TPP下的中美日三国以及世界自贸规则的新变局

Electronic copy available at: 17918c85bed5b9f3f80f1c15/abstract=2237523

1

THE TRANS-PACIFIC PARTNERSHIP: JAPAN,

CHINA, THE U.S. AND THE EMERGING

SHAPE OF A NEW WORLD TRADE

REGULATORY ORDER

LARRY CATá BACKER ?

A BSTRACT

The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, they are becoming both an instrument of integrated economic regulation at the supranational level and a tool of international relations within the emerging global economic order. The recently expanded scope of negotiations over the Trans-Pacific Partnership (TPP) serves as a case in point, one that focuses both on the trilateral relations between Japan, the United States, and China, and on the form of competition for control of the language of supranational economic regulation. The focus of this paper is on the decision by Japan to join the U.S.-led negotiations for a Trans-Pacific Partnership (TPP), even as it pushes ahead with a Free Trade Agreement with China and Korea. This decision represents a critical new aspect of Japanese trade relationships that is likely to have significant economic and geopolitical effects. I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand, and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then elaborate on the central strategic considerations that follow from this important decision in the relationships between Japan, the United States, and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization. For Japan, the TPP may represent a means to use a necessary containment of its own policy autonomy within complex

? W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, 2012–13 Chair, University Faculty Senate, The Pennsylvania State University. This paper has been presented to workshops at The Pennsylvania State University, School of International Affairs, April 3, 2013, and the University of Arizona James E. Rogers College of Law, March 26, 2013; it was first presented to the Japan America Society of Pennsylvania, Pittsburgh, PA, March 21, 2013. My thanks to the excellent comments and suggestions by the participants at each. Special thanks to my research assistants Keren Wang (Penn State MIA 2013, Ph.D. Candidate Penn State School of Communications, Arts and Sciences) and Nabih Hadad (Penn State MIA 2013, Ph.D. Candidate, Michigan State University School of Education).

13-1-Backer article book pages.docx 3/18/14

2 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### networks of multilateral arrangements to protect its sizeable investment in

China, at least temporarily, and to permit it to leverage its power to influence global trade rules. For the United States, the TPP presents an opportunity to leverage power as well, by creating an alternative to the

World Trade Organization (“WTO”) for moving trade talks forward in

ways that serve U.S. governance interests more comprehensively. For

China, the TPP represents an additional layer of containment, meant to constrain its economic power and to limit the value of the country’s form

of state capitalism. The TPP represents the next wave of plurilateral comprehensive agreements that will shape the framework of global economic governance. It also suggests the growing importance of international agreements as the space within which the structures of economic regulation will be determined, to the detriment of state power.

Within these structures, the TPP also reaffirms that Japan stands uncomfortably close to the fissure that separates the United States from

Chinese interests, and must continue to rely on the internationalization of rulemaking to protect its interests. An independent path for Japan is

unlikely to be an option worth considering.

International trade agreements were once the province of politics and

only incidentally of interest to lawyers. These instruments have now

evolved into increasingly important sources of rulemaking affecting both domestic and international legal orders.1To that end, they are no longer

treated as simple devices for easing the movement of goods across borders. Instead, trade agreements are increasingly considered instruments

of integrated economic regulation at the supranational level and a tool of international relations within the emerging global economic order.2

The recently expanded scope of negotiations over the Trans-Pacific Partnership (TPP) serves as a case in point—one that focuses both on the

trilateral relations between Japan, the United States, and China, and on the

form of competition for control of the language of supranational economic regulation. The relationship between Japan and China remains complex

1. See, e.g., Joost Pauwelyn, The Transformation of World Trade, 104 M ICH.L.R EV. 1, 6

(2005) (evolution of trade agreements from essentially political to more regulatory); Patrick Specht,

The Dispute Settlement Systems of WTO and NAFTA—Analysis and Comparison, 27 G A.J.I NT’L &

C OMP.L. 57 (1998).

2. See, e.g., Stephen Joseph Powell & Ludmila Mendon?a Lopes Ribeiro, Managing The Rule

Of Law In The Americas: An Empirical Portrait Of The Effects Of 15 Years Of WTO, Mercosul, And

NAFTA Dispute Resolution On Civil Society In Latin America, 42 U.M IAMI I NTER-A M.L.R EV. 197,

198 (2011) (trade dispute settlement contributes to the management and perfection of the rule of law in

support of democratic governance for civil societies in Latin America).

Electronic copy available at: 17918c85bed5b9f3f80f1c15/abstract=2237523

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2014] RUNNING HEADER 3

and antagonistically competitive.3History both joins and pides them.4

The specter of the century before 19495in their relations continues to

affect elite and popular perceptions in ways that sometimes drive policy

and culture. The October 2012 anti-Japanese riots in China were the first significant expressions of anti-Japanese popular opinion since 2005. The

riots demonstrated the way in which passions, both managed and unmanaged, can be inflamed.6Indeed, popular sentiment has become a

critical factor driving those relations.7 The Japanese have not been passive

either. After the October riots the Japanese press countered with the suggestion of a mass pull out of Japanese investment in China.8

Currently, that cooperative and sometimes antagonistic relationship is

making itself felt in two important respects. The first is in territorial claims

of the two states, especially with respect to the Senkaku Islands (known to

the Chinese as the Diaoyu Islands). The second, to some extent tied to the

first, are the efforts to control or at least influence the structures of trade in

the Pacific region, efforts pushed into high gear with the election of Prime

Minister Shinzo Abe. The two are linked from the Japanese and Chinese perspectives. In an editorial published for English-speaking readers in the People’s Daily in January 2013, Chinese authorities made it clear that they

3. For current thinking in the popular press, see, e.g., Gideon Rachman, The Shadow of 1914

Falls Over the Pacific, F IN.T IMES(Feb. 4, 2013), 17918c85bed5b9f3f80f1c15/intl/cms/s/0/e29e200a-6ebb-

11e2-9ded-00144feab49a#axzz2OBoyj8tY (“US is concerned that the new Japanese cabinet is

full of hardline nationalists, who are more inclined to confront China. Shinzo Abe, the new Japanese

prime minister, is the grandson of a wartime cabinet minister and rejects the ‘apology diplomacy,’

through which Japan tried to atone for the war. . . . The Chinese military is also increasingly influential

in shaping foreign policy.”).

4. See, e.g., R ICHARD C.B USH,T HE P ERILS OF P ROXIMITY:C HINA-J APAN S ECURITY

R ELATIONS (2010).

5. See, e.g., R ICHARD J.S AMUELS,S ECURING J APAN:T OKYO’S G RAND S TRATEGY AND THE

F UTURE OF E AST A SIA (2011); J OHN D EWEY,C HINA,J APAN AND THE U.S.A.:P RESENT C ONDITIONS

IN THE F AR E AST AND THEIR B EARING ON THE W ASHINGTON C ONFERENCE (1921).

6. Rattling the Supply Chains, E CONOMIST(Oct. 20, 2012), 17918c85bed5b9f3f80f1c15/news/

business/21564891-businesses-struggle-contain-fallout-diplomatic-crisis.

7. Nozomu Hayashi, the Beijing Bureau correspondent for the Asahi Shimbun noted:

Small anti-Japan rallies, which started near the Japanese Embassy in Beijing and elsewhere,

spread to many places across the country toward the weekend. CCTV kept fanning anti-

Japanese sentiments.

A retired official from China’s Foreign Ministry said that anti-Japan rallies, which he

said was ignited by Japan’s actions, were not the same as those in the past.

“If the Chinese government stopped the Hong Kong activists, the people’s criticism would have quickly turned toward the central government,” the former official said. “Anti-

Japan sentiments, which began after (Tokyo Governor Shintaro) Ishihara’s announcement of

a plan to purchase the islands, reached a different level from those in the past.”

Nozomu Hayashi, @Beijing: Why Have China’s Anti-Japan Sentiments Heightened?, A SAHI S HIMBUN

(Oct. 25, 2012). 17918c85bed5b9f3f80f1c15/article/views/column/AJ201210250004.

8. Rattling the Supply Chains, supra note 6.

Electronic copy available at: 17918c85bed5b9f3f80f1c15/abstract=2237523

13-1-Backer article book pages.docx 3/18/14 4 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### view Japanese economic and diplomatic policies as aimed potentially to further a strategy of encircling and containing Chinese economic ambitions and territorial claims.9

Indeed, Shinzo Abe himself has described Japan’s policies so as to corroborate these concerns. During an address to the Center for Strategic and International Studies (“CSIS”) on February 22, 2013, Prime Minister Abe explained where he thought Japan should stand in the future by referencing three principal tasks it faced:

Firstly, when the Asia-Pacific or the Indo-Pacific region becomes

more and more prosperous, Japan must remain a leading promoter

of rules. By rules, I mean those for trade, investment, intellectual

property, labor, environment and the like. Secondly, Japan must

continue to be a guardian of the global commons, like the maritime

commons, open enough to benefit everyone. Japan's aspirations

being such, thirdly, Japan must work even more closely with the

United States, Korea, Australia and other like-minded democracies

throughout the region.10

According to the Prime Minister, the most effective use of Japanese power was on rules promotion, guardianship of open seas and other global common spaces, and for Japan to serve as an active partner of democratic states in the Pacific region.11This approach to successful assertion of Japanese power was echoed recently by Foreign Affairs Minister Fumio Kishida’s speech to the 183rd Session of the Diet in which he identified the three pillars of Japanese foreign policy as “strengthening the Japan-U.S. Alliance, deepening our cooperative relations with neighboring

9. Editorial, Encircling China Just Japan’s Wishful Thinking, P EOPLE’S D AILY O NLINE(Jan. 17, 2013), 17918c85bed5b9f3f80f1c15/90883/8095303. The editorial stated:

The Japanese media have described the Abe administration’s diplomatic moves as new attempts to contain and encircle China.

It is fine if Japan’s “strategic diplomacy” is simply aimed at improving its relations with the above countries, promoting its foreign trade and investment, creating favorable external

conditions for domestic economic recovery, and enhancing its international status and clout.

Japan will be disappointed if it really hopes to work with the above countries to contain, isolate, and encircle China through “strategic diplomacy,” and gain a strategic advantage over

China in the dispute over the Diaoyu Islands.

Id.

10. Shinzo Abe, Japan is Back, Speech to the Center for Strategic and International Studies (CSIS) (Feb. 22, 2013) (transcript available at http://www.mofa.go.jp/announce/pm/abe/us_20130 222en).

11. Id.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER 5 countries, and strengthening economic diplomacy as a means to promoting the revitalization of the Japanese economy.”12

Japan is pushing ahead with a Free Trade Agreement with China and Korea,13 but has also decided to join the U.S.-led negotiations for a Trans-Pacific Partnership (“TPP”).14This decision presents a new aspect of Japanese trade relationships that is likely to have significant economic and geopolitical effects. I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand, and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then suggest some important strategic considerations that may follow from this important decision in the relationships between Japan, the United States, and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization.

I.T HE T RANS-P ACIFIC P ARTNERSHIP

The TPP has evolved from a modest effort to secure regionalized trade into a politically criticized grasp for economic regulatory power. Originally the TPP represented efforts of a few Pacific Basin states—Brunei, Chile, New Zealand, and Singapore—to develop a modest framework for trade liberalization in the shadow of larger Asia-Pacific multilateral trade organizations. Originally known as the Pacific Three Closer Economic Partnership (“PO3-CEP”), negotiations commenced in 2002 in the shadow of the Asia-Pacific Economic Cooperation (“APEC”) forum.15 It was signed in 2005 as a free trade-type agreement among these states. The United States was not invited to TPP talks until 2008. By 2011, TPP had grown to nine—Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States.16It has been

12. Fumio Kishida, Foreign Policy Speech by Minister for Foreign Affairs Fumio Kishida to the 183rd Session of the Diet (February 28, 2013), (transcript available at http://www.mofa.go.jp/ announce/fm/kishida/speech_130228).

13. See, e.g., Joint Declaration on the Enhancement of Trilateral Comprehensive Cooperative Partnership, China-S. Kor.-Japan, May 13, 2012, http://www.mofa.go.jp/region/asia-paci/jck/summit 1205/joint_declaration_en; Press Release, Japan Ministry of Foreign Affairs,Preparatory Meetings for the Negotiation of a Free Trade Agreement (FTA) among Japan, China and the ROK (Feb. 21 2013) (available at http://www.mofa.go.jp/announce/announce/2013/2/0221_01).

14. See, e.g., Joshua Meltzer, Japan Joins the Trans Pacific Partnership—Finally!, B ROOKINGS

I NST. (Mar. 18, 2013), 17918c85bed5b9f3f80f1c15/blogs/up-front/posts/2013/03/18-japan-joins-trans-pacific-partnership-meltzer.

15. For a history of the Asia Pacific Economic Cooperation (“APEC”), see History, APEC, 17918c85bed5b9f3f80f1c15/About-Us/About-APEC/History.aspx.

16. O FFICE OF THE U.S.T RADE R EP., T HE U NITED S TATES IN THE T RANS-P ACIFIC P ARTNERSHIP

13-1-Backer article book pages.docx 3/18/14 6 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### reported in influential outlets of the European press that “[m]any believe that other members of the APEC bloc may also join the agreement in the coming years, making it an even more important pact.”17

TPP has three principal objectives: increasing markets for exports, providing a basis for broad Asia-Pacific regional economic integration, and increasing the competitiveness of the participating states.18 There are five key features that the U.S. Trade Representative suggested “will make TPP a landmark, 21st-century trade agreement, setting a new standard for global trade and incorporating next-generation issues that will boost the competitiveness of TPP countries in the global economy.”19 These include, first, the provision of comprehensive market access by eliminating tariffs and other barriers to trade. Second, TPP will be structured to make possible full regionalization that embeds within it the development of production and supply chains among TPP members. Third, TPP focuses on inter-agreement coherence. This requires integrating work done through APEC with a focus on regulatory coherence, enhancing competitiveness, a focus on small business (thus the reference to supply chains), and market liberalization. Fourthly, TPP would help develop trade in emerging technologies, including digital and green technologies. Lastly, TPP is designed to be a so-called “living agreement.”20 Like the WTO (but ideally more successful), it is meant to remain a work in progress.21 The scope of TPP is also meant to be fairly comprehensive.22

(Nov. 2011), available at 17918c85bed5b9f3f80f1c15/about-us/press-office/fact-sheets/2011/november/ united-states-trans-pacific-partnership.

17. TPP: What Is It and Why Does It Matter?, BBC N EWS (Mar. 14, 2013), http://www.bbc.co .uk/news/business-21782080.

18. O FFICE OF THE U.S.T RADE R EP.,supra note 16.

19. O FFICE OF THE U.S.T RADE R EP., E NHANCING T RADE A ND I NVESTMENT,S UPPORTING J OBS,

E CONOMIC G ROWTH A ND D EVELOPMENT:O UTLINES O

F T HE T RANS-P ACIFIC P ARTNERSHIP A GREEMENT (2011), available at 17918c85bed5b9f3f80f1c15/about-us/press-office/fact-sheets/2011/ november/outlines-trans-pacific-partnership-agreement.

20. Id.The living agreement aspect of TPP might be attacked as not very sensible, precisely because it would require a mechanism either for constant renegotiation for the development of a supra-national legislative apparatus to deal with changes in trade and economic activities. It is likely that any sort of structure that might explicitly cede governance authority out of the United States might raise opposition and be attacked as anti-democratic. The living agreement aspect of TPP might well also require an institutional infrastructure to make it work. That may be a tall order. The creation and deployment of a Secretariat structure, especially one with potentially important remediation structures, like ICSID, may be difficult to sell to Congress or to the United States’ partner states. Yet MERCOSUR has suggested that even an agreement with strong inter-governmental character can sustain a useful secretariat structure. See, e.g., L UIZ O LAVO B APTISTA, F OREIGN T RADE I NFORMATION S YSTEMS,MERCOSUR,I TS I NSTITUTIONS AND J URIDICAL S TRUCTURE (1998), available at 17918c85bed5b9f3f80f1c15/geograph/south/mstit2_e.pdf.

21. O FFICE OF THE U.S.T RADE R EP., supra note 19.

22.Id. Issues covered include (1) regulation of competition (antitrust) issues, (2) cooperation and

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER7 TPP is still very much a work in progress.23The 16th Round of TPP talks were held in Singapore from March 4–13, 2013,24and the 17th Round was held from May 15–24 in Lima, Peru.25One of the principal objectives was the integration of Japan into the talks. There was also a nod toward stakeholder engagement.26Yet the way this engagement was described was curious indeed: the U.S. Trade Representative described the event as causing the temporary suspension of the negotiation “so negotiators could meet with the 300 stakeholders from the United States and other TPP countries.”27The Eighteenth Round of negotiations took

capacity building (based on a demand driven and flexible institutional mechanism), (3) cross border services (fair open and transparent markets for services), (4) customs, (5) e-commerce, (6) environmental issues (including effective provisions on trade-related issues that would help to reinforce environmental protection and discussing an effective institutional arrangement to oversee implementation and a specific cooperation framework for addressing capacity building needs), (7) financial services regulation (investment in financial institutions and cross-border trade in financial services will improve transparency, non-discrimination, fair treatment of new financial services, and investment protections and an effective dispute settlement remedy for those protections), (8) government procurement, (9) intellectual property (reinforcing and developing existing World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) rights and obligations), (10) investment (transforming bi-lateral trade agreement terms into a multilateral framework, substantive legal protections for investors and investments of each TPP country in the other TPP countries, including ongoing negotiations on provisions to ensure non-discrimination, a minimum standard of treatment, rules on expropriation, and prohibitions on specified performance requirements that distort trade and investment), (11) labor issues, (12) legal issues (dispute resolution), (13) market access for goods, (14) rules of origin, (15) sanitary and phytosanitary standards (animal and plant health and food safety), (16) technical barriers to trade issues, (17) telecommunications, (18) temporary entry, (19) textiles and apparel, and (20) trade remedies. Id.

23. Summaries of earlier rounds of TPP negotiations may be found on the blog at the Office of the U.S. Trade Representative web site. Office of the U.S. Trade Rep., TPP Blog, U.S.T RADE R EP., 17918c85bed5b9f3f80f1c15/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-outreach-

and-updates (last updated Jan. 15, 2014).

24. These continued a pattern of very well managed stakeholder engagement events designed for maximum formal effect and unknown functional effect. These are organized as pauses from negotiations with several hundred civil society representatives. For the Singapore Round, “[t]he negotiators also had the opportunity to listen to [sixty] lecture-style stakeholder presentations.” Office of the U.S. Trade Rep., Direct Stakeholder Engagement, U.S.T RADE R EP., 17918c85bed5b9f3f80f1c15/trade-agreements/free-trade-agreements/trans-pacific-partnership/direct-stakholder-engagement (last updated Feb. 25, 2014).

25. Press Release, Office of the U.S. Trade Rep., Trans-Pacific Partnership Negotiations Maintain Strong Momentum (May 24, 2013) (available at 17918c85bed5b9f3f80f1c15/about-us/press-office/press-releases/2013/may/tpp-negotiations-strong-momentum). “During the 17th round of Trans-Pacific Partnership (TPP) negotiations, which ended today, officials reported that they continued to forge ahead toward their goal of concluding an ambitious 21st-century agreement in the timeframe envisioned by President Obama and the Leaders of the other ten TPP countries.” Id.

26. Id. This stakeholder intervention did not produce much engagement. Stakeholders appear to have been given the opportunity to present their views and in turn “Barbara Weisel, U.S. chief TPP negotiator, and the chief negotiators from the other 10 countries also briefed stakeholders on the status of the negotiations and responded to their questions on specific issues and the process going forward.”Id.

27. Id.

13-1-Backer article book pages.docx 3/18/14 8 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### place July 15–25, 2013 in Malaysia.28For this round, “the negotiating groups covering market access, rules of origin, technical barriers to trade, investment, financial services, e-commerce, and transparency reached agreement on a wide range of technical issues in the legal texts of these chapters, which set the rules that govern the conduct of their trade and investment relations.”29Like the Seventeenth Round, the Eighteenth Round followed the pattern of breaking for a short time to ingest a well-managed stakeholder interaction session.30 There is no evidence, however, that these highly publicized and well-arranged affairs have produced any sort of effective or deep engagement with the civil society sector.31The Nineteenth Round took place from August 22–30, 2013. A Ministerial Statement was released on August 23, 2013.32 In it, the parties expressed their intent to move toward final round talks.33 The Ministerial Statement also noted that “[p]articular areas of focus have included matters related to market access for goods, services-investment, financial services, and government procurement as well as the texts covering intellectual

28. Press Release, Office of the U.S Trade Rep., Statement on the 18th Round of Trans-Pacific Partnership Negotiations (July 25, 2013) (available at 17918c85bed5b9f3f80f1c15/about-us/press-office/press-releases/2013/july/statement-18th-round-tpp).

29. Id.

30. Id. This was described in language almost identical to the form language used to describe the 17th Round engagement:

The TPP negotiations were temporarily adjourned on July 20 so the delegates could listen to and share information with more than 200 stakeholders from the United States and across

the TPP region. Stakeholders also met informally with U.S. and other negotiators to provide

further detailed information. U.S. chief negotiator Barbara Weisel and her fellow TPP chief

negotiators also briefed stakeholders on the status of the negotiations and responded to their

questions on specific issues and the process going forward.

Id. For this session, 180 parties had registered, including 51 from Malaysia, who would be given one half day “to present their views and concerns.” S.B. Toh, MITI: 180 Stakeholders to Present Views at Trans Pacific Partnership Talks, S TAR O NLINE (Malaysia) (July 10, 2013), 17918c85bed5b9f3f80f1c15.my /Business/Business-News/2013/07/10/MITI-says-stakeholders-to-present-views-at-Trans-Pacific-Partnership-talks.aspx.

31. See discussion infra notes 62 and 105 and accompanying text, noting continuous criticism about negotiation and drafting secrecy.

32. Press Release, Office of the U.S Trade Rep., Joint Press Statement TPP Ministerial Meeting Bandar Seri Begawan, Brunei Darussalam (Aug. 2013) (available at 17918c85bed5b9f3f80f1c15/Joint-Press-Statement-TPP-Ministerial-Brunei_.

33. See infra note Error! Bookmark not defined.. It was reported that Burham Irwan Cheong, lead IP negotiator for the Malaysian TPP team, said that “of the 29 chapters under negotiation, 14 have been ‘substantively concluded’ and their technical aspects agreed upon. The ‘sensitive’ issues as well as the remaining 15 or so chapters have yet to see substantive agreement and conclusion, with the IP Rights chapter being one of them.” Gabey Goh, IP Rights Chapter Of TPP Far From Final, Says Ministry, M ALAY M AIL O NLINE(Aug. 2, 2013), 17918c85bed5b9f3f80f1c15/tech-gadgets/article/ip-rights-chapter-of-tpp-far-from-final-says-ministry.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER9 property, competition, and environmental issues.”34The purpose of this Ministerial meeting was “to offer guidance to negotiators and help drive the negotiations to conclusion on the 2013 timeframe instructed by our Leaders.”35For this event, the “Government of Brunei host[ed] a Stakeholders’ Forum on August 27, 2013, at the International Convention Centre.”36However, civil society actors complained that the now traditional “stakeholder engagement day” was reduced in scope from that held in past TPP Rounds.37 Beyond the Nineteenth Round, the TPP parties expected “to maintain our active engagement in the lead-up to the APEC Leaders meeting in Bali, Indonesia, on the margins of which TPP Leaders are expected to meet . . . . This meeting will be an important milestone as the 12 countries work intensively to conclude this landmark agreement.”38 However, by the end of the 19th Round negotiations, several states leaked reports of “turbulence amid protectionist reflexes, casting doubt on hopes of concluding the pact by year-end.”39

The United States’ entry into TPP has not gone without controversy in the United States. For example, one commentator noted that “[f]or import-sensitive US sectors, Japan’s participation in the TPP also could mean increased competition from Japanese products including in certain agriculture sectors and in the US auto and auto parts sector.”40 Some civil society organizations suggest that the TPP project itself continues the process of power shifting from out of nation states and into a politically

34. “We also discussed the remaining outstanding issues on labor, dispute settlement, and other areas.”Office of the U.S: Trade Rep, supra note 32.

35. Id.

36. Office of the U.S: Trade Rep., Trans-Pacific Partnership (TPP): 19th Round of Negotiations Set for Bandar Seri Begawan, Brunei—August 23–30, 2013, U.S.T RADE R EP., 17918c85bed5b9f3f80f1c15/tpp (last visited Aug. 30, 2013).

37. Krista Cox, 19th Round of TPP Negotiations: Reduced Engagement for ‘Stakeholder Engagement’ Day, K NOWLEDGE E COLOGY I NTERNATIONAL(Aug. 27, 2013), 17918c85bed5b9f3f80f1c15/ node/1791 (“Usually, these days involve presentations by stakeholders to negotiators followed shortly by an hour long briefing by chief negotiators. . . . This round, there was no briefing from the chief negotiators. I find this quite appalling, particularly in light of the rumors that this will be the last official round of negotiations and all work moving forward will simply be meetings of inpidual chapters and that we may not see chief negotiators at intersessionals.”).

38. U.S. Trade Rep., supra note 32.

39. TPP Negotiators Finish ‘Difficult’ Round of Talks, J APAN T ODAY(Aug. 31, 2013), 17918c85bed5b9f3f80f1c15/category/politics/view/tpp-negotiators-finish-difficult-round-of-talks (“‘I don’t think it is a realistic timeline,’ the Malaysian official said, adding that the country’s government was yet to decide whether it would ultimately remain in the effort. ‘We have reached a critical stage. So now we need to assess, to take stock—what if we continue, what if we don’t.’”).

40. Jay L. Eizenstat, Carolyn B. Gleason & Pamela D. Walther, Japan’s Entry Into Trans-Pacific Partnership Free Trade Agreement (FTA) Raises Opportunities and Risks for US Companies, N AT’L L.R EV.(Mar. 31, 2013), 17918c85bed5b9f3f80f1c15/article/japan-s-entry-trans-pacific-partnership-free-trade-agreement-fta-raises-opportunitie.

13-1-Backer article book pages.docx 3/18/14 10 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### unaccountable international sector,41 and in the process further undermine democratic values and national supremacy.42

It is certainly true that the TPP will accelerate trends, now almost a generation old, that are shifting the frame of power reference up from the people of states safely contained within their borders to the communities of states in which states begin to assume the role that inpiduals once were said to hold within democratic states. That is a cause of great worry among those who seek to resist this trend at the heart of economic globalization.43Indeed, opponents use the language of sovereignty, and appeals to its preservation, to rally opposition to what they believe will effectively be the internationalization of law frameworks. This attack on state sovereignty through a TPP framework will not only reduce the connection between people and accountable governments, but it will also weaken connections between inferior governments and the now internationalized sources of rules.44 This line of opposition is current not just in the United States.45

The TPP has been criticized as a vehicle for undermining efforts to revive and push forward the WTO agenda, substantially stalled since

41. For example, members of participating civil society organizations have complained:

On critical issues, the massive Trans-Pacific Partnership (TPP) being negotiated in secret by

the Obama administration will undermine democracy in the United States and around the

world and further empower transnational corporations. It will circumvent protections for

health care, wages, labor rights, consumers’ rights and the environment, and decrease

regulation of big finance and risky investment practices.

Margaret Flowers & Kevin Zeese, TransPacific Partnership Will Undermine Democracy, Empower Transnational Corporations, P EOPLE’S V 17918c85bed5b9f3f80f1c15 (Mar. 31, 2013), 17918c85bed5b9f3f80f1c15/ TPV3/Voices.php/2013/03/31/transpacific-partnership-will-undermine-.

42. “The only way this treaty, which will be very unpopular with the American people once they are aware of it, can be approved is if the Obama administration avoids the democratic process by using an authority known as ‘Fast Track,’ which limits the constitutional checks and balances of Congress.” Id.

43. The reactions are usually framed in the traditional language of sovereignty, though it is not clear that these critics understand the full extent of the power transfers being effected. “The trade deal is essentially the kill shot for what remains of legal democratic accountability in the United States and will allow the rootless global elite and their transnational corporations to dictate the daily lives and laws of the American people.” D.S. Wright, Trans-Pacific Partnership Will Remove What’s Left of American Democracy, FDL (Aug. 20, 2013), 17918c85bed5b9f3f80f1c15/2013/08/20/trans-pacific-partnership-will-remove-whats-left-of-american-democracy/. This, I think, nicely evidences the form of current disquiet but it does not accurately describe it. Democracy is not so much being threatened as the connection between sovereign people in states and the sites where governance is occurring is being attenuated.

44. For an example, see Jane Slaughter, TPP Free Trade Deal Threatens Democracy, Jobs,

G REEN L EFT W EEKLY (Aug. 13, 2013), 17918c85bed5b9f3f80f1c15.au/node/54739.

45. TPP Gets Hostile Response During Public Meeting, S TAR O NLINE(Malaysia) (Aug. 2, 2013), 17918c85bed5b9f3f80f1c15.my/News/Nation/2013/08/02/Consumers-laud-move-to-block-stolen-handphones.aspx/.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER11 2008. For example, it has been argued that “[t]he main responsibility for this failure falls on the US, which believes the system of multilateral trade no longer offers the advantages it used to.”46The United States now appears poised to fracture the WTO model in favor of regionally specific but more comprehensive agreements that together might provide a substitute for WTO multilateralism. This shift in U.S. policy was emphasized in President Obama’s 2013 State of the Union address, where the President highlighted the new policy focus on regional but comprehensive trade agreements.47TPP, and the related Transatlantic Trade and Investment Partnership for Europe,48represents an alternative track for the development of the governance framework for international trade, one in which smaller groups of inpidual states combine to forge common language that include harmonized general principles along with specific provisions to reflect the priorities of the member states.49These provide a plurilateral template for continuing to move forward the work of the WTO among powerful like-minded states even as the multilateral processes of the WTO prove difficult to engage. For some, this suggests the end of the WTO as the vessel for developing the rules of global engagement in favor of smaller groups of states that together would produce a layered substitute for the WTO process. “If the TPP or TTIP come into being, they will kill the WTO. For better or for worse, the

46. Zaki La?di, Opinion, Trade Deal Show Power Politics is Back, F IN.T IMES (Mar. 31, 2013), 17918c85bed5b9f3f80f1c15/intl/cms/s/0/e2aae9f4-9254-11e2-851f-00144feabdc0#axzz2PGbI4Atv.

47. President Obama said:

To boost American exports, support American jobs, and level the playing field in the growing

markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership. And

tonight, I’m announcing that we will launch talks on a comprehensive Transatlantic Trade and

Investment Partnership with the European Union, because trade that is fair and free across the

Atlantic supports millions of good-paying American jobs.

Barack Obama, President of the United States, State of the Union Address (Feb. 12, 2013) (transcript available at 17918c85bed5b9f3f80f1c15/the-press-office/2013/01/21/inaugural-address-president-barack-obama).

48. See Final Report of the United States-European Union High Level Working Group on Jobs and Growth, at 6 (Feb. 11, 2013), available at http://trade.ec.europa.eu/doclib/docs/2013/ february/tradoc_150519.pdf (“the HLWG recommends to U.S. and EU Leaders that the United States and the EU launch, in accordance with their respective domestic procedures, negotiations on a comprehensive, ambitious agreement that addresses a broad range of bilateral trade and investment issues, including regulatory issues, and contributes to the development of global rules.”).

49. See the useful discussion in FAQ: Transatlantic Trade and Investment Partnership (TTIP), M ARIETJE S CHAAKE (March 21, 2013) http://www.marietjeschaake.eu/2013/06/faq-transatlantic-trade-and-investment-partnership-ttip/ (“From a global perspective a renewed transatlantic partnership would be able to set standards for future world trade—and it would be an incentive for (re)emerging economies or developing countries to step up their game, improve their competitiveness and prosperity by opening up markets and working towards meeting the new TTIP global standards.”).

13-1-Backer article book pages.docx 3/18/14 12 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### organisation will cease to be the place where trade standards are negotiated.”50

The TPP process has also been criticized for being among the most opaque in the international arena.51The lack of transparency has been particularly annoying to the critics of the TPP process because of the way it has deviated from the usual pattern of permitting a lively engagement by civil society. The Sixteenth Round, for instance, included a very limited space for stakeholder engagement.52 The U.S. Trade Representative’s blog and related postings tend to be generally descriptive of events with considerably limited substantive information.53 Others have suggested that even where the U.S. government has established processes of “engagement,” these have tended to favor business interests.54

A group of international law professors severely criticized the negotiation process. They argued that the “functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through ‘ignorant

50. Zaki La?di, supra note 46.

51. Sean Flynn, Law Professors Call for Trans-Pacific Partnership (TPP) Transparency,

I NFO J 17918c85bed5b9f3f80f1c15 (May 9, 2012), 17918c85bed5b9f3f80f1c15/archives/21137.

Over 30 legal academics from current or potential future Trans-Pacific Partnership

Agreement (TPP) negotiating countries wrote to United States Trade Representative Ron Kirk

today. The letter, the text of which is posted below, criticizes the USTR decision to cancel

full day stakeholder presentations for the current round of negotiations being held in Dallas,

Texas. The letter calls on the administration to “reverse course” and work to expand

participation and transparency by giving the general public the same rights to see US

proposals in the negotiation as cleared corporate advisers now have.

Id.

52. As described by the U.S. Trade Representative in his web site,

On Wednesday, March 6, negotiators from the 11 Trans-Pacific Partnership Countries paused

talks to meet with more than 300 global stakeholders at an engagement event hosted by the

Government of Singapore. . . . Following the 3 hour engagement event, the TPP chief

negotiators convened a stakeholder briefing session at which they provided updates on the

ongoing negotiations and answered questions related to the subject matter of the proposed

agreement.

Office of the U.S. Trade Rep., supra note 24. The United States also keeps a web page for posting public comments—the effect of which is unclear. See Comments on “Trans Pacific Partnership,” R EGULATIONS.G OV, 17918c85bed5b9f3f80f1c15 (search “Trans Pacific Partnership”; then filter for “Public Submission”).

53. See, e.g., Office Of The U.S. Trade Rep.,supra note 23.

54. This engagement through advisory committees, it has been suggested, has been structured to amplify business’ voice. “The advisory committees within the United States Trade Representative are part of a three-level structure. Privileged corporate interests dominate both the first level and the crucial third level.” Thomas B. Edsall, Opinion, Free Trade Disagreement, N.Y.T IMES (Feb. 4, 2014), 17918c85bed5b9f3f80f1c15/2014/02/05/opinion/edsall-free-trade-disagreement?_r=0.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER13 armies clash[ing] by night.’”55 The professors also called for greater and timelier information sharing.56 A similar letter was delivered by elements of Peruvian civil society to the Peruvian Minister of External Commerce.57 These criticisms are particularly trenchant since the way in which TPP is being negotiated appears to run counter to one of its core objectives—to spread democratic-based processes for engaging in regulatory programs.

That contradiction between TPP development and objective might itself produce political backlash at home.58 One can get a sense of the form of this backlash by some of the reactions of U.S. elected officials. For example, Representative Darrell Issa (Republican from California) and Senator Ron Wyden (Democrat from Oregon) recently repeated these criticisms.59 Senator Elizabeth Warren (Democrat from Massachusetts) has sought the bracketed text of the TPP in June 2013 in a letter that criticized the lack of transparency that has marked the progress of negotiation.60 Criticism along these lines continues, and not just in the United States. The Council of Canadians, one of Canada’s largest citizens’ organizations, led a charge to compel greater transparency in TPP negotiations in late August 2013. Particularly galling for NGOs is that despite the state-managed stakeholder engagements of 2013,61 the evolving text of the TPP

55. Flynn, supra note 51.

56. Id.

57. Letter from Roberto López et al. to José Luis Silva Martinot, Minister of Foreign Commerce of Peru, (Oct. 14 2011) (available at 17918c85bed5b9f3f80f1c15/documents/peru-transparency-letter-2011.pdf_.

58. Letter from David S. Levine et al. to Ambassador Ron Kirk (May 9, 2012), quoted in Flynn, supra note 51.

There has been no publicly released text of what USTR is demanding in these negotiations, as

there would be in policy making by regulation, in Congress or in multilateral forums.

Reviews of leaked proposals show that the US is pushing numerous standards that are beyond

those included in any past (i.e. publicly released) agreement and that could require changes in

current US statutory law.

Id.

59. Joe Wolverton II, U.S. Lawmakers Demand Transparency in Secret Trans-Pacific Partnership Talks, N EW A M. (Sept. 14, 2012), 17918c85bed5b9f3f80f1c15/usnews/item/12838-us-lawmakers-demand-transparency-in-secret-trans-pacific-partnership-talks.

60. Letter from Elizabeth Warren, U.S. Senator, to Michael Froman, Asst. to the President (June 13, 2013) (available at 17918c85bed5b9f3f80f1c15/global/2013/06/12/ew_ltr_to_froman_61313).

A similar letter was sent to Sander Levin, Ranking Member of the U.S. House Ways and Means Committee by a group of 35 Congresspersons. See Letter from Mark Pocan et al., Congresspersons, to Sander Levin, Ranking Member, U.S. House Ways & Means Comm. (June 11, 2013) (available at 17918c85bed5b9f3f80f1c15/media-center/press-releases/pocan-calls-for-increased-transparency-on-trans-pacific-partnership-free).

61. See supra note 25 (discussing stakeholder engagement during the 17th round).

13-1-Backer article book pages.docx 3/18/14 14 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### has yet to be made public.62 These groups remind current leaders of Robert Zoelleck, who, in 2001 during his time as U.S. Trade Representative, noted that releasing the text of the draft of the Free Trade Area of the Americas constituted “an unprecedented effort to make international trade and its economic and social benefits more understandable to the public.”63 Since at least the middle of 2013, the negotiators have sought to suggest that stakeholder voices have meant something to the negotiations.64The well staged shareholder engagement features of the TPP process has also been criticized as hiding more than it reveals and more significantly, as a vehicle through which transparency is limited to pre-cleared civil society actors acceptable to the negotiating governments.65Elected officials continue to find it difficult to obtain much information from administration officials, even in the United States.66In 2012 one group sought to offer a reward to WikiLeaks should it leak the document.67

62. Council of Canadians, Trans-Pacific Partnership: Canadian Groups Demand End to Secrecy, C OUNCIL OF C ANADIANS’B LOG, (Aug. 23, 2013), http://rabble.ca/blogs/bloggers/council-canadians/2013/08/trans-pacific-partnership-canadian-groups-demand-end-to-sec. They explain: “It is a scandal that a far-reaching deal like the TPP could be signed in the coming months

without anyone across the 12 participating countries having seen or had a chance to challenge

some of the many new restrictions an agreement will put on our ability to govern in the public

interest. The only acceptable road forward for the TPP is for ministers to publish the text now

before it’s too late,” says Stuart Trew, trade campaigner with the Council of Canadians, a

national grassroots activist and social justice organization.

Id. The Canadian government had conducted what was, for that government, a comprehensive consultation process in December 2011. See Trans Pacific Partnership Free Trade Agreement Negotiations, F OR.A FF.,T RADE &D EV.C AN. (Aug. 2013), http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/index.aspx.

63. Council of Canada, supra note 61.

64. “Throughout the talks, negotiators reflected the wide range of views provided to them by their stakeholders on the best pathway to promote trade and investment, regional integration, and jobs in the United States and the other TPP countries.” Office of the U.S. Trade Rep., supra note 28.

65. William F. Jasper, Regional Scheme for the Pacific Rim, N EW A M. (Aug. 23, 2013), 17918c85bed5b9f3f80f1c15/world-news/item/16347-regional-scheme-for-the-pacific-rim.

The USTR “Fact Sheet” cites as evidence of its transparency efforts the number of consultations it has held with its selected trade advisory committees and privileged “Civil Society stakeholders.”. . . This transparency boast actually exposes a dangerous feature of the TPP process: The TPP documents are not available to the average American citizen, only to “cleared trade advisors.”

Id.

66. Id.

67. See Just Foreign Policy, Wikileaks, We Have a Job for You, 17918c85bed5b9f3f80f1c15/o/ 1439/content_item/freetpp (last updated 2013). “On 13 November 2013 WikiLeaks released the draft text of the crucial Trans-Pacific Partnership Agreement (TPP) Intellectual Property chapter during the lead-up to a TPP chief negotiators’ meeting in Salt Lake City on 19-24 November 2013. Today, 9 December 2013, WikiLeaks has released two more secret TPP documents that show the state of negotiations as the twelve TPP countries began supposedly final negotiations at a trade ministers’ meeting in Singapore this week.” Second Release of Secret Trans-Pacific Partnership Agreement Documents,W IKI L EAKS (Dec. 9, 2013, 2:40 GMT), https://17918c85bed5b9f3f80f1c15/Second-release-of-secret-Trans.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER15 Despite the criticism, high governmental officials continue to view TPP as a socio-political tool with a value beyond its important objective of regulating economic globalization.68 President Obama has said, “the TPP could serve as a model for other trade pacts,” but he did not provide further details.69 A cornerstone of the Obama Administration’s policy is to use agreements like TPP as a “component of an integrated approach to development policy.”70But the critics of the Obama Administration’s approach understand the breadth of TPP correctly as a “super-sized” next generation trade deal that is meant to institutionalize current developments in free movement of goods, services and capital, and to some extent, labor.71 Not merely limited to the usual provisions of trade deals, this one is meant to provide a basis for pushing forward the work of the World Trade Organization, but now in reduced multi-lateral form. To that end, it serves to regulate transnational economic activity in a way that is essentially regulatory. Moreover, because of the economic power of its participants, the TPP will likely serve as an instrument for effectively coercing compliance among other actors. It falls within the larger U.S., and to some extent, Japanese agendas of creating increasingly larger multilateral webs of free trade areas, some not yet successful,72that can serve as a the basis of regulatory systems for integrating economic activities among member states. TPP means to set the social, political, and economic tone of the conversation about the methods and values of transnational economic activity.73 As such, it represents global regulatory

68. See usefully Meredith Kolsky Lewis, Trans-Pacific Partnership: New Paradigm or Wolf in Sheep’s Clothing?, 34 B.C.I NT’L &C OMP.L.R EV. 27 (2011).

69. Obama Outlines Pan-Pacific Trade Plan at APEC Summit, BBC N EWS(Nov. 13, 2011), 17918c85bed5b9f3f80f1c15/news/world-asia-15704358.

70. O FFICE OF THE U.S.T RADE R EP.,N EW U.S.I NITIATIVES TO B OOST T RADE AND I NVESTMENT O PPORTUNITIES FOR L EAST D EVELOPED C OUNTRIES(2011), available at 17918c85bed5b9f3f80f1c15/about-us/press-office/fact-sheets/2011/new-us-initiatives-boost-trade-and-investment-opportunities-l.

71. Raul Burbano, Kristen Beifus & Manuel Pérez-Rocha, Facing the Threat of the Trans-Pacific Treaty, T YEE(Mar. 8 2013), http://thetyee.ca/Opinion/2013/03/08/Trans-Pacific-Treaty-Threat/.

72. The stalled efforts to create a free trade area of the Americas provides a case in point. See,

e.g., J.F.H ORNBECK, C ONG.R ESEARCH S ERV., RS20864, A F REE T RADE A REA OF THE A MERICAS: M AJOR P OLICY I SSUES AND S TATUS OF N EGOTIATIONS(2005), available at 17918c85bed5b9f3f80f1c15/ sgp/crs/row/RS20864.pd

f. See also Larry Catá Backer, ALBA, Latin American Integration, and the Construction of Regional Political Power, L AW AT THE E ND OF THE D AY(Nov. 6, 2010), http://lcbackerblo

17918c85bed5b9f3f80f1c15/2010/11/alba-latin-american-integration-and.

73. As its opponents correctly note:

Only five of the TPP’s 29 chapters pertain to traditional trade matters. The rest would set

policies, to which the U.S. Congress and state legislatures would be required to conform,

relating to regulation of energy and other services, financial regulation, food safety,

procurement policy, patents and copyright policy, and other non-trade issues. The draft pact

also includes NAFTA-style foreign investor rules that facilitate job offshoring by removing

13-1-Backer article book pages.docx 3/18/14 16 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### power in its current form. For states, it represents a means of leveraging power and participating in emerging global conversations about the structures of acceptable behavior in ways that are difficult to ignore.

On March 15, 2013, Prime Minister Abe, in what was described as an impassioned televised address, announced that Japan would join the TPP.74 He argued that TPP is “Japan’s last chance to remain an economic power in Asia and shape the region’s future.”75Despite the expected opposition from the farming sector, the Japanese Prime Minister emphasized his determination to enhance Japanese influence in the region. “Japan must remain at the center of the Asian-Pacific century,” Mr. Abe said. “If Japan alone continues to look inward, we will have no hope for growth. This is our last chance. If we don’t seize it, Japan will be left out.”76Acting U.S. Trade Representative Demetrios Maranatis immediately welcomed the announcement, noting that “[s]ince early last year, the United States has been engaged with Japan in bilateral TPP consultations on issues of concern with respect to the automotive and insurance sectors and other non-tariff measures, and also conducting work regarding meeting TPP’s high standards.”77

Initial reaction among the Japanese was cautiously positive, with an Asahi Shimbun poll indicating 71% favoring the decision.78 But there was also anxiety about Japan’s influence to shape the course of TPP negotiations:

Tempering the positive survey results for Mr. Abe, however, the

poll also showed that support for actually joining the TPP trade

pact, not just the talks, is lower at 53%, compared with 23% against

many of the risks and costs of relocating U.S. production to low-wage countries. Among TPP

negotiating countries is Vietnam, the lower-cost offshoring alternative to China.

Press Release, Public Citizen, With No Text Agreed for Several Entire Chapters and Most Tough Political Decisions Unresolved, the So-Called ‘Final Round’ of Trans-Pacific Partnership (TPP) Talks Will Not Be the End of Negotiations (Aug. 21, 2013) (available at 17918c85bed5b9f3f80f1c15/documents/ press-release-tpp-round-19.pdf).

74. Hiroko Tabuchi, Japan Moves to Enter Talks on Pacific Trade, N.Y.T IMES (Mar. 15, 2013), 17918c85bed5b9f3f80f1c15/2013/03/16/world/asia/japan-aims-to-join-trans-pacific-partnership-talks

?pagewanted=all&_r=0.

75. Id.

76. Id. It appears that Japan may get agricultural concessions from the United States as part of the price for Japanese participation.

77. Press Release, Office of the U.S. Trade Rep., Statement by Acting U.S. Trade Representative Demetrios Marantis on Japan’s Announcement Regarding the Trans-Pacific Partnership (Mar. 15. 2013) (available at 17918c85bed5b9f3f80f1c15/about-us/press-office/press-releases/2013/march/amb-marantis -statement-japan-tpp).

78. Paul Jackson & Toko Sekiguchi, Support for Abe Grows in Japan, W ALL S T.J. (Mar. 18, 2013), 17918c85bed5b9f3f80f1c15/article/SB10001424127887323415304578367751057274398.

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER17 participation, as voters still wonder if the prime minister can secure

terms that will favor Japan. More respondents said he would be

unable to achieve favorable terms, at 40%, than those who said he

could, at 39%.79

II.S TRATEGIC I MPLICATIONS FOR J APAN-C HINA-U.S.R ELATIONS

Each of the participants in the TPP brings its own agenda. However, those of the United States and Japan are particularly strategic in the sense that they mean to use the TPP not just for economic purposes, but also to further political and regulatory objectives at the international level. While the Japanese and U.S. agendas share some similarities, they are sufficiently distinct to merit separate consideration. Both strategic agendas, however, are directed against China as a common target, even as they also focus on the construction of a harmonized global architecture for economic activity that crosses borders.

The Japanese see the TPP as a counterweight to recent aggressive Chinese efforts to take the lead in determining the scope and shape of bilateral and multilateral relationships in the Pacific. Japanese goals are both economic and strategic.80But perhaps more important is the way these objectives can be furthered through the TPP project. Among the most important of these—the value of which is sometimes underestimated—is the ability of Japan to use TPP as a driver of domestic reform.81 TPP’s strategic value lies in its use for refining the basic nature of Japan’s relationship with China and the United States, but in unequal ways. To China, the Prime Minister offers a Japanese framework for

79. Id.

80. Hiroko Tabuchi describes this nicely:

Japan also sees a leadership role in the partnership as a way to return to center stage after

being eclipsed in the region by the rise of China, which many in Tokyo view as jeopardizing

Japan’s economic interests and security. China, which is pursuing its own bilateral and

multilateral trade agreements in the region, is unlikely to join the agreement soon because of

the concessions on state-owned enterprises, intellectual property and labor that the pact would

require. That has, in effect, made the partnership a vehicle of sorts for the United States, and

now Japan, to counter China’s influence.

Hiroko Tabuchi, supra note 75.

81. For example, it has been noted that:

{T]he TPP will lower tariff rates on goods and liberalize Japan’s services sector, which

constitutes 72 percent of Japan’s GDP. The TPP will also eliminate many nontariff barriers—

behind the border regulations that act as barriers to trade. These measures will lead to greater

competition which should increase the productivity of the Japanese economy, improving its

competitiveness, including in its export sector and boosting GDP.

Joshua Meltzer, supra note 14.

13-1-Backer article book pages.docx 3/18/14 18 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:### framing China-Japan relations, which is referred to as the policy of a “mutually beneficial relationship based on common strategic interests.”82 But that is tempered by the effects of what Japan sees as the core of its strategic relationship with the United States. That core of the relationship is grounded in a shared effort to maintain superiority in setting the terms of the economic, social, and political rules of the game that will support globalization and the relationships among states. Yet this relationship also requires an economically and militarily strong Japan. Thus, the Prime Minister has emphasized that “Japan's relations with China stand out as among the most important.”83However, he offers a deeper relationship with the United States, one grounded in coherent and mutually reinforcing development. “In order for us, Japan and the United States, to jointly provide the region and the world with more rule of law, more democracy, more security and less poverty, Japan must stay strong.”84 Yet all of these goals are closely aligned with the broader strategic objectives of the Japanese government, only one of which directly touches on trade.

The importance of a successfully concluded TPP cannot be underestimated. Commentators already note that

The TPP aims to be the 21st century trade agreement that sets the

rules for trade and investment in the Asia-Pacific region going

forward. Achieving this goal will require other major economies in

the Asia-Pacific region to join the agreement with the intention of

the TPP ultimately becoming a Free Trade Agreement of the Asia-

Pacific (FTAAP), and Japan’s participation in the TPP will give

added momentum towards this goal.85

Participation in TPP is the instrument that might define the parameters of trade within the Pacific basin. The value of that exercise may be of enough strategic importance to Japan to make economic concessions worthwhile. In this respect, Japan’s position is very much like that of Norway86and other small powerful states, but effectuated in different

82. Press Release, Ministry of Foreign Affairs of Japan, Joint Statement between the Government of Japan and the Government of the People’s Republic of China on Comprehensive Promotion of a “Mutually Beneficial Relationship Based on Common Strategic Interests” (May 7, 2008) (available at http://www.mofa.go.jp/region/asia-paci/china/joint0805). These are based on five pillars: “enhancement of mutual trust,” “promotion of people-to-people . . . exchange[s],” “enhancement of mutually beneficial cooperation,” “contribution to the Asia Pacific region” for political stability, and “contribution to the resolution of global issues.” Id.

83. Shinzo Abe, supra note 10.

84. Id.

85. Joshua Meltzer, supra note 14.

86. See Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER19 ways. The object is to use internationalization both as a means of leveraging power for states like Japan and Norway, as well as to temper the ability of the most powerful states, like the United States and China, to act unilaterally. Undertaken through its sovereign wealth fund, Norway is seeking not merely to project public wealth into private global markets, but also to construct a complex rule-of-law-centered framework that blends the imperatives of a state-based public policy with a rules-based governance system that incorporates domestic and international norms.87 In a similar way, Japan is now seeking to use its participation in the TPP to leverage its power to help shape the architecture of transnational economic transactions. But Japan may also be using TPP participation as a means of reverse leveraging by making concessions in some areas to protect against a larger group of states whose key sectors have a substantial effect on Japanese internal politics. Among the most important of these, of course, is the agricultural sector. Reports in August 2013, on the eve of the Nineteenth Round of TPP negotiations, suggested this negotiating strategy by Japan.88

The U.S. objectives are not entirely straightforward, though in large part they are not surprising. One commentator suggested what might be American strategic objectives.89 These include building the regional trade architecture in the Pacific basin, opening export markets, and building an alliance network around China.90 These goals parallel Japanese objectives in joining TPP negotiations.91 Together, these objectives/goals would build Power: The Norwegian Sovereign Wealth Fund in Global Markets, (Consortium for Peace & Ethics, Working Paper No. 2012-11/11, 2012), available at 17918c85bed5b9f3f80f1c15/abstract=2177778.

87. Id.

88. Reports from Japan provides some specifics:

Japan plans to reserve decision on whether to remove tariffs on about 940 items whose tariffs

have never been eliminated, the sources said. Japanese representatives are not expected to

discuss these items during the meeting in Brunei. They include 586 items of agricultural

products in the “five important sectors”: rice; barley and wheat; dairy products; beef and

pork; and sweetening resource crops.

Tomoya Fujita & Yuriko Suzuki, Japan to Propose Lifting Tariffs on 85% of Items Under TPP, but Not Farm Produce, A SAHI S HIMBUN (Aug. 19, 2013), https://17918c85bed5b9f3f80f1c15/article/economy/business/ AJ201308190064.

89. Chen-Dong Tso, Trans Pacific Partnership and China-Japan-Korea FTA: Implications for Taiwan, S TIMSON C ENTER(Dec. 12, 2012) 17918c85bed5b9f3f80f1c15/images/uploads/Trans_Pacific_ Partnership_and_China_Japan_Korea_FTA.pdf. Tso is the Executive director, Centre for China Studies and Associate Professor in the Department of Political Science, National Taiwan University.

90. Id.at 1–2. Others have noted the importance of the economic considerations: “Japan’s participation in the TPP is also of economic significance for the U.S. Without Japan’s participation in the TPP the market access opportunities for the U.S. are limited because the U.S. has FTAs with six of the 10 TPP parties.” Joshua Meltzer, supra note 14.

91. See discussion above and note especially the policy drivers identified in Shinzo Abe, supra note 10.

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20 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW[VOL.13:###

a set of double walls around China. The first is military, and centers on the creation of a ring of security arrangements of various sorts around China. The second is economic, and aimed at creating a ring of multilateral and bilateral trade arrangements around China that set the economic rules of the game in a way that reflect the preferences of TPP states. More importantly, TPP would add a layer of control to the discourse of international trade regulation that would make it harder for the Chinese to participate effectively in moving the regulatory environment to better align it with its own objectives.

Yet TPP efforts are not meant simply to target powerful developing states like China while developing a trade and economic policy template. The TPP framework would provide the United States and its partners with a substantially more powerful and comprehensive structure through which to pressure other states to conform their behavior to TPP standards. One commentator noted:

China wants to lead the effort to integrate Asia’s economies through

ASEAN + 3. Beijing is not asking for binding commitments with

labor and environmental standards, and some Southeast Asian

nations find this more palatable. But it also sets a low trajectory and

puts Asian markets out of step with Europe and the United States. In

the long run, Asian nations interested in making the jump out of the

middle-income trap will move toward TPP, and China will realize

TPP presents more of an opportunity than a threat.92

In effect, TPP would serve the important secondary purpose of coercing weaker non-TPP states to conform to TPP standards as a condition for trading with TPP states. For instance, TPP states could require non-TPP trading partners to agree to conform to TPP standards as a condition of entering into bilateral agreements.93This “imposition model” is already in use in efforts to shape a comprehensive financial markets governance structure through the standard-setting role of the Financial Stability Board.94 That strategy is sufficiently evidenced through

92. C ENTER FOR S TRATEGIC AND I NTERNATIONAL S TUDIES,T HE E VOLVING E CONOMIC P ICTURE IN A SIA:A C ONVERSATION WITH E RNEST Z.B OWER,M EREDITH B ROADBENT,AND M ATTHEW P.

G OODMAN,G LOBAL F ORECAST 201244, 45 (discussion by Ernest Z. Bower), available at 17918c85bed5b9f3f80f1c15/files/publication/120413_gf_bower_goodman_broadbent.pdf.

93. Trans Pacific Partnership Agreement, What’s Wrong With TPP, E LECTRONIC F RONTIER

F OUNDATION, https://17918c85bed5b9f3f80f1c15/issues/tpp (last updated Feb. 24, 2014).

94. See Larry Catá Backer,Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order, 18 I ND. J.G LOBAL L EGAL S TUD. 751 (2011).

13-1-Backer article book pages.docx 3/18/14 2014] RUNNING HEADER21 the side negotiations attendant on the TPP rounds,95and the bilateral negotiations built into the TPP talks.96 But having committed to retaining a global leadership role in setting the terms of the architecture of globalization, the United States has also increased both the risk that the TPP negotiations will fail, and the costs to the United States of a failure to successfully conclude the TPP negotiations successfully.97As one commentator noted,

The TPP is a game-changer, economically and diplomatically. If it

fails, the recent ‘pivot’ to Asia will be seen as military in nature and

America’s value as a friend or ally would be high only in case of

potential conflict. The U.S. should conclude and implement a high-

quality agreement as soon as possible.98

The risk of failure is very real. The United States failed to push forward the Free Trade Area of the Americas. It has not been able to move the Doha Round of WTO negotiations to a successful conclusion, and it faces substantial opposition to these sorts of trade pacts domestically, an

95. For example, immediately before the 19th TPP Round:

Acting Deputy United States Trade Representative Wendy Cutler will visit Tokyo August 7-9

to lead bilateral negotiations with Japan on autos, insurance, and non-tariff measures being

held in parallel to the Trans-Pacific Partnership (TPP) talks. While in Tokyo, she also plans to

meet with her Japanese counterparts to discuss the overall TPP negotiations.

Press Release, Office of the U.S. Trade Rep., Acting Deputy U.S. Trade Representative Wendy Cutler to Visit Japan, Initiate Bilateral Negotiations on Autos, Insurance, Non-Tariff Measures (July 31, 2013) (available at 17918c85bed5b9f3f80f1c15/acting-deputy-ustr-wendy-cutler-to-visit-japan-initiate-bilateral-negotiations-on%20autos-insurance-non-tariff-measures). Even more interesting have been the intensification of relations with Vietnam through the TPP framework. See, e.g., Press Release, Office of the U.S. Trade Rep., United States Advances Trans-Pacific Partnership Goals With Vietnam (Apr. 24, 2013) (available at 17918c85bed5b9f3f80f1c15/about-us/press-office/press-releases/2013/april/US-advances-TPP-goals-Vietnam).

96. See, e.g., Kyodo News International, Bilateral Sessions Continue as Ministers Seek Progress in TPP Talks, G LOBAL P OST (Aug. 22, 2013, 11:45 PM), 17918c85bed5b9f3f80f1c15/dispatch/news/ kyodo-news-international/130823/bilateral-sessions-continue-ministers-seek-progress-tp.

97. As one commentator put it near the end of 2013,

But it is the TPP that really matters most to U.S. trade policy. Much time, effort, and

credibility have been invested in the TPP negotiations—the economic arm of the

administration’s “pivot” to Asia. If TPP fails to produce a comprehensive, ambitious

agreement, the economic and diplomatic consequences will be far reaching. Not only would

a U.S. reputation already sullied by scandal, equivocation and hypocrisy slip further, but an

alternative model for economic integration in the dynamic Asia-Pacific region driven by

Chinese priorities would emerge to fill the void.

Dan Ikenson, The President's Indifference Imperils The Trans-Pacific Partnership, F ORBES (Dec. 6, 2013) 17918c85bed5b9f3f80f1c15/sites/danikenson/2013/12/06/the-presidents-indifference-imperils-the-trans-pacific-partnership/2/.

98. Derek Scissors, What a Good Trans-Pacific Partnership Looks Like, H ERITAGE F OUND., (Mar. 8, 2013), 17918c85bed5b9f3f80f1c15/research/reports/2013/03/what-a-good-trans-pacific-partner ship-looks-like.

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