When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.

Patrick Jake O’Rourke

For some time now, we have heard a lot about « Free-trade agreements » in the media. The objectives of these treaties are said to open social and economic activities at different transnational scales. While some of these treaties are simply being negotiated (i.e TPP, TTIP, CETA), there are already examples of similar agreements in force. One could refer to the GATT, the GATS, the TRIPS or more regional agreements like NAFTA, EEA or the treaty between the European Union and South Korea. But there is still a paradox concerning these texts. Why would politicians, who spend their time closing markets by giving monopolies and other kinds of privileges to some segments of the population at national level, open economic and social activities at the international level?

Reinforcing technocracy

The first thing to do before analysing a government programme is to ignore the political vocabulary. The majority of analysts unfortunately don’t have this reflex. Yet it is important to have it in order to not being accused of lacking rigour. Indeed, it is not because East Germany used to be called « Democratic Republic of Germany » by the communist government that it effectively empowered its people in a « democratic » and « republican » way. In the same perspective, when politicians and bureaucrats use the word « Freedom », this is almost always to manufacture consent to government domination by maintaining the illusion of a social order respectful of individual liberties in order to discredit social challengers. This is particularly true if we consider the fact politicians and bureaucrats don’t share with civilians the same vision of liberty. We, civilians, consider freedom through the prism of our and the other’s individualities. Politicians and bureaucrats essentially tend to consider it through the prism of governmental and administrative coercion. That is why it is necessary to emancipate ourselves from the official newspeak before analysing governmental measures. Thus, this is not because the bureaucracy talks about «free trade » agreements that it is going to promote the opening-up of markets. Indeed, if we adopt a geopolitical perspective, there are several clues which allow us to think these agreements are going to do the opposite.

The first clue is the intergovernmental approach. Intergovernmentalism is nothing more than a process governments use to mutualise the exercise of their respective sovereignties to complete tasks they aren’t able to accomplish alone. In other words, it is a simple method to strengthen technocracy at a supranational level to more easily interfere with our individual and collective spontaneous decisions. Nation-states are entities which rarely give up power. And when they finalise agreements, this is to strengthen their authority, not to weaken it. These treaties are thus at best useless and at the worst harmful for the purposes of opening-up national markets. On the contrary, free exchange requires a decline of governments’ regulatory capture. This pointlessness is especially real that opening markets is not a colossal task for a government so that it would require interstate cooperation. There is no need of other governments’ blessing. It can and it has to be done unilaterally. After all, we civilians don’t wait for dictators to respect freedom of speech in their borders to call our so-called « democratic governments » to respect our personal freedoms. According to the same line of reasoning, this is not because other governments rob their respective populations with corporatist and protectionist policies that ours are allowed to do the same. Anyone who believes in the free exchange of goods, services or ideas doesn’t fear unilateralism. The simple fact bureaucrats don’t conceive the international economy outside of a legal frame settled by intergovernmental agreements is sufficient to show the mistrust they express toward individual freedoms. This reinforces the conviction these agreements are driven by mercantilist preoccupations rather than free-trade.

Mercantilism and protectionism

The second clue concerns the intense conflicts between governments on these agreements characterised by a degree of technicality – particularly heavy for texts which officially aim to make exchanges between people easier – so that they lead multilateralism towards deadlock. The failure of the Doha Round is the cause of the proliferation of bilateral but also regional (concerning a restraint number of states like TPP) initiatives. The contentious relations between governments come from the will of some States to dictate their technical standards to other countries’ producers through an international harmonisation process. This obviously engenders reluctance. That is why governments coalesce at smaller scales. The challenge is to federate a certain amount of states which are adequately interesting on a commercial matter to agree on common technical standards in order to impose them to producers from other countries. This amount has to be big enough to strengthen the reach of standards negotiated but not too much in order to be able to negotiate in good conditions. This is a mercantilist and protectionist approach to the extent that technical standards are used to favour producers who are well politically connected to the detriment of those who don’t have the good address book. If I am an A producer on the market of B goods I produce in a C way and my competitor is an A’ producer on the market of B goods he produces in a C’ way, it could be interesting for me to ask government to ban the C’ way to put A’ in difficulty in order to establish my domination on the market of B goods.

The TPP is a good illustration of this balance of power. It was at first an agreement between four countries (Brunei, New-Zealand, Singapore and Chile) which tried to resist some neighbours’ commercial influence (especially China). Then the United States came and convinced more countries (Australia, Malaysia, Peru, Vietnam, Canada, Mexico and Japan) to join the negotiations. Let’s also notice the most part of the countries invited are already bound by regional (NAFTA) or bilateral (AUSFTA, PTPA, BTA, USSFTA) agreements with the United-States. China remains excluded from the process. The geopolitical stakes are clear. For the United States, this agreement is part of America’s strategy, the well-known pivot to Asia in order to contain China’s economic influence with governments which share the same interests in the Pacific area. This governmental will of normative hegemony is obviously at the complete opposite to the ideal of free exchange. This ideal requires a total neutrality from government concerning technical standards to let consumers peacefully choose standards they want to promote rather than determining them through bureaucratic coercion. In the same perspective as the second clue, the third one concerns the fact institutionalised firms are the main advisors of negotiators. It is widely known that corporations hate free competition and prefer monopolies. When a corporation negotiates with politicians, it is to reinforce its domination through different kinds of privileges. In reality, the most interested in opening markets are not established corporations but consumers who are bizarrely less solicited. Moreover, in the previous paragraph, we talked about the fact technical standards were used to put foreign competitors in difficulties. But this assertion is also applicable to competitors present in the same geographical area. It is a classic case of crony capitalism.

Consolidating monopolies

The fourth clue concerns the vigour with which governments have tried over several decades to impose at the international level a legal frame always more constraining in the name of the protection of so-called « intellectual property ». This trend is not new. The first initiatives appear in 1883 and 1886 with the Paris Convention for the Protection of Industrial Property and the Bern Convention for the Protection of Literary and Artistic Works. At that time, these treaties assembled respectively 11 and 10 governments( 1). Amended several times during the 20th century they assemble nowadays respectively 176 and 168 States. These conventions are placed under the auspices of the World Intellectual Property Organisation, an international bureaucracy which joined the United Nations system in 1974. Another treaty was signed in 1970: The Patent Cooperation Treaty (PTC). It tries to harmonise procedures of patent registration across the world. It assembles 148 States. Next comes the Budapest Treaty in 1977. It consecrates the patenting of living organisms like micro-organisms. A turning point came in 1994 with the signature of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administrated by the World Trade Organisation (WTO). Intellectual property was so far considered as a more or less autonomous juridical field. Henceforth, it is incorporated as an essential part of the administration of international commerce and benefits from the WTO’s sanction mechanisms. This is especially true given that the State which refuses to participate to the WTO expose itself to ostracism concerning the production of international business’ rules. The signature of this treaty didn’t happen without tensions between emerging and underdeveloped countries on the one hand and the rich countries on the other. The former correctly pointed out these agreements excessively favoured western big businesses to the detriment of free competition.

In 2012 we endured a new attempt from our governments to reduce our freedom to create and share intellectual works with the Anti-Counterfeiting Trade Agreement (ACTA). And if we look at the negotiations mandates of these trade agreements, we can see they all include a particular chapter to reinforce « intellectual property » rights. That is certainly why some NGOs like the Electronic Frontier Foundation or La Quadrature du Net think trade agreements are a way for corporations, through governments, to adopt stipulations they couldn’t ratify with ACTA. This is not a detail. For instance, if we read the agreement between the European Union and South Korea, we realise the 10th chapter on intellectual property fills 20 of 75 pages of the main commercial stipulations. Intellectual property has become a key concept of the international economy. But this must not hide its illegitimacy. Indeed, in a free world, there cannot be any « intellectual property » rights. The last clue concerns the fact free movement of people issues are totally ignored. Even worse, in the majority of rich countries, migration policies are getting more inflexible. Our politicians keep raising barriers upstream with borders and downstream with labour market regulations (minimum wage, regulated professions etc.). And it is impossible to talk about free-markets if people are not free to move and to work where they want provided the respect of individual property rights. All these clues lead us to think these agreements, far from opening markets, just swap out one form of barriers (tariffs) for another. What is seen is the attenuation of tariff barriers even we don’t need treaties for that. But what is not seen is the sneaky proliferation and harmonisation of non-tariff barriers to impede free-competition in order to create or consolidate oligopolies at the international scale to the detriment of populations.

 (1) The Paris Convention assembled initially Belgium, Brazil, France, Guatemala, Italy, Netherlands Portugal, El Salvador, Serbia, Spain and Switzerland while the Bern Convention assembled first France, the United-Kingdom, Tunisia, Liberia, Switzerland, Spain, Belgium, Haïti, Italy and Germany.