The loudest criticism of the ongoing Transatlantic Trade and Investment Partnerships negotiations between the United States and the European Union is that they are conducted behind closed doors. On both sides of the Atlantic, there are concerns that the negotiation process’ lack of transparency is inherently undemocratic, ignoring the will of the people and violating national sovereignty. Particularly in Europe, many question the choice to present the European Parliament with an “all-or-nothing” proposition, in which the final version must be voted on without modification.
This is an argument we’ve seen before, in an earlier century over the ratification of a different document: the U.S. Constitution.
Many of the strongest opponents to the Constitution were opposed to the procedure for ratification, rather than the content of the document, as revealed by the late historian Pauline Maier in her award-winning book, Ratification. Following the Constitutional Convention, state conventions were required to vote “yea or nay” on the final document without any modifications. Opposition leaders, like George Mason of Virginia and Robert Whitehill and William Findlay of Pennsylvania, blamed the demand to “take this or nothing” for converting “men who had had hoped to ‘perfect’ the Constitution into its opponents.”
There is no denying that the foundational text for United States was created through a relatively undemocratic process. As historian Ray Raphael explained in an analysis of Maier’s book:
Without any means for amending the document prior to ratification, the people, in whose name the Constitution was supposedly written, were being asked merely to add their assent to a document not of their own making.
It is an issue that gets at the core of federalist politics, particularly when it comes to trade. Are there instances when supranational agreements should be negotiated above the level of democratically elected national governments, especially in the interest of speed and efficiency? What takes precedence, national or supranational law? Which body adjudicates disputes?
In theory, TTIP is not an unpopular or polarizing concept. According to a Pew Research survey conducted in April 2014, 75 percent of Germans and 72 percent of Americans believed increased trade between the United States and the EU would be a good thing. But the undemocratic negotiating process has soured public opinion on a number of leaked TTIP developments. The controversial investor-state dispute settlement has been targeted as a mechanism for promoting corporate sovereignty. Edward Snowden’s surveillance leaks have provided an excuse for greater data protectionism and the increased regulation of large content and service providers such as Apple, Google and Amazon.
Digital trade should be an area where TTIP could make progress and do good. It lies at the heart of the global Internet economy and is naturally suited for seamless transnational transactions. As the European Commission implements an ambitious plan to realize a “digital single market” in the next six months, TTIP will play a major role in harmonizing digital trade both between the United States and Europe and within the EU by addressing key regulatory discrepancies in intellectual property and data flows. But even provisions that would effectively encourage and facilitate the transnational flow of content online — by removing intermediary liabilities, such as a version of Section 230 of the Communications Decency Act — have been tainted by the secretive nature of the negotiations.
Whether negotiation outcomes would be different with public input is impossible to know, but the perception that the voices of the people are being ignored is almost equally damaging. One of the major strategic goals of TTIP is to promote transatlantic unity. A deal in which nations feel unable to defend their interests will do quite the opposite.
Possibly in recognition of such concerns, the EU just yesterday chose to publish the TTIP negotiating mandates. It is a welcome move, though whether it will assuage transparency concerns sufficiently to complete negotiations before the 2016 U.S. presidential election campaign remains to be seen.