Trade Negotiation And The Digital Fight

Introduction:

I’m Jane Kelsey, and in my day job I’m a professor in the University of Auckland in New Zealand. The rest of my time I spend engaging with civil society and activists, as well as with Governments on ‘electronic commerce’, the new buzzword in the trade arena, as well as other issues.

As someone who has been following the mega trade agreements of recent times- like the Trans Pacific partnership (TPP), I decode the new global rules for people. Countries are often being coerced into signing these deals and agreeing to follow these rules without really understanding what they mean. These trade rules are basically devised by and for big tech companies, and are designed to get governments to voluntarily sign away critical rights.

These rules give free reign to the first movers such as Google, Amazon and others and consolidate their oligopoly over the whole of the digital sphere. So we’re working to get people to understand and to resist this by trying to make the digital space as open as possible. We are also working to be able to understand what’s happening so as to regulate the digital sphere in the interests of social justice.

So what's happening in the trade arena, and why should people be concerned?

The first important step is to get people to understand the game plan being played out in the trade arena. People hear the word ‘trade’ and they turn off, and that’s actually part of the game-plan.

The point is to have the global rules for the digital domain made in this arena that is secretive, that is exclusive, that is solely concerned with commercial interests and then to present that as a fiat accompli. The makers of the rules aren’t prepared to have those discussions in other arenas where there is a more balanced approach, and where they are more participants who could argue in the interests of people- in the interests of human rights, in the interests of social justice.

The term trade is being used as a Trojan horse to push rules that will be used to regulate the entire digital domain. We saw this first with the Trans Pacific Partnership agreement (TPP); but we actually didn’t see it until the agreement was done because that was one of the very few chapters that wasn’t leaked. Had it leaked then, we could have mobilized around it as we did with the intellectual properties chapter and the investment chapter. However, unfortunately, the first time we really knew about what the game plan was when we saw the so called Trade in Services agreement (TISA).

We started to analyze and we realized that TPP had little to do with real trade as people understand it: It was effectively a mixture of monopoly rights over data or intellectual property; rules on spam; rules on data to enable the big tech companies to move and hold data wherever they wanted; minimizing of privacy protections; minimizing consumer protections; and so on.

By the time we found this out, the TPP had been concluded and then we started to discover the same text appearing in a whole pile of other agreements – the Japan EU agreement, the Japan Mongolia agreement, the EU’s proposals to Mercosur and so on. The EU had a fetish about privacy but the rest of it was basically the same. And then we started to see that from 2016 onward the US was leading the charge to develop global rules based on the TPP template in the World Trade Organization. And that’s been a big fight that we have been having for the last couple of years.

There is no mandate to negotiate this, but a bunch of countries have decided they are going to break away and do it anyway and engage in what they call 21st century rule making. And the dilemma of course is that if we don’t fight this now and repeal this along with the number of developing countries, then by the time we try and understand the implications of what is happening now, or in the next 10 or 20 or 30 years, the governments are going to sign away the right to do anything about it.

What strategies have been effective in resisting these new global rules?

One of the strategies that we have been used to resist this – and I’ll tell you about New Zealand, where I come from – has been to challenge these agreements, in particular the Trans Pacific Partnership, before something called the Waitangi tribunal.

In our country we have a treaty signed in 1840 between indigenous Maori and the British: the Maori interpretation is that the Maori will retain control over everything . And there is this tribunal now which is established to look at breaches of this treaty, some of them historic and some contemporary. And so the Trans Pacific Partnership challenge had a first phase without moving into the second phase and one of the key arguments made in that phase concerned the failure to protect Maori data sovereignty through the TPP and subsequent agreements being a breach of the crown’s agreements to the Maori.

And the fundamental argument – although I’m not Maori, I’m an expert in the case – is that these agreements treat data as a commodity, as something to be decontextualized, to be traded in a market place which appears neutral, but in reality is dominated by the oligopolies of GAFAA (Google, Amazon, Facebook, Apple, Alibaba).

How do you see these impositions of the global economy interact with indigenous conceptions of data sovereignty, such as the Maori's?

From a Maori perspective, data has something called Maori, or a life force. It has whakapapa, a spirit; it has a wider connection to people and to the natural world. Data is intrinsic to Maori identity.  

  You cannot separate data from those to whom it relates, for whom it is generated

And once you start seeing data as a taonga- as something that is to be treasured, which the treaty guarantees Maoris for rights over, then there are rights that are attached to it to protect the interests of the people to whom it relates. Furthermore, the validity and the intrinsic value of the data itself, and also the authority over the data – the right of Maori to control the data – that relates to them in a cultural and spiritual sense but also in a developmental sense is guaranteed by the treaty.

So Maori can use the data to advance their own well being. And we will be having this argument later this year before the Waitangi tribunal and the government simply does not know what to do with it. It pretends it does not exist because we have this fundamental clash of paradigms. It’s view is ‘oh can we find a view or two to slot into the chapter that can solve the problem’, but now the problem is a fundamental, conceptual clash which is intrinsic to the broader debates that we are having about conflicting paradigms in the digital domain.

At the core of this conceptual clash is this notion of how we relate to phenomena. So the trade agreements, or the broader notions of rights over data in a market, treat data as a commodity and as something that can be sold. Maori are fundamental different, in the sense that there is no right to own- there are no exclusive domais that allows the exclusion of access to data, except for purposes of protecting it’s own integrity and value.

Many negotiators don’t understand that this is a first principle’s problem and not a matter of bargaining. It’s not a matter of accommodating these concerns within the framework of the agreements, on the contrary it is the agreements themselves and the fundamental premises that are the problem.

One of the lessons, which some of us who have been around for a while have learnt, is that we have had victories, but the victories have happened because people have mobilized. For example, the Trade in Services Agreement (TISA) was resisted in large parts because there was huge mobilization in various countries- including the European Union. But also countries that started to see that everything now was being called ‘services’, including manufacturing, industry , agriculture, and the whole range of public services.

So when we come to the digital sphere we see several levels emerging with trade rules coming in. Some of them are actually about the digital infrastructure – source codes, data, payment systems, e-signatures and so on. There is digital industrialization, as well as privacy, human rights and potential abuses through profiling and so on.

But we also see that the ability to control data, and to control the entire ecosystem gives control over what is now highly digitized agricultural and production food systems. Or control over industries which are highly splintered into lots of digitized operations. Or mining, or fisheries…

It’s always impossible to think of anything now that isn’t, in fact driven by digital technologies. And so, all the trade agreements are interlocked together. Workers, small farmers, or fisher folk- they cannot not just think that this is a trade issue, or just other trade rules as they used to know it.

The digital fight is now at the core of the 21st century trade agenda.

 

Jane’s work focuses on political economy of international economic negotiations, around services, investment and e-commerce.

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