The Human Rights Commission has made a submission to the Foreign Affairs, Defence and Trade Select Committee on the Trans-Pacific Partnership Agreement (TPPA). You can read the submission here.
The Commission’s submission covers the following issues:
a) The importance of transparency and public participation in the negotiation and implementation of trade agreements.
b) The requirement for States to maintain their ability to meet human rights obligations when pursuing business-related policy objectives with other states or business enterprises via treaty agreements. This includes the ability to demonstrate, via a human rights impact analysis or similar, that relevant human rights obligations and requirements have been specifically considered during the negotiation of the agreement and appropriately provided for under the terms of the agreement.
c) Concerns about the proposed investor dispute provisions.
The Commission has made the following recommendation to the Select Committee:
The Commission urges the Select Committee to recommend that the New Zealand Government develop a Trade Strategy that compels a high level of transparency and participation in future trade negotiations.
2. Human Rights
The Commission recommends that the Select Committee ensure that there has been, or will be, a full and thorough analysis of the detailed TPPA provisions in relation to all domestic and international human rights obligations, including human rights obligations arising from the partnership with tangata whenua in the Treaty of Waitangi. This should identify any potential areas of inconsistency or concern. The analysis should be publicly available.
The Select Committee should ask for an assurance that the TPPA includes no inconsistencies with New Zealand’s international human rights obligations and no inconsistencies with the Human Rights Act 1993 or the New Zealand Bill of Rights Act 1990.
The assurance should confirm that the implementation would have no appreciable effect on human rights in New Zealand. If there is an effect on human rights in New Zealand, positive or negative, it should be made clear and the analysis made public.
3. Dispute Resolution
The Commission does not support the proposed TPPA Dispute Resolution provisions and strongly recommends that they be replaced with recourse to a high quality, independent, international commercial court operating openly and transparently under an agreed procedure and legal framework.
That may not now be possible in the context of the TPPA but could be achieved in time by New Zealand entering into bilateral arrangements with TPPA partners, such as Canada and Vietnam, who have favoured investment court provisions in recent free trade agreements with the EU. New Zealand should also endorse investment courts as its preferred solution in free trade negotiations with the EU.