Background
The
TPP has its origins in the 2005 Trans-Pacific Strategic Economic Partnership Agreement amongst Brunei, Chile, New Zealand, and Singapore. Currently, the negotiating countries are additionally Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States, and Vietnam.
In November 2011, the leaders of the then nine TPP countries
announced “the achievement of the broad outlines of an ambitious, 21st-century Trans-Pacific Partnership (TPP) agreement that will enhance trade and investment among the TPP partner countries, promote innovation, economic growth and development, and support the creation and retention of jobs.”
There are several reasons why plurilateral regional agreements, treaties amongst a limited number of countries, are being favoured over multilateral treaties. One is that the
Doha Development Round of the World Trade Organisation has stalled. Another is
America’s Pacific Century which is the geopolitical pivot of the United States to the Asia-Pacific region. A third is the ability to overcome the trade focus of the World Trade Organisation to go ‘
beyond the border’ into areas such as investment, competition, regulations, environment, and labour as well as
promoting regional economic integration.
Not just a trade agreement
The TPP is often referred to as a trade agreement in New Zealand. In contrast, countries such as the United States consistently refer to it as a partnership amongst countries.
Reportedly, “only five of 29 chapters are about what most people recognise as trade negotiations… But this is mainly about domestic laws. It restricts the powers of governments to regulate in ways that might adversely affect the freedoms of foreign companies… It is the rights of government that are up for negotiation.” (emphasis added)
Typical free trade issues included in the TPP include tariffs, rules of origin, phytosanitary standards, and customs.
According to the US Trade Representative, the scope of the TPP goes beyond free trade agreements to include Competition, E-Commerce, Environment, Financial Services, Government Procurement, Intellectual Property, Investments, Labour, Legal Issues, and Telecommunications.
Two areas that make the TPP not just another free trade agreement and have attracted significant criticisms are ISDS (Investor-State Dispute Settlement) and regulatory coherence.
A
leaked negotiation text from June 2012
shows that an investor from any of the TPP countries “will be able to sue the New Zealand government for millions in damages in secretive offshore tribunals. Under ISDS foreign investors could claim that new laws and regulations introduced by the New Zealand government have breached their special rights under the TPP and seriously undermined the value of their investments.”
“…if New Zealand did get sued, then millions of taxpayer dollars would be spent defending the case. [The] average cost of defending an ISDS case is US$8 million, but can easily exceed US$30 million as well as many millions more if we lost… Just the threat of a long, expensive dispute is designed to get governments to back off. If New Zealand signs the TPP we’ll face the prospect of a government scared of making a stand, massive unnecessary spending of tax payer money on law suits, or both.”
“The Australian government refused to include ISDS in its free trade deal with the US in 2005, and it has an investor-state policy not to sign up to any more ISDS obligations including in the TPP.”
An
open letter from 100 jurists in TPP countries called on “negotiators to make sure the TPP doesn’t give investors the right to sue governments directly” as it “is not a fair, independent, and balanced method for the resolution of disputes between sovereign nations and private investors.”
Regulatory coherence acts to restrict independence more subtly. The
stated aim is “to achieve greater domestic coordination of regulations, increase transparency and stakeholder engagement, and improve competitiveness and the ability of small and medium businesses to engage in international trade.”
In practice, the TPP “aims to frame how governments make their domestic policy and regulatory decisions, alongside more extensive rules that constrain the substance of those decisions. These ‘disciplines’ will, in practice, empower commercial players and advance their interests, and marginalise competing national priorities, advocates and agencies, including democratic political institutions. This additional dimension makes the TPP a threat to national sovereignty over decision making processes and institutions.”
“In controversial areas of policy the TPP could therefore provide multiple opportunities for obstruction and delay, the diversion of resources, and brinkmanship by the affected industry, its commercial and academic allies, and patron states. More extensive substantive rules would reduce governments’ regulatory options. Because criteria like evidence-based decisions and thresholds, such as necessity tests are intrinsically contestable the judgments of policy makers are fertile ground for challenge.”
Secrecy and ratification
All negotiating texts and other materials such as proposals of each Government are in confidence. Unusually, they will be kept as such
for four years after the TPP comes into force or is abandoned.
Public discussions have therefore had to rely on leaked texts, for example Wikileaks published the entire
Intellectual Property chapter in November 2013 and the
Environment Chapter in January 2014. Wikileaks has also published the
negotiating position of each country across 14 chapters of the TPP text.
The US Trade Representative has
given secret access to the TPP text to 600 corporate trade advisors and pressure group lobbyists while not allowing general access to members of Congress or the public. It is widely believed that such corporate interests play an
instrumental role in writing the United States’ negotiating positions and draft TPP text.
Protests against the secrecy of the negotiating process have been a consistent criticism of the TPP, for example by
It’s Our Future.
Polling shows a large majority of New Zealanders find the secrecy unacceptable.
In New Zealand, the Cabinet has the
power to approve the country’s intention to adopt an international treaty such as the TPP. Fifteen days after presenting it to Parliament, the Government can ratify the TPP by executive decision. Regular law making provisions are likely to be used for legislation to implement the provisions of the TPP, including calling for submissions to respective Select Committees.
Unlike New Zealand, in the United States the executive (the President) does not have the power to ratify international treaties. The so-called
fast track negotiating authority for trade agreements granted by Congress to the President allows this, with Congress limited to approval or disapproval but not amending it or delaying it beyond 90 days. There are several moves to stop Congress from giving such fast track authority to the President, such as
Stop Fast Track.
TPP impact
Based on leaked texts, there has been widespread opposition to most TPP chapters that deal with matters beyond the border. Examples of the impact on New Zealand and restricting the country’s ability to independently make laws and rules include:
- Copyright: Extend copyright term by 20 years to life + 70; adopt criminal sanctions; ban parallel importing; stop circumvention of digital locks; restrict fair use; regulate temporary copies.
- Software Patents: Reversing the exclusion of computer software from patentability.
- Medicines: Increase costs and reduce access to affordable medicines by constraining PHARMAC; “Big Pharma” using Investor-state Dispute Settlement processes to block cigarette plain packaging and extending drug monopolies; and undermine public healthcare.
- Financial Services: Restrictions on scope and nature of domestic financial regulation.
- Environment: Too little to offset the harms caused by other chapters with no mandated environmental protections at all.
Trade in Services Agreement (TISA)
TISA is being described as a new threat being negotiated by governments in secret, particularly to public services.
The Ministry of Foreign Affairs and Trade
describes TISA as an “initiative [that] provides New Zealand with a further opportunity to advance our on-going efforts to lower trade barriers for New Zealand services exporters at the WTO and through free trade agreements. Through the TISA negotiations, New Zealand stands to benefit from the development of new and enhanced rules that promote transparency and services trade, and from securing improved access to TISA markets, which account for approximately 80 per cent of New Zealand’s commercial services exports.”
Negotiations have been going on for over a year but there is limited information available publicly. Given the secretive nature of the negotiations and the intention to bring in “new” and “enhanced” provisions over those in the WTO General Agreement on Trade in Services (GATS), there is a
degree of suspicion of TISA turning into another TPP. There is also
opposition to using the approach of profit maximisation to corporates as the fundamental basis for pushing extreme deregulation and withdrawing oversight.
Source: Internet Party Independence policy
