Process, Politics and the Politics of Process: The Trans-Pacific Partnership in New Zealand

By Kawharu, Amokura | Melbourne Journal of International Law, December 2016 | Go to article overview

Process, Politics and the Politics of Process: The Trans-Pacific Partnership in New Zealand


Kawharu, Amokura, Melbourne Journal of International Law


This article discusses the domestic processes adopted by New Zealand in the negotiation and conclusion of the Trans-Pacific Partnership ('TPP'), and how the inadequacies in these processes have contributed to the development of party-specific political positions on free trade agreements ('FTAs') and sub-optimal substantive outcomes for New Zealand under the final TPP text. The increasing politicisation of FTAs may be damaging to New Zealand's long-term interests if New Zealand's treaty-making programme becomes less stable. The opposition Labour Party objected to the limited scope of the reservation for New Zealand's foreign investment screening regime during the examination of the earlier FTA with Korea. Given that the parliamentary examination process took place after the Korea FTA was signed, it was too late for Labour's concerns to be addressed in that agreement. The concerns were not addressed in the TPP either, which led Labour to oppose the TPP. The Waitangi Tribunal found fault with the lack of consultation with Maori over the TPP, and with the text of the exception in the TPP relating to Maori interests. The lack of independent scrutiny of past FTAs contributed to the problems in the TPP text. This lack of scrutiny, together with other aspects of the processes for negotiating and concluding FTAs in New Zealand, needs to change.

Contents

I Introduction
II The Political Context and the Threat to Bipartisanship
     A New Zealand's FTA Programme
     B Signs of Trouble: The FTA with Korea
     C The TPP and Labour's Five 'Bottom Lines'
III Parliament's Examination of the TPP
     A Overview of the Treaty Examination Process
     B Overview of the Examination of the TPP
     C Reporting on the TPP and the Foreign Investment Screening Issue
     D Debate on the TPP
IV The Waitangi Tribunal Inquiry
     A Lodging of the Wai 2522 Claim
     B The Treaty of Waitangi Exception in TPP art 29.6
     C The Exception for UPOV 91 in TPP annex 18-A
     D The Waitangi Tribunal Report
V Conclusions

I INTRODUCTION

The Trans-Pacific Partnership ('TPP') was the eleventh free trade agreement ('FTA') signed by New Zealand, (1) and also the most controversial. Criticism of the TPP has not been limited to the substantive content of the agreement. (2) In addition to concerns over substantive matters, the process adopted by New Zealand for negotiating and then concluding the agreement has also been a beacon for controversy. This article discusses that process insofar as it concerns the consideration of the agreement by Parliament and engagement with the wider public. The article also considers the consequences of the process in terms of both the potential breakdown in the bipartisan political consensus that has characterised New Zealand's approach to trade agreements over several decades, and in terms of substantive outcomes. As to the latter, it focusses on two examples, and examines how New Zealand's foreign investment screening regime and its obligations under the Treaty of Waitangi are addressed under the agreement. It finds that the outcomes on these matters, both of which are of high regulatory importance to New Zealand, are sub-optimal. In turn, these outcomes have contributed to the growing political division on FTAs.

The article begins by discussing the expansion of New Zealand's FTA programme since the early 2000s, and how recent FTAs, the TPP especially, may prompt a break from political bipartisanship on FTAs towards the development of party-specific FTA policies (Part II). It then considers the examination of the TPP in two constitutional forums, Parliament (Part III), and the Waitangi Tribunal (Part IV). The parliamentary process for examining treaties in New Zealand is insufficiently robust. Parliament's examination of the TPP neither contributed much to executive accountability nor to better FTA policy-making. One of the issues identified during the earlier examination of New Zealand's FTA with Korea relates to the adequacy of New Zealand's standard treaty reservation for its foreign investment screening regime. …

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