So …the 12 countries that make up the Trans Pacific Partnership, a massive global trade deal that includes Canada, the United States, and Japan, will gather in New Zealand to formally sign the agreement (the official signing day is February 4th, but with time zone differences, the signing ceremony starts at 5:30 pm ET on the 3rd). Signing the TPP is a major step forward for the controversial treaty, but questions still abound over whether it will be ratified and take effect. The Trouble with the TPP series, which I initially planned to wrap up today having examined issues ranging from copyright term extension to the weak cultural exception, takes a one-day break from substantive concerns to focus on the future. However, given that there are still some important issues to be considered, the series will continue well into this month.
While the Liberal government has been cautious about expressing its support – International Trade Minister Chrystia Freeland has been consistent in calling for consultation not conclusions – the decision to sign the TPP was never much in doubt. The agreement contains incentives to be an “original signatory”, since only those countries qualify for the rules related to entry into force of the agreement. To stay on the sidelines at this early stage might have kept Canada out of the TPP for good.
Article 14.10 of the TPP provides:
Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.
As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.