Forget the day after Brexit – deal or no deal. The disruption then, though serious, will be temporary. Long-term, the key issue is what kind of country Britain will be in the decades following our departure. To understand that, we need to get real about trade deals as what they cover will shape the country. Trade deals are about power and national economic interests. They are complicated, take time and are made in secret. I learned this in working with negotiators at the World Trade Organisation on and off for about 10 years to 2008.
I was working with negotiators, mainly from the Global South, on the issues arising from the TRIPS Agreement article 27.3(b). TRIPS stands for Trade-Related Aspects of Intellectual Property Rights. 27.3(b) is a subsection in the article that requires everything to be patentable but allows for exceptions for plants and animals. However, it still requires plant varieties to have some form of intellectual property protection. Esoteric sounding? Yes. But crucially important for who has what power and control over the food system in the future – from control of seeds to trade marks.*
Moreover, intellectual property (IP) rules and this TRIPS agreement are crucial for the business model of the pharmaceutical industry – as well as software, music, and film businesses. IP rules are central to the question of the price of, and access to, medicines. The TRIPS agreement was one of the most hard fought against by countries in the Global South as it constrained their development options by requiring them to introduce minimium standards for IP protection in ways the now rich countries were not subject to. For the US and those businesses dependent on IP, it was a crucial element in the bunch of agreements that make up the World Trade Organisation (WTO) as that introduced global minimal IP standards in a way they could not get through the World Intellectual Property Organisation.
The WTO is a trade liberalising organization and brought agriculture fully into the global trade rules. Intellectual property is not trade liberalising, it is about creating scarcity where there is none and restricting access. And the WTO is not, as its first director-general said, a free trade organization, it is a rules-based trading organisation. The question is who makes the rules in whose interests? Free trade only ever makes sense for the top dog in the trading game – which was Britain in the 19th century. But today it is the transnational corporations and the billionaire class who are the top dogs and whose agenda is generally promoted by the United States.
What people do in trade deals is trade things that have nothing in common with each other e.g. chalk and cheese. One party in a trade deal will be asked to give up something in an area that may matter to a small part of their economy or politically weak groups in exchange for something that they want that may matter in a bigger part of the economy or to more powerful political interests. For the UK seeking a deal with the United States, that might mean giving up concerns about food standards and farmers for access of other sectors, such as services, to the US market. It will almost certainly include pressure to extend the data protection exclusivity period for drugs and strengthened patent rules as well as opening up the National Health Service to private providers even more than it already is.
As the old Wizard of Id cartoon said, those who make the rules get the gold but unfortunately those who have the gold tend to have the biggest say in making the rules. And in free trade agreements (FTAs), as Peter Drahos and I noted, ‘the economics of an FTA do not favour the weaker state…, [but] the leaders from that weaker state may see political benefit in having a bilateral relationship with the world’s strongest state’ (p200 in The Future Control of Food). This is even more likely if members of a ruling elite stand to benefit from such changes.
It was also clear that negotiating in multilateral international fora, with others, gave a state more leverage than negotiating alone against either the USA or EU. For those seeking to see trading rules that promote sustainability, greater justice and equity, and reflect the needs of people and the environment, one lesson is to focus on the clear principles that matter in arguing for what you want – such as the polluter pays, or public health and access to medicines before patent profits – and not get lost in the detail. But along side that, to have the lawyers and others who can pay attention to the detail, such as where commas go and the use of the right wording in such agreements so that they deliver on the principles you are seeking to uphold.
*For more details see The Future Control of Food – a guide to international negotiations and rules on intellectual property, biodiversity and food security, downloadable for free in English, Spanish or Chinese here