06 August 2013


'The Trans-Pacific Partnership: Japanese Strategic Diplomacy or Chinese Containment' by Larry Catá Backer in (2013) 13(1) Washington University Global Studies Law Review argues
 The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, it is becoming both an instrument of integrated economic regulation at the supra national 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 supra national economic regulation. The focus of this paper is on one critical new aspect of Japanese trade relationships that is likely to have significant economic and geo-political effects — 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. 
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 U.S. 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 TPP may represent containment within complex networks of multi lateral arrangements that protects its sizeable investment in China, at least temporarily, and permit it to leverage its power to influence global trade rules. For the U.S. TPP presents an opportunity to leverage power as well, by creating an alternative to WTO for moving trade talks forward in ways that serve U.S. governance interests in a more comprehensive way. For China, TPP represents an additional layer of containment, meant to constrain its economic power and to limit the value of its form of state capitalism. TPP represents the next wave of plurilateral comprehensive agreement 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 TPP also reaffirms that Japan stands uncomfortably close to the fissure that separates U.S. 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.
The TPP (aka TPPA) has been described as 'son of ACTA'. A perspective on ACTA is provided in 'Covert International Intellectual Property Legislation: The Ignoble Origins of the Anti-Counterfeiting Trade Agreement (ACTA)' by Michael Blakeney in (2013) 21(1) Michigan State International Law Review.

Blakeney comments that
Considerable controversy was generated in the United States by the introduction into the Senate in May 2011 of the Protect IP Act (PIPA) and by the Stop Online Piracy Act (SOPA) which was introduced into the House of Representatives in October 2011. Both pieces of legislation sought to facilitate the capacity of the IP enforcement authorities in the U.S. to combat the online trade in pirated copyright works and counterfeit trademarked goods. Provisions included court orders to take down websites which made infringing products available and payment facilities from conducting business with infringing websites, search engines from linking to the sites, and court orders requiring Internet service providers to block access to the sites. Existing criminal laws were to be extended to penalise the unauthorized streaming of copyrighted content.
Characterizing SOPA and PIPA as attempts to introduce censorship of the Internet, notable companies such as “Tumblr, Mozilla, Techdirt, and the Center for Democracy and Technology were among many Internet companies who protested by participating in ‘American Censorship Day’ on November 16, 2011.” They displayed black banners over their site logos with the words “STOP CENSORSHIP.”
On January 18, 2012, Wikipedia’s English language site and an estimated 7,000 other smaller websites coordinated a service blackout to raise awareness. Over 160 million people viewed Wikipedia’s banner. “Other protests against SOPA and PIPA included petition drives, with Google stating that it had collected over seven million signatures, as well as boycotts of companies and organizations that supported the legislation.” Paradoxically, in a protest about censorship, the web sites of organizations that were considered supporters of the legislation, such as the United States Justice Department, Federal Bureau of Investigation (FBI), Universal Music Group, the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA) were slowed or shut down with denial of service attacks.
On January 18, 2012, Senate Majority Leader Harry Reid announced that a vote on PIPA would be postponed until the issues raised about the bill were resolved, and on January 20, 2012, House Judiciary Committee Chairman Lamar Smith announced that the Committee would postpone consideration of SOPA until there was wider agreement. Although lauded as a triumph for the Internet community, the apparent demise of SOPA and PIPA was paralleled by the covert triumph of the Anti-Counterfeiting Trade Agreement (ACTA), was described on Internet blogs as being “SOPA’s Pimp Daddy,” as “SOPA and PIPA on Steroids,” and as being “more dangerous than SOPA”  and “worse than SOPA.”
ACTA was adopted by the negotiating parties, including the U.S., on April 15, 2011. On October 1, 2011, a special signing ceremony was held in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New  Zealand, Singapore, and South Korea all signing ACTA. This article explores how ACTA was negotiated without the scale of the protests which accompanied SOPA and PIPA.