The Trans Pacific Partnership Agreement and Human Rights
It is not easy to raise questions about the TPPA or specifically about its effect on human rights since both the process and the content are shrouded in secrecy. Nevertheless it is possible from various leaked documents / drafts and from comparisons with other trade agreements, both those to which New Zealand is a party and other multi- and bilateral examples, to point to some issues which are clearly part of the negotiations and therefore of relevance to New Zealand’s participation in the TPPA. On these we might, at the very least, reasonably expect some assurance from those responsible, in particular the Minister in charge of trade negotiations, that they are aware of the human rights obligations which New Zealand has undertaken and that these will be duly observed.
A number of the concerns which have implications for human rights arise in the context of disputes over investment agreements and the secret and unappealable international arbitration proceedings known as Investor-State Dispute Settlement (ISDS) which are the sole method of settling such disputes. There are many examples of multinational enterprises (MNEs) taking sovereign governments to these tribunals. Not only can this cost a state millions of dollars but it can also prevent the state from enacting laws which can be argued to have a detrimental effect on the profits or activities of investing MNEs. Such laws may well be designed to improve a human rights situation in that state. Nor are these tactics confined to states with “less rigorous legal systems” as has been suggested in the defence of ISDS.
What human rights might be affected in such circumstances?
- the right to health and the right to life (ICESCR article 12, ICCPR article..), especially through a lack of access to essential medicines. In New Zealand there are particular concerns about the possible downgrading of PHARMAC, but other issues have been raised by medical professionals themselves;
- the right to work and rights in the workplace (ICESCR articles 6, 7, 8). Improvements in workers’ conditions and in labour relations generally can be threatened by MNEs’ conflicting interests;
- the right to an adequate standard of living, including access to housing, food and water (ICESR article 11), aspects of which may again clash with the priorities of MNEs, such as profit-making and privatisation;
- rights to intellectual property (ICESCR article 15(a)) which may come into conflict with the patenting rights of MNEs;
- the rights of particular groups, and states’ duties to protect them: examples include children, especially those in poverty, and indigenous people.
It is of course always the case with human rights policies and procedures that a balance will often need to be struck. The concern here is that TPPA processes are not set up to take human rights into consideration at all.
There are also a number of procedural rights, sometimes called ‘democracy rights’ – the rights to information, consultation, participation in policy and decision-making of those whose rights will be affected. These seem to be of no account, not only in ISDS proceedings but more broadly in the way in which the TPPA is being negotiated – in secrecy as regards some groups, including those charged with the oversight of New Zealand’s democratic structures, parliamentary sovereignty and the rule of law.
These questions call for a response from the defenders of the TPPA, beyond the usual admonition to trust them to defend the interests of New Zealand and the argument that freer trade is always good and contributes to overall prosperity. It is not always clear that “the interests of New Zealand” are not confined in this context to the purely economic, nor that they are always in the interests of all New Zealanders, broadly conceived.
There is a public debate about the place of trade and of financial institutions generally and the effects of the current international financial structure which we desperately need to engage in – a debate not confined to New Zealand and in which the position of New Zealand is far from clear. That debate also has a human rights dimension, for trade systems and the international order have far-reaching, as it were downstream, effects on the protection of human rights world-wide. Adam Smith, that doyen of those who advocate free markets and free trade, was never in any doubt that the purpose of these doctrines was to enhance the well-being and common good of society. Those representing our interests in the TPPA negotiations need to convince us that they have that goal in mind.
Margaret Bedggood, Human Rights Foundation of Aotearoa New Zealand