Greenpeace, European Digital Rights, Public Services International and the International Transport Worker’s Federation today presented a collection of leaked papers on the Trade in Services Agreement (TISA). As negotiators from a dozen countries currently gathered in Geneva for officially the 20th round to close the deal on better trans-border service trading, the civil rights activists and trade union representatives warned that TISA partners would commit to give up their options to regulate in the public interest through a secret deal.

The collection of leaked papers is available here.

After last week’s leaks by the whistleblowing platform Wikileaks, Greenpeace followed up with the publication of a new version of the core text of TISA, several sectorial annexes on energy, electronic services, financial services, maritime services and professional services as well as texts on transparency in financial services, general localization provisions and a list of country proposals.

TISA has been officially negotiated between the “very good friends” since 2013 in an effort to modernise the World Trade Organisations General Agreement on Trade in Services (GATS).

The list of newly leaked papers also includes proposals from both the United States and European Union on how to transport the plurilaterally agreed TISA concepts into the WTO GATS.

One thing the leaked papers clearly reveal is the breadth and depth of TISA, which goes far beyond classical trade deals and, as the organisations are concerned, could infringe on governments’ ability to regulate in the public interest. The draft texts certainly include regulatory measures, for example on interconnection obligations for telecom providers, on obligations to stop spam mail, and, as recently added by the US, provisions on liability of internet platforms.

Fears Affirmed on Public Services

Daniel Bertossa, director of policy and governance, Public Services International, criticised that TISA negotiating countries had “left it to these leaks for citizens of the countries to understand the implication of negotiating of the binding treaties that these countries are negotiating.” Most concerning for Bertossa: “that many of initial fears that were denied by our governments when we first raised them are now affirmed by the leaks.”

For his organisation it is clear that the “public services caveat clearly does not cover most of public services that people to consider important.” Bertossa pointed, for example, to specific services that are part of, say, public health, which would not be covered.

“If you take the management of the records of the population which is done through information technology systems, these areas are not covered by the exemptions for the public services,” he warned. Promising to keep what we have got, but allowing private competition in health at the edges could further undermine a universal public health care system, he warned.

Also, once liberalised, there is no turning back to public services, according to TISA’s ratchet clause, added Susan Cohen Jehoram, international TTIP campaign leader, Greenpeace Netherlands.

Tying the Hands of Governments to Regulate

One point underlined by Greenpeace, Public Services International, EDRI and their partners alike is the concern that TISA will tie the hands of governments to regulate in the public interest in the future.

Not only could new fields of technology like biologics or innovative developments in information technology or energy be exempted from regulation due to TISA commitments. But, as EDRi warned in its longer analysis of the leaked texts [pdf], the “mere inclusion or recognition of countries’ right to regulate does nothing to guarantee that it would take precedence over purely economic considerations.”

A problem here also is that, according to Bertossa, the right-to-regulate clause in TISA is undermined by text in the sectorial chapters.

EDRi demanded: “If adopted, TiSA would need a legally binding clause clarifying how exactly countries’ right to regulate will not be challenged by their commitments under TiSA, strengthening the imperfect wording of Article XIV GATS.”

From 44 GATS cases brought against governments that intended to introduce new regulation in innovative fields, 43 were successfully challenged resulting in states giving up on regulation, Cohen reported during today’s press conference. A draft proposal from the Australian government that considers a potential differentiation with regard to liberalisation steps, for example in foreign investment, illustrates that governments themselves are a little concerned here.

Counter-Development Goals

The obligations to commit to regulatory standstill provisions, localization clauses and the difficulties to steer through automatic liberlizations steps are especially problematic for developing countries, Isolda Agazzi, world trade expert, Alliance Sud Switzerland, explained at the press conference.

Agazzi said developing countries could lose the ability to regulate, and in fact develop their own service markets, because once liberalised and opened up, they could not retroactively place caps on foreign investment, for example.

Localization, too, she said, would diminish developing countries’ policy space as it would forbid measures like the “local content requirement,” protecting home-grown content production. Also, the transparency annex is pernicious to development. It would introduce an obligation for every state party to allow foreign investors to weigh in on domestic regulation, she noted. In that regard, as EDRi noted in its analysis, here the new leaks show that countries even intended to go a step further than in earlier versions.

“The consolidated version of Article X.15, dated 8 April 2016, shows that certain countries also want to introduce a notice-and-comment system on draft regulations and require that countries address in writing comments received by “interested persons,” EDRi said. Countries, the group said, seem “keen on institutionalising lobbying” as it is mainly big corporate lobbies that mastered such processes. That was a concern for all states, the civil rights organisations and trade unions agreed.

EDRi in its detailed analysis also pointed to more problematic details it found in the many pages of the text, which for some parts – like the telecommunications and e-commerce annexes – are still quite heavily bracketed.

Further, European privacy and data protection standards, according to EDRi, would be “diminished in 6 out of the 9 analysed documents, exceptions for ‘essential security interests’ are a Damocles sword” – allowing for indiscriminate surveillance – and “the door was still open to some forms of online discrimination, such as zero-rating.”

There is also a concern for those interested in being able to check on software. There is a potential danger “to access open source code in Article 6 of the E-commerce Annex leaked today,” Maryant Fernández Pérez, EDRi advocacy manager, told Intellectual Property Watch.

The leak showed that “a TiSA country cannot require mass-market software to be released openly by service providers of another Party to the agreement,” she said. The EU on this point had not pronounced itself, she added, “so we hope next versions of this provision will refine the wording proposed by several Parties to TiSA.”

In general, EDRi wrote that it was baffled at how civil society concerns had been ignored.

The TISA negotiation parties who had to face protestors from Greenpeace this morning in Geneva have expressed their intention to finalise the text by the end of the year, but that is again a very ambitious goal given the many brackets and newly introduced texts.

Separately, an article in The Guardian today asserts that TISA could threaten the Paris climate agreement by making it more difficult for governments to favour clean energy over fossil fuels as part of efforts to keep temperature rises to 1.5C.

Image Credits: Greenpeace