How the proposed Trans-Pacific Partnership Agreement would undermine New Zealand’s sovereignty


Auckland will play host to the 15th round of the Trans-Pacific Partnership Agreement (TPPA) between 3 and 12 December when hundreds of negotiators from 11 countries will attend. 

In its early stages in the mid-2000s the TPPA was a tentative free-trade agreement between just four countries, Brunei, Chile, New Zealand and Singapore.  Since then it has grown to include the United States, Australia, New Zealand, Brunei, Chile, Peru, Singapore, Vietnam and Malaysia, Mexico, Thailand and Canada, with Japan stating its position as an interested observer and potential future member. 

As the number of countries being involved grew so did the aims of the negotiations.  Although it is still being described as a free-trade agreement it now has aims far beyond trade, and will have consequences on areas such as domestic food safety, health, environmental, and other social policies.  The agreement will limit the power of a democratically elected government to enact policies that are for the public good if they are judged to be damaging to the profits of overseas corporations that invest in that country.

Overriding national sovereignty 

Text leaked in June of this year highlighted how any foreign company would be able to appeal to an international tribunal over a country’s laws.  The tribunal will be granted powers to overrule any law found to be in breach of the agreement and impose sanctions on any country found guilty.  Australia is the only country involved in the negotiations that has baulked at signing away its sovereign rights to such a tribunal.  Despite Prime Minister John Key’s denial that New Zealand would sign up for such a clause back in 2010 the leaked document revealed that New Zealand have in fact agreed to abide by the jurisdiction of such a tribunal.

The leaked Treaty chapter demonstrates that these tribunals would consist of unelected personnel and would not meet standards of transparency, accountability, or due process common to New Zealand’s domestic legal system.  Nor would they appear to provide fair independent or balanced rules for resolving disputes between sovereign nations and corporations. For instance, in a practice that would be considered unethical in New Zealand’s legal system, the tribunals would be staffed by private sector lawyers that rotate between acting as “judges” and as advocates for those companies suing governments.

The consequences of a country surrendering sovereignty in such a manner can be witnessed by the use of taxpayer dollars to compensate international companies, a phenomenon that is increasing.  Under the North American Free Trade Agreement (NAFTA), and subsequent NAFTA type deals, over US$350 million of taxpayers’ money has been paid by governments to companies to compensate for policies involving such things as toxic waste permits, and drilling and logging rights.  At the present time Texas oil and gas tycoon T. Boone Pickens is using NAFTA to attack the Canadian government over its renewable energy policies, and there are currently pending corporate cases against environmental, public health and transportation policies under existing U.S. free trade agreements worth over $12billion. 

Another example can be demonstrated by the recent attempt of the tobacco company Philip Morris’ use of a free-trade agreement between Australia and Hong Kong to attempt to sue the Australian government for billions of dollars for compensation for loss of profit after the introduction of plain packaging for tobacco products. The proposed TPPA would create vast new opportunities for litigation, and even when countries have won cases they have still spent many hundreds of thousands of dollars in defending themselves.  In fact the mere threat of action has been enough for countries to drop policies that would have acted in the wider interest of the general public. 

Risks to New Zealand laws

Under the TPPA it is quite possible that New Zealand could see appeals against government policies covering areas ranging from limits on the number of pokie machines, changes to restrict the availability of alcohol, environmental protections against fracking and drilling, and the bypassing of any Iwi objections to wahi tapu.  Also possibly affected would be laws affecting food quarantining opening New Zealand to the risk of costly and possibly devastating breaches of its biosecurity.  Similarly laws giving rights to workers and protecting their health and safety could all be open to questioning.  A notable point of the proposed treaty is that while the rights and privileges of corporations are specifically dealt with, it appears no mention is given to the actual people who work and live in any of the countries involved.

Secret negotiations

Adding to the feelings of distrust and suspicion surrounding the TPPA negotiations is the fact that they are held in total secret, and any information that is in the public arena has only emerged through the leaking of documents.  The whole text of the treaty will only be released after it is completed, moreover all background papers associated with it will only be released four years after the signing, making it impossible to know beforehand who was involved in the negotiations and what role they played.

At the moment the discussions are so secretive that the Trade Minister has said that neither he nor the cabinet has ever seen any text relating to the negotiations.  If New Zealand is to be a signatory to an agreement that has such far reaching consequences to the democratic principles of this country and seriously undermines its sovereign right to make its own laws then, at the very least, it should be demanded that the talks are carried out with full openness so that a full and proper discussion of what it all could mean can take place.