RCEP A secret deal Trade talks fail the transparency and public participation test

RCEP A secret deal 1 United Nations Framework for Convention on Climate Change (UNFCCC) Trade talks FAIL the transparency and public participation test INTRODUCTION Negotiating texts and submissions from the parties are circulated before the negotiations start. Observers, including external Contents stakeholders, attend sessions, and can provide submissions on request. 1 Introduction 3 2 Failing the criteria for transparency and public participation 4 World Intellectual Property Organisation (WIPO) Marking criteria for transparency and public participation 5 he Regional Comprehensive Economic Draft negotiating documents are released 2.1 Australia 6 Partnership (RCEP) is currently being throughout the process. Meetings are open Mining industry actively influencing trade policy 7 Tnegotiated between 16 countries in the to the public, and webcasted. Asia and Pacific regions. It includes China, 2.2 India 8 members of the Association of Southeast Intergovernmental Working Group (IGWG) RCEP and privatisation of public services 9 Asian Nations (ASEAN) and other key trading on transnational enterprises with respect nations such as Australia, New Zealand, 2.3 Japan 10 to human rights South Korea, Japan and India. Over 50% of Organisations with Economic and Social Health warning: Japan and Korea push business-friendly 11 the world’s population lives in the countries Council (ECOSOC) consultative status IP provisions party to RCEP, which account for over a can actively participate in sessions of the quarter of global exports and almost 30% of intergovernmental working group, give 2.4 Korea 12 the world’s GDP.1 Like other mega regional written and verbal formal contributions. The 2.5 China 13 trade agreements, such as the Trans Pacific agenda, reports and contributions from all RCEP and labour rights Partnership (TPP), RCEP negotiations are parties are made public in a timely manner far-reaching, including trade and investment on the United Nations Human Rights Council 2.6 Philippines 14 liberalisation, Intellectual Property Rights, (UNHRC) website, and many sessions are also An institutionalised role for business in RCEP 15 services, competition policy and e-commerce. webcast to the public. RCEP will impact on the lives of billions of 2.7 Indonesia 16 people, from the quality of the food we eat to Lobby groups around RCEP table: the Asian Trade Centre 17 the energy we consume and the affordability RCEP negotiations are being 2.8 Malaysia 18 of life-saving medicines (see boxes 2 & 3).

ASEAN Parliamentarians call for parliamentary scrutiny 19 Yet this report finds that the RCEP conducted almost completely 2.9 Myanmar negotiations are being conducted almost completely in secret, with limited to no in secret, with limited to no 3 Conclusions and recommendations 20 meaningful public participation. Most elected officials have, at best, limited access to the meaningful public participation negotiating texts, which remain out of reach for civil society. Ad hoc or token stakeholder World Health Organisation (WHO) consultations are far from sufficient to make Framework Convention on Tobacco Control the process transparent or participatory. includes clear-cut language to protect Meanwhile, big business lobby groups have the process from corporate interference, a semi-official inside role in the RCEP talks, which could impede on negotiations and Authors Rachel Tansey and Sam Cossar-Gilbert with privileged access and undue influence implementation. Contributions Benny Kuruvilla, Cecilia Olivet, Hye Lyn, Heesob Nam, Doi Ra, Mageswari Sangaralingam, over many individual countries’ policy- Susana Barria, Joseph Purugganan, Rachmi Hertanti making processes. The precedents set by the UNFCCC, WIPO and IGWG show that the supposed inevitability of Design Somerset Bean Governments in the RCEP bloc have argued secrecy in international negotiations like RCEP that secrecy in the process is inevitable, as is nothing more than a political smokescreen. Published by Friends of the Earth International, Transnational Institute, Indonesia for Global Justice, the trade deal is a matter of international Even the World Trade Organisation and Free Focus on the Global South, and Paung Ku relations. Yet as the negotiations will impact Trade Agreements by the European Union seek Amsterdam/Jakarta/Manila/Yangon/Bangkok, July 2018 people’s jobs, domestic regulations and to publish most negotiating texts, and reports healthcare, citizens have a right to know by committee chairs are available on their Contents of the report may be quoted or reproduced for non-commercial purposes, provided that the source of information is properly cited. how the deal is being negotiated, who is websites. The lack of transparency in the RCEP influencing it, and what is being put on talks threatens to undermine democratic the table. What’s more, there are several rights in the region, and facilitates the examples of international negotiations that corporate capture of the process of regional provide a greater degree of transparency economic integration. This contravenes the (including the disclosure of negotiating ASEAN charter, which promises to adhere “to documents) and openness to civil society principles of democracy, the rule of law and than the RCEP negotiations: good governance.”

RCEP A secret deal 3 Marking Criteria for Transparency and Public Participation

HIGH LOW 2 FAILING THE CRITERIA All draft texts, negotiating processes Key propositions/ negotiating positions are made publicly and overarching government available, and public or civil society have access to part of the FOR TRANSPARENCY positions are made public in a process, yet a substantial part remains behind closed doors. timely manner. AND PUBLIC PARTICIPATION Basic or incomplete economic, environmental and human Independent economic, rights impact assessment studies undertaken. environmental and human rights easured by experts against our for civil society to impact assessment studies, with Some publicly available information on the role of and level of Marking Criteria for Transparency present substantive their results having a discernible access of special interests in influencing the negations, which Mand Public Participation (see concerns, and lack any influence on the negotiations. is supplied when requested. following page), an examination of the kind of accountability RCEP negotiations has a clear result: FAIL. mechanism. They act The role of all special interest Elected officials have the opportunity to express opinions Extremely non-transparent, there has been instead as token gestures groups in the process is made and give meaningful input into the process, through the negligible official information made public towards openness and public, including publicly available parliament and specific working groups. on the state of negotiations, and no release public participation. information on number and of draft texts or adequate details of key participants of meetings, written Civil society and members of the public have the opportunity government positions. There is a widespread • Meanwhile, business lobby groups communications, positions on to express opinions and give input through public hearings lack of independent social, economic and have undue and harmful influence advisory boards, etc. and/or regular advisory boards. environmental impact assessments, if any onto the formulation of country’s at all, and little to no public information on RCEP positions, and the negotiations Parliaments, and public the role of vested interests in influencing themselves (see box 5), from revolving consultation, are actively the process. Public participation is minimal doors between government officials and incorporated at all stages of the FAIL to non-existent, with at best token or ad corporate lobbyists to the formal role process (before, during and after hoc stakeholder engagements. Parliaments of the East Asia Business Council. Other completion of an agreement), are shut out from a meaningful role, whilst examples include inside access for lobbies with the ability to influence and No or little publicly available information on the state of big business lobby groups have a privileged, like the Asian Trade Centre, and influential help determine the outcome, with negotiations, draft texts or key government positions. semi-official role. The RCEP negotiations positions at national levels of industry parliaments having full control undermine international legal principles groups like Keidanren and the Minerals over ratification. No or biased social, economic and environmental impact of free, prior, informed consent (FPIC) and Council of Australia. assessments undertaken. principle of participation deriving from the Civil society and the public have International Court of Justice Statute. • Opportunities for public submissions on an active and official role in the No or little publicly available information on the role/level of RCEP vary among countries, but in no negotiating process, with the ability access of special interests in influencing the process, and In this report we look at the records of some case is it clear if and how (and whose) to attend all negotiations, give direct public requests for this information are refused. of RCEP’s key players, on transparency and positions are taken into account. There input and make propositions . public participation in trade policy-making remains no transparency about the The public and civil society cannot participate, or only in processes. The results show that just as detailed negotiating positions (or how A diverse range of interests and token/ ad hoc stakeholder engagement forums. RCEP as a whole gets a fail, none of the they were formed) of any participating viewpoints are pro-actively reflected participating countries — Australia, Japan, country. Negotiating texts remain in consultations, and constraints Limited ability for parliaments or other public institutions to India, South Korea, China, Philippines, completely shrouded in official secrecy. are placed on the undue influence of impact or influence the process. Indonesia or Malaysia — deserve a passing corporate lobbies. grade. The report’s key findings include: • In most cases, Parliaments do not have Special interests have a privileged/ official role in the meaningful oversight of the negotiation Cancellation clauses enable future negotiation process. • During some recent RCEP negotiation of RCEP, often without access to governments/public opinion to rounds, stakeholder engagement sessions the texts, or ability to influence their modify parts of the agreement and or Long-term or survival clauses make it very difficult or have been held at the discretion of country’s positions, and in some cases leave the deal at any time. impossible to leave the agreement. the hosting state, but they offer only may not even be required to ratify the a very limited, superficial opportunity deal once signed.

4 RCEP A secret deal RCEP A secret deal 5 2.1 AUSTRALIA

urrent trade treaty making processes public.”7 DFAT does conduct consultations in Australia are not transparent on free trade agreements (FTAs) “with a Cand offer little meaningful space wide range of stakeholders”, such as State for public participation. There is a lack and Territory governments, industry bodies, 1 MINING INDUSTRY ACTIVELY of thorough, independent economic or companies, academics, individuals, trade environmental impact assessment of unions, consumer groups, and other civil INFLUENCING TRADE POLICY prospective agreements. The government society organisations. However, DFAT’s raison does not systematically quantify the costs d’être for these consultations is that they Far-reaching trade and investment RCEP, which will remove “restrictions and benefits of an agreement’s provisions, “help to identify commercially significant deals like RCEP are big business and discriminatory measures related and is silent on the need for post-agreement impediments to increasing Australia’s trade for mining companies. The investor to trade in services”.17 DFAT confirms evaluations of actual impacts. For these and investment in potential FTA partner reasons, the government’s Joint Standing countries”.8 In other words, they are oriented protection mechanisms that allow it is pushing the METS sector’s Committee on Treaties called the recent TPP towards business-interests rather than civil corporations to sue governments interests in RCEP negotiations, a “blind agreement”.3 In terms of institutional society concerns. During the TPP talks, DFAT for loss of profits have already promising to “seek quality outcomes” process, the power to enter into treaties is an held over 1000 briefing sessions to provide been extensively used by mining for the industry.18 9 executive power granted under the Australian updates and receive input and feedback, multinationals against RCEP 4 Constitution. Civil society and academics but many unions and civil society groups countries. Three of the seven ISDS So what are these restrictions and were forced to undertake a Health Impact criticised this process as a smoke screen claims made against Indonesia relate discriminatory measures that the Assessment on the TPP and found the deal lacking any meaningful public participation.10 to mining and quarrying, including UK mining lobby wants RCEP to remove? would increase the cost of medicines and What’s more, press reports have suggested could undermine health measures in areas that community groups are involved even firm Churchill Mining suing Indonesia According to three former senior such as alcohol control.5 less in RCEP than they were in TPP, whilst for $1.3 billion after its license for Department of Foreign Affairs and business groups remain in the Australian an environmentally destructive Trade officials that MCA hired to delegation’s confidence.11 DFAT also accepts coal mine was revoked. India, the write a guide for Australian trade Decisions about negotiating, written submissions from stakeholders on Philippines and Korea have also been negotiators, they are “non-tariff proposed FTAs, but there is no clarity about hit with mining-related ISDS claims.15 barriers” like governments’ ability to how these submissions are taken on board, The mining industry is a big pro-RCEP tax multinational mining companies, signing or becoming party to a and stakeholders can choose for their input lobby, pushing for ISDS provisions to promote local ownership of mines, to remain confidential. DFAT’s website shows treaty are taken by the executive 21 written submissions on RCEP, including 12 and other rules that would make it to oblige multinationals to keep from industry, 4 from civil society groups and easier to invest in new mines in RCEP processing and refining operations and do not need to be approved one trade union; 7 of these remain secret.12 countries, regardless of the effects in country, or otherwise pass laws to or debated in Parliament on communities, land rights, local prevent all the profits from mining Australia hosted the second round of RCEP environments and the climate. leaking out of the country, leaving talks in Brisbane in September 2013, without only social and environmental costs Decisions about negotiating, signing or any stakeholder engagement events. By One example of how influential the behind. These kinds of “restrictions” becoming party to a treaty are taken by the the time it hosted the 12th round, however, executive and do not need to be approved in Perth in April 2016, public pressure for extractive industries can be on are disparaged as the result of or debated in Parliament. Decisions to greater openness had increased. And so, for regional trade policy is the Minerals “resources nationalism” in South- pass implementing legislation (as treaty the first time in a RCEP negotiation round, it Council of Australia (MCA). Australia’s East Asia, “anti-mining sentiment commitments are not automatically organised a general stakeholder engagement mining industry association has been and environmental activism”, and incorporated into Australian law) are, session, plus specific events on intellectual a prominent lobby on RCEP. MCA “political emotion over land use”!19 however, made by Parliament. property and investor protection, which were appears to have a close relationship Legitimate public policy choices attended by both business and civil society with DFAT, writing in a DFAT thus become “barriers” to trade that Trade negotiations are confidential, and groups.13 Organising stakeholder events that quarterly publication called Business mining lobby groups like MCA have texts can only be seen by cabinet ministers are open to civil society may be a step in the and public officials from the Department right direction, but big corporations still get Envoy that the mining equipment, succeeded in getting Australian of Foreign Affairs and Trade (DFAT) and privileged access to trade deal negotiators. technology and services (METS) policy-makers to attack through other departments negotiating the deal. A stark example of this was the “exclusive sector “stands to benefit” from deals like RCEP. Neither Parliamentarians, civil society briefing on Australia’s regional trade priorities” stakeholders nor the general public are by the Chief RCEP trade negotiator, Michael able to access draft negotiating texts Mugliston, during the Vietnam round that or know their content.6 As Knowledge was for Australian Chamber of Commerce Ranger uranium mine surrounded by Kakadu Ecology International notes, negotiating members only (which include the likes of the National Park the text in secrecy creates “risks of both Commonwealth Bank of Australia, KPMG, Alberto Otero Garcia/ 14 intended and unintended harms to the PwC, and Meat and Livestock Australia). Wikimedia

6 RCEP A secret deal RCEP A secret deal 7 2.2 INDIA

he level of secrecy and non- FTA”, 24 with leaks remaining the only source transparency in the policy-making of information. Tprocess surrounding RCEP in India is extremely high. As Ranja Sengupta, senior A consortium of civil society groups (the 2 RCEP AND PRIVATISATION researcher with Third World Network, People’s Resistance Forum) dismissed as a explains: “Texts are not shared with affected “sham” the civil society consultation held OF PUBLIC SERVICES stakeholders, and the state government during the 19th round of RCEP negotiations 25 and the parliament’s role remains cosmetic. in Hyderabad, July 2017. (India had not held The intent of RCEP is to expand patient ratios in hospitals, as well as No ratification by the parliament is needed any stakeholder events when it hosted the the potential for privatisation of proportion of staff with certain levels in India and even impact assessment 16th RCEP talks in New Delhi, December services, even those essential for of qualification. The regulation of studies are not in public domain... the RCEP 2014). The Forum rejected the consultation negotiations, in particular, have been one of because the basic minimum steps to ensure people’s lives, such as education, prices — such as set rates for water most closely guarded secrets in the history it was meaningful had not been taken: no healthcare, electricity, water and and electricity services, or capping of of India’s trade policy making.”20 The Indian official announcement, no attempt to invite waste management. RCEP provides cost of treatment — could also come Constitution puts the power to enter into the multitude of affected constituencies, for a “ratchet” clause, the effect of under attack. FTAs in the hands of the Executive, with no no dissemination of the chapters and which is to ensure that, over time, requirement to seek Parliament’s approval negotiating texts. Instead, they held a the regulations of services, including The drastic decrease in import duties before signing, ratifying or enforcing any parallel People’s Summit, representing the essential services, is reduced. can have significant impacts on agreement. As the Commonwealth Human real stakeholders of RCEP. The civil society Rights Initiative (CHRI) notes, the absence actors that did not boycott the consultation Not only this, but it prevents developing countries. In India, around of Parliamentary oversight “is a major gap found it unsatisfactory: “None of the answers governments taking back control of 17% of central government revenues in the constitutional scheme of checks and provided to us was backed by data. I could service provision, even in the case currently come from import duties. balances” in need of urgent correction.21 say that it was not a consultation but more where private providers fail to deliver. While this source of revenues is of a formality on the behalf of the organisers. eroding due to multiple trade treaties, We were only given assurances that RCEP Further, RCEP curtails the ability of the alternatives that are put in place won’t affect people’s livelihood but apart the government to regulate service affect the poor disproportionately. RCEP negotiations have been from what has been leaked, delegates providers in the public interest. For Indirect taxes such as the Goods refrained from disclosing information”, one of the most closely guarded described Pradip Chatterjee, of the National instance, it prohibits the requirement and Services Taxes or Value Added Fishworkers’ Forum.26 for local presence (office) for service Tax are regressive and therefore secrets in the history of India’s providers. This severely restricts the deepen inequality. On the other hand, Alongside this two hour “consultation” public’s ability to hold companies corporations are increasingly using trade policy making at which “each civil society organisation accountable for the provision of the trade and investment system to 27 could only speak for about three minutes”, those services. Prohibitions on avoid paying their fair share of taxes, Modern trade and investment treaties have the Ministry of Commerce held a whole specific staffing requirements especially in developing countries. a direct bearing on people’s right to life day’s business consultation jointly with would prevent the government from Through many channels, revenues as producers, traders and consumers (as the Confederation of Indian Industry and protected under Art.21 of the Constitution) EABC.28 The business event provided “a regulating minimum staffing levels, that the government could use to and other areas that the Executive does unique opportunity for RCEP negotiators for instance in the case of nurses to fund quality public services are lost. not have sole (or any) jurisdiction over (like to hear directly from businesses what are agriculture). Thus, consultation with Indian the potential rewards that could be derived state governments and legislatures should from the outcomes negotiated”. It included be required.22 speakers from Tata Steel, Volkswagen India and the Australian Industry Group, as well Transparency-wise, the Ministry of Commerce as a 1.5 hour schmoozing session with RCEP has rarely made public details of any of the Chief Negotiators.29 Reportedly, a Ministry issues under negotiation in an FTA, nor made of Commerce official said that after this it clear with which sectoral interest groups consultation with industry, “the Ministry the government has held consultations. would prepare an initial offer on goods” This is despite legal obligations on the for RCEP.30 This clearly indicates whose government to proactively disclose interests RCEP is being negotiated in, and information about the impact of FTAs to all as the People’s Resistance Forum put it, citizens, under the 2005 Right to Information reveals that “industry and transnational 23 Act. Instead, notes CHRI, the Department corporations (TNCs) are the “super- Sick child examined by of Commerce has “stonewalled requests for stakeholders” whom the negotiators really doctor in Kolkata access to information about the India-EU want to include in the process”.31 Andrew Aitchison/Alamy

8 RCEP A secret deal RCEP A secret deal 9 2.3 JAPAN 3 HEALTH WARNING: JAPAN & KOREA PUSH raditionally, trade policy in Japan has government cited the obligation of secrecy been under the jurisdiction of the as justification for this excessive redaction, BUSINESS-FRIENDLY IP PROVISIONS TMinistry of Economy, Trade and Industry leaving the Diet to vote on the TPP based — METI, which describes itself as having a on almost no information about the (already “ubiquitous” network extending to private completed) negotiations. Japan, together with South Korea, pharmaceutical companies, both companies “through seconded personnel”32 has proposed intellectual property Japanese (e.g. Takeda and Astellas — but central government reforms in 2001 There does not appear to be formal civil (IP) provisions in RCEP that would Pharma) and global giants (e.g. Pfizer strengthened the Prime Minister’s hand in society consultation in the trade policy- be seriously detrimental to access and Sanofi).47 So it is no surprise foreign policy making. The case of the TPP making process in Japan, but the close to medicines, public health and food that Keidanren argues that FTAs — illustrates this. Prime Minister Shinzo Abe, relationship of industry leaders with the sovereignty, according to the leaked like RCEP — should bring about a strongly pro-TPP and supported by a vocal political elite ensures business interests are IP chapter. The proposed provisions “strengthening of the IPR regime”, business community, used these reforms central. What is critically referred to as the would broaden and lengthen Big and is a strong advocate of “robust to bring “the entire policy process under revolving door elsewhere (i.e. when public the control of the Kantei”33 (i.e. the Prime officials jump ship to big companies, or vice Pharma’s patent monopolies, delay patent and intellectual property Minister and closest entourage). An Industrial versa), is known in Japan as “descent from production and sales of generic protection as well as enforcement” 48 Competitiveness Council, comprised of nine heaven” (amakudari), with civil servants medicines, and make IP subject in the pharmaceutical sector. The ministers and nine “private-sector experts” routinely retiring into lucrative industry to ISDS, putting public health lack of transparency and public 34 (8 from business ) including the Chairman of positions. And whilst big business is on safeguards in IP rules, hardwon by participation in RCEP has meant 35 Keidanren (see box 3), was created, which the inside, the public merely gets fed countries like India, at risk.42 They that “Pharma’s role in these trade recommended accession to the TPP as a promotional materials: the government would also push countries into talks is overwhelming. For every part of Japan’s growth strategy.36 Public organised a “variety of explanation meetings, making it illegal for farmers to save pro-patient proposal advocates and parliamentary participation may have seminars, and lectures”, particularly in rural been lacking, but big business participation areas, to gain support for governmental seeds from commercial varieties, make, Pharma works with the world’s was not. policy on the TPP.38 by providing monopoly privileges most powerful countries to crush to biotech and seed companies, affordable medicines access”, says In the case of RCEP, there does not appear like Bayer and Syngenta, at the Leena Menghaney from Doctors The close relationship to have been any public consultations in cost of farmers’ rights. Proposed Without Borders.49 Japan in the first four years of the deal’s data exclusivity provisions in negotiation, including when it hosted the the IP chapter could also extend The role of the agrochemicals of industry leaders with 8th round of talks in Kyoto in June 2015. agrochemicals patents, pushing up lobby is also hidden behind closed But by the time it hosted the 17th talks in 43 the political elite ensures Kobe in February 2017, pressure from civil food prices. doors, but Keidanren’s Vice Chair, society had mounted. Over 100 Japanese Masakazu Tokura, and President business interests are central and international civil society groups wrote Japan’s most influential big business of chemical and crop protection to the government to express concern group, Keidanren, is chaired by company Sumitomo Chemical,50 sits The TPP also offers a transparency warning over RCEP’s secrecy, whilst “commercial Sadayuki Sakakibara,44 golfing buddy alongside the PM on the Cabinet’s for RCEP. The Japanese Constitution interests have been invited to share their 39 of the prime minister. Sakakibara Council for Science, Technology requires that the Cabinet, when concluding views with negotiators at RCEP rounds”. 51 sits alongside the PM and other and Innovation. Agrochemical treaties, “shall obtain prior or, depending In response, a dialogue was organised; but ministers on the Cabinet’s Council and commercial seeds firms are on circumstances, subsequent approval of it was programmed for just one hour, at the 45 the Diet” (i.e. the Parliament).37 However, Kobe Chamber of Commerce and Industry on Economic and Fiscal Policy, well-represented in Keidanren’s the Diet only got to discuss the TPP several (i.e. at the offices of a business group), and was appointed to the pro-TPP membership, with the likes of months after it had been signed. During with limitations on space and a two day Industrial Competitiveness Council. Syngenta Japan, Bayer, DuPont, 40 the Diet’s deliberation, conflict arose about registration window. People Over Profit, Sakakibara is Senior Advisor at Toray BASF Japan and Nissan Chemical the lack of disclosure of information on a network of people’s movements and civil Industries, a Japanese chemicals Industries; firms with an interest in the negotiations, leading the government society groups, noted that the engagement multinational with interests in stricter IP rules in RCEP that would to disclose some of the documents. They did “not provide concrete mechanisms to 46 pharmaceuticals. Keidanren’s increase their profits, at the expense were, however, practically illegible, with ensure that people’s demands and concerns almost all of the text blackened out. The are discussed by negotiators”.41 members include numerous other of farmers’ livelihoods.

Protest over suspected cover-up of a cronyism scandal involving Japan’s PM and Finance Minister, Tokyo Aflo Co. Ltd/Alamy

10 RCEP A secret deal RCEP A secret deal 11 2.4 2.5 KOREA CHINA

he Korean constitution gives the machine, auto, chemical and IT. In contrast, hina’s Ministry of Commerce (MOFCOM) engagement events were organised (but National Assembly (i.e. parliament) MOTIE met civil society organisations only one is responsible for negotiating bilateral none were organised by any hosting state “the right to consent to the conclusion time for the same period. In February 2014, and multilateral trade agreements. until the 12th round). China also hosted the T 52 C and ratification” of trade treaties. However, MOTIE announced that in the accelerating On MOFCOM’s China FTA Network website, 15th round of talks in Tianjin, October 2016; governments have interpreted this provision discussions on regional FTAs such as RCEP there is a statement regarding the “need despite the precedent set by the hosts of arbitrarily, “carrying out negotiations under it would “reflect the demands of industry to build consensus within the country the 12th and 13th rounds (Australia and New the presumption that they can obtain by sufficiently communicating with all and participate in and promote the RCEP Zealand) of holding civil society stakeholder post-facto approval from the National relevant sectors through trade industry negotiations”.61 It is not clear to what extent meetings, China did not do so.63 Civil society Assembly on the ratification of the FTA”.53 forums/private consulting committees.”55 “building consensus” about RCEP within organisations and people’s movements do not Academic analysis has highlighted that the In May 2017, MOTIE’s Director-General for China could relate to public participation or traditionally play a significant role in Chinese Assembly’s role as democratic oversight FTA Negotiations, Yoo Myung-hee, presided engaging with critical voices in civil society. policy-making, and trade policy does not of trade negotiations remains very limited, a meeting with industry representatives Some discussion about RCEP’s progress and appear to be an exception. China does appear “quite often impeded by lack of information (including cosmetics, food and drugs, China’s position in it appears in MOFCOM’s to be promoting the interests of Chinese or expertise”, effectively serving a “merely electronics and automotives) to hear their regular press conferences, but without business and industry in RCEP, for example, symbolic function, because it cannot opinions on non-tariff measures under RCEP. significant detail about negotiating positions, “pushing for more ambitious investment reconsider the substantive details of the Yoo, Korea’s Chief Negotiator for RCEP, etc.62 China hosted the fourth round of RCEP chapter seeking to protect its growing treaty, after its conclusion”. Similarly, promised that the “Ministry will actively talks in Nanning, April 2014; no stakeholder investments across Asia and the Pacific”.64 various committees designed to bring civil reflect industries’ opinions heard in this society interests into the process do not meeting on the upcoming negotiations”.56 appear to have “meaningful influence on the Given the pro-big business Intellectual Property provisions Korea has tabled in RCEP (see box 3), this privileged access to industry 4 looks even more troubling. Several Korean RCEP AND LABOUR RIGHTS Korean civil society groups have civil society groups, including the Korean Federation of Medical Groups for Health An independent study published the Government of Egypt. This expressed concern at the lack Rights, wrote to the government in July by Tufts University (USA) showed case follows the decision of the 2016 concerned at the lack of transparent of transparent and democratic and democratic process to establish Korea’s that, if implemented, the TPP would government to raise the national RCEP negotiation strategy. They expressed cause employment losses in all TPP minimum wage without reviewing 65 process to establish Korea’s particular concern that Korea’s IP proposals countries. In the case of RCEP, the contract that Veolia had entered represent the interests of US industry, and there is no comparable study in into with the government of the City 57 RCEP negotiation strategy violate various human rights rules and norms. the public domain, but there are of Alexandria. Increasing workers reasons to believe that the impact on wages is a recognised economic FTA decision-making process”, with trade As host of the 10th RCEP round in October employment would be along similar stimulus that provides development unions and civil society groups role being 2015, Korea “facilitated formal and informal lines. Observers have also highlighted opportunities for an economy. Yet “as subordinate or even tokenistic partners, meetings between negotiators and civil to give the appearance of democratic society organisations”.58 Prior to its hosting that the increase in competition RCEP and other FTAs that include participation”. The 2013 Trade Procedures the 20th RCEP talks in Songdo, October brought by an integration into the ISDS provisions give immense powers Act requires the government to present 2017, 55 civil society groups wrote to global economy that is facilitated to private players to pressurise information about FTA negotiations and their Trade Ministers in RCEP countries, calling by FTAs such as RCEP, not only governments to refuse the legitimate implementation to the National Assembly for meaningful civil society engagement do not deliver jobs but lead to demands of workers. 54 and the public. But, the executive can at the Korean talks, specifically allowing contractualisation of employment.66 keep information confidential “if it is in the “civil society to speak for long enough Reports indicate that the ICSID has public interest and relates to a successful with chapter negotiators... to be able to Further, the ISDS framework has dismissed the Veolia case against negotiation strategy”. provide this in-depth analysis”. They asked to meet with the Intellectual Property, already been used to challenge the Egypt. While the reasons behind the There are clear indications of the privileged investment, e-commerce, services, and legal outcomes of collective bargaining decision remain secret, the 6 year role and inside access that the Korean negotiators.59 Reports of the 20th round state process, such as in the case brought case has cost Egypt millions of dollars government has given to business, with that negotiators from the Trade Negotiating by French corporation Veolia against in litigation fees. regards to RCEP. From July 2013 to July 2017, Committee and the Working Groups on the the Korean Ministry of Trade, Industry, and above listed areas “met with representatives Energy (MOTIE) held around 30 meetings from international, regional and local civil with various business sectors including steel, society organisations”.60 Electronics factory in Shenzhen Steve Jurvetson/ Wikimedia

12 RCEP A secret deal RCEP A secret deal 13 2.6 PHILIPPINES

he Philippines’ constitution requires under a government program called One that international agreements, such Country, One Voice (OCOV).69 The DTI also has Tas trade deals like RCEP, be ratified an ongoing “private sector-driven” process 5 AN INSTITUTIONALISED ROLE FOR by at least two-thirds of the Senate (one (i.e. private sector takes the lead in both of two houses of the elected legislature).67 crafting and driving the action) of developing But the power of negotiating RCEP sits industry roadmaps, which will “intersect BUSINESS IN RCEP with the government Department of Trade with trade policy and provide a platform for 70 Industry (DTI), with the President first sectoral negotiating positions”. So, whilst In 2013, at the start of RCEP describing it as “fitting to have establishing the country’s negotiating business is on the inside shaping RCEP negotiations, a business advisory our regional business partners position parameters.68 Trade Justice Pilipinas, positions, civil society consultation remains group was formed under the East with us”.82 Discussions focused a broad platform campaigning for just trade piecemeal, with uncertain impact. and investment policies, notes with regard to Asia Business Council (EABC), at the on “injecting business voice” into 83 the Philippines and the other RCEP countries, In terms of public participation in RCEP request of the ASEAN Plus Three RCEP, with business leaders “the Legislative Branches of the different rounds, an official stakeholders’ engagement Economic Ministers, who wanted briefing heads of state on their governments are almost entirely shut out event was held during the 18th RCEP talks a channel for “effective business recommendations. At the end of the of the process, even as the proposals on in Manila, May 2017, at which civil society inputs” into the talks78 (see Box 5). RCEP Summit, the heads of state the table would in fact amend if not repeal organisations and social movements were Since then, the EABC Working Group issued a Joint Leaders Statement existing laws.” able to present their positions. But, as with for RCEP exists to “ensure that the on the RCEP negotiations, which other stakeholder events at RCEP rounds, groups only had about three minutes each, negotiations address business needs “welcomed ongoing engagement severely limiting their ability “to provide and priorities”, with a “formal role with representatives from the Without access to RCEP’s analysis in enough depth, detail and technical in feeding business priorities and business sector, non-governmental texts, civil society cannot specificity to be useful to negotiators”.71 At concerns” into the negotiations. It is organisations, and other the event, trade union SENTRO called not only made up of representatives of peak stakeholders, and stressed the for full participation of parliaments in RCEP, business organisations (i.e. industry importance of such engagement conduct independent analysis, but of the people affected by the treaty, if 72 lobbies) from the participating in ensuring that RCEP remains negotiations are to continue. Civil society 84 countries, and has “already identified inclusive.” Absurdly, this suggests engage policy makers, and groups held a parallel No RCEP week of action, with the message that token participation some concrete matters which are that a deal practically co-negotiated inform our constituents who was insufficient. The Health Alliance for being included in RCEP negotiations” by big business, whilst civil society Democracy called out the “closed-door including e-commerce and “access remains unable to even see what’s stand to be most affected meetings between world economic leaders, to global and regional value chains”.79 being negotiated, is “inclusive”. The 73 businessmen, and countries”. This is institutionalised privileged statement also included an annexed However, the constitution also enshrines the corporate access and influence, on a “Outline of the RCEP Agreement”, “right of the people and their organisations In September 2017, the Philippines hosted RCEP-wide scale. Meanwhile, no civil but far from being an answer to civil to effective and reasonable participation an ASEAN Economic Ministers Meeting in society engagement events were society’s demands for transparency, at all levels of social, political, and Manila, including an intersessional RCEP economic decision-making” and requires meeting. At a stakeholder dialog facilitated held in the first 11 rounds of talks. the two pages provide scant details, that the “State shall, by law, facilitate the by the DTI, “trade officials flatly rejected nowhere near enough for serious establishment of adequate consultation appeals made by civil society to gain In November 2017, sandwiched analysis. This is token transparency mechanisms.” There have therefore been access to official documents,” according to between a RCEP Ministerial Meeting at best, around a deal that is being a number of stakeholder consultations, People Over Profit, which “reveals the anti- and RCEP Summit in Pasay City, designed by and for big business, 74 both during RCEP rounds hosted by the democratic essence of RCEP”. Without Philippines,80 President Duterte at the expense of farmers, workers, Philippines, and by government departments access to RCEP’s texts, civil society cannot chaired the ASEAN Plus Three81 women, indigenous peoples, local concerning the Philippines’ position. What “conduct independent analysis, engage Leaders’ Interface with EABC, businesses and communities. is less clear however, is the extent to which policy makers, and inform our constituents public participation is meaningful. It appears who stand to be most affected”.75 Research that while the private sector is treated as an group IBON also noted that meaningful inside partner, civil society merely gets an public debate is hindered by governments occasional soapbox to stand on, without their keeping quiet about the actual proceedings “participation” making much difference. and outcomes of the RCEP rounds.76 Trade unions and civil society groups also expressed In April 2016, the DTI held a meeting with concern that the “official stakeholder” events Philippines President Duterte presides over RCEP meeting, private sector stakeholders on RCEP and held by the Philippines were “far too limited” 77 Manila another trade deal; the consultation fell to provide meaningful participation. Rey Baniquet/Presidential Photo/Wikimedia

14 RCEP A secret deal RCEP A secret deal 15 2.7 been some discussion about RCEP within the INDONESIA DPR, the government “has never discussed the RCEP issue in a working meeting or a hearing with the DPR”, according to Inas Nasrullah, DPR member in December 2016.89 he Indonesian Constitution allows Another DPR member, Mercy Chriesty the President, with the “approval” of Barends, criticised RCEP as “very closed, not THouse of Representatives (the DPR, transparent” and not providing space for one of two elected legislative assemblies), community and stakeholder input, calling on to conclude treaties with other countries. the government to “include a Human Rights It also makes it clear that DPR approval Impact Assessment (HRIA) as a mandatory is needed “in making other international step, in advance”, before RCEP is signed.90 agreements that will produce an extensive and fundamental impact on the lives of Indonesia did hold stakeholder events the people”.85 It may seem obvious that with both business and with civil society this would cover a trade deal like RCEP, but organisations at the 16th RCEP talks in analysis by Indonesia for Global Justice (IGJ) Tangerang, December 2016. The contrast shows how various national laws have meant between them, however, was dramatic. On that “checks and balances functions that the business side, EABC organised a two day should be done by the DPR are lost”, with RCEP Business Stakeholder Workshop, with many international treaties passed only by sessions on Goods, Trade and Investment, Presidential regulation. There is a “need for small and medium enterprises (SMEs), clear ‘rules of the game’ within the national eCommerce and Implementation, “timed legal framework to ensure people’s control around the schedule of the negotiators to over governmental power in FTA negotiations enable the relevant negotiators to attend”.91 undertaken by Indonesia, including in the The event provided “an opportunity for RCEP negotiations”.86 business to communicate directly to the negotiators who will be negotiating the outcomes of the FTA”, and for the “voices 6 LOBBY GROUPS AROUND RCEP TABLE: of individual businesses” — such as Google Indonesia did hold stakeholder Indonesia, one of the speakers — to be THE ASIAN TRADE CENTRE events with both business and heard.92 Other speakers included the Asian Trade Centre (see box 6), Australian Industry In December 2016, AmCham Fonterra and FrieslandCampina, Group, and Japanese Chamber of Commerce Indonesia hosted a private lunch food industry giant BRF Asia, the with civil society organisations and Industry in Indonesia. meeting with the Asian Trade Center US-ASEAN Business Council, and 97 in 2016. The contrast between At the civil society stakeholder engagement (ATC), which “was actively involved” other organisations, ATC has been meeting, in contrast to the two days of in the 16th round of RCEP talks “very active” in RCEP. It has been “on them, however, was dramatic access to negotiators that business lobby and “provided AmCham members the ground at all RCEP negotiation group EABC got to press their demands, with exclusive insights into the rounds”,98 with “specific policy The 2014 Trade Act should have fixed this civil society “got 90 minutes to give four dynamics of the negotiations”.96 inputs” to the negotiations including minute speeches to negotiators expressing lack of democratic oversight of Presidential The ATC is a corporate-funded in the form of “model language powers. However, it is still up to the President their concerns”, notes Law Professor Jane neoliberal trade policy group, or, suggestions” on topics such as IP to decide whether a trade agreement need Kelsey from the University of Auckland. 99 be approved by parliament.87 The issue Kelsey also points out that this was only as it describes itself, a “thought and Digital Trade and E-Commerce. comes from the scope of “international trade the third opportunity (in 16 rounds) for leader, advocate and educator for ATC also offers training for Asian agreement” in the Trade Act; a narrow reading even this level of engagement: “Decisions trade” which works “with businesses government officials on “negotiating together with government discretion has left about stakeholder access are left to the and governments across the Asia free trade agreements” and for numerous trade-related ASEAN agreements host country” and so remain discretionary, Pacific to make better trade policy”. businesses on how to advocate without parliamentary input. Modern trade whilst business doubtless continues “to 93 Funded by the likes of Google, HP, “positions to government in ongoing deals like RCEP aren’t just about tariffs enjoy the negotiators’ ear.” Protests 100 mining giant Rio Tinto, dairy firms trade negotiations”! and import/export restrictions: they cover were also organised by groups including investment rules, IP, ISDS, etc, and are called the Asian Peasant Coalition, concerned “economic partnerships” rather than trade that RCEP would intensify land grabbing agreements. This leaves the government and militarisation, and drawing attention with large discretion to decide what is (not) to the fact that there is still “no official a trade agreement. As a result, the DPR is draft text available to the public”.94 The still frequently deprived of its role as a check Indonesia AIDS Coalition (IAC) has called Protesting forest fires caused 88 by illegal land clearing on the government. Indonesia is also a long for the democratisation of RCEP: the practices in Indonesia way from Parliamentary oversight of the “public is entitled to know the contents of Luka Tomac/Friends of the negotiations themselves. Although there has the agreement”.95 Earth International

16 RCEP A secret deal RCEP A secret deal 17 ASEAN flags Pipop Kangsiri / Alamy

7 ASEAN PARLIAMENTARIANS CALL FOR PARLIAMENTARY SCRUTINY

In August 2017, MPs from across The ASEAN Parliamentarians also South East Asia under the umbrella called for a human rights impact of the ASEAN Parliamentarians for assessment of RCEP, as many of Human Rights (APNR) “called for more its provisions “will have drastic transparency in the negotiations” consequences on people’s rights, 2.8 of RCEP. Member of the Philippines’ particularly in Southeast Asia,” said House of Representatives, Tomasito Indonesian MP Mercy Barends.109 MALAYSIA Villarin, elaborated that, “At Chairman of APHR, Malaysian MP minimum, we need to open up the Charles Santiago, concerned about negotiations to public scrutiny and the imbalance between richer and he Malaysian Constitution does MITI”, MPs remained “very much in the dark parliamentary oversight, and we call poorer countries in RCEP, and who not explicitly set out a role for the with regards to the demands made to ensure on all our governments to commission is going to profit from it, noted that Parliament in ratifying international Malaysia’s interest are left intact in the final a cost-benefit analysis of the final “there always appears to be a link T 103 agreements such as trade deals. It states negotiated text”. MPs only got access to the RCEP draft that will be made public between big firms with negotiators that Parliament may make laws with respect final text when it was presented to Parliament before any agreement is signed”.108 coming to the talks”.110 to external affairs (treaties/ agreements with after the negotiations were completed, and other countries, or their implementation),101 could no longer be changed.104 Based on but it does not explicitly give Parliament available information on MITI website and a role in entering into the treaties. This other sources, there appears to be even less suggests the executive has authority to transparency and engagement with civil 2.9 do so. In the negotiation of the TPP, the society on RCEP than there was on the TPP. Malaysian Ministry of International Trade Another MP Charles Santiago (see box 5) MYANMAR Directorate of Investment and Company and Industry (MITI) told the Dewan Negara asked the government if it had carried out Administration (DICA), the President’s a cost-benefit analysis of RCEP, particularly Office, and the State Counselor’s Office, in relation to SMEs, but received no clear and are signed without passing through the confirmation. Santiago warned against n February, news about the delegates parliament. The absence of transparency While corporate lobbies are repeating the mistake of the TPP, when the from Myanmar Ministry of Finance and and public consultations has made it near cost-benefit analysis was produced only after Planning travelling to Jakarta to participate impossible for Myanmar civil society as 105 I invited to advise government the agreement was finalised. in another round of RCEP negotiation was well as international allies to reflect on published in the state-owned media. This the agreement and provide suggestions officials, ordinary citizens who Malaysia hosted the third RCEP talks is typically the extent of information that for improvements. This is particularly in January 2014, with no stakeholder Myanmar citizens are able to receive relating troubling since RCEP could have an impact will live with the consequences engagement (nor did any of round before to RCEP or any other treaties which the on the majority of Myanmar’s people — for the 12th). The third RCEP Ministerial Meeting Government has signed or is planning to example, 60% of the population working in have no say whatsoever in August 2015, and Intersessional RCEP commit. Previously in August 2015, Myanmar the agriculture sector — due to stringent Ministerial Meeting in July 2015, were both hosted the ninth round of negotiation in Nay intellectual property measures. (the upper of two houses of Parliament) held in Kuala Lumpur,106 but neither with Pyi Taw. But there was no publication of any that the government would ensure that the stakeholder engagement. In the absence outcomes or consultations made with civil Similarly, few others in the Government are nation’s and the people’s interests are not of any official engagement, trade unions, society organisations. aware of the process and understand the compromised by the “21st century trade farming communities, health networks, consequences. As the space for civil society pact”. But as MP Nurul Izzah Anwar notes, indigenous peoples, women’s organisations, According to Myanmar’s constitution, the organisations (CSOs) is very limited for in a 21st century trade deal, “the public, academia and civil society groups met in president shall enter into, ratify or annul engagement within the country, over 190 parliament and civil society in general should Kuala Lumpur in July 2015. They issued a international, regional or bilateral treaties, Myanmar CSOs joined a regional network be given access to the treaty’s official text statement noting that despite affecting which require the approval of the parliament. last year to send a letter to the governments — not denied as is”.102 Unfortunately, the 3.5 billion people, the negotiations remain However, the constitution also may allow in 16 RCEP countries. The letter urged them negotiation of RCEP in Malaysia appears behind-closed-doors: “While corporate in some circumstances for the president to to stop RCEP negotiations and demanded to be more of the same. With the TPP, a lobbies are invited to advise government act without approval from the parliament. instead a new model that is based on Parliamentary caucus on the TPP was formed, officials, ordinary citizens who will live with the In current reality, most international cooperation and puts the development needs but though “engagements [were] made with consequences have no say whatsoever”.107 agreements are mainly negotiated by of the region above that of corporations.

18 RCEP A secret deal RCEP A secret deal 19 3 CONCLUSIONS AND RECOMMENDATIONS

he process of negotiating RCEP the national level Ensure public debate and national has been far from democratic and and in international parliament approval of trade agreements Ttransparent. Instead, it is characterised negotiations: before signing and ratification by corporate capture on a grand scale. National parliaments must have the right Democratising the trade deal requires Open and inclusive to vote on the trade agreements, including broad public debate facilitated by a truly public consultation the ability to send a proposed agreement transparent process, at both the level of before trade mandates text back to the negotiating table, even national processes within participating are formulated after negotiations are concluded. Relevant countries, and at the level of negotiation National governments committees must be able to assess it, rounds themselves. The issues covered by should hold open involving different interest groups and RCEP are not merely technical, but political: and transparent public members of the public, before voting on it. the privileges given to corporations vs the consultations before the rights of affected communities; the future launch of the negotiations, Ensure cancellation clauses that enable control of agriculture and food systems; and before negotiation mandates future governments/public participation to access to medicines being based on are drafted. Consultations must modify parts of the agreement and or leave health as a human right or the corporate be open ended (i.e. not allow only for the deal at any time. one predetermined outcome), with all contributions published. This could include The RCEP negotiations have failed to be engagement with trade unions under participative and transparent from their Trade should not be an end in Tripartite processes in some countries. Draft earliest stages. But it is not too late to mandates should be made publicly available, National Parliaments must be able start democratising this flawed process, itself, but a means to achieve to allow full and meaningful debate in to give directions during the by publishing negotiating positions and Parliaments and with civil society. negotiating process texts, ensuring Parliamentary oversight, social, environmental and National Parliaments should receive facilitating meaningful public consultation, National parliaments must approve detailed up to date information and and addressing the corporate capture of economic objectives the mandate negotiation texts, and be allowed to the trade deal, as exemplified by the vast The mandates for trade and investment deals formulate guidelines and directions for imbalance of access and influence between “right” to profit maximisation; the ability must be discussed and approved by national ongoing negotiations. Parliamentary business lobbies and public interest groups. of governments to regulate in the public Parliaments, before negotiations begin. debates should be public and allow for interest, and of the people to shape the contributions from all interested civil The current process around RCEP is laws that govern them. Given this, a guiding Independent environment, social and society organisations. undemocratic and illegitimate and must be principle for the negotiation of any trade economic assessment halted. Truly transparent and participative or investment deal, including RCEP, should Full and independent assessment of risks and Ensure balanced stakeholder trade policy-making, capable of forming trade be that trade is not an end in itself, but a benefits of the agreement, with particular input at all stages policy that serves the interests of people and means to achieve social, environmental and consideration of the impacts on human All stakeholders should have an the planet, rather than the corporate elites, economic objectives.111 Trade deals shouldn’t rights and the environment, must be opportunity to provide input to should then be built in its place. put trade liberalisation and reduction of costs conducted and published, with their decision makers before, during and for business above all else, but rather seek to results having a discernible influence after the negotiation of a trade and contribute to public interest objectives like on the negotiations. investment deal. Governments tackling climate change, securing decent must ensure that they It is not too late to jobs and protecting people’s health. This Transparency and meaningful achieve balance in their means that trade deals must support the public participation in stakeholder interaction, start democratising fulfillment of human rights and environmental negotiations, from start both quantitatively and agreements, like the Paris Climate Treaty, to finish qualitatively. This includes this flawed process the Convention on Biological Diversity, All mandates, negotiating actively seeking input from Sustainable Development Goals and proposals and consolidated underrepresented groups with transparent International Labour Organisation standards. negotiation texts, as well as and limiting interaction with stakeholder input, must be overrepresented groups. Contacts and participative To achieve trade and investment deals that proactively published and fully with interest groups should be put the public interest in the driving seat, publicly accessible. All negotiations disclosed fully and proactively, and policy making we make the following recommendations must be open for registered civil seeking direct, non-transparent for a democratic, participatory and society to attend, give direct input input from interest groups on a transparent policy-making process at both and make propositions. bilateral basis should be avoided.

20 RCEP A secret deal RCEP A secret deal 21 40 Japan MOFA, A dialogue between officials from member states of negotiations for Regional Comprehensive Economic Partnership (RCEP) References and civil society stakeholders, 23/02/17, http://www.mofa.go.jp/ecm/ep/page24e_000201.html 41 People Over Profit (POP), Stop RCEP! Trade For The People, Not For Corporate Elites!, 06/03/17, http://peopleoverprofit.online/stop-rcep- 1 Australian Government, Department of Foreign Affairs and Trade, 2016 trade-for-the-people-not-for-corporate-elites/ 2 FoEI, TNI, IGJ, Focus on the Global South, Paung Ku, The hidden costs of RCEP and corporate trade deals in Asia, December 2016, www. 42 Townsend, B., Gleeson, D. and Lopert, R., Pharma’s next frontier? New threats to public health in the Regional Comprehensive foei.org/wp-content/uploads/2016/12/The-hidden-costs-of-RCEP-and-corporate-trade-deals-in-Asia-FoEI.pdf Economic Partnership agreement, in Australian and New Zealand Journal of Public Health, 2016, 40: 5–6, http://onlinelibrary.wiley.com/ 3 Australian Government Productivity Commission, Trade & Assistance Review 2013-14, https://www.pc.gov.au/research/ongoing/trade- doi/10.1111/1753-6405.12453/full; The Conversation, RCEP: the trade agreement you’ve never heard of but should be concerned about, assistance/2013-14/trade-assistance-review-2013-14.pdf 08/06/15, https://theconversation.com/rcep-the-trade-agreement-youve-never-heard-of-but-should-be-concerned-about-42885 4 Section 61, Commonwealth of Australia Constitution Act, http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/coaca430/ 43 Bilaterals, RCEP & intellectual property, http://www.bilaterals.org/IMG/docx/rcep-ip-chapter-15october2015.docx 5 Katie Hirono, Fiona Haigh, Deborah Gleeson, Patrick Harris and Anne Marie, Thow, Health Impact Assessment of the Proposed Trans- 44 Keidanren, Chairman, Vice Chairs, http://www.keidanren.or.jp/en/profile/yakuin/pro003.html Pacific Partnership Agreement http://hiaconnect.edu.au/wp-content/uploads/2015/03/TPP_HIA.pdf 45 Cabinet Office, Council on Economic and Fiscal Policy, http://www5.cao.go.jp/keizai-shimon/index_en.html 6 Blind agreement: reforming Australia’s treaty-making process, 25/06/15, http://www.aph.gov.au/Parliamentary_Business/Committees/ 46 Toray, Life Science & Other Business, http://www.toray.com/products/prod_006.html, Wikipedia, Toray Industries, https://en.wikipedia.org/ Senate/Foreign_Affairs_Defence_and_Trade/Treaty-making_process/Report Page 40 wiki/Toray_Industries 7 KEI, 2015 Oct 16 version: RCEP draft text for investment chapter, 21/04/16, https://www.keionline.org/node/2474 47 Keidanren, Corporate Members List, as of 8/11/17, https://www.keidanren.or.jp/profile/kaiin/kigyo.pdf 8 DFAT, Public consultations on FTAs, http://dfat.gov.au/trade/agreements/Pages/public-consultations.aspx 48 Keidanren, http://www.keidanren.or.jp/en/policy/2014/076.html and http://www.keidanren.or.jp/en/policy/2016/032.html 9 DFAT, Background papers: TPP myths vs realities, http://dfat.gov.au/trade/agreements/tpp/outcomes-documents/Pages/background- 49 Telesur, TPP May Be Dead but Big Pharma’s Still Getting Away with Murder, 30/03/17, https://www.telesurtv.net/english/opinion/TPP- papers-tpp-myths-vs-realities.aspx May-Be-Dead-but-Big-Pharmas-Still-Getting-Away-with-Murder-20170330-0014.html 10 See, e.g. submissions to inquiry into the Commonwealth’s treaty-making process, https://www.aph.gov.au/Parliamentary_Business/ 50 Keidanren, Chairman, Vice Chairs, ibid., Sumitomo Chemical, https://www.sumitomo-chem.co.jp/english/products/agricultural_chemicals/ Committees/Senate/Foreign_Affairs_Defence_and_Trade/Treaty-making_process/Submissions and https://www.sumitomo-chem.co.jp/english/company/. Sumitomo also has a pharmaceuticals business https://www.sumitomo-chem. 11 The Sydney Morning Herald, And you thought the TPP was secret. The RCEP is even worse, 05/11/16, http://www.smh.com.au/comment/ co.jp/english/products/pharmaceuticals/ and-you-thought-the-tpp-was-secret-the-regional-comprehensive-economic-partnership-is-even-worse-20161104-gsiaaw.html 51 Cabinet Office, Members of the Council for Science, Technology and Innovation, http://www8.cao.go.jp/cstp/english/policy/members.html 12 DFAT, Public submissions to the RCEP negotiations, http://dfat.gov.au/trade/agreements/rcep/submissions/Pages/submissions.aspx, as 52 South Korea Constitution, 17 July 1948, http://www.servat.unibe.ch/icl/ks00000_.html of 24/11/17 53 Hyun-Chool Lee, Ratification of a Free Trade Agreement: The Korean Legislature’s Response to Globalisation, Journal of Contemporary 13 DFAT, Twelfth round of negotiations, 27/05/16, http://dfat.gov.au/trade/agreements/rcep/news/Pages/twelfth-round-of-negotiations-17- Asia Vol. 40, No. 2, May 2010, pp. 291–308, http://content.csbs.utah.edu/~mli/Economies%205430-6430/Lee-Korean%20Free%20 29-april-2016-perth-australia.aspx Trade%20Agreement.pdf 14 Australia’s Chief RCEP Trade Negotiator to brief AusCham’s Members, HCMC, https://auschamvn.org/events/australias-chief-rcep-trade- 54 Act On The Conclusion Procedure And Implementation Of Commercial Treaties, Act No. 11717, 23/03/13, https://elaw.klri.re.kr/eng_service/ negotiator-to-brief-auschams-members-hcmc/ lawView.do?lang=ENG&hseq=29246 15 FoEI et al, The hidden costs of RCEP and corporate trade deals in Asia, ibid. 55 MOTIE, Press Release: Bigger Market for Companies, and Better Jobs for People, 25/02/14, http://english.motie.go.kr/en/pc/pressreleases/ 16 MCA, Climate Policy and Australia’s Resources Trade - a new report, Mar 24 2015, http://www.minerals.org.au/news/climate_policy_and_ bbs/bbsView.do?bbs_cd_n=2&bbs_seq_n=239 australias_resources_trade_-_a_new_report 56 MOTIE, Ministry holds meeting with industry to discuss RCEP negotiations, 21/04/17, http://english.motie.go.kr/en/pc/photonews/bbs/ 17 DFAT, Business Envoy, Growing Australia’s mining services exports, 07/08/17, Brendan Pearson, Chief Executive of MCA, http://dfat. bbsList.do?bbs_cd_n=1&bbs_seq_n=598 gov.au/about-us/publications/trade-investment/business-envoy/Pages/august-2017/growing-australias-mining-services-exports. 57 Written opinion on RCEP to South Korean Government and request for a face-to-face meeting and public hearings, 25/07/16, Korean aspx#footnote-ref-6 Federation of Medical Groups for Health Rights, Solidarity for Worker’s Health, International Trade Research Institute, etc http://www. 18 DFAT, Australia’s Trade and Investment Interests in RCEP Participating Countries, http://dfat.gov.au/trade/agreements/rcep/Pages/ bilaterals.org/?written-opinion-on-rcep-to-south australias-trade-and-investment-interests-in-regional-comprehensive-economic-partnership-rcep-participating-countries.aspx 58 EFF, Shrinking Transparency in the NAFTA and RCEP Negotiations, 14/09/17, https://www.eff.org/deeplinks/2017/09/shrinking- 19 MCA, New frontiers South and East Asia: 1 Trade Agenda, A guide for Australian trade negotiators and mining and METS businesses to transparency-nafta-and-rcep-negotiations leverage trade and investment opportunities in emerging markets across Asia, 2017, www.minerals.org.au/file_upload/files/publications/ 59 Bilaterals, 55 groups call for a meaningful CSO engagement […] ibid. Overview_New_frontiers_FINAL.pdf 60 DFAT, Twentieth Round of Negotiations, 08/11/17, http://dfat.gov.au/trade/agreements/rcep/news/Pages/twentieth-round-of- 20 The Wire, As Current Rounds of Talks Draw to a Close, Questions About RCEP Loom Large Over India, By Ranja Sengupta on 27/07/2017, negotiations-17-28-october-2017-songdo-incheon-korea.aspx https://thewire.in/162115/rcep-talks-questions-loom-large-over-india/ 61 MOFCOM, China FTA Network, Give play of China’s Important Role and Accelerate RCEP Negotiations, September 2014, http://fta. 21 Art. 73 of the Constitution of India. See: India’s Engagement with Free Trade Agreements (FTAs): Challenges and Opportunities. mofcom.gov.cn/enarticle/rcepen/enrcepnews/201411/18815_1.html Measures for Improving Transparency and Accountability in Relation io FTAs, Submitted by Mrs. Maja Daruwala and Venkatesh Nayak, 62 See, for example, MOFCOM press conferences 14/09/17, http://english.mofcom.gov.cn/article/newsrelease/press/201710/20171002655990. Commonwealth Human Rights Initiative (CHRI) February 2013, http://www.right2info.org/resources/publications/publications/chri_- shtml and 02/11/17, http://english.mofcom.gov.cn/article/newsrelease/press/201711/20171102669163.shtml india2019s-engagement-with-free-trade-agreements. 63 Bilaterals, International civil society asks Japanese Government […] ibid. 22 India’s Engagement with Free Trade Agreements (FTAs), ibid. 64 Focus on the Global South, Newsletter Special Edition on the RCEP, 2017, https://focusweb.org/content/focus-global-south-newsletter- 23 Under Section 4(1)(c) of the RTI Act all departments and public authorities under the Central Government who are responsible for special-edition-rcep implementing FTAs and CEPAs have an obligation to: “publish all relevant facts while formulating important policies or announcing 65 Capaldo J, Izurieta A, Sundaram J K, ‘Trading down: Unemployment, Inequality and Other Risks of the Trans Pacific Partnership Agreement’, decisions that affect the public.” Tufts University, USA, January 2016 accessed at: http://www.ase.tufts.edu/gdae/policy_research/tpp_simulations.html 24 India’s Engagement with Free Trade Agreements (FTAs), ibid.India’s Engagement with Free Trade Agreements (FTAs), ibid. 66 Satyaki Roy, ‘On Recent Employment Trends in India’ in People’s Democracy, accessed at: http://peoplesdemocracy.in/2018/0121_pd/ 25 Bilaterals, “Stakeholder consultation a sham” – Boycott by people’s organizations, 26/07/17, http://www.bilaterals.org/?stakeholder- recent-employment-trends-india consultation-a-sham; The Wire, Civil Society Group Boycotts RCEP Consultation, 26/07/2017, https://thewire.in/161704/rcep-trade-deal- 67 The Constitution of the Republic of the Philippines, 1987, http://www.officialgazette.gov.ph/constitutions/1987-constitution/ Section 21 civil-group-boycott/ 68 Philippines: Doing Business and Investing in Philippines Guide, Vol. 1, 2016 Edition, International Business Publications, USA 26 Express News Service, RCEP meet: Activists allege lack of transparency, 26/07/17, http://www.newindianexpress.com/states/ 69 BusinessWorldOnline, DTI consulting with private sector on trade deals, 14/04/16, http://www.bworldonline.com/content. telangana/2017/jul/26/rcep-meet-activists-allege-lack-of-transparency-1633638.html php?section=Economy&title=dti-consulting-with-private-sector-on-trade-deals&id=125938 and on DTI website http://www.dti. 27 Bilaterals, 55 groups call for a meaningful CSO engagement in the 20th RCEP Round, 17/10/17, http://www.bilaterals.org/?55-groups-call- gov.ph/27-main-content/emb-news/9244-dti-consulting-with-private-sector-on-trade-deals; also see DTI Philippines Facebook for-a-meaningful announcement https://www.facebook.com/DTI.Philippines/posts/10154306942355116 28 Bilaterals, “Stakeholder consultation a sham”, ibid. Global Business Coalition, AiG statement at RCEP Business Stakeholders Consultation, 70 DTI, Trade For Growth, Growth In Trade, ibid Hyderabad, 25/07/17, http://www.globalbusinesscoalition.org/gbc-news/aig-statement-rcep-business-stakeholders-consultation- 71 Bilaterals, 55 groups call for a meaningful CSO engagement […] ibid. hyderabad/ 72 Call to ASEAN Leaders: Reject RCEP & Oppose Unjust Trade Deals […] ibid. 29 EABC, Report of the EABC-CII RCEP Business Stakeholder Workshop, 25/07/17 http://www.eabex.org/eabc-workshop-for-rcep- 73 HEAD Joins Global Resistance against RCEP and Imperialist Globalization, 11/05/17, https://headphilippines.blogspot.co.uk/search?q=rcep stakeholders-Hyderabad 74 POP, Philippine peoples’ movements reject RCEP, September 7, 2017, http://peopleoverprofit.online/philippine-peoples-movements- 30 The Economic Times, RCEP pact: Commerce Ministry to hold consultations with industry on goods, 06/09/15, https://economictimes. reject-rcep/ indiatimes.com/news/economy/foreign-trade/rcep-pact-commerce-ministry-to-hold-consultations-with-industry-on-goods/ 75 Bilaterals, CSOs challenge PH trade negotiators: Take Philippines out of RCEP! 07/09/17, www.bilaterals.org/?csos-challenge-ph-trade articleshow/48843121.cms 76 IBON, RCEP talks secretive, undemocratic – IBON, 04/09/17, http://ibon.org/2017/09/rcep-talks-secretive-undemocratic-ibon/ 31 Bilaterals, “Stakeholder consultation a sham”, ibid. 77 Workers call on Governments to Defend the Public Interest and Reject RCEP, 10/09/17 http://igj.or.id/workers-call-on-governments-to- 32 Japan METI, Mission of METI, www.meti.go.jp/english/publications/pdf/e_book.pdf defend-the-public-interest-and-reject-rcep/ 33 Japan’s Foreign Policy Making: Central Government Reforms, Decision Making Processes, and Diplomacy by Karol Zakowski, Beata 78 EABC, Progress of the Working Group for RCEP, http://www.eabex.org/eabc-working-group-for-rcep Bochorodycz, Marcin Socha, Springer 2018 79 Australian Industry Group, Submission to the inquiry into the Commonwealth’s treaty-making process, February 2015, cdn.aigroup.com. 34 OECD, Japan Country Profile, https://www.oecd.org/global-forum-productivity/country-profiles/japan.htm au/Submissions/Trade_and_Export/Sub_66.pdf 35 WEF, Sadayuki Sakakibara, https://www.weforum.org/people/sadayuki-sakakibara 80 DFAT, Twentieth Round of Negotiations, ibid. 36 Japan’s Foreign Policy Making, ibid. 81 ASEAN member countries and the Plus Three Countries; China, Japan, and South Korea. 37 The Constitution of Japan, 1946, Art. 73, http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html 82 DFA, ASEAN Plus Three Leaders and Businessmen Call for More Open Trade, 14/11/17, https://www.dfa.gov.ph/newsroom/dfa- 38 Japan’s Foreign Policy Making, ibid. releasesupdate/14638-asean-plus-three-leaders-and-businessmen-call-for-more-open-trade 39 Bilaterals, International civil society asks Japanese Government for stakeholder engagement at 17th RCEP negotiations in Kobe, 10/02/17, 83 DFA, PH to Host the APT Leaders’ Interface with the East Asia Business Council, 13/11/17 https://www.dfa.gov.ph/newsroom/dfa- http://www.bilaterals.org/?international-civil-society-asks releasesupdate/14622-ph-to-host-the-apt-leaders-interface-with-the-east-asia-business-council

22 RCEP A secret deal RCEP A secret deal 23 84 Joint Leaders’ Statement on the Negotiations for the RCEP, 17/11/17, http://asean.org/joint-leaders-statement-negotiations-regional- comprehensive-economic-partnership-rcep/ 85 The 1945 Constitution of the Republic of Indonesia, http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/ documents/legaldocument/wcms_174556.pdf, Article 11 86 IGJ, RCEP: “Harus Ada Kontrol Rakyat Dalam Perundingan RCEP”, 12/05/17, https://igj.or.id/rcep-harus-ada-kontrol-rakyat-dalam- perundingan-rcep/ 87 IGJ, Critical Review Towards Act No.24 Year 2000 on International Agreement: “Indonesian Law about Power Binding Towards International Agreement and International Trade Agreement”, 2017, igj.or.id/wp-content/uploads/2017/10/Critical-Review-Towards-Act-No.24-Year- 2000-on-International-Agreement1.pdf 88 IGJ, Critical Review..., ibid. 89 VOA, DPR: Kemitraan Ekonomi RCEP Akan Rugikan Indonesia, by Fathiyah Wardah, 09/12/16, https://www.voaindonesia.com/a/kemitraan- ekonomi-rcep-rugikan-indonesia/3629473.html 90 Tribunnews.com, Anggota DPR: Tinjau Ulang Negosiasi Regional Comprehensive Economic Partnership, by M Zulfikar, 10/12/16, http:// www.tribunnews.com/nasional/2016/12/10/anggota-dpr-tinjau-ulang-negosiasi-regional-comprehensive-economic-partnership?page=3 91 EABC, Profress of the Working Group for RCEP, http://www.eabex.org/eabc-working-group-for-rcep 92 Report of the EABC RCEP Business Stakeholder Workshop, December 4-5, 2016, Indonesia Convention Exhibition (ICE) BSD City, Tangerang http://www.eabex.org/eabc-workshop-for-rcep-stakeholders 93 Jane Kelsey, Reflections on the Regional Comprehensive Economic Partnership (RCEP) round in Jakarta by Jane Kelsey, 15/12/16, http:// infojustice.org/archives/37545#more-37545 94 Asian Peasant Coalition, APC claims RCEP will intensify land grabbing and militarization, 13/12/16, http://www.bilaterals.org/?apc-claims- rcep-will-intensify 95 Press Release – Coalition for Economic Justice Responding World Food Day, 16/10/16 https://igj.or.id/press-release-coalition-for- economic-justice-responding-world-food-day-october-16th-2016/?lang=en 96 AmCham Indonesia, Getting to Know RCEP in Indonesia, 13/12/16, https://www.amcham.or.id/amcham/5472-getting-to-know-rcep-in- indonesia 97 ATC, Funding Sources, http://www.asiantradecentre.org/funding-sources/ 98 ATC, How RCEP can benefit you, http://www.asiantradecentre.org/how-rcep-can-benefit-you/ 99 ATC, RCEP Publications, http://www.asiantradecentre.org/rcep/ 100 ATC, What we do, http://www.asiantradecentre.org/what-we-do/ 101 The Federal Constitution of Malaysia, As at 1 November 2010, Article 74(1), and Federal lList, Ninth Schedule, www.agc.gov.my/agcportal/ uploads/files/Publications/FC/FEDERAL%20CONSTITUTION%20ULANG%20CETAK%202016.pdf 102 Nurul Izzah Anwar MP, Time to scrutinize the TPPA to verify whether PM Datuk Seri Najib Razak fulfills promise to protect Malaysia, 5/10/15, http://www.nurulizzah.com/site/2015/10/time-to-scrutinize-the-tppa-to-verify-whether-pm-datuk-seri-najib-razak-fulfills-promise-to- protect-malaysia/ 103 Nurul Izzah Anwar, ibid. 104 MITI, Media Statement TPP, July 2015, http://www.miti.gov.my/index.php/pages/view/2850 105 TWN, March 2017, https://www.twn.my/title2/FTAs/info.service/2017/fta359.htm 106 DFAT, RCEP Previous Negotiating Rounds and Ministerial Meetings, http://dfat.gov.au/trade/agreements/rcep/news/Pages/news.aspx 107 APRN, Civil society groups reject RCEP: Excessive corporate powers at the expense of people’s rights, 24/08/16 108 Parliamentarians come together to promote human rights in the context of trade, 25/08/17, http://aprnet.org/?p=455 https://aseanmp. org/2017/08/25/parliamentarians-come-together-to-promote-human-rights-in-the-context-of-trade/ 109 Parliamentarians come together to promote human rights in the context of trade, ibid. 110 VOA, DPR: Kemitraan Ekonomi RCEP Akan Rugikan Indonesia, by Fathiyah Wardah, 09/12/16, https://www.voaindonesia.com/a/kemitraan- ekonomi-rcep-rugikan-indonesia/3629473.html 111 Guiding principle and recommendations take inspiration from the Seattle to Brussels Network (S2B) open letter “EU Trade and Investment Policy must be democratised”, November 2017, http://www.s2bnetwork.org/sign-democratisation-letter/

RCEP A secret deal Trade talks FAIL the transparency and public participation test