If negotiations for the Trans-Pacific Partnership are successful, United States officials would vet Australia’s implementation of its agreed commitments — and even draft legislation dictated by US corporations to be passed by our Parliament.

The Congressional process known as “certification”, long used to dictate how other countries enforce their free trade agreements with the US and even impose additional requirements beyond those agreed, is likely to be ramped up by the US for the TPP. The legislation requires the US president to withhold agreement to any trade deal, even one approved under “fast track” authority, until the US is satisfied that the other party has fully implemented its commitments under the agreement — as interpreted by the US.

Under the fast track bill currently before Congress, which is in effect necessary to a successful conclusion of the TPP, the requirements have been strengthened. The draft certification text proposes:

“CONSULTATIONS PRIOR TO ENTRY INTO FORCE — Prior to exchanging notes providing for the entry into force of a trade agreement, the United States Trade Representative shall consult closely and on a timely basis with Members of Congress and committees as specified in paragraph (1), and keep them fully apprised of the measures a trading partner has taken to comply with those provisions of the agreement that are to take effect on the date that the agreement enters into force.”

The strengthened role for Congress and its committees means an even greater role for corporate interests, which can lobby congressmen and -women for specific interpretations of agreements. Even without the requirement for close consultation, certification has been used by the US to heavily vet and in some cases actually write legislation for other countries, under the threat that whatever benefits that come from greater access to US markets will be withheld. Under the US-Peru FTA, the US withheld certification until US Trade Representative officials had travelled to Peru in 2008 to “finalise revision to regulations” the Peruvian Parliament was required to pass.

The mechanism is also used to impose requirements beyond those agreed to in the text of the treaty. Certification of the Central America Free Trade Agreement was used to include US food inspection standards despite their absence from the FTA; Guatemala was required to provide an additional concession on the intellectual property rules relating to medicines in the certification phase. According to the TPPNoCertification site, certification also imposed, on average, a delay of more than 10 months on agreements coming into effect.

The process, which has been flagged as a major concern by Australian groups like the Pirate Party and Electronic Frontiers Australia, has already been used in Australia following the AUSFTA. In 2004, as the Financial Review reported (copy here), the re-elected Howard government caved in to aggressive demands by the US Trade Representative to rapidly overhaul its legislation implementing the AUSFTA in order to further expand already widened measures designed to protect US intellectual property — the chapter that the Productivity Commission said “clearly imposed a net cost on the Australian economy”.

Tomorrow, trade ministers from TPP countries will meet in Sydney to consider the handiwork of officials who have been negotiating in Canberra in secret for the last week. As history shows, concluding a successful deal is only one stage in the process of giving in to US corporate interests.

Peter Fray

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