On 7 July 2016, during a visit to Beijing, United Nations (“UN”) the then Secretary-General Ban Ki-moon met with Chinese President Xi Jinping and Foreign Minister Wang Yi. The timing was unfortunate, owing to the imminent ruling of the United Nations Convention on the Law of the Sea (“UNCLOS”) Arbitral Tribunal on the South China Sea, handed down less than a week later.
President- elect Donald Trump’s announcement on Tuesday 22 November 2016 that the US will not ratify the Trans-Pacific Partnership Agreement (TPP) is not a surprise. He had stated that he would do as such throughout the presidential campaign, as had his democratic rival, Hillary Clinton.
His formal announcement is that the state parties to the TPP, including Australia, will revert to the position they had been in before the TPP was negotiated, seven years ago.
For now, there is no doubt that the TPP’s demise will disappoint the expectations of some TPP states, such as Japan, itself a late party that has strongly endorsed it. Developing countries like Vietnam that stood to benefit disproportionately from its ratification will also be disappointed.
However, President-elect Trump’s announcement is unlikely to throw transpacific economies into turmoil, not only because his position was fully expected, but because the perceived benefit of the TPP for regional trade has been hotly debated and denounced by various labour, environmental, health and consumer lobby groups, among others, from its inception.
President-elect Trump’s announcement nevertheless has strategic importance, particularly in asserting that the US will negotiate bilateral trade agreements that best suit US interests in place of the TPP. This statement is vague at best and wholly unsubstantiated. First, it amounts to little more than a broad aspiration in the absence of verification. Second, it does not stem from prior strategic planning by key US authorities. In fact, President-elect Trump has opined as much before appointing a Secretary of Commerce or a US Trade Representative. It is difficult to conceive of how replacing the world’s largest regional trade agreement with a series of bilateral trade agreements could be seriously contemplated without the serious consideration of such trade authorities. Third, as a practical matter, negotiating bilateral agreements take time, as Britain is likely to learn post-Brexit; and until they are negotiated, trade barriers are likely to continue. Fourth, there is no assurance that the US will do better in negotiating bilateral trade agreements than under a ratified TPP. States may run for cover from such bilateralism fearing that a pro-US trade deal will be too expensive to sustain, even though the US remains the world’s largest trade importer. Fifth, the US already has bilateral trade agreements with a number of transpacific countries, including its 2004 US-Australia Free Trade Agreement. Therefore, in many cases, no new bilateral treaties will eventuate in the absence of real economic impetus to negotiate them.
Importantly, the US withdrawal from the TPP, which excludes China, may provide China with even greater opportunity to conclude regional trade partnerships that exclude the US, such as the Regional Comprehensive Economic Partnership (RCEP) to which Australia is also a party.
Trump’s rejection of the TPP nevertheless has important economic consequences. The TPP is particularly attractive to member states as a prototype treaty directed at reducing and then eliminating trade barriers, including costly import and export duties. In contrast, the RCEP does not replicate that resolve, making it less attractive economically to countries like Australia seeking access to foreign markets.
If the US is to remain the primary player in defining global trade, the result of Trump’s assertion is likely to be a reluctance of states to reduce or eliminate trade barriers in bilateral trade agreements.
If President-elect Trump’s declaration against the TPP has legs to stand on, it is likely to undermine trade liberalisation more generally; and that result, feared by macro-economists, is potentially the most troubling.
Professor Trakman is a Barrister, Professor of Law and Former Dean at the University of New South Wales
WHAT’S NEW IN CHINA’S LEGAL LANDSCAPE
The Law Council of Australia’s International Law Section will host a China Law breakfast on Wednesday 26 October at King & Wood Mallesons in Sydney. Judge Judith Gibson of the District Court of New South Wales will chair a panel of six experts in Chinese law to discuss contemporary legal issues facing the country today.
- ‘One Belt One Road’ and Chinese investment policy;
- IP and Trade Mark legislative changes;
- Consumer legal protection in the era of M-commerce;
- The Guiding Case system; and
- Court use of social media and legal writing issues.
- Professor Vivienne Bath, University of Sydney
- Scott Gardiner, King & Wood Mallesons
- Mary Ip, University of New South Wales
- Professor Vai Io Lo, Bond University
- Belinda Melocco, King & Wood Mallesons
- Professor Natalie Stoianoff, King & Wood Mallesons
- Judge Judith Gibson, NSW District Court (Chair)
For details on the cost of a ticket and the registration form, please click here.