Why the TPP seriously threatens education and public interest regulation

After more than five years of secret negotiations, Ministers from twelve countries plan to meet in Auckland, New Zealand on February 4th to formally sign the Trans Pacific Partnership Agreement (TPP). Once signed, governments can begin the process of ratifying and bringing the controversial deal into force, a deal that has the potential to affect how public services like education are regulated and delivered.

Weighing in at over 6,000 pages, the TPP text isn’t going to make the bestseller’s list. Nor are most people going to be familiar with all the details and aspects of the agreement. So, the first thing you should know about the TPP, as Nobel prize-winner Joseph Stiglitz and economist Adam Hersh have noted, is that it is definitely not a “free-trade” agreement.  After all, most exports within the TPP zone already occur duty free. Any remaining gains to be had will be extremely modest.

If not about trade in the traditional sense, then the TPP and similar agreements are really about creating a new international framework that grants corporations powerful new rights, weakens regulatory oversight, and threatens to intensify the commercialization and privatization of public services like education and health care.

The negotiators claim the TPP does not remove the right of governments to “legislate and regulate in the public interest” and point to a provision in the services chapter that purportedly excludes public services. But this is misleading.  Governments retain their “right to regulate” only to the extent that their laws and regulations affecting services are fully consistent with the treaty.  And a careful reading shows that if there is either a commercial or a competitive element in the delivery of public services, they could be covered by the deal.  In many of the TPP countries, public services, including education, are offered through a mix public and private funding and provision. In these cases, the so-called exclusion is likely ineffective.

If negotiators had truly intended to exclude education from the deal, they could have negotiated a complete carve-out, as they did for national security measures. Yet, there is no carve-out for education, only an ambiguous exception open to conflicting interpretations.  

The Intellectual Property chapter of the TPP also raises concerns for the education sector. Ensuring access to quality teaching and learning materials is a critical to supporting quality education. The TPP requires each country to extend copyright terms beyond the current international norm of 50 years after the life of the author, to 70 years. This means that in some of the TPP countries, works that would have entered the public domain to be freely used and accessed by teachers and students will be subject to copyright for a further 20 years of restricted use. This could impose additional costs on an education sector that is already feeling budgetary pressures.

Reflecting on the impact of copyright extensions that were part of the Australia-US Free Trade Agreement, Kimberlee Weatherall from the University of Sydney concluded that “this extension imposed significant costs on the Australian economy and was against Australia’s interests.”

The TPP also includes the controversial investor-state dispute settlement (ISDS) mechanism that allows multinational corporations to sue governments over regulations and policies they feel affect their investment.  The North American Free Trade Agreement between Canada, the U.S. and Mexico was a trail blazer in this regard. Companies have successfully used the ISDS in NAFTA to overturn a number of laws and regulations, including those designed to protect public health. In 1997, for instance, the Canadian government was successfully challenged before a NAFTA panel for banning the use of toxic MMT in gasoline. Cases like this have led the United Nations Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, to conclude that ISDS threatens human rights.

Despite denials by its supporters, the TPP seriously threatens education and public interest regulation.  Education must be seen as more than a tradable commodity. It is part of the cultural and social fabric of our society. No country should sign any treaty that jeopardizes the ability to pursue and enact policies that promote high quality education for all.

Note: Download EI Briefing note on the impact of the Trans Pacific Partnership Agreement on education.


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David Robinson

David Robinson is Education International’s special consultant on higher education. He has been close to the development of the OECD’s Assessment of Higher Education Learning Outcomes (AHELO); the OECD’s attempt to pilot a global evaluation of the quality of the world’s universities. It is an attempt which looks increasingly in question; a situation predicted by David ever since AHELO was first proposed. Nevertheless it is worth analysing why the burgeoning obsession with ranking Universities is so flawed as David makes crystal clear. Alongside Mike Jennings’ article it is a powerful and persuasive call for OECD and any media involved in such rankings to think again.

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