In early 2012, thousands of people in cities across Europe took to the streets to demonstrate against a hitherto little known intellectual property rights (IPR) treaty - ACTA, the Anti-Counterfeiting Trade Agreement - between the EU, United States, Japan, Canada and several other countries. While fears over its possible impact on internet freedoms and civil liberties were behind much of the backlash, public health NGOs and experts were concerned that some of the intellectual property rights (IPR) provisions of ACTA may have a detrimental impact on poor countries’ access to essential medicines due to its expansive definition of “counterfeiting” hindering transit in affordable generic medicines.
In January, Kader Arif resigned as the European Parliament’s (EP) rapporteur for ACTA to “alert public opinion” about what he called the “masquerade” of “the entire process that led to the signing of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations [and] exclusion of the EU Parliament's demands.” The Slovenian official who signed the treaty on behalf of her country, said she had done so “out of civic carelessness” and urged Slovenians to protest against it. Faced with growing public pressure and scrutiny of the global media, several EU member states began to reverse their position and, one by one, announced their intention to no longer ratify an agreement they had already signed and had been officially negotiating since 2008. Finally, on 4 July, the European Parliament (EP) drove the last nail into the coffin by overwhelmingly rejecting ACTA to the jubilation of activists and civil society.
In many ways, the fate of ACTA resembles that of the aborted OECD Multilateral Agreement on Investment in the late 1990s, the defeat of which by a transnational network of activists and NGOs is seen by many as the first manifestation of the countervailing force of global civil society vis-à-vis concentrations of state and corporate power. Indeed, the tale of ACTA is but the most recent case which exposes a fundamental crisis of legitimacy in global trade governance and a deeply engrained elite antagonism towards public participation in setting the rules of the global economy.
The public as a PR problem
Ever since the alter-globalisation movement - that “furious rag-bag of protesters [which] brought [Seattle] to a standstill” in the words of the Economist - emerged at the turn of the millennium and shook the walls of the traditionally insular institutional architecture of global neoliberal governance, political and business elites have periodically voiced concerns about the lack of public support for the ‘free trade’ agenda. Yet, this crisis of democratic legitimacy is repeatedly defined as essentially a communications problem, the solution to which is better public relations.
For instance, after the public uproar against ACTA, EU Commissioner Karel de Gucht complained that “public debate” was “almost completely dominated by opponents of the treaty”, “plagued by inaccuracies and misinformation”. Chastising his business audience for being almost entirely absent “among the tweets, blog posts and articles condemning the treaty” he urged business leaders “to be louder” and “to do more to communicate” the benefits of “our trade agenda” to the public.
At a 2008 House of Lords hearing on the state of play of global trade, Jean-Pierre Lehmann, founder of the leading neoliberal think-tank, the Evian Group, lamented that “The PR has been terrible…Part of the problem is that politicians now find themselves in a situation where globalisation [and] global trade…is not supported by the populations…but nothing has been done in terms of selling it”. To the approval of members of Britain’s unelected legislative body, Lehmann said “we are going to try to … reach down to popular levels” and persuade the general population of the benefits of the reigning model of economic globalisation.
In response to growing public scrutiny and the “controversy over globalization” in the late 1990s, the IMF devised a public communications strategy with the aim of crafting “persuasive messages that promote understanding of, and support for, the Fund, its work, and its policies”, “educating the general public” and dispelling the various “myths” about the IMF circulated by “the main propagators of misinformation”, that is NGOs, in the public sphere.
Similarly, the strategic aim of the OECD’s communications strategy is to “promote the benefits of free trade” through “op-ed articles, other press material, and public presentations.” In addition, the OECD has commissioned a “trade book…aimed at entry level university students to highlight the rationale for, and the benefits of, opening markets” and to “dispel popular misconceptions” about the negative social, economic and environmental consequences of trade liberalisation.
Whether such propaganda campaigns have had much of an impact on public opinion is difficult to ascertain. But, more importantly, they betray a deeply elitist notion of the public as largely ignorant, misinformed and misguided, as something to be managed and cajoled. Almost entirely absent from elite discussions is the possibility that the perceived lack of public support may have something to do with the profoundly undemocratic nature of these institutions or the effects of their policies.
The limits of deliberation
Until the late 1990s, trade policy was a product of rather “clandestine, closed and secretive” elite deliberation and the “public wasn't an issue”, as a former EU ambassador to the WTO explained. It was an era of “trade politics heaven” in the words of another senior EU trade official, when the commercial priorities of European trade policy went largely unchallenged and before meddlesome outsiders were demanding a seat at the table. By the time of the ‘Battle of Seattle’, however, the European Commission’s DG Trade, the World Trade Organisation and other international bodies were compelled to respond to calls for greater civil society participation by opening its doors to trade and development NGOs, or what the Economist described as “the respectable face of dissent”.
Espousing the newly fashionable notion of good governance, the European Commission formalised relations between NGOs and policy-makers by establishing the Civil Society Dialogue (CSD) in 2001, described by DG Trade as an inclusive, deliberative platform to “inform, listen to and exchange views with civil society organisations.” NGOs have thus become integrated into the Brussels policy-making space where they are perceived by other actors as a proxy for public opinion, feeding into the policy-making process the concerns and views of wider publics.
Yet, research and experience to date has shown that from the perspective of many trade and development NGOs, the CSD has been a largely frustrating, tokenistic exercise. It offers little of genuine consultation and no clear mechanisms for influencing policies. Discussions tend to focus on the technicalities of particular trade instruments without questioning the underlying political and ideological assumptions of the EU’s trade agenda as whole. Interviews with DG Trade officials reveal that while some welcome and actively seek out input from NGOs that can supply “relevant” and “technical” input into the pre-existing policy framework, NGOs and activists groups which oppose the very fundamentals of the EU’s trade agenda are variously dismissed as “demagogic”, “ideological” and “whackos”. Nevertheless, from the Commission’s perspective, their participation in the CSD performs a key role in the legitimation of EU trade policy.
From a normative standpoint, the model of public deliberation espoused by the EC thus falls short of one of its crucial democratic functions – what Nancy Fraser calls the ‘political efficacy of public opinion’ - the translation of communicative power generated in the public sphere into political and administrative power. In other words, so long as the procedural condition of deliberative inclusiveness is satisfied, the legitimacy of the decision is deemed to be guaranteed, regardless of the substantive content of the decision and its effects.
Furthermore, despite the European Commission’s discourse of transparency and openness, trade negotiations continue to be conducted with little or no publicity. In the case of ACTA, for example, the official draft text was only released once, in April 2010, following several unauthorised leaks and criticism from the EP, almost four years after informal discussions about the treaty began. Although trade officials prefer the term ‘confidentiality’ over ‘secrecy’, the distinction may be less obvious from the viewpoint of the citizen who is effectively barred access to the contents of treaties and agreements being negotiated in her name. Yet, while the general population and organised civil society are excluded in the name of efficacy, trust and confidence between trade partners and, in the case of the United States, ‘national security’, the contents of these ‘confidential’ texts are readily accessible to corporate lobbyists who sit on governmental trade advisory boards.
The media, too, have signally failed in informing the public about the content and often the mere existence of trade agreements that have far-reaching consequences for everyday life. The ACTA agreement, for example, has been on the table since 2006 but was considered newsworthy only when thousands of people took to the streets; long after negotiations had been already concluded. Other trade agreements such as the EU-India ‘free trade’ pact and the Trans-Pacific Partnership agreement that are currently under negotiation barely register on the media radar.
Beyond the public as spectre
As Noam Chomsky argues:
“State capitalist democracy has a certain tension with regard to the locus of power: in principle, the people rule, but effective power resides largely in private hands, with large-scale effects throughout the social order. One way to reduce the tension is to remove the public from the scene, except in form.”
A similar tension is at play at the level of global trade governance. Although the rules governing global trade are set within a transnational institutional complex disembedded from the forces of public opinion and will formation, the legitimating demands of liberal democratic discourse to which its policy actors nominally subscribe have not disappeared. Much of the political force of progressive elements of global civil society derives precisely from its ability to exploit this tension and expose the absence of public consent for elite policies. However, most NGOs working at the EU-level invest few resources in mobilising public opinion and thereby activating what Habermas calls the ‘latent dependency’ between organised civil society and mass publics that is essential to affecting transformative social change. Equally worrying is the growing use of corporate PR practices and strategies by large NGOs. As Lilie Chouliaraki argues, engaging citizens in public action against the injustices of contemporary global capitalism necessitates a confrontation with the growing ‘instrumentalisation’ of the solidarity of northern publics by humanitarian and development NGOs.
What is needed is a radical democratisation of trade governance. At the EU-level, the post-Lisbon increased powers of the EP is a welcome step. But institutional reshuffling will not suffice to address the fundamental lack of legitimacy of EU trade policy. This implies challenging the ideological hegemony of transnational capital in defining what constitutes the public interest and the immense political power of large corporations at both national and global levels, the hallmark of our contemporary ‘post-democratic’ predicament. The pharmaceutical industry alone spends more than €90 million per year on lobbying in Brussels, almost thirty times more than civil society organisations working in the field of public health, according to one estimate. A small first step in this direction would thus be to implement a mandatory lobbying transparency register and thereby, at least partially, open up the spaces of elite policy formulation to public scrutiny.
Ultimately, we know little about what people think about global trade let alone the complexities of intellectual property rights provisions in trade agreements. But it seems unlikely that the majority of citizens would support what Jamie Love, one of the world’s leading advocates and experts in the field of IPRs and public health, calls an “act of state-sponsored violence”, trade agreements which obstruct poor people’s access to essential medicines, while granting the pharmaceutical industry monopoly power for ever-longer periods of time. Indeed, the series of pan-European protests against ACTA indicate that there is a popular demand for alternative imaginaries of public-political participation in decision-making, one in which the public is not merely a spectator, a spectre selectively invoked by elites, but an active participant.
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