How Obama hit a TPP birdie despite Malaysia’s trafficking bogey

Now this has largely slipped below the media radar. The US Friends of the Earth has filed a Freedom of Information Act request demanding the quick release of all communications by the US State Department relating to the controversial upgrade to Tier 2 in Malaysia’s ranking in the recently released 2015 Trafficking in Persons Report.

The request by Friends of the Earth is backed by a string of American human rights, labour, faith, trade and democracy reform organisations.

Friends of the Earth filed a separate FOIA request last month demanding the release of all communications by Sarah Sewall, Undersecretary of State for Civilian Security, Democracy and Human rights, regarding this matter.

According to a Friends of the Earth statement:

Recent media reports indicate that political appointees meddled in the compilation of this publication by challenging State Department human rights experts’ rating recommendations for 17 politically-strategic countries and inflating the assessment of 14 of these.

Malaysia’s unsubstantiated upgrade is particularly alarming to the organisations because of its overt importance to the Trans-Pacific Partnership, an expansive trade deal being negotiated by the Obama administration and 11 countries on the Pacific Rim. While the Obama administration recently obtained Fast Track authority to negotiate the TPP, Congress restricted negotiations with countries that have the worst records in combating human trafficking.

Check out the chronology of events to see how cynically human trafficking/forced labour issues were treated in the midst of the TPP negotiations. You be the judge.

2014

April – Obama visits Malaysia, the first time a US president is in Malaysia since Lyndon Johnson in 1966, when South East Asia was in the thick of a proxy Cold War.

June – Malaysia is downgraded to the worst classification, Tier 3, in the US State Department’s human trafficking report for 2014. It is a huge blow.

Dec 2 – If that’s not enough, forced labour issues crop up. The US Department of Labour reports:

New items can be added to the TVPRA List if they are made with child labor, forced labor or both. The 11 goods made with child labor that have been added to the sixth edition of this list are: garments from Bangladesh; cotton and sugarcane from India; vanilla from Madagascar; fish from Kenya; fish from Yemen; alcoholic beverages, meat, textiles, and timber from Cambodia; and palm oil from Malaysia. One good, electronics from Malaysia, has been added to the TVPRA List for being produced with forced labor.

Dec 24 – Obama and Najib play golf in Hawaii over the Christmas break despite serious floods in the east coast of peninsular Malaysia. What is so important about this round of golf that it cannot be cancelled to focus efforts on search-and-rescue ops in the east coast?

2015

April 17 – US ambassador to Malaysia Joseph Yun says Malaysia must do more to prosecute traffickers and protect victims.

May 16 – Journalist S Arulldas of the Malay Mail discovers graves in jungle camps on the Malaysian side of the border with Thailand. It is a shocking story that hits global headlines.

June 29 – Obama signs into law legislation giving him “fast-track” power to push ahead with the TPP deal.  But Congress has included a restriction barring countries that engage in slavery and trafficking (i.e. those in Tier 3) from being part of major trade deals with the US. That would exclude Malaysia from the TPP.

The State Department’s annual human trafficking report for 2015 is strangely delayed. It is usually out in June every year.

July 8 – US and Malaysian activists are then stunned as a Reuters report quotes sources saying that Malaysia is being upgraded to Tier 2 in the 2015 human trafficking report despite no progress being made in convictions of traffickers and despite the discovery of mass graves in Malaysia (albeit after 31 March 2015, the end of the reporting period for the latest trafficking report).

July 24-27 – The United States hosts a meeting of TPP chief negotiators in Hawaii.

July 27 – The US State Department unveils its Trafficking in Persons Report 2015, which confirms that Malaysia has been upgraded to Tier 2. See below how the media grilled a key official about the upgrade for Malaysia.** And look at the timing: today is the eve of…

July 28-31 – … a United States-hosted meeting of TPP trade ministers in Hawaii – the last leg of TPP negotiations.

Sept 19 – The WSJ reports that the FBI has launched a probe into 1MDB.

Sept 21 – New York Times quotes two sources as saying that a federal grand jury is examining allegations of corruption involving Najib and people close to him.

Sept 24 – An unperturbed Najib, knowing that the US needs Malaysia to agree to the TPP, arrives in New Tork for a nine-day visit.

Sept 28 – Najib meets US Trade Representative Mike Froman during a break in UN sessions.

Ketika waktu rehat persidangan di @UN , sy bertemu dgn @MikeFroman, Wakil Perdagangan AS, utk bincang bbrp perkara pic.twitter.com/CIL2iEUnuI

— Mohd Najib Tun Razak (@NajibRazak) September 29, 2015

Oct 1 – At the 70th session of the United Nations general assembly, Najib speaks about the evils of religious extremism and terrorism – rhetoric which would have gone down well with the Obama administration.

Oct 5 – Agreement on the TPP is reached.

Friends of the Earth then files a Freedom of Information Act request for the disclosure of all communications from the State Department for the last two years in relation to Malaysia’s ranking in the annual report for trafficking 2015.

Oct 12 – Zahid Hamidi says US-Malaysia ties are set to soar.

Just reading through the above chronology should give us a clear idea of how the TPP was cynically bulldozed through, apparently using a carrot-and-stick approach. It doesn’t inspire confidence that the TPP  will protect workers’ rights. Instead, the TPP appears to be a strategic tool to enhance the strength and influence of large multinational corporations while allowing the United States to counterbalance China’s growing influence in the region.

Economists at the United Nations Conference on Trade and Development, Unctad, forecast that Malaysia would actually be a net trade loser as a result of joining TPP with its trade balance declining by RM75bn per year.

Reject the TPP!

** Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, was grilled by the media about Malaysia’s upgrade to Tier 2. At one point, when her response gets a bit convoluted, one journalist asks her to speak in layman’s terms:

UNDER SECRETARY SEWALL: I’m happy to explain the reasons for Malaysia’s upgrade. The State Department assigns tier rankings based on the government efforts to comply with the minimum standards established under U.S. law, as I just enumerated.

So Malaysia’s Tier 2 Watch List ranking indicates that there is still much room for improvement in the government’s anti-trafficking efforts, and we’re going to continue to encourage Malaysia and Malaysian officials and civil society to work together to make tangible progress to combat human trafficking, including the implementation of the amendments to the anti-trafficking law, the issuance of associated regulations in consultation with NGOs, and increased law enforcement efforts to convict traffickers.

While we still have concerns about any country that’s on the Tier 2 Watch List, to include Malaysia, the Government of Malaysia made significant efforts to comply with these minimum standards. The government made efforts to begin reforming its victim protection regime, along with its legal framework. Government officials consulted civil society in drafting amendments to the existing anti-trafficking in persons act to address Malaysia’s flawed victim protection regime. Authorities also increased the number of trafficking investigations and prosecutions compared to 2013 and adopted a pilot project to enable a limited number of trafficking victims to leave government facilities in order to work.

However, we remain concerned that low numbers of trafficking convictions in Malaysia is disproportionate to the scale of Malaysia’s human trafficking problem, and we also remain concerned with the restrictions on victims detained in government facilities and inadequate efforts to address pervasive passport retention by employers. The TIP Report documents these concerns and we will continue to work over the course of the next year with the government to impress upon them and support their efforts for change.

QUESTION: Can I follow up?

MR KIRBY: Go ahead, Elise.

QUESTION: Elise Labott with CNN. Could you talk a little bit about the fact that this report is from last year, yet you found these mass graves in Malaysia and believed to be part of this smuggling route with Thailand, Malaysia, and Myanmar all kind of put in together? And do you anticipate that this could affect Malaysia’s rating for next year?

UNDER SECRETARY SEWALL: Well, all facts reflect ratings. So the tragic smuggling situation that came to light at the end of the reporting period is certainly a core concern that we have as a matter of U.S. foreign policy in addition to being a concern for any future reporting that’s done.

The migrants along the border of Malaysia and Thailand have been subjected to a variety of abuses in these camps, and we’ve been working with the affected governments and international organizations in the region to combat the crimes that led to the deaths. We’ve been working with the Malaysian Government authorities, the UN High Commissioner for Refugees, and the International Organization for Migration. We understand Malaysian law enforcement and security authorities as well as Thai law enforcement and security authorities are actively investigating these findings, and we encourage a transparent and credible and expeditious effort to identify the victims and deal with them appropriately and humanely.

This discovery of the mass graves happened almost two months beyond the reporting period of the TIP Report. One of the ironies of the TIP reporting period is it ends March 31, 2015 and we are already four months into next year’s reporting period. Similar issues with the reporting period frame pertain to the progress that countries make. So in some cases, as in the case of Malaysia, the government’s commitment to improve its legislation was followed post reporting period by the passage of the amendments by the parliament and the Malaysian Government’s meetings during the reporting period were followed by more concrete action afterwards.

So we have both problems that occur during the reporting period that sometimes are shown in a different light as new facts arise. We also have commitments to progress that are made during the reporting period which are sometimes followed up afterwards by even more concrete progress. And in both cases, the TIP Report is based on the reporting period itself.

QUESTION: So I’m sorry, if you can just in layman’s terms, like, is – do you think that the fact that these mass graves were found after the reporting period would have made a difference? I mean, had you had found them during the reporting period, I really would have a hard time seeing that they weren’t still on the list.

UNDER SECRETARY SEWALL: We – you may have missed the discussion of the standards earlier in the briefing —

QUESTION: No, I’ve been covering for many years; I know it.

UNDER SECRETARY SEWALL: So you’ll understand that the – that Tier 2 does not mean – Tier 2 Watch List does not mean that there’s not a problem with a country. And similarly, our reporting has spoken to the difficulties that Malaysia has encountered and the failure to adequately prosecute in – over the course of the past year that would be a concern regardless of whether or not these particular mass graves are found.

QUESTION: Right. But if they made – if you’re judging them on efforts that they made and you found these particular mass graves, wouldn’t that have said that maybe the efforts weren’t as strong as they were – you were led to believe?

UNDER SECRETARY SEWALL: We are already – we have already said in the TIP Report over prior years that the efforts are not adequately strong, and indeed, a Tier 2 Watch List ranking also indicates that the efforts are not particularly strong.

QUESTION: David Brunnstrom from Reuters. I was wondering if you could just address the – I think the question that Matt made as to whether or not there was any motivation in upgrading Malaysia from the need to keep them in qualification for the TPP. This is something that’s been questioned by rights groups and quite large numbers of members of Congress. Was – did that come into play at all?

UNDER SECRETARY SEWALL: No, no, no. The annual TIP Report reflects the State Department’s assessment of foreign government efforts during the reporting period to comply with the minimum standards for the elimination of trafficking in persons, established under U.S. law, under the TVPA. And those standards, as I articulated, are quite well spelled out in the legislation and those are the standards that are applied based on the factual reporting that is gathered during the course of the year.

Over 15 years of the TIP Report, the report has raised the profile of these issues significantly. And I think the attention that the report generates now is indicative of the importance of the establishment of a baseline of facts and the continued scrutiny that the TIP Report represents.

QUESTION: Just to follow up, hadn’t Malaysia been kept on Tier 3, would that have been a potential barrier for its participation in TPP?

UNDER SECRETARY SEWALL: You would need to ask the folks working on the trade bill. I mean, our concern is really about the TIP Report facts, and those are gathered by the TIP staff over the course of the year working with posts, working with civil society organizations, gathering information from the media. It’s a very fact-intensive process; it’s one that we’re very proud of; and it’s one that I think stands us in good stead as we document in these extensive narratives that are included in the report and, as I said, serve as a benchmark really for solution finding and promoting change over the course of the year.

So we’re very pleased within the State Department to have a TIP process that is run by an office devoted solely to this issue, where the staff are focused on the TVPA criteria and the collection of facts pursuant to the law.