TPP Impacts: On Society (Workshop by Sanya Reid Smith)

In this article, we cover the impacts of the TPP on societal issues, namely health and environment, human rights, labour rights, and privacy. The TPP has an exceptions chapter which covers health, environment and privacy issues but does not apply to all chapters, such as investment and intellectual property rights chapters. An overall assessment reveals that the TPP can weaken human rights, labour rights and privacy rights in Malaysia. This article can be read together with the other TPP impacts on sustainable development, on the Malaysian environment and economy.

This series is brought to you by based on a recent NGO briefing on the Trans-Pacific Partnership (TPP) in Malaysia by Ms Sanya Reid Smith, an expert on Trade and Investment Rules. She has been monitoring the Trans-Pacific Partnership Agreement (TPPA) since 2011, and is also the resource expert for Bantah TPPA Malaysia. The entire talk is uploaded on YouTube in a seven part series and can be accessed here; this article is drawn mainly from Parts 2, 3, 4 and 5 of the talk. The index of the series is attached at the end of the article.

Video starts at 15:08

Investment chapter overrides health, environment, privacy issues

The investment chapter can override effectively the TPP’s labour and environment chapters, because even when you comply with them you can be sued by a foreign investor for money, plus compound interest and so on. In the TPP generally, there is an exceptions chapter. The exceptions chapter covers health and environment, I think also privacy, but not women, not culture, not indigenous people, not children. Basically health, environment and kind of privacy.

Those exceptions, health, environment and privacy, do not apply to all the TPP chapters. They do not apply to the investment chapter, which causes all those problems for the environment and health. They do not apply to the intellectual property chapter, with all the problems of medicine prices, because the rights of the foreign investor and the patent owner are more important than the human rights for health and protecting the environment.

Exceptions chapter is very difficult to use

And even in the chapters that it applies to, it is very difficult to use. The TPP imports/ copies the exceptions from the World Trade Organization rules. Countries have tried to use the exceptions 44 times since 1995 when the WTO started. How many times do you think they’ve succeeded? Once. 43 out of 44 times they could not meet the 5 steps needed to pass it, to use that exception. So it’s a very difficult to use exception, even in the chapters that it applies to, even for the things that it applies to, like health, privacy and the environment. So you have a partial exception to some chapters that is so hard to use, you almost cannot use it. Also, the exception is not for human rights generally, of course not, certainly not civil and political rights.

Video starts at 10:19

Thailand: FTA with US is like a tsunami on human rights

We come to the question of human rights impact assessments. The UN Special Rapporteurs for different human rights issues have said that, before countries agree to these things, they should do a human rights impact assessment to see what the human rights impacts are, and if they should sign or not, given the human rights impacts.

Has Malaysia done a human rights impact assessment? We haven’t seen lah. Thailand did. When Thailand was negotiating the US free trade agreement, which they didn’t sign, their National Commission for Human Rights, like SUHAKAM, did a very comprehensive study of all the different chapters of the US free trade agreement, and they came to the conclusion that it would be like a tsunami coming to wash over Thailand and destroying it. That was the Human Rights Commission of Thailand’s conclusion. But SUHAKAM, to our knowledge, has not yet done a human rights impact assessment.

Video starts at 12:46

Labour rights are only enforceable if US government sues Malaysia

For those of you who might have noticed that in the TPP there is an environment chapter, there is a labour chapter, we think that’s very nice, right? Well, the labour chapter does have some labour rights in it. The labour chapter itself is quite vague, but in the side letter, the Labour Consistency Plan between Malaysia and the US gets a bit more specific about human trafficking and so on. And it’s enforceable by governments suing each other.

The problem is, number 1, it is only between Malaysia and the US. The Australian Government cannot sue Malaysia because of Malaysia’s violation of labour rights, only the US Government can sue, because it’s bilateral, right? However, the US Government doesn’t sue about these labour rights. It has sued once, Guatemala, after all the trade unions lobbied and lobbied.

US government is unlikely to sue Malaysia for labour rights violations

You might know that there is a US-Colombia free trade agreement. Colombia murders its trade unionists regularly. Even though they murder their trade unionists, the US hasn’t sued, under the US-Colombia free trade agreement labour chapter. Even though murdering your trade unionists is a clear violation of labour rights – it doesn’t get any clearer than that – you killed the fellow. Still the US Government decides not to sue.

So this is even under a Democrat president, can you imagine if the Republicans get into power in the USA? They hate labour rights, there is no way they are going to sue Malaysia to enforce the labour chapter or the labour side letter. So even though it’s there, it’s basically on paper, because only governments can sue. The trade unions cannot sue, the trafficked worker cannot sue. Not like the investor, he can sue. But the labour rights are only enforceable between Governments. And if the US Government chooses not to sue… Nothing we can do to enforce it.

Egypt: Got sued for raising minimum wage

In addition, the investment chapter can effectively override the labour chapter. There was a case after the Arab Spring in Egypt where the government said, ‘The people have spoken. We are going to raise the minimum wage. Let’s go for democracy, and you know, power to the people.’ They raised the minimum wage, they got sued by a foreign investor. He said, ‘You are reducing my profits, now I must pay these workers more money.’ That case is not yet decided, but it has made the trade unions so upset that now they’re really really campaigning against the Investor-to-State Dispute Settlement.

Video starts at 14:56

Cross-border movement of labour is minimal under TPP provisions

One of the things that, by the way, that is in the investment chapter, is free movement of capital. The money can come and go, and you can only have restrictions in emergencies, threat of emergency, and so on. But the people don’t move so easily. In trade law we call it movement of people – the ‘people’ becomes like a ‘thing’. Typically the developed countries do not want to lock themselves open to allow foreign workers in. They want to take them when they need them, brain drain the nurses when they need them, and kick them out when they don’t need them.

They don’t want to be forced to be locked open in the event of a recession with high unemployment, that they must take how many foreign workers a year. So they don’t like to lock themselves open to allow foreign workers in a trade agreement. Even when it’s not a recession. If they do allow movement of people, it’s usually corporate transferees. Citibank’s manager can work in Malaysia. Fly-in-fly-out lawyers from Australia can work in Malaysia. Accountants can come in, technicians… it’s not your unskilled farmers and construction workers.

US did not open border at all in TPP to workers

And in the TPPA, I haven’t read it all yet, within the section that is about movement of people, eleven countries allowed some high-level corporate people to go backwards and forwards. US did not open at all. Not one single Malaysian can go to work in the US under the provisions of TPP. And even if they had opened, for instance, if you are a lawyer and you want to work in the US, you must get your law degree recognised by the Bar Council, which is a private body. The government cannot force them to recognise it. And it’s state by state, one for New York State, one for Oregon and so on. Same for doctors.

So even if it’s open to people, you don’t get your qualifications recognised automatically. You don’t get a visa, the visa is not part of it. You have a right to work with no visa or qualifications… So it’s not a very good way for Malaysians who think they’re gonna get jobs overseas. The question about the migrant workers’ rights comes in under the Labor Consistency Plan.

In the US, one of the reasons they do not open to foreign workers is because in the US constitution it is the Congress, the Parliament, who has the right to do immigration, not the trade ministry, who negotiates the TPP. And when the US trade ministry tried to give visas in the Chile and Singapore US FTAs, they got a tight slap from Congress. ‘You must not do this, it’s unconstitutional, never do it again,’ so they cannot lah, and they have not.

Video starts at 1:01

Cross-border flow of personal data is mandatory

So there’s a whole chapter called E-commerce, which has various things in it, in the TPP. But one of the things that the US cloud computing companies, your Google, your Dropbox, your iTunes… who store your data in the cloud, they want to have one server storing all your data in the whole world in the cheapest place for electricity. They don’t have to have one in every country, right? Very troublesome for them.

So, in the TPP, in the e-commerce chapter, the general rule is: you must allow cross-border data flows; you must allow the sensitive health, finance, tax records of Malaysian citizens to go out of Malaysia to be stored anywhere in the world. Even if those countries have no privacy laws, even if they sell your private data to insurers and advertisers, and even if the US Government can walk in and take it like Snowden showed us happens in the US. Too bad. You have to let it go out. Today in Malaysia there is a PDPA, a Personal Data Protection Act, right? Which says that Malaysian personal data must be stored in Malaysia or basically Singapore lah. In the TPP you have to let it go out, even to the US.

Malaysia did not get an exception on privacy protection

Now there are some attempted exceptions on privacy, but again it uses that wording they borrowed from the WTO that makes it so hard to use – it has a success rate of one out of 44. You could schedule exceptions. You could try and ask for exceptions if all the other countries agree. But, from memory, Malaysia doesn’t have any of those exceptions, so I don’t know what happened to the PDPA, I think it’s gone already. It basically locks in the ability for the US government to spy on Malaysian data. The Australian Government tried to get an exception to this. In TTIP, the transatlantic free trade agreement being negotiated between the EU and the USA, the EU is very privacy minded. The Australians think that maybe the EU will get an exception, and the Australians want the same exception as the EU. But Malaysia didn’t ask for that or didn’t get that.

So, basically, the e-commerce chapter also prevents you from requiring the data to be stored locally. For example in Australia, if you go to your doctor, your general practitioner, and he takes down your health records, and he stores them on the cloud electronically, that cloud must be in Australia. To make sure that Australian privacy laws apply to your health data. It cannot be stored in a cloud somewhere in some country with no privacy laws.

That requirement for local storage is not allowed. No local storage requirement for data unless you got the exception. If not, you have to trust that one out of 44 success rate for privacy exception. So the e-commerce chapter locks in the right for the US Government to keep doing spying the way Edward Snowden showed us the NSA is doing. So that’s also going to be part of what Malaysia signs on the 4th of February 2016 and what goes to the Malaysian Parliament on the 26th of January 2016.

Index of the Series

This series contains 20 articles on the TPP, and can be read in any order:

Transcriptions are kept chiefly ad verbatim, with some minor edits for readability. The text has also been checked by Ms Smith for accuracy.

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