The Trans-Pacific Partnership (TPP) trade agreement negotiations have resumed, and a troubling provision has come to light. The United States government is using an enhanced version of the provision known as “certification,” which allows it to change other countries’ domestic obligations at will. This has internet freedom activists worried that the US may enforce draconian copyright laws globally.
So, what is certification? Well, it’s rather innocuous albeit ultimately coercive language tailored to trade agreement text, but takes roughly the same basic form each time. As the Electronic Frontier Foundation noted, the US approval of the agreement takes place in two phases.
In the first, Congress approves the overall TPP text. In the second, each country’s implementation of the agreement’s laws must be certified by the US before TPP takes effect. This is isn’t carried out democratically by an independent international party, but by US trade representatives through what is essentially the rewriting of each country’s domestic bills.
The US first used certification in 1988 with Canada in the United States Free Trade Agreement (CUSFTA), then again in 1993 in the North American Free Trade Agreement (NAFTA). The language hasn’t evolved, but it famously created some dissent in a trade agreement between Chile and the US. Ultimately, Chile refused to make the requested changes in the certification process.
Certification is also found in the the Bipartisan Trade Priorities Act of 2014. This bill sought to establish Fast Track authority for the TPPA (a fast push through Congress), and included certification language in Sec. 4(a)(2).