The Trans- Pacific Partnership Agreement (TPPA) - crunch time

Yesterday I went to a public meeting that served up as a lead-up to a series of actions against the Trans Pacific Partnership Agreement (TPPA) around the country on Saturday.

There were four speakers talking about different aspects of the TPPA - investment; Information Technology and copyright; and medicines -  as well as Prof Jane Kelsey, professor of law at Auckland University, who has done most of the research connected with the movement against the TPPA.

What I came to understand from listening to the speakers was that, while people in the US are primarily concerned with Congress fast tracking the TPP, the main concern for countries like New Zealand are:

1. The inclusion of investor-state dispute settlement – ISDS – in free trade and investment treaties which gives foreign investors the right to sue governments in secretive offshore tribunals of dubious legal legitimacy when new laws or policies seriously affect the investor’s value or future profits. 

2. "Certification"  - which allows the United States alone to determine what a country's obligations are and whether they are meeting them and to use blackmail and bribing countries alternately.

The implications for smaller countries is that US corporations can dictate, through their government their wishlist, whether it be refusing to giving countries resitution for oil spills, insisting on the removal of "barriers" such as health, environmenal or labour legislation, insisting that countries use drug companies use their expensive medicine rather than cheaper alternatives, or imposing the likes of copyright.

This is a totally one-way street,where all the advantages accrue to US corporations and not the other way round. 

For some very minor benefits for NZ agriculture our government  is selling the whole country to US corporations.

The United States as a world power and its economy is in terminal decline and it is using its muscle and where necessary, its military superiority to extend its own life by consuming the economies of smaller, less powerful nations.

The only way it can maintain its own existence for the timebeing is to turn the world into slaves, its erstwhile allies into vassals , and its own 99 per cent into virtual serfs.

This was made clear to me by the article by the Russian, Alexander Sobyanin, the sacrifice of Nemtsov and the US takeover of the EU (TTIP) and Japan (TTP) which joined all the dots quite well.

My own personal position is, on this, that we must write letters, or blogs, march and demonstrate - not because we are going to win but because, in the words of Chris Hedges protest is a moral imperative . We cannot do otherwise because to stay silent in the face of Evil is an unacceptable option.

So please, get out and march against this monstrous agreement - do what you humanly can in conjunction with (hopefully) many others. 

For details on actions in a centre near you GO HERE

Below are some articles which give more detail on what the TPPA is about.

Two things you can do to stop the TPPA

We are at the stage where complacency, saturation or boredom plays directly into the hands of the government, who have deliberately kept the TPPA out of the spotlight. Editors are turning down stories saying ‘there’s nothing new’. Once the TPPA is off the radar, the government is home and hosed

By Prof Jane Kelsey

the Daily Blog,

16 February, 2015

If you were one of the 10,000 plus Kiwis who joined the national day of action against the Trans-Pacific Partnership Agreement (TPPA) last November, we need you to join us again on Saturday 7 March – and bring 5 new mates along – to tell the government: “TPPA: No Deal!” At least 16 different parts of the country have so far put their hands up to organise some action. That’s what democracy looks like!

I can hear some of you sighing ‘oh, not again’. Believe me, there is no one who would rather stay home on 7 March and weed the garden or go for a picnic at the beach than me. But we are at the stage where complacency, saturation or boredom plays directly into the hands of the government, who have deliberately kept the TPPA out of the spotlight. Editors are turning down stories saying ‘there’s nothing new’. Once the TPPA is off the radar, the government is home and hosed.

The mobilisation on 7 March is not just a photo op – although there will be some great street theatre. It is make or break time for the TPPA and we need to inject a real sense of urgency into the campaign. Rhetoric about the ‘end game’ has been around for several years. This time is it true. Obama desperately wants to get the deal through as part of his legacy. For that to happen, people working the math in Washington say he needs a deal signed in May. Obama’s team is planning how to short-circuit the formal steps, especially in the US Congress, to make his legacy possible.

That timeframe puts all the other countries under extreme pressure to cave on remaining issues. It was clear from talking to officials in New York in January at the last secret squirrel round of talks that the technical negotiations are now basically over, aside from one more meeting for a small number of groups. We are now in the political zone. The current plan is for Ministers to meet in mid-March to conclude a deal, and have a formal signing probably sometime in May.

In an op-ed in the Herald on 6th February I explained why the elusive deal between Japan and the US is still the biggest barrier – and how left field demands from Congress for rules on ‘currency manipulation’, combined with the US blackmail process known as ‘certification’, are raising the political stakes in Japan even further. But we can’t simply assume that will save us.

Three months of intensive activity can stop the TPPA or at least put it into the deep freeze. Here is one thing you can do, in addition to joining the nationwide day of action on 7 March.

The inclusion of investor-state dispute settlement – ISDS – in free trade and investment treaties gives foreign investors the right to sue the government in secretive offshore tribunals of dubious legal legitimacy when new laws or policies seriously affect the investor’s value or future profits. They can claim hundreds of millions or even billions of dollars, with the aim of getting governments to back off or forcing them to reverse the policy or fork out taxpayer money to foreign corporations. Think plain packaging tobacco.

Fortunately, we have signed very few of these agreements. The TPPA would be the granddaddy of them all, because it gives US TNCs a license to sue.

The government knows the sun is setting on these controversial powers internationally, and there is a groundswell of opinion against ISDS within New Zealand. But that has not stopped it from signing us up to another treaty that gives those powers to foreign investors from South Korea.

The New Zealand Korea Free Trade Agreement will be tabled in House very soon. It will go to a select committee for a Clayton’s hearing where neither the committee nor Parliament can make any change. Usually they hear from a handful of industry cheerleaders and a couple of critical academics and unionists, and the treaty becomes a done deal.

We want the select commute deluged with submissions from Kiwis from all walks of life who demand an end to ISDS in any New Zealand treaty. The select committee process is incredibly short, so there may only be a week to do this. To help people, the ItsOurFuture website will have a dedicated page with a standard form submission, as well as information for people wanting to tailor their own.

As many unions, health professionals, local councils, iwi, environment groups, local councils, mining campaigners, also need to highlight the risks to their constituency and insist that they want to appear before the committee. The web-based resources will be available later this week for people who want to prepare in advance. As soon the treaty reaches Parliament, the alarm bells will sound.

Hopefully, there will also be a members’ bill presented in the House around the same time calling for no ISDS in any future agreements, which can bring further pressure to bear on the issue.

The grand plan is to reinforce those submissions with adverts in the Auckland and Wellington papers on the morning of 7 March that is crowd-funded so people can put themselves on record as opposing ISDS in the TPPA or any other free trade and investment deal.

Jane Kelsey: Trade deal hands US power to rewrite NZ laws

"Certification" seems a benign enough word. But it hides an extraordinary power that the United States is expected to assert if the Trans-Pacific Partnership (TPP) is concluded.

NZ Herald,

12 August, 2014

The US basically claims the right to decide what a country's obligations are under a trade and investment agreement. It then refuses to bring the agreement into force in relation to the other country until that government has changed its laws, regulations and administrative processes to fit the US expectation of what is needed to comply. This certification process can run on for years.

Communications from the US Congress and the US Trade Representative (USTR) suggest their prime targets for New Zealand would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra's "anti-competitive monopoly".

How does certification work? US officials transmit the list of the changes to the other country's domestic laws and regulations that they require before the US allow the pact to go into force.

The officials maintain pressure on the government of the other country until they are satisfied.

The certification requirement has existed since the 1980s, but US politicians and corporates were unhappy over deals with Chile and Australia, so there has been more focus in recent years on ensuring their demands are met before the agreement comes into force.

Moves are already under way to apply certification to the TPP. In January, the Bipartisan Trade Priorities Act of 2014 was introduced to Congress to establish a new grant of fast-track authority for the TPP. Fast tracking would mean Congress votes yes or no to the entire agreement (although that is not watertight). The bill contains new obligations on the USTR to consult Congress about whether certification requirements have been met.

In practice, certification has seen US officials become directly involved in drafting another country's relevant laws and regulations to ensure they satisfy US demands. This includes reviewing, amending and approving proposed laws before they are presented to the other country's legislature. The USTR even demanded that Guatemala implement new pharmaceutical laws that were not in the formal text, and which the government had strenuously resisted during negotiations.

Communications within the Office of the USTR over certification of the Peru US Free Trade Agreement were secured under the US Freedom of Information Act. They reveal interference in Peru's legislative and democratic processes. One email said: "We have to redraft the regs and the law - Peru needs to accept them without changes". Another said, " If the Peruvians accept our language as we [USTR] propose it we still have the possibility of wrapping everything up the week of November 10. If the Peruvians try to negotiate then all bets are off".

Similar communications might never be released under New Zealand's Official Information Act, because they involve information entrusted to the Government in confidence from another government. In other words, New Zealanders, including MPs, might never know the US was involved in writing our laws and demanding the right to sign them off before Parliament gets to see them.

Everyone knows the US is driving the TPP. The demands made on behalf of US corporations have dominated negotiations. US officials now chair many of the controversial negotiating groups. The US has even bankrolled ministers' and officials' meetings in other countries.

Certification takes US control to a whole new level.

A final text would not be final until the US had overseen the rewriting of our laws to its satisfaction - "our version of the TPP, or no deal at all".

For documents on US certification click here.

Jane Kelsey is a law professor at the University of Auckland.

The TPPA’s Dirty Little Secret: How US could write NZ’s Laws

Wednesday, 13 August 2014, 9:47 am
Press Release: Professor Jane Kelsey

Scoop,

13 August, 2014

A new website launched today (http://tppnocertification.org/) has exposed what University of Auckland law professor Jane Kelsey calls ‘the dirty little secret of the TPPA’.

‘Behind the seemingly benign term “certification” hides an extraordinary power that the US is expected to assert if the Trans-Pacific Partnership Agreement (TPPA) is concluded’.

‘Effectively, the US claims the right to decide what a country’s obligations are under a trade and investment agreement and refuses to bring the agreement into force in relation to that country until it has changed its laws, regulations and administrative processes to fit the US interpretation’, Professor Kelsey explained.

Statements from members of US Congress and the US Trade Representative (USTR) suggest prime targets for New Zealand would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra’s ‘anti-competitive monopoly’.

‘The other eleven governments are aware of the certification process and many are concerned. But no one has told the public how the US can effectively redraft our laws.’

Professor Kelsey has co-authored a memorandum that draws on the experience of countries that have been subjected to the US certification process in recent years.

It reveals how US officials have been directly involved in drafting other countries’ relevant laws and regulations to ensure they satisfy US demands. This includes reviewing, amending and approving proposed laws before they are presented to the other country’s legislature. The USTR even demanded that Guatemala implement new pharmaceutical laws that were not in the formal text, and which the government had strenuously resisted during the negotiations.

Communications within the Office of the USTR on the Peru US Free Trade Agreement were secured under the US Freedom of Information Act and show how brutal the US can be: ‘We [USTR] have to redraft the regs and the law – Peru needs to accept them without changes’.

Similar communications might never be released under New Zealand’s Official Information Act, because they involveinformation entrusted to the government in confidence from another government.

‘In other words New Zealanders, including MPs, might never know that the US was involved in writing our laws and demanding the right to sign them off even before Parliament gets to see them’, Professor Kelsey warned.

‘Everyone knows the US is driving the TPPA. But agreeing to a final text, in the knowledge that the US will then play the certification card, would mean conceding the right of US officials to oversee the making of New Zealand’s laws and regulations.’

For more information on certification GO HERE

On 15 January 2014, WikiLeaks released the secret draft text for the entire TPP (Trans-Pacific Partnership) Environment Chapter and the corresponding Chairs' Report.

To read the Wikileaks report GO HERE

This is in response to the government contention that the TPPA has to be negotiated in secret for it to work.

TPPA secret while EU releases TTIP documents

Scoop,

12 February 2015

Groser needs to explain why NZ must keep TPPA secret while EU releases TTIP documents

‘Trade minister Tim Groser has repeatedly claimed that negotiations for agreements like the Trans-Pacific Partnership Agreement (TPPA) are never conducted in daylight. That is simply not true.’

‘There are many such instances, including the Anti-counterfeiting Trade Agreement (ACTA) that involved six of the TPPA parties,[1] where draft negotiating texts and other documents have been released. He has ignored the inconvenient truth and continued to assert his position as fact’, says University of Auckland Professor Jane Kelsey.

‘The European Commission (EC) has now conclusively just put the lie to such claims’.

Professor Kelsey has just published two papers analysing recent developments in the negotiations between the European Union and the US called the Transatlantic Trade and Investment Partnership (TTIP) which parallel those for the TPPA.

One contrasts the obsessive secrecy that continues to envelope the TPPA with the inquiry by the EU Ombudsman into transparency and public access to TTIP documents[2] and the EC’s subsequent decision to release a raft of its own negotiating documents with.[3] The second outlines the Ombudsman’s reports and the EC’s responses. [4]

The European Ombudsman was forthright. Old approaches of confidentiality and limited public participation are ‘ill-equipped to generate legitimacy’ for such ambitious agreements. ‘Given the potential impact of TTIP on the lives of citizens, key documents have to be published’.

Moreover, ‘it is vital that the Commission inform the US of the importance of making, in particular, common negotiating texts available to the EU public before the TTIP agreement is finalised [to] allow for timely feedback to negotiators in relation to sections of the agreement that pose particular problems. … [I]t is preferable to learn of such problems sooner rather than later.”(original emphasis)

The fact the US might object to release of the documents does not mean they should be withheld on the grounds of protecting ‘international relations’ (similar wording exists in the NZ Official Information Act).

Further, confidentiality agreements between parties would not be conclusive grounds for withholding documents. There must be convincing grounds for withholding any content at the particular time, judged on a document-by-document basis.

While the EC did not go as far as the Ombudsman recommended, it has published negotiating texts it has tabled in the negotiations and committed to releasing the final version of TTIP well before it is signed to enable debate.

Both papers were tabled at the Foreign Affairs Defence and Trade Committee this morning. The committee was finally hearing a petition from 16 groups that has been presented to the House in 2011, calling for full disclosure of TPPA documentation.

‘The call for release of negotiating documents made in 2011 is even more pressing now, as the TPPA parties aim to make their final decisions at a ministerial meeting in mid-March, dated and venue unknown.’

Professor Kelsey has made an Official Information Act request for similar documents from New Zealand with a view to testing the legal basis on which the government believes it can withhold all TPPA-related documents, including even the dates and venues of forthcoming meetings.

The TPPA parties claim they are bound by a strict confidentiality agreement, effectively tying their own hands. But Professor Kelsey notes that is not a final impediment.

‘When the TPPA ministers meet in March, if not before, they must unwind this shroud of secrecy they have wound around their activities - just as many of them did as parties to the ACTA negotiations in 2013.’

________________________________________

[1] Australia, Canada, Japan, New Zealand, Singapore and US.

[2] Decision of the European Ombudsman closing her own-initiative inquiry OI/10/2014/RA Concerning the European Commission, 6 January 2015, http://www.ombudsman.europa.eu/cases/decision.faces/en/58668/html.bookmark

[3] Jane Kelsey, ‘The Ombudsman’s Inquiry into Transparency and Public Participation in the Transatlantic Trade and Investment Partnership’, 1 February 2014 http://www.itsourfuture.org.nz/wp-content/uploads/2015/02/THE-EU-OMBUDSMAN¹S-INQUIRY-INTO.pdf

[4] Jane Kelsey, ‘If the EU can release TTIP negotiating documents, the TPPA countries can do the same’, 1 February 2014 http://www.itsourfuture.org.nz/wp-content/uploads/2015/02/TTIP-v-TPPA.pdf