Paper on the most alarming aspects of the Trans-Pacific Partnership (TPP).

1. Why Congress Should Vote Down the
Trans-Pacific Partnership
Exploring three key aspects of the deal that
should make Congress hesitate
Jack Johannessen
May 17, 2016

2. Figure 1: The eleven Trans-Pacific Partnership signatory nations
What is the Trans-Pacific Partnership
The Trans-Pacific Partnership (TPP) stands to increase economic benefit and strengthen the
trade position of the United States and other Pacific rim nations, but the agreement’s transformation
of intellectual property rights, effect on labor and environmental standards should cause Congress
to hesitate. TPP has been negotiated nearly all in secret among the governments of the eleven
invited nations in the Pacific and their respective corporations. For the most part the deal is closed
to the public, and that should be immediate cause for concern. The Office of the United States
Trade Representative (USTR) summarizes the TPP trade deal as:
The Trans-Pacific Partnership (TPP) levels the playing field for American workers and
American businesses, leading to more Made-in-America exports and more higher-paying
American jobs here at home. By cutting over 18,000 taxes different countries put on
Made-in-America products, TPP makes sure our farmers, ranchers, manufacturers, ser-
vice suppliers, and small businesses can compete–and win–in some of the fastest growing
markets in the world. With more than 95 percent of the world’s consumers living outside
our borders, TPP will significantly expand the export of Made-in-America goods and
services and support American jobs.
This paper will argue that Congress should not pass the TPP trade agreement on the basis
of overbearing intellectual property regulations, labor standards that marginally benefit American
workers, and poor environmental standards. It is clear that the Obama Administration’s objective
Johannessen 1

3. is to strengthen the nation’s trade position against China. President Obama states in The Atlantic
(2016):
When more than 95 percent of our potential customers live outside our borders, we
can’t let countries like China write the rules of the global economy. We should write
those rules, opening new markets to American products while setting high standards for
protecting workers and preserving our environment.
TPP seems to be a strategic move against China, which would explain the deal’s secrecy. Yes,
the United States should write the rules for trade; however, the rules should not be written at the
expense of the environment, American labor, or domestic intellectual property law.
Fast-Track Trade Authority
Before divulging into specifics about the TPP and the contentious points thereof, there needs to
be a discussion and clear understanding of fast-track trade authority with respect to TPP. Simply
put, fast-track trade authority allows the President of the United States to negotiate international
trade deals; when the deal is brought before Congress, the House and Senate can only vote the
deal up or down, but not amend or filibuster. The CQ Almanac (1998) affirms that “Fast-track
authority guaranteed that, once the president submitted a trade agreement to Congress, lawmakers
would take an up-or-down vote within 90 days, with no amendments allowed.”
The key to fast-track trade authority is the inability of Congress to amend or filibuster. It means
the deal cannot be changed or tailored in such a way to either benefit the Congress person’s state,
district, or constituents. This differs from normal Congressional proceedings when passing laws
in that bills are typically brought to the floor, voted down, amended, brought to the floor again,
etc. With fast-track, which in this case only applies to international trade deals, if Congressional
Democrats or Republicans do not like a part of the deal, they can only vote it down.
It is important to note that fast-track trade authority is not unique to the Obama Administra-
tion. According to CQ Almanac (1998), Former President Bill Clinton was denied renewal of his
fast-track authority by House Democrats. Former President George W. Bush also sought fast-track
authority from Congress to extend the North American Free Trade Agreement (NAFTA) benefits
to expand free trade in the western hemisphere (Shannon, 2000).
The TPP deal is also not new. According to the BBC, the trade deal was first signed ten years
ago by Brunei, Chile, New Zealand, and Singapore. Recently, the deal has expanded to include
twelve majors countries. The BBC (2010) reports “[those] 12 countries have a population of about
800 million and are responsible for about 40% of world trade.” It is clear the volume of trade activity
is vast and deal is complex, but it is possible to identify which countries stand to benefit the most
from the deal. The BBC (2010) claims “Japan stands to reap huge economic benefits from the deal,
while for the US it is an important strategic move.”
Congress Already has Problems with TPP
If Congress passes the TPP in the United States, this strategy will be fulfilled; it would also be a
huge victory for the Obama Administration; however, it is the responsibility of Congress to preserve
the American people’s best interest. There is contention on both sides of the isle of Congress.
Congressional Republicans have expressed concerns with the nature of the trade negotiations, which
Johannessen 2

4. Figure 2: TPP trade data from Pew Research Center
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5. were conducted almost all in secret, details in the deal, and its language. McCartin & McClure
(2016) note in Global Policy Watch:
Senate Majority leader Mitch McConnell (R-KY) opposes the agreement’s exclusion of
tobacco products from the investor-state dispute settlement mechanism; Senate Finance
Committee Chairman Orrin Hatch (R-UT) wants stronger language on market exclu-
sivity for biologics; and House Ways and Means Trade Subcommittee Chairman Dave
Reichert (R-WA) opposes the rules that prohibit countries from preventing the free flow
of data or forcing local storage of data because they fail to cover financial data.
Congressional Democrats have also expressed concerns with the trade deal. Needham (2015)
reported:
The six Democrats – Reps. Rosa DeLauro (Conn.), Louise Slaughter (N.Y.), Marcy
Kaptur (Ohio), Nydia Velzquez (N.Y.), Mark Pocan (Wis.) and Tulsi Gabbard (Hawaii)
– said the Trans-Pacific Partnership (TPP) deal is “too big” to pass Congress and must
be scrapped . . . The Democrats, who have long opposed the expansive deal, said the
more than 5,000-page agreement, which they carted out in front of the Capitol by hand
truck for a press conference, is a big giveaway to multi-national corporations and will
have devastating effects on the U.S. economy, jobs and wages.
It is clear that some members of Congress have concerns about the trade agreement. This paper
identifies the most troubling aspects of TPP: intellectual property, labor markets, and environmental
standards. The deal’s proposed changes intellectual property rights are intended to reduce trade
barriers to entry and facilitate legal trade in terms of patents and regulatory protection.
Intellectual Property
The Office of the United States Trade Representative summarizes the rules on intellectual prop-
erty:
TPP’s Intellectual Property (IP) chapter will help Americans take full advantage of our
country’s innovative strengths and help to promote trade and innovation, as well as
to advance scientific, technological and creative exchange throughout the region. The
chapter combines strong and balanced protections with effective enforcement of those
protections, consistent with existing U.S. law.
Intellectual Property (IP) laws typically encompasses patents, copyrights, and trademarks. With
respect to TPP, IP rules includes all three plus trade data and international enforcement. Addition-
ally, TPP IP laws cover many different industries and products like pharmaceuticals, agriculture,
and technology. Meltzer, author of The Trans-Pacific Partnership is a win for all parties (2015),
from the Brookings Institute, writes:
The TPP will create new opportunities for U.S. exporters in areas where barriers re-
main high, such as in agriculture, services, and high-end manufacturing. The TPP
includes new commitments on intellectual property and investment, and makes signifi-
cant progress reducing tariffs in areas of key export interest for the U.S.
Johannessen 4

6. The rules also create a more robust legal framework for strengthening patents, trademark, and
copyright protections, which includes increased penalties for those who violent them or benefit from
their violation. Vetere, Marty, Marney, & Smith (2015) reported, “TPP permits seizure not only
of infringing products but also of ‘assets derived from, or obtained through, the alleged infringing
activity.’” This provision of TPP should help U.S. multinationals protect patents and copyrights in
other countries where counterfeiting products exist in the market.
Contention
Why should this change in the legal landscape cause Congress to pause. How can patent and
copyright protections be harmful to the American public? The key to the danger of TPP IP is legal
enforcement. The TPP trade agreement sets very stringent rules regarding digital and internet
copyrights that can make citizens criminally liable for software changes. The rules also jeopardize
online privacy. The Electronic Frontier Foundation (EFF) reports:
All signatory countries will be required to conform their domestic laws and policies to
the provisions of the Agreement. In the U.S., this will further entrench controversial
aspects of U.S. copyright law– such as the Digital Millennium Copyright Act (DMCA)–
and restrict the ability of Congress to engage in domestic law reform to meet the evolving
needs of American citizens and the innovative technology sector.
The rules regulating IP are only beneficial to those that hold those rights and build additional
barriers to innovation and alteration of software and hardware by third parties. The piece that the
Electronic Frontier Foundation found that is so alarming are the restrictions on Congress to reform
domestic IP laws. Simply put, TPP IP supersedes U.S. domestic IP law. Congress should not sign
away their own power to reform IP law because of a binding agreement.
The TPP IP would also install harsh criminal sanctions. The EFF reports:
Adopt criminal sanctions for copyright infringement that is done without commercial
motivation. Users could be jailed or hit with debilitating fines over file sharing, and may
have their property or domains seized or destroyed even without a formal complaint from
the copyright holder.
The key clause here is “infringement that is done without commercial motivation.” implies that
any innocent change in digital files or distribution could result in a prison sentence. Penalties for
pirating content using torrents would also likely be increased; tinkering with devices could also be
made illegal.
Internet privacy should also be a concern of Congress, and a reason to vote down the trade pact.
EFF reports:
The TPP’s Electronic Commerce and Telecommunications Chapters establish only the
weakest baseline for the protection of your private data– even enforcing self-regulation
by the companies that profit from your data is enough. On the other hand, stronger
privacy laws are outlawed if they amount to an “arbitrary or unjustifiable discrimination
or a disguised restriction on trade.”
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7. These regulations could make strengthening online, personal privacy and data protection much
more difficult to regulate in American legislatures especially if TPP IP supersedes current law. If
signing TPP would make it more difficult for Congress to reform domestic IP law after signing TPP,
then indeed reform of the laws governing online privacy and data would be subject to the same.
Congress should not pass TPP because of invasive IP laws that supersede U.S. IP laws, criminal-
ize activities that are not necessarily direct violations of copyrights, and do little to protect online
privacy. Congress must also carefully study the changes in regulations regarding labor markets to
understand that they do not benefit American workers.
Labor Standards
The Office of the U.S. Trade Representative (USTR) summarizes labor standards in these terms:
TPP has the strongest protections for workers of any trade agreement in history, requir-
ing all TPP Parties to adopt and maintain in their laws and practices the fundamental
labor rights as recognized by the International Labor Organization (ILO).
Indeed the TPP is intended open foreign markets, lower taxes and tariffs, and give American
workers a competitive edge in the Pacific economy. Lower barriers means more American goods at
competitive prices and more production within U.S. boarders to meet foreign demand. Certainly,
the United States wants to capitalize on trade to capture market share with American goods in
growing Asian markets. It is a rare opportunity.
USTR (2015) explains the benefits of TPP’s labor standards. Under TPP, countries will be be
required to adopt the International Labour Organization’s (ILO) labor standards. According to the
USTR, some of those standards include regulations of forced labor, child labor, wages, and hours
worked with adequate enforcement mechanisms. One of the most interesting provisions of the labor
standards is its mandated change in Vietnam. According to USTR, currently, Vietnamese workers
are only allowed to be part of the labor union attached to the government. If Vietnam conforms
to the TPP, Vietnamese workers will be allowed to form unions independent of the government.
Simply put, ILO labor standard, which many of us would view as more humane and reasonable,
will be forced upon nations that do not have those standards.
The idea of TPP labor standards is to force developing nations to adopt more 21st
century labor
standards and give American business and labor opportunities to thrive in new markets overseas.
At first glance, Congress may also see TPP labor standards as a win for the United States, but
there are some unfortunate caveats.
What’s Wrong with these Standards?
As mentioned previously, TPP labor standards enforce laws against forced labor, child labor,
mandate minimum wage, require health and safety standards, etc. Semuels (2015), however, notes
that the TPP language is vague and “the document does not specify how any of those measures
should work.” Simply put, TPP lists what will be provided but not how. Semuels gives an example
from Human Rights Watch Asia advocacy director John Sifton, who claims a minimum wage “could
be set at a penny an hour.”
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8. It was mentioned that Vietnamese workers would be able to form and join independent la-
bor unions under TPP. Semuels again notes John Sifton, who believes “Vietnam would have to
completely revolutionize their legal system to comply with the labor-union requirements.” Sifton
believes this is very unlikely. Expose The TPP (n.d) argues that TPP labor standard are “‘[a] race
to the bottom’ spurred by other free trade agreements, such as [NAFTA], putting downward wage
pressure on U.S. workers while facilitating corporate exploitation of foreign workers.” Others, like
Expose The TPP, believe the trade agreement will exacerbate outsourcing from high wage coun-
tries like the United States to countries where wages are lower than in China, like Vietnam. The
Obama Administration may view TPP as an important strategic move against China, but multina-
tional corporations view TPP as an opportunity to produce goods and services at lower costs thus
increasing profit margins.
Not only are labor standards in the United States better than in many developing nations but
also environmental regulations are increasingly becoming a policy priority in western nations. De-
veloping nations, concerned with economic growth, may not be as concerned. TPP’s environmental
regulations that aim to standardize environmental impact from economic activity.
Environmental Regulations
In recent years, the United States has been more concerned with climate change and the environ-
ment. Within the U.S., policymakers consider the warnings from climate change experts. Likewise,
cities like Vancouver B.C. have adopted Cap & Trade systems to make polluting more expensive,
and Washington State has a similar program on the docket. With such effort from western na-
tions, it would make sense that TPP extends rigid, standardized rules for all signatory nations both
developed and developing. In the environmental regulation chapter, USTR states:
The Asia-Pacific region faces an array of environmental challenges, including wildlife
trafficking, illegal logging, illegal fishing, and marine pollution–which threaten human
health, habitat and biodiversity. TPP’s Environment chapter, the most far-reaching
ever achieved in a trade agreement.
The USTR (2015) summary reports that the environmental regulations are full of various com-
mitments to preservation, reducing carbon emissions, and cooperating to protect endangered species
and keep habitats safe and clean. Some of these commitments include reducing certain tariffs as
well. USTR writes “The TPP includes commitments by all Parties to eliminate tariffs on envi-
ronmental goods upon entry into force of the agreement, and to facilitate trade in environmental
services.” The TPP summary states that all signatory nations will cooperate to strive for energy
efficiency and create low-emission, green alternative fuel sources.
These regulations beg the question: how can developing nations approach these regulations?
Green technologies are fairly advanced and not a priority of many developing nations. Why are the
environmental regulations particularly contentious and controversial among critics of TPP? Do big
energy producing corporations not benefit?
Why these Regulations are Harmful
The Sierra Club (n.d) reports that “[TPP] rules will likely be too weak to have an impact on the
ground and are unlikely to be enforced, rendering the chapter essentially meaningless.” The Sierra
Johannessen 7

9. Club and other critics are concerned that the legally binding environmental chapter of TPP bears
no teeth and the rules would be tough to enforce if even enforced.
It is not just the lack of enforcement that make the environmental regulations the scariest part
of TPP, it is the legal framework and precedent that would result. Within the international legal
system there is a special kind of case known as an Investor-State dispute settlement (ISDS). Simply
put, ISDS is an arm of public international law that allows an investor (business, individual, etc.)
rights to use dispute settlement proceedings against a foreign government. For example, that can
be a dispute from a U.S. investor to the Vietnamese government, or a Japanese investor to the U.S.
government. TPP makes the ISDS system much stronger. Brune (2015) warns:
. . . the investor-state dispute settlement system included in the pact which would
empower some of the world’s biggest polluters to challenge environmental protections
in private trade tribunals. Similar rules in existing pacts have enabled corporations like
ExxonMobil and Chevron to bring more than 600 investor-state cases against more than
100 governments.
Simply put, any environmental regulation a foreign government has against a foreign corporation
can be put aside due to the strengthening of ISDS from TPP. Even more concerning is TPP would
require the U.S. Department of Energy to approve, without audit, investigation, or impact analysis
all exports of natural gas to signatory countries according to Brune. This does give a boost to
American producers and labor in the fracking industry where the technology remains unclean and
unsafe according to the Sierra Club.
This is what should alarm Congress the most: TPP supersedes many U.S. laws and regulations
to allow big business to make money. Strong enforcement is only placed where labor costs will be
lowered and intellectual property barriers will be strengthened.
Conclusion
The Trans-Pacific Partnership (TPP) stands to increase economic benefit and strengthen the
trade position of the United States and other Pacific rim nations, but the agreement’s transformation
of intellectual property rights, effect on labor and environmental standards should cause Congress
to hesitate. Congress should not approve the deal and push to withdraw fast-track authority from
the President. It is true that Congress has been slow to reach consensus and agreement for the
past eight years. When it comes to TPP, a slow moving Congress will ensure the safety of our
environment, privacy, data, and American jobs. The United States can and should find a way to
subvert China as the trade powerhouse in the Pacific, but the U.S. must secure this position in a
smart way that does not set profit as a legal priority.
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