Internet Fragmentation Panel at CyFy 2016

30 September 2016, 14:30-15:30 Internet Fragmentation

Panel Description:

The internet fragmentation panel will examine the social, economic and political implications of differential trading regimes. With universal, affordable connectivity yet to be achieved, are we already witnessing parallel internet regimes that cater to emerging economies?

Speakers:

1. Kelly Kim, General Counsel, Open Net Korea
2. Hoang Tran, Partner, EZLAW
3. Anahita Mathai, Junior Fellow, Observer Research Foundation
4. Hugo Zylberberg, Fellow for Technology & Policy, Columbia University School of International & Public Affairs
5. Burcu Kilic, Policy Director, Public Citizen (Chair)

Below is Kelly Kim’s comments:

INTRODUCTION

I’d like to share my experience with free-trade agreement negotiations while I was working as a negotiator for the government of South Korea. I was involved in RCEP negotiation (among 16 countries including India and China), and FTA negotiations between Korea and China, Canada, Vietnam, and so on.

Before going into the details, I just want to say that it concerns me that trade-agreements are becoming more and more comprehensive and inclusive in terms of the public policies they deal with. While the trade agreements were initially about eliminating barriers in trade of goods, nowadays politically sensitive issues such as labour, environment, and IP regimes are gaining more importance. And IP chapter and E-commerce chapter have a reshaping impact on Internet policies on the national level and the regional level. I’m not saying this trend is inherently good or bad. I just can’t help but wondering: Are trade agreement negotiations the right fora to discuss and come to an agreement on issues not only related to commerce or trade but also Internet governance and human rights? I have some doubts, which are based on Korea’s experience.

KOREA’S EXPERIENCE

• Korea is a pro-FTA country, “FTA super-power Korea” (http://www.fta.go.kr/main/)
  • 15 effective FTAs with 53 countries, including Korea-US FTA, Korea-EU FTA, Korea-ASEAN, Korea-India CEPA (Cooperative Economic Partnership Agreement); most recent FTA is Korea-Vietnam FTA
  • FTAs in negotiation: RCEP (Regional Comprehensive Economic Partnership Agreement: Korea, India, China, ASEAN), China-Japan-Korea FTA, Korea-Central America FTA, Korea-Ecuador SECA…
• Korea-US FTA is most important and significant among all FTAs, not only for its impact on Internet policies – it became our model FTA
• However, I found that Korea’s interest is not really well-reflected compared to the US – As the US is leading country in IP and ICT industries, it has enforced very strong and protective IP regimes, while, for example, trying to make cross-border data flow easier
• Korea’s law had to be reshaped after Korea-EU FTA and Korea-US FTAs, especially to reflect the IP chapter
• For example, the Copyright Act was totally transformed in 2007 and then twice in 2011 to reflect those two FTAs signed.
• In short, at least in Korea, trade agreements affect public policy objectives substantially. My concern here is that, Korea is export-driven economy, so it is the national agenda to sign as many FTAs as possible. And also because the negotiation is lead by the Ministry of Trade or Commerce, trade for goods chapter is considered much more important, and is given much more weight, compare to other chapters that have great impact on public policies including Internet governance. So many provisions are overlooked or sacrificed to reach an agreement in the trade of goods chapter.

RCEP vs. TPP

• TPP vs RCEP number comparison
  • Members: TPP 12 members vs RCEP 16 members; 7 of them overlap (Australia, NZ, Japan, Brunei, Malaysia, Singapore, Vietnam)
  • Proportion of world GDP: TPP about 40% vs RCEP about 29%
  • Proportion of world trade: TPP around 13% vs RCEP around 12%
  • Proportion of world population: TPP about 10% vs RCEP nearly 50%
• RCEP Parties: South Korea, India, China, Cambodia, Indonesia, Laos, Myanmar, Philippines, Thailand + 7
  • More related to the region, negotiators trying to reflect specific interests of Asian countries, compared to TPP
  • RCEP has still far way to go
• TPP Parties: the USA, Canada, Chile, Mexico, Peru + 7
  • account for roughly 40% of global gross domestic product, 30% of global exports and 25% of global imports.
  • South Korea did not participate in the 2006 agreement, but showed interest in entering the TPP, and was invited to the TPP negotiating rounds in December 2010 by the U.S. after the successful conclusion of its Free trade agreement between the United States of America and the Republic of Korea. South Korea already had bilateral trade agreements with some TPP members, but areas such as vehicle manufacturing and agriculture still needed to be agreed upon, making further multilateral TPP negotiations somewhat complicated. South Korea may join the TPP as part of a second wave of expansion for the trade agreement.

CRITICISM

• Depends on the contents of the agreement, when some chapters promote free trade, other chapters hinder free flow of information
  • telecommunications, e-commerce chapters vs. IP chapter
• Korea-EU FTA Article 10.66 No General Obligation to Monitor is a good example
  • Open Net using it to fight filtering obligations
• It’s very hard to re-negotiate an already signed agreement, therefore governments should be careful before concluding the negotiation

• HUMAN RIGHTS: More consideration should be given to those trade agreements’ impact on human rights – human rights assessment may be?
• COMMERCE DEPARTMENT: Negotiation mainly driven by the commerce department of the government – tend to be business industry and economic development friendly
• BUREAUCRACY: top-down decision making process, political intervention
• LACK OF MULTI-STAKEHOLDERISM: voices from other stakeholders – the civil society, international NGOs and especially the users should be heard and reflected in the negotiation
• the legislative branch normally plays important part in passing and implementing trade agreements – close scrutiny on the negotiation process
• Lobbyists and negotiators or counsels to the negotiators are largely based in England or the US