countries and within countries at the negotiating table.  However, the two debates mentioned ultimately decide the other deliberations because they decide who has the preponderance of power to negotiate and or approve a TPP – the President’s trade representative, Congress, or the stakeholders at the negotiating table.

The illicit economy discussion begins with a brief examination of NAFTA and shows that provisions to protect against the rise of transnational organized crime (TOC) are not always effective.  After NAFTA was implemented, both the licit and illicit trades increased between Mexico, the U.S., and Canada (Peele, 2012; WEF, 2012).  Also, in order to help the reader gain a more in-depth understanding of the numerous illicit markets that go beyond the traditionally discussed drugs, arms, and humans, the TPP countries’ proficiency in the illicit trades of environmental goods (e.g. illegal logging) and counterfeit pharmaceuticals is examined.

The paper concludes with seven recommendations that help lead to a successful TPP agreement, those are: 1) an increased understanding of the connection between the licit and illicit economies, 2) collectively addressing illicit trades, 3) strengthening IP protection (e.g. securing supply chains), as opposed to widening IP protection to include generics, 4)  increasing the perception of transparency within negotiations, 5) a balanced negotiating approach that considers short and long-term economic benefits as well as U.S. values (e.g. environmental, labor, consumer protection), 6) officially requesting the TPA, and 7) incorporate many of the concerns and recommendations presented in this paper into the current discussion on the US-EU FTA.

Origin, Development, and Scope:

Beginning in 1999, free-trade negotiations began between New Zealand and Singapore for a Closer Economic Partnership (NZS-CEP).  The NZS-CEP grew to include Chile in the Pacific Three (P3)-CEP (2002), Brunei in the P4-CEP (2005), and seven other countries [the United States (2008), Australia (2008), Peru (2008), Vietnam (2008), Malaysia (2010), Mexico (2012), and Canada (2012)] to form the current TPP of eleven countries (Foreign Affairs and International Trade Canada, 2012; Gibson, 2012; Meltzer, 2012; MFAT, 2005, p. 5, 2011; Williams, 2012).  Additional countries such as South Korea, Japan, Taiwan, and the Philippines are considering joining (Lin & Wang, 2010; Nishikawa, 2010; Official Gazette, 2010; Wallace, 2011).

The purpose of the TPP is to establish trade rules with “high-quality benchmarks” that encourage economic integration through the removal of trade barriers, establishment of a trade dispute method, development of production and supply chains, and strengthening of economic and political institutions (MFAT, 2005, pp. 5–6; USTR, 2008, 2011).  The scope of the TPP includes all goods, services, and investments unless specifically negotiated to be not included, i.e. placed on the ‘negative list’ (USTR, 2011).  Together, this consists of removing 11,000 tariffs (USTR, 2011).  Legal aspects include twenty-six chapters of text and covers issues such as ensuring competition; consumer, labor, environmental, and intellectual property protection; transparent electronic services; efficient Customs; and ‘Rules of Origin’ to name a few (Fergusson et al., 2012, p. 6; USTR, 2011).

Political Dynamics:

Licit Economy:

TPP countries represent the largest trading partner for the U.S. – accounting for 34% of U.S. trade in goods (Fergusson et al., 2012, p. 10).  If passed, the TPP will become the largest FTA in U.S. history (Fergusson et al., 2012, p. 11).  Concerned industries include U.S. exporters of machinery, electronic machinery, autos, and refined petroleum products as well as importers of electronic machinery, autos, crude oil, agriculture, and natural resource products (Fergusson et al., 2012, p. 11).  However, the immediate economic benefits will be, most likely, minimal.

Minimizing factors of the TPP include TPP countries currently trading approximately $1.9 trillion in goods, but of which only $370 billion is not covered by current FTAs (Fergusson et al., 2012, p. 6).  Also, while the U.S. accounts for 74% of the goods traded, it already has FTAs with six of the ten TPP partners, and those six account for 95% of U.S. trade with TPP countries (Fergusson et al., 2012, pp. 6, 9, 11).  Benefits to the U.S. economy are projected at only $5 billion in 2015 and rising to $14 billion by 2025 (Petri, Plummer, & Zhai, 2011).  Though these projections are conservative, as they do not account for investment liberalization and were made before the addition of Mexico and Canada (which makes little difference because the U.S. already has FTAs with these countries), they still demonstrate extremely small relative numbers (Petri et al., 2011).

Potential benefits of the TPP include increased trade liberalization with Malaysia and Vietnam.  These countries appear most beneficial to the U.S. because of their rapid economic growth, 120 million people, and current high tariffs of 8% and 9.8% respectively (Fergusson et al., 2012, p. 9).  Also, there is the possibility of future benefits if the TPP fulfills its suggested long-term objective of realizing a Free Trade Area of the Asia-Pacific (FTAAP).  The Asia-Pacific region is the fastest growing region in the world and already accounts for 60% of global GDP and 50% of international trade (Meltzer, 2012; USTR, 2008).  The TPP would allow for a larger U.S. foothold in the Asia-Pacific region – a region that accounts for 62% of U.S. trade (Fergusson et al., 2012, p. 10).

There are two overarching political debates in the U.S.  One deals with the TPA and the other on the transparency of the negotiations.  Naturally, there are many deliberations between countries and within countries at the negotiating table.  However, the two debates mentioned ultimately decide the other deliberations because they decide who has the preponderance of power to negotiate and or approve a TPP – the President’s trade representative, Congress, or the stakeholders at the negotiating table.

First, the TPA gives the President enhanced negotiating power with foreign countries because an agreement made with the TPA is subject to only a simple up/down vote by Congress.  In contrast, Congress is able to change Presidential agreements made without the TPA.  The President has signaled that he wants the TPA, but has yet to officially request it from Congress (Palmer, 2012a).  Republicans and business groups also want the President to have the TPA because it sends a message to other countries that the deal being negotiated will be honored.  Conversely, Democrats as a whole are cautious about the authority because it concerns many U.S. labor unions (Palmer, 2012a).

Second, the transparency of the negotiations is in question.  On one side, labor, environmental, and consumer groups contend that the TPP negotiations are too secretive, deal mainly with forming international law instead of trade, and favor transnational corporations (Citizens Trade Campaign, 2012; Levine, Sprigman, & Flynn, 2012).  They point out that negotiations are held behind closed doors, no draft texts are released, Congress is kept uninformed, transnational corporations are used as consultants[1] (e.g. Halliburton, Chevron), and corporate executives given access to the texts and talks of the TPP negotiations while other stakeholder groups such as civic groups, healthcare providers and advocates, and academics are left out (Citizens Trade Campaign, 2012; Doctors Without Borders, 2012; Flynn, Kaminski, Baker, & Koo, 2011; Levine et al., 2012).

Additionally, some leaked texts show that corporations may be given special privileges to circumvent domestic laws under the “investor-state” dispute process.  Under the WTOs dispute mechanism the US has lost 90% of its cases, some of which involved the domestic laws of the Clean Air Act, Endangered Species Act, Country-of-Origin Labeling, and Internet Gambling (Citizens Trade Campaign, 2012).  The groups contend that this “investor-state” benefits transnational corporations by 1) giving them additional access to an extra-judicial legal system that domestic citizens and businesses are not privy, 2) increased assaults on the environment, consumer safety, and public interest, and 3) more incentives to move jobs overseas (Citizens Trade Campaign, 2012).  Other attacks include limited free speech on the internet, reduced Wall Street regulation, and reduced access to medicine, (Citizens Trade Campaign, 2012).

Conversely, the U.S. Trade Representative contends that the negotiations have been as transparent as possible and points to the more than “400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds” (Flynn, 2012).  He claims that some discretion and confidentiality is needed in negotiations in order that parties feel comfortable in presenting all issues (Palmer, 2012b).  Additionally, he states that a negotiating text has not been released because it is too early, and that there will be time to release a text when it is ready for the people to examine (Palmer, 2012b).

Illicit Economy:

NAFTA demonstrated that FTAs often increase both the licit and illicit trade (Peele, 2012).  NAFTA had provisions to protect against the rise of TOC; yet it is clear that TOC not only increased in the free-trade zone, but that it encouraged the rise of some of the most powerful organized crime groups in the world (Peele, 2012; WEF, 2012).  TPP negotiators should examine this rise and focus more attention on preventing the rise of an illicit economy.  Currently, the TPP has chapters being negotiated concerning intellectual property, environment, textiles, agriculture, etc…, but so did NAFTA (Peele, 2012).  The negotiators should understand that increased legal trade automatically increases the illicit trade.  For example, trade liberalization and deregulation of the trucking and shipping industry increase the licit trade as well as the illicit trade, privatization of companies and financial liberalization increases money-laundering and illicit-investment opportunities, increased legal trade creates additional concealment for illicit trade, and agricultural reform can lead to increased drug crop cultivation (Peele, 2012).

They must comprehend that, in addition to the traditionally discussed illicit commodities of drugs, arms, and humans, there are numerous illicit commodities that need addressing.  For example, the illicit trade in environmental products is an estimated $20 billion a year industry and the Asia-Pacific region is particularly vast in the trade, including illegal logging (e.g. deforestation, exceeding limits, degradation), illegal fishing, and the illegal wildlife trade (e.g. poaching) (USTR, n.d.).

Specifically, TPP countries are source, transit, and destination countries and provide the primary trading routes for the illicit trades in tropical hard woods, rhino horn, tiger cubs, tortoises, animal parts, etc… in order to supply the demand for believed medicinal purposes or show of wealth (USTR, n.d.).  Damages include an estimated $6 billion a year lost just in illegal logging, loss of fishing stocks, loss of plant and animal species, and alien species invasions that disrupt the native ecosystem (USTR, n.d.).  In order to address these illicit markets, the TPP must collectively tackle and enforce laws that deal with the issues.  Explicitly, the issues of illegal logging, the illicit trade in fauna and flora, and marine and ocean governance (USTR, n.d.).

Additionally, one of the main debates in TPP negotiations deals with intellectual property (IP) of pharmaceuticals.  U.S. pharmaceutical companies tend to want to expand and lengthen their IP patents in order to limit the quantity of legitimately made generics produced in India (Robinson, 2012).  Conversely, the more developing countries and many NGOs (e.g. WHO, Doctors Without Borders) tend to want to contract and shorten the IP patents.  Unfortunately, the debate appears to be slightly off target.  Instead of focusing on expansion and lengthening of IP patents, the focus should be more on strengthening IP protection.

Currently, the main focus appears to be on generic pharmaceuticals.  Specifically, on the  approximately $5 billion worth of generic pharmaceuticals being exported from India every year (Robinson, 2012).  Obviously, U.S. pharmaceutical companies feel as if their risk and investment in R&D warrants more of a share of that industry.  Conversely, NGOs and developing countries contend that a large portion of lifesaving drugs are generics and that it is inhumane and against previous agreements (e.g. TRIPS), that put world health before patents, to limit the amount of generics produced and exported (Doctors Without Borders, 2012; Flynn et al., 2011).  For example, they point to the more than 80% of the generic AIDS/HIV antiretroviral drugs that come from India (Doctors Without Borders, 2012).  Furthermore, the current TPP negotiations go well beyond the already controversial Korean-U.S. Free Trade Agreement (KORUS) and the Anti-Counterfeiting Trade Agreement (ACTA) (Flynn et al., 2011).

However, more focus needs to be on counterfeit and fake pharmaceuticals.  An “estimated 100,000 people die every year from substandard and falsified medicines for cancer, heart disease, infectious diseases and other ailments” (Attaran & Bate, 2012).  Many of the drugs coming out of India and China are counterfeit or fake.  Several studies show that of all the antimalarial drugs coming out of Southeast Asia, 33%-53% are counterfeit or fake.  Precisely, they show that 35% fail chemical analysis, 46% fail packaging analysis, and 36% classify as falsified (Nayyar, Breman, Newton, & Herrington, 2012; Newton, Fernandez, & Plancon, 2008; Robinson, 2012).  Additionally, of the fakes detected, 100% of them contained zero or very small amount(s) of the antimalarial drug Artesunate (Newton et al., 2008).

Most of these are coming from “small, criminal operations – not mainstream pharmaceutical manufacturers” (Robinson, 2012).  A chemical analysis of the fake malaria drugs showed traces of metamizole and safrole which are raw materials used in the production of methylenedioxymethamphetamine or ‘ecstasy’ (Newton et al., 2008).  Further investigation showed the drugs were being produced in southern China and illegally transported by, most likely, two separate organized crime groups throughout Myanmar (Burma), Thailand, Laos, Vietnam, and Cambodia (Newton et al., 2008).  This strongly suggests that these TOC groups operated in other illicit markets (e.g. ecstasy) prior to converting their operation into producing fake pharmaceuticals, which also proposes a financial motive for conversion (Newton et al., 2008).

Consequently, more focus in the TPP negotiations needs to be on strengthening regulation of IP protection to prevent the illicit trade of counterfeit and fake pharmaceuticals, and not necessarily on whether legitimately produced generics should be included in IP protection.  Driving generic pharmaceutical companies out-of-business with expanded and lengthier IP patents simply increases the price and reduces the availability of legitimate pharmaceuticals to those in need (Robinson, 2012).  Additionally, increased prices and less competition allows criminal groups to fill the void with fake pharmaceuticals.  A better method for everyone involved is to strengthen IP protection regulations within the TPP countries.  This involves the TPP defining and criminalizing substandard, counterfeit, and fake pharmaceuticals as well as securing supply chains (Attaran & Bate, 2012; Robinson, 2012).  This helps curb the market share of the criminal organizations and in doing so increases the market share (and profits) to both the Indian and U.S. pharmaceutical companies.  In this manner, legitimate drugs that actually contain active ingredients to protect the populace can be distributed at low costs.

Conclusions:

Obstacles to a successful TPP include economic, political, inter-country, and intra-country disputes; illicit economic growth; the President negotiating without a TPA; and many in Congress feeling they are being kept uninformed (Palmer, 2012a; Schakowksy et al., 2011).  This could lead to Congress blocking an up/down vote on any TPP agreement under the pretext that it was not performed with the power of the TPA.  Congress would then have the right to debate and change any part or the entire TPP, which could derail the entire process (Fergusson et al., 2012).

However, advocates of a successful TPP include economists and politicians that mostly consider ‘globalization’ as the future and a blessing, while ‘protectionism’ is considered injurious.  It is therefore likely that some sort of an agreement will emerge.  This paper concludes with six recommendations for a successful negotiation and TPP.

Recommendations:

1)    Increased understanding.  TPP negotiators should have a strong understanding of the connection between the licit and illicit economies.

2)    Collectively address the illicit trade.  TPP countries should collectively address the illicit markets (e.g. drugs, arms, humans, illegal logging, illegal fishing, counterfeit pharmaceuticals).

3)    Strengthened IP protection.  Focus more on strengthening regulation of IP protection to prevent the illicit trade of counterfeit and fake pharmaceuticals (e.g. better control of supply chains), and not necessarily on whether legitimately produced generics should be included in IP protection.

4)    Increase perception of transparency.  Performing 400 consultations and inviting stakeholders to the negotiating rounds certainly demonstrates transparency.  However, there is clearly a perception of opacity and perception often rules reality.  There should be a concerted effort to ensure transparency and to increase the perception of transparency to the public.  This is most easily and effectively performed by making civic groups, healthcare providers and advocates, legal groups, and academics part of an “official trade advisors” group, as well as an ad hoc congressional committee, that are privy to the same text and talks as the corporate executives.  Each group does not need to have its own advisory board for the TPP negotiations, just like each corporation does not have its own advisory board.  Instead, create an advisory group that incorporates these, and similar, organizations into a represented body.  It is then that group’s responsibility to present its main concerns as a united front.   In this manner, the US trade representative and TPP talks are not hindered by a plethora of individual negotiations, transparency is increased, and the discretion and confidentiality that is needed in negotiations is maintained.

5)    A balanced negotiating approach.  Projections suggest only small immediate benefits and just a possibility of larger benefits in the future.  Any increase in trade must be weighed against U.S. values (e.g. environmental, labor, consumer protection) (Rodrik, 2011).  The U.S. is in a strong position to leave negotiations if domestic laws and values are being encroached upon too heavily.  Due to its trading size, the U.S. would certainly be welcomed back at a later date if it felt it beneficial to join.

6)    Request the TPA.  Although local unions may be disturbed by the request, it can be mitigated by increased transparency and inviting their representatives to attend negotiations.  Additionally, it gives more comfort to other countries that the agreements will be honored.  Furthermore, it gives the President more negotiating power and equally removes power from Congress by eliminating the possibility of it by-passing the up/down vote.

7)    Incorporate into the US-EU Free Trade Agreement.  Many of the above mentioned concerns and recommendations can and should be echoed as they pertain to the current discussion of the US-EU FTA.


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[1] These executives are made “official trade advisors” that gives them access to the texts and talks (Citizens Trade Campaign, 2012).

Write to traccc at traccc@gmu.edu