Tuesday, December 1, 2015

What Comes After Fighting Foreign Corporate Control? International Transparent Treaties! [NZ First Private Members' Bill Series Part 1]

Last weekend I had the pleasure of attending a seminar by NZ First MP Fletcher Tabuteau on some of the likely impacts of the Trans-Pacific Partnership Agreement on New Zealand's economy and economic sovereignty.

Needless to say, it was harrowing stuff.

Fletcher, as you may remember, was the man behind arguably the best and most necessary private member's bill put forward this Term ... the Fighting Foreign Corporate Control bill. If it had passed, this piece of draft legislation would have protected New Zealand's sovereignty from legal attacks by foreign corporations mounted under the Investor-State Dispute Settlement provisions of the TPPA.

Unfortunately, due to the perfidy of Peter Dunne (and, needless to say, the entire National Party writ large) ... it failed by only a single vote.

Still, as The Other Winston once said, that wasn't the end - nor even the beginning of the end - of the fight against pernicious international trade deals. Instead, it was merely the end of the beginning.

One of the parts of Sunday afternoon's discussion that I was most eager to hear was Fletcher's revelation as to what the next step in this fight was going to be.

It's called the International Transparent Treaties Bill, and its stated purpose is to place the power of approving or rejecting international treaties and trade deals *firmly* in Parliament's hands.

Why is this necessary?

Because, as the Bill's own intro puts it: "recent events show a disproportionately small and non-representative group of individuals negotiate and sign secret trade deals on the country's behalf".

This obviously leads to inferior outcomes for our country, because our lawmakers aren't properly able to scrutinize nor criticize potential trade deals before we find ourselves shackled to them and forced to attempt to implement their tenets or face lengthy withdrawal battles.

How did this happen?

Well, at the moment, the power of international treaty-signing isn't held by Parliament. Parliament gets to "ratify" treaties by incorporating their terms into our law through passing legislation, but the Executive wing of government (i.e. Cabinet and its multifarious minions) are the ones who do the negotiation and ultimately decide what agreements we are or aren't going to sign up to.

And unfortunately, that means our present cast of neoliberal overlords are free to bind us to international agreements which aren't in our best interest - without *our* elected representatives getting anything even remotely resembling a say until after the deal is signed and our sovereignty partially signed away.

Worse, in the case of trade treaties like the TPPA, there's a new move toward keeping all the negotiations and substantive details secret from both the public and parliamentarians - further stifling intelligent, informed debate on our nation's economic future and directly contributing to inferior governance outcomes.

The reason why the Executive rather than Parliament as a whole have the power to sign us up to things like the TPPA is a holdover from the by now long-gone days when the "monarchy" in "constitutional monarchy" was rather more important. The powers of regulating international affairs and trade - even issuing declarations of war - used to be squarely invested in the hands of the sovereign, rather than his servants.

Over time, these underwent a steady devolution from being the sorts of decisions kings or queens would directly deliberate over through to undertakings decided "on the advice" of an executive council of ministers and notables. Finally, these became an entirely symbolic function of the monarchy. These days, the Queen or one of her Governor-Generals might be the official focal point for a Declaration of War, but they obviously aren't the ones who actually decide whether or not we'll be going to war. They just take part in the formalities, on behalf of the Executive - who now holds all the real power.

This is because the Executive fulfills much the same role in our constitutional setup as did the monarchs and sovereigns of old. And just as successive generations of English revolutionaries and political reformers seemingly inevitably concluded ... too much of a concentration of that kind of power, unchecked by the will of the people through our Parliamentary watchdog-representatives, is not a good thing.

We long ago decided that one person ought not have the ability to send an entire nation to war - and that instead, it should be up to a larger group of people in order to ensure the best decision was made. Interestingly, this even resulted in an apparent political if not necessarily constitutional convention whereby something approaching a Parliamentary consensus used to be called for in the event of a Declaration of War. Something that now appears to have fallen sadly by the wayside.

So the question must be asked: if we recognize the implicit logic of having our representatives - i.e. Parliament - make decisions on our behalf about almost everything else ... why not international trade deals.

What's so uniquely worthwhile about these instruments of international law that the ability of our lawmakers to legislate ought to be constrained without them (and us) first getting a say in the matter?

There's nothing I can think of.

The simple answer as to why this is happening is because the Government knows very well that had Parliamentarians been made aware of the terms of the #TPPA before New Zealand signed up to the agreement, MPs and civil society would have been in a better position to campaign against our country signing up to the TPPA.

Instead, what's happened is our representatives have been shut out and kept in the dark for more than half a decade by enforced secrecy provisions. Unless they were part of Cabinet, they found out what was in the #TPPA for the most part at exactly the same times we did - through WikiLeaks document dumps. And then, through a massive six-thousand page text-release which they were only allowed to sift through once it was too late to meaningfully change the contents.

That's no way to run a country or its international affairs.

Interestingly, the United States and its Legislature has historically kept a far tighter rein on its Executive's ability to conclude international treaties and trade deals for exactly this reason. American Lawmakers were also allowed access to the text of the TPPA far in advance of the agreement's conclusion, with the Obama administration claiming letting legislators see what was in the treaty before they'd signed up to it was "consistent with negotiating the best possible agreement for the American people".

So if even the Americans can see this sort of transparency is a good idea ... why can't we?

That's why I'm such a strong support of Fletcher Tabuteau's International Transparent Treaties bill.

Not because I'm some sort of rabid Party-partisan. But because I genuinely feel that it's wrong for our Prime Minister and our Minister of Trade to be able to sign us up to potentially perilous international agreements without our political representatives being able to look over the terms of the agreement and check out for themselves what the likely impacts upon our nation and its future will be.

Section 6 of the proposed bill states simply that "the Minister must present the text of the proposed treaty to [Parliament before] any binding action is taken on behalf of the Crown". Section 7 clarifies that the Crown is unable to undertake any "binding action [...] in relation to the proposed treaty" until Parliament has approved the agreement. And Section 8 provides us with additional protection by requiring specific enactment legislation before the provisions of the treaty can be enforced (i.e. merely presenting the terms of the treaty to Parliament is not sufficient to make it binding in our law).

Despite its point of inspiration and origin, Fletcher's bill isn't just an anti-TPPA measure. Looking on into the future, it seems pretty likely that the neoliberal parties who regrettably form the fulcrum of government around which our nation's politics seemingly inevitably for the moment swing, will keep on trying to foist unwelcome if not outright unwholesome international trade deals upon us. Let's remember that it was Labour who first hitched us to the TPPA bandwagon in the first place, just as National's now carried us over the ghastly finish-line some seven years later.

Passing Fletcher's International Transparent Treaties bill is therefore not just a direct message to National that we won't tolerate their frankly opaque and quasi-feudal approach to governance. It's also future-proofing our Parliament and our way of life against the next time something like this happens.

Because it will.

And the onus and the duty is on all of us to try to prevent that from happening.

In the mean-time, I'm just glad we've got quality MPs like Fletcher Tabuteau ready to do their bit to protect our economic sovereignty and our future.


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