Another month, another Wikileak – For God’s sake release the text!

By   /   January 17, 2014  /   14 Comments

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Hey, Groser – tell your mates it’s time to wave the white flag!

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Wikileaks has kicked off the year for the battle to stop the TPPA juggernaut by posting its third leak in three months. This time it was the draft environment chapter and a report showing the twelve countries’ positions on that draft. They are dated 24 November 2013, the last day of the Salt Lake City round that preceded the December meeting of TPPA ministers in Singapore. Hey, Groser – tell your mates it’s time to wave the white flag!

The latest leak is significant for three reasons. First, the very fact that someone or some country on the inside has leaked yet another chapter shows there are some very unhappy campers holed up in these negotiations. Pressure is clearly coming onto countries that feel they need outside voices to help them hold the line. That pressure continues to intensify. Hopefully there will be more leaks from the disaffected that help us do that.

But this leak gives some insights into how ministers are trying to break through the deadlock in key chapters. Asking one country, in this case the Canadian chair of the environment working group, to prepare a new text ‘on their own responsibility’ to present to the rest is a controversial strategy used at the World Trade Organisation to isolate countries that are holding outlier positions, even ones that are critically important for them. They can be treated as obstructive if they insist on holding the line, unless they are sufficiently powerful to get their own way when it comes to the political trade-offs.

Second, the text is weak, hardly the 21st century standard-setter the cheerleaders have been claiming for the TPPA. Its provisions address a wide range of issues from overfishing, shark-finning and protecting endangered species to recognising indigenous rights over traditional knowledge and genetic resources. Most of the provisions are aspirational and it has no teeth to enforce what limited obligations there are.

I have mixed feelings about that. The core chapters of these agreements, especially on investment, agriculture, intellectual property and services, impose pro-corporate rules on governments and communities. Those rules are toxic to biodiversity, ecosystems, indigenous knowledge and resources, human and animal health, water, forests fish and other natural resources, and other aspects of conservation and the environment.

Moreover, those rules are enforceable, in the case of investments both by states and through the notorious investor-state dispute settlement processes. The vast majority of investor-state disputes involve government measures to regulate natural resources or protect the environment or public health.

Environment chapters are used as fig leaves to deflect criticisms of them. So it is no surprise when they are weak. They are not meant to act as an antidote. So the leaked chapter confirms our expectations that the “gold standard” rules are only for the corporations, not to protect people and the planet. But if the agreement does happen, a strong chapter could be important.

That leads to the third and most significant point from the leaks. The chair’s commentary shows the US is the outlier on most of the disputes provisions. That includes articles that refer explicitly or by implication to international agreements it has not signed, such as the Kyoto Protocol, the Convention on Biological Diversity and the UN Declaration on the Rights of Indigenous Peoples.

But the most important outlier is the refusal of all the other governments to agree that even these weak obligations should be enforceable by trade sanctions under the dispute mechanisms that apply to the agreement as a whole. Instead, they have proposed a mixture of consultations, political discussions, and arbitration that leads to a conclusion about a breach and an action plan, but nothing to enforce it.

Back in May 2007 President George W Bush did a deal with the Democrat-controlled Congress. Its terms included what must be in the environment chapter of any US FTA. Those requirements include the enforceability of the chapter by imposing trade sanctions for governments that are found to have breached their obligations. The US has required that in all subsequent free trade pacts. The leaked text falls far short of the May 2007 standards in many ways, but especially on sanctions.

This puts Obama in a politically untenable position. Last week his administration tabled a Bill in Congress seeking fast track negotiating authority for the TPPA and other agreements. That would require Democrats and Republicans to accept or reject a final deal as a whole, within a specified time. Obama is already struggling for support. This environment chapter will strengthen opposition from many Democrats and force Obama to rely even more for support from hostile Republicans.

Yesterday, the US issued a statement that ‘we will insist on a robust, fully enforceable environment chapter in the TPP or we will not come to agreement’. So it is game on? It is hard to imagine that the environment chapter will be the make or break factor in the TPPA. It is what is symbolises that is more important. The question is: will the US get its way on this, and most other things it is demanding? Their next step is expected to be a ministerial meeting in Singapore around 24 February. Our next steps will be posed on itsourfuture.org.nz.

For those who are interested in an overview analysis of the documents and the implications for New Zealand, including for Maori on biodiversity, see the itsourfuture website.

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14 Comments

  1. Jenny says:

    It is hard to imagine that the environment chapter will be the make or break factor in the TPPA.
    Jane Kelsey

    In my opinion, this is not hard to imagine at all. Increasingly, as the climate crisis worsens, the dividing line in all political disputes will be over the environment.

    Australian Heat Wave Crisis

    But the federal government is sitting on its hands. “It’s reluctant to do anything because that would mean admitting climate change is a reality,”

    In the long run, the most important thing the government can do to cut heat stress is tackle the greenhouse effect, says Hanna. “Without rapidly decarbonising our economy, a global health crisis will inevitably follow.”

    New Scientist January 14, 2014

    In Australia the Abbot Government are hostage to the Australian fossil fuel industry, the most powerful and profitable industry in human history. And also the most environmentally damaging.

    Australia will become an example of what could happen on a global scale, if this agreement goes ahead. Any government that is a signatory to the TPPA that attempts to rein in climate change with measures to restrict the activities of big oil and coal multi-nationals, like Andarko, like Petrobras, or Bathhurst resources, will be immediately sued under the TPPA’s “notorious” investor-state dispute resolution process.

    The TPPA will sign New Zealand up to a fossil fuel extractive future when the science is saying we should be going the other way.

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    • Rose says:

      I thought Ms Kelsey was alluding to it being difficult to imagine the environment chapter being the downfall of the whole TPPA proposition because the environment is the least cared about aspect for all the countries involved (but I could be wrong!). If Im right the US must be using the environment chapter to stall negotiations because of some other thing they want that the other countries dont want. No idea what that would be but I can imagine anyone who cares about the environment wont like it. Anyone have any ideas?

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      • Jane Kelsey says:

        Yes, that is what I was saying. The US has said it must have an environment chapter that is enforceable through the full dispute process. All the other countries have said no. If the US is really determined that it must have this, either to get agreement to Fast Track or to get the deal itself through Congress, then other countries will be under huge pressure. The leak means it will be obvious if they have caved to US demands. Alternatively the US may use an agreement not to have full enforcement as a trade off for something they really, really want, eg IP.

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    • Murray Simmonds says:

      ” Increasingly, as the climate crisis worsens, the dividing line in all political disputes will be over the environment.”

      I agree. But equally, “As the economic climate worsens, the dividing line in many political disputes will be over the INTERNATIONAL ECONOMIC climate.”

      In my view, this is what the U.S. stance on the PPTA is all about. Having seen the “economic writing” on the wall, as it were, they are now attempting to address the enormous imbalance in their terms of trade (as exhibited by their huge international trade deficit) by re-writing the rule book on international trade.

      There is no way that they can TRADE their way our of their current long-term debt crisis by adopting a “business as usual” strategy.

      Furthermore, “Fiscal stimulus” (i.e. printing money to pay off debt) is reaching the end of its viability as a short-term solution. So all they are left with is re-writing the rule-book on international trade. They are attempting to achieve this by conning other sovereign countries into propping up the US economy through a series of shabby, U.S.-stacked trade deals (which if agreed to will be at the expense of those nations who are foolish enough to sign up).

      Anyone who seriously thinks that the PPTA will benefit NZ in the long run might just as well bury their head deeper in the sand.

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      • Draco T Bastard says:

        They are attempting to achieve this by conning other sovereign countries into propping up the US economy…

        The thing that really bugs me is that they’ve been doing that since WWII and the Bretton Woods agreement which made the US$ the reserve currency forcing nations to buy it so that they could trade. This allowed the US to print huge amounts of cash resulting in more cash in circulation than gold to support it and a few nations were starting to demand gold for their US$ which is why Nixon dropped the Gold Standard. Now, this should have immediately resulted in the removal of the fiction of a reserve currency but the US had persuaded OPEC to price oil in US$ instead of their local currencies which meant that other nations still had to buy US$.

        We are, quite literally, talking about the rest of the world enriching the US for the last 60+ years. The US would not survive without that propping up.

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  2. Tim says:

    Here’s my thrupence worth: You know what/! (What Tim? – or whoever you ekshly are) ….
    Here we have a band of elected representatives who seem to have some misguided understanding of what democracy is – negotiating in secret in a manner that is treacherous to say the least – whether treason or not (in a legal sense) could probably keep lawyers in income for their entire career.
    What may/will be done is obviously not EASILY undone – that is for those that find it difficult to act on any sort of principle, moral value, or understanding of the evolution of nation-state, sovereignty, etc.

    The 800k or so Icelanders that gave a two finger salute a while back (Interesting around the size of those disillusioned that didn’t vote last time) to those desperately trying to do them over don;t appear to have suffered too much so far.

    When push comes to shove, when we get over the treacherous (Natzis and the Labour right guard) get over themselves and begin to understand that the electorate has become disillusioned with them, when they begin to understand (rise up even) and support their right to self determination – their will probably be another two finger salute in response.

    This TPP has so many ramifications that – if signed – may very well see us in another 150 years of battles – including rights and claims of first settlers, to actual citizenry who’ve been disenfranchised by a VERY few, by a world population that’s greater in number than the right wing proponents pushing the shit like the TPP (BRICS plus a growing number of others) …..
    What will be the response – probably here a drone there a drone, a “NUKE’em” or two response from those pushing it all out of fear.

    Interesting times ahead.

    NO WAY though that anything signed by a philistine who holds passports as a matter of convenience and who puts “Prime Munster” on his CV in order to look good will be able to counter the Icelandic-type response that is inevitable not so very far down to the raod (going forward).

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  3. Marc says:

    Jane Kelsey for TRADE NEGOTIATOR!

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  4. Murray Simmonds says:

    The entire FT package sounds like an insult to the intelligence of the average Kiwi in my opinion.

    Those who currently find themselves in the driving seat of a steadily-crumbling US economy appear to be making a desperate attempt to re-invigorate it (or to re-invent it?) by pushing FTA’s of one kind or another (including the Government Procurement Agreement). These agreements appear to be well and truly at the expense of the economic, social and environmental well-being rest of the world. (Not to mention the right of Sovereign states to make their own economic, social and environmental decisions without interference from abroad).

    I’d like to know what (or who?) were the main drivers lying behind the ploy to have the agreement negotiated in secret.

    Some of us remember an old advertising slogan “Good things come in glass”. That is largely because glass is transparent.

    If this FTA were any good, or if it had nothing to hide, there would be absolutely no need for all this secrecy surrounding it. (And please remind me, who was it that said “If you have nothing to hide you have nothing to fear”?)

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    • YogiBare says:

      Wikipedia tells me …”The motto “If you’ve got nothing to hide, you’ve got nothing to fear” has been used in the closed-circuit television program practiced in cities in the United Kingdom”…perhaps we better find a better quote!
      Many thanks to the Professor for keeping us all informed on this contentious issue. “Knowledge itself is power”…Sir Francis Bacon.

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    • Jenny says:

      “I’d like to know what (or who?) were the main drivers lying behind the ploy to have the agreement negotiated in secret.’
      Murray Simmonds

      They were probably informed by what happened to the MAI, the Multilateral Agreement on investment.

      Like the TPPA, the MAI was an project to subject sovereign nations to the will of multinational companies, and prevent democratic governments from passing restrictive legislation that might effect, restrict investor profits.

      Once the full text of the MAI appeared in the public arena the writing was on the wall for the MAI.

      http://en.wikipedia.org/wiki/Multilateral_Agreement_on_Investment#Protest_movement

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      • Jenny says:

        The direct similarities between the MAI and the TPPA. Particularly around State Investor Disputes are striking.

        If you read the wikipedia entry on the MAI it is clear, why the promulgators of the TPPA would want the details of the TPPA kept secret.

        Once the details of the MAI became widely known, it was finished.

        From Wikipedia

        “The MAI prompted criticism that it appeared to establish a new body of universal investment laws to guarantee corporations excessive powers to buy, sell and undertake financial operations all over the world, severely diluting national laws, e.g., on environmental protection, regulation of labour standards and human rights established in developed countries. By their arguments, the draft proposed a North American Free Trade Agreement-style offshore dispute-resolution tribunal in which corporations could sue governments if legislation, e.g., for national health, labor or environment, threatened their interests or were considered to expropriate actual or potential assets and/or profits.”

        I think that a draft of the TPPA will reveal the same wholesale attack on global democracy and sovereignty by the multinational corporations that was revealed in the transcript of the MAI.

        This is the reason for the extreme secrecy about the agreement and why the agreement will be kept secret from parliament even after it has been signed.

        But while peoples and governments are being kept in the dark the undemocratic representatives of the multinational corporations, have full access to all details of the draft TPPA.

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  5. Draco T Bastard says:

    Unlike Everyone Else, Some Big Political Donors Know What’s in the Trans-Pacific Partnership

    The industry trade advisory system was created by Congress, and membership is partly based on recommendations made from senators and representatives. The organizations represented on ITAC-15 include several top political spenders, who combined have given millions of dollars to members of Congress in recent years.

    As the whole TPPA negotiations are obviously corrupt NZ should be getting out of it now.

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  6. […] While the Environmental Chapter is not enforceable, other chapters are, as Professor Jane Kelsey of the University of Aukland notes: […]