Showing posts with label Neo Liberalism in the pacific. Show all posts
Showing posts with label Neo Liberalism in the pacific. Show all posts
12/3/10
TPP: Open Letter to the Prime Ministers of Australia and NZ
3 December 2010
Rt Hon Julia Gillard, Prime Minister of Australia
Rt Hon John Key, Prime Minister of New Zealand
Open Letter to the Prime Ministers of Australia and New Zealand
Dear Prime Ministers
The proposed Trans-Pacific Partnership Agreement (TPPA) has been branded a “free trade agreement” by its corporate and government proponents. In reality, the main function of the agreement would be to establish an array of new investor rights and privileges that could undermine vast swathes of important non-trade laws, policies and practices in the nine countries currently involved. These constraints would bind our governments into the indefinite future.
Perversely, the TPPA proposal is being sold as a new agreement for the 21st century. In fact, the US is effectively setting the terms for negotiations, based on a standard template that replicates the US North American Free Trade Agreement (NAFTA) model.
We know from the experience in the US, Canada and Mexico that the NAFTA model eliminates the crucial policy space that our governments need to address the employment, climate, financial and energy crises that will dominate the next century. It not only establishes vast new investor rights to acquire land, natural resources, financial and other firms and operate them under deregulated terms - it also elevates private investors to equal status as sovereign government signatories to the agreement. Under the US Free Trade Agreement (FTA) model, foreign investors and corporations are empowered to privately enforce their new “trade” pact privileges by suing signatory governments in foreign World Bank and UN tribunals, seeking monetary compensation for government actions they consider to undermine their expected future profits.
If a TPPA follows that old investor-rights model, decisions on development of our economies, management of our natural resources and land, our access to medicines, cultural content, banking regulation, environment and labour laws, food labelling, tobacco control policies, and much more will be circumscribed from outside the country, with the threat of challenge by foreign firms in private international courts chilling critical innovations and potentially threatening some existing policies.
Trade agreements should focus on real trade. They should not provide a means for corporations to achieve policies and laws through a back door that bypasses the democratic processes of domestic parliaments.
Moreover, investment rules in an agreement for the 21st century should address the damaging by-products of the old model - climate change, food scarcity, financial instability, an employment crisis, natural resource exhaustion, indigenous dispossession and rampant inequality – and make the corporations and investors that are responsible for these crises accountable and liable.
In addition to establishing corporate and investor responsibilities, any future investment agreement must exclude the substantive rules and enforcement mechanism of past investor-rights agreements that make them unacceptable. These include:
Investor-state enforcement privileges that elevate individual investors and firms to equal status with our sovereign governments, empowering them to enforce a public treaty’s commercial provisions privately by demanding cash compensation from country’s taxpayers for government regulatory actions via lawsuits before international tribunals that lack public accountability, standard judicial ethics rules, and appeals processes.
The empowerment of secretive international tribunals at the UN and World Bank that supplant domestic courts and apply international agreements to undermine the validity of domestic laws and require our countries to compensate investors and corporations with our taxpayer funds. Arbitrators in those tribunals are not subject to any effective conflict of interest rules and crucial documents and proceedings are closed to the public and press.
Entitlement to prior consultation on proposed policies and regulations that guarantee foreign investors more input into domestic decisions than the country’s own citizens.
Vaguely worded provisions guaranteeing foreign investors a “minimum standard of treatment”, including “fair and equitable treatment,” that extend beyond guarantees of due process and confer preferential treatment on foreign firms relative to their domestic counterparts.
Corporate rights to compensation for regulatory costs in the guise of protection against “indirect” expropriation by regulations and other government actions that reduce the value of a foreign investment. The threat of massive damages awards can have a “chilling effect” on policymaking, with important policies being reversed or never being implemented. It is misleading to suggest that annexes and tweaks added to recent FTAs provide effective protection from these threats.
Far-reaching definitions of “investment” that must be provided with new protections and privileges under an FTA extend far beyond real property rights and other specific interests in property to include speculative financial instruments, natural resource concessions, procurement contracts and intellectual property rights, over which governments must retain effective regulatory authority.
Pre-establishment rights for investors that remove the host government’s right to review foreign investment proposals to ensure that they meet the public interest.
Constraints on capital controls and other financial regulatory tools that can minimise hot money flows and excessive concentration of financial investors, restrict the sale of risky financial products and services, and open prudential measures to investor and state challenge. Again, the misleadingly termed “prudential carve-out” does not provide effective protection for these measures.
The subsidiary loophole that allows corporations to bypass their domestic courts by using “trade” pacts and their foreign subsidiaries located in a FTA or Bilateral Investment Treaty partner nation to attack their domestic laws from outside the country.
We note that the US-Australia FTA does not contain the outrageous provision on investor-state disputes, and the Australian government remains opposed to its inclusion in any TPPA. We applaud that position as an important first step, and urge the government to adopt a similarly forward thinking position in relation to the other matters we have raised.
We also note that the New Zealand Prime Minister has described the inclusion of such powers in a TPPA as “far-fetched” and expects that New Zealand would support Australia’s position. Minister of Trade Tim Groser subsequently stated in Parliament that the government would carefully safeguard the sovereignty of New Zealand to entertain good public policy in accordance with the principles of open government. It is clear that the only way to achieve that outcome is not just to reject investor-state disputes procedures, but also to pursue an investment agreement that is premised on the principles outlined above.
Across the political spectrum in our countries, opposition is building to investor-rights agreements that threaten to lock us into policies and approaches that have proved a failure.
Our governments must re-think the dangerously outdated NAFTA-style approach to investment and genuinely engage with their citizens to develop a new model investment agreement that is genuinely fit for the 21st century.
Sincerely,
Australian Council of Trade Unions (ACTU)
New Zealand Council of Trade Unions (NZCTU)
Australian Catholic Social Justice Council (ACSJ)
Friends of the Earth, Australia (FOE)
Public Health Association of Australia (PHAA)
Public Health Association of New Zealand (PHA)
Australian Fair Trade and Investment Network (AFTINET)
Music Council of Australia (MCA)
Australian Education Union (AEU)
Australian Manufacturing Workers Union (AMWU)
Australian Nursing Federation (ANF)
Australian Writers Guild (AWG)
Australian Services Union (ASU)
Community and Public Sector Union - State Public Services Federation (CPSU - SPSF)
Construction, Forestry, Mining and Energy Union (CFMEU)
Finance Sector Union (FSU)
Media Entertainment and Arts Alliance (MEAA)
Finsec Union of New Zealand
Maritime Union of New Zealand (MUNZ)
National Distribution Union of New Zealand (NDU)
New Zealand Tertiary Education Union (TEU)
UNITE Union
New Zealand Society of Authors
Aid/Watch
Campaign Against Foreign Control of Aotearoa (CAFCA)
New Zealand Not for Sale
Catholics in Coalition for Peace and Justice (CCJP)
President-elect, Methodist Church of New Zealand John Roberts
Economic Reform Australia (ERA)
Edmund Rice Centre for Justice and Community Education
Franciscan Missionaries of Mary (F.M.M)
Nature Conservation Council New South Wales (NCCNSW)
Pacific Institute of Resource Management, NZ (PIRM)
Our Water Our Vote, New Zealand
Pacific Calling Partnership
Public Interest Advocacy Centre (PIAC)
SEARCH Foundation
The Grail
The Alliance to Expose GATS
West Australian Regional Meeting of the Religious Society of Friends
WTO Watch Qld
Global Peace and Justice Auckland (GPJA)
Workers Institute for Scientific Socialist Education (WISSE)
ENDS
6/2/10
We Are The Pacific's Best Frenemy
Lamenting the poverty in our region, both the Government and the Opposition overlook the fact that their own policies are set to make things worse, writes Wesley Morgan
The story last week that more than half of Australia’s $400 million in aid to PNG was spent on consultants has had the unusual effect of actually putting the issue of our foreign aid on the agenda.
Following those reports came a call from the federal Deputy Opposition Leader Julie Bishop for an independent inquiry into the design and delivery of our foreign-aid program.
For his part, the Parliamentary Secretary for International Development Assistance, Bob McMullan, said he welcomed the increased media attention on the overseas aid budget, claiming it gives "those of us committed to the fight against global poverty the opportunity to make our case".
Certainly there is a lot to be done in the fight against poverty in our near region. The Australian aid agency, AusAID, estimates that one third of the population of the Pacific island countries to Australia’s north — roughly 2.7 million people — do not have the income or access to subsistence production to meet their basic human needs.
Rejecting Bishop’s claim that Australia’s aid priorities are being shifted away from poverty in our region and towards Africa and Latin America to support our bid for a UN Security Council seat, McMullan points out that Asia-Pacific remains the "principle focus" of Australia’s aid program. It’s also true that some of Australia’s aid to the Pacific islands is aimed at meeting the basic needs of people living in poverty. Australia provides more than half of all aid to the Pacific island countries, and McMullan is rightly proud that Australian aid has contributed to reducing the incidence of malaria in the Solomon Islands and Vanuatu, and improving education outcomes in Papua New Guinea (where currently less than half of all students finish primary school).
But alongside this benign aspect of Australia’s relationship with its poorer island neighbours is a more self-interested approach — one which suggests that neither Bishop nor McMullan are really doing as much as they could to address poverty in our region.
In 2009, the Australian Government launched negotiations for a free trade agreement (PACER-Plus) in the hope of gaining increased access to Pacific markets — so Australian companies can sell more goods and services in the islands.
That plan was one the Rudd Government had inherited from its predecessors, who were very clear that a trade deal with the Pacific was about protecting Australia’s trade interests. Former foreign affairs minister Alexander Downer explained that the Pacific Agreement on Closer Economic Relations (PACER), the precursor to the current trade negotiations, "protects Australian interests in the event that Forum Island Countries begin negotiations for a free trade agreement or offer improved market access to another country".
When PACER was tabled in the Australian Parliament for ratification, an accompanying "national interest analysis" found that "without ratification of PACER, Australia would be denied an enhanced opportunity to negotiate better market access to Pacific markets for Australian businesses and industry while any other country could enjoy duty free access to FIC’s [Forum Island Countries] for their goods".
But somehow along the way, this self-serving trade deal got dressed up as an aid arrangement.
When Bob McMullan toured the Pacific last year, to try to convince island leaders to launch PACER-Plus negotiations, he said: "this is not about Australia, there’s nothing in [PACER-Plus] for us, we think it’s good for the region. And it is an initiative that we want to extend because it is beneficial to reduce poverty in the region… it doesn’t have any economic significance for us; it’s just good for the region as a whole and that’s why we’re doing it".
If there is to be no economic benefit for Australia from a free trade deal with the Pacific, one wonders why corporations like the ANZ bank, Honda and Qantas have all made submissions on PACER-Plus to the Department of Foreign Affairs and Trade — calling for things like lower tariffs and binding rules to protect Australian investors in the Pacific. Or why Phillip Morris wants PACER-Plus to allow them to export more cigarettes to the Pacific. Or why the Australian Services Roundtable, a peak-body for Australian services companies, has undertaken a review of "limitations and restrictions" affecting trade in services in the Pacific island countries — which is effectively a "wish-list" of laws and regulations that Australian businesses may want to see changed to allow them to do business in the Pacific. Clearly Australian businesses do think there is something in PACER-Plus for them.
Pacific island countries are strung out across the largest ocean on earth, and they already face incredible hurdles to developing new industries and generating employment — like small domestic markets, expensive and infrequent inputs and geographic isolation. While competition is sometimes welcomed, open slather from the islands’ "big brother" neighbours may not help Pacific businesses "embrace the global economy", it may instead just wipe many of them out.
Many in the Pacific feel that Australia’s interest in the PACER-Plus negotiations is driven by its own trade interests, and not by concern for the poor in the region. In April 2009, Vanuatu Foreign Minister Balkoa Kaltonga met with McMullan and the Australian Trade Minister Simon Crean in Port Vila to talk about PACER-Plus. Kaltonga told media that "[Australian Government representatives] are coming to force Pacific island countries into signing the PACER agreement with the view, for example, for Vanuatu to reducing tariffs on Australian imports".
Then, when Pacific Trade Ministers met to discuss PACER-Plus in June 2009, the Cook Islands Trade Minister Wilkie Rasmussen said "Ministers at the trade meeting were concerned about the haste of the push by New Zealand and Australia for PACER-Plus negotiations to start, and the intrusion of the agreement on the sovereign rights of each country".
Another problem for McMullan’s argument that PACER-Plus is just "good for the region as a whole", is that there is very little evidence that a standard free trade agreement will reduce poverty in the Pacific.
Pacific island countries already have duty-free and quota-free access to Australian markets for most of their exports, and most Pacific countries are already integrated into the global economy, with trade-to-GDP ratios that are well ahead of Australia’s own.
What we do know is that PACER-Plus has the potential to increase poverty in the island countries. Forcing deep cuts in tariffs will slash government revenue across the region — further undermining attempts to realise health and education outcomes. Expected increases in Australian imports are also likely to displace local production, leading to job-losses and business closures.
The Rudd Government knows deep down that PACER-Plus will hurt the Pacific. The most recent Parliamentary Secretary for Pacific Island Affairs, Duncan Kerr — who vacated the position in October last year — acknowledged that PACER-Plus "will not come without some pain — all reforms do. However, as Simon Crean, Bob McMullan and I have said on many occasions, Australia stands ready to support the region through such tough transitions."
The inconvenient truth is that the parts of PACER-Plus that will hurt the Pacific are just not necessary — and McMullan, Crean and Kerr all find it hard to acknowledge that these are the very parts that are designed to benefit Australian and New Zealand exporters.
The Solomon Islands Government has pointed out that the linking of a trade agreement to Australia’s aid program will make it very difficult for any island countries to refuse a final PACER-Plus agreement. A briefing paper prepared by the Solomon Islands Department of External Trade explained that "Australia has made it clear that they are seeking to push the negotiation of a new free trade agreement as quickly as they can. Realistically, it is difficult for Pacific islands — many of whom are highly dependent on aid from Australia — to resist this pressure."
Perhaps it is time for the Australian Government to put aside its template for a standard free trade agreement — to stop pretending that its trade interests are the same as the interests of the poor in the Pacific — and start asking what Pacific island countries want out of a trade agreement.
The Pacific’s lead spokesperson on PACER Plus, Solomon Islands Trade Minister, William Hoamae, told trade ministers last year that his "greatest concern is the possibility that we might not be able to involve all the groups that will be affected by a PACER-Plus agreement from the very start of the negotiating process. I want every one of my countrymen that will have a stake in this agreement to have a say. And I believe that this must happen before my country’s position is finalised and important decisions are made."
Forget about Julie Bishop. Here’s a real voice speaking on behalf of poor people in our region. Are McMullan and Crean listening?
Following those reports came a call from the federal Deputy Opposition Leader Julie Bishop for an independent inquiry into the design and delivery of our foreign-aid program.
For his part, the Parliamentary Secretary for International Development Assistance, Bob McMullan, said he welcomed the increased media attention on the overseas aid budget, claiming it gives "those of us committed to the fight against global poverty the opportunity to make our case".
Certainly there is a lot to be done in the fight against poverty in our near region. The Australian aid agency, AusAID, estimates that one third of the population of the Pacific island countries to Australia’s north — roughly 2.7 million people — do not have the income or access to subsistence production to meet their basic human needs.
Rejecting Bishop’s claim that Australia’s aid priorities are being shifted away from poverty in our region and towards Africa and Latin America to support our bid for a UN Security Council seat, McMullan points out that Asia-Pacific remains the "principle focus" of Australia’s aid program. It’s also true that some of Australia’s aid to the Pacific islands is aimed at meeting the basic needs of people living in poverty. Australia provides more than half of all aid to the Pacific island countries, and McMullan is rightly proud that Australian aid has contributed to reducing the incidence of malaria in the Solomon Islands and Vanuatu, and improving education outcomes in Papua New Guinea (where currently less than half of all students finish primary school).
But alongside this benign aspect of Australia’s relationship with its poorer island neighbours is a more self-interested approach — one which suggests that neither Bishop nor McMullan are really doing as much as they could to address poverty in our region.
In 2009, the Australian Government launched negotiations for a free trade agreement (PACER-Plus) in the hope of gaining increased access to Pacific markets — so Australian companies can sell more goods and services in the islands.
That plan was one the Rudd Government had inherited from its predecessors, who were very clear that a trade deal with the Pacific was about protecting Australia’s trade interests. Former foreign affairs minister Alexander Downer explained that the Pacific Agreement on Closer Economic Relations (PACER), the precursor to the current trade negotiations, "protects Australian interests in the event that Forum Island Countries begin negotiations for a free trade agreement or offer improved market access to another country".
When PACER was tabled in the Australian Parliament for ratification, an accompanying "national interest analysis" found that "without ratification of PACER, Australia would be denied an enhanced opportunity to negotiate better market access to Pacific markets for Australian businesses and industry while any other country could enjoy duty free access to FIC’s [Forum Island Countries] for their goods".
But somehow along the way, this self-serving trade deal got dressed up as an aid arrangement.
When Bob McMullan toured the Pacific last year, to try to convince island leaders to launch PACER-Plus negotiations, he said: "this is not about Australia, there’s nothing in [PACER-Plus] for us, we think it’s good for the region. And it is an initiative that we want to extend because it is beneficial to reduce poverty in the region… it doesn’t have any economic significance for us; it’s just good for the region as a whole and that’s why we’re doing it".
If there is to be no economic benefit for Australia from a free trade deal with the Pacific, one wonders why corporations like the ANZ bank, Honda and Qantas have all made submissions on PACER-Plus to the Department of Foreign Affairs and Trade — calling for things like lower tariffs and binding rules to protect Australian investors in the Pacific. Or why Phillip Morris wants PACER-Plus to allow them to export more cigarettes to the Pacific. Or why the Australian Services Roundtable, a peak-body for Australian services companies, has undertaken a review of "limitations and restrictions" affecting trade in services in the Pacific island countries — which is effectively a "wish-list" of laws and regulations that Australian businesses may want to see changed to allow them to do business in the Pacific. Clearly Australian businesses do think there is something in PACER-Plus for them.
Pacific island countries are strung out across the largest ocean on earth, and they already face incredible hurdles to developing new industries and generating employment — like small domestic markets, expensive and infrequent inputs and geographic isolation. While competition is sometimes welcomed, open slather from the islands’ "big brother" neighbours may not help Pacific businesses "embrace the global economy", it may instead just wipe many of them out.
Many in the Pacific feel that Australia’s interest in the PACER-Plus negotiations is driven by its own trade interests, and not by concern for the poor in the region. In April 2009, Vanuatu Foreign Minister Balkoa Kaltonga met with McMullan and the Australian Trade Minister Simon Crean in Port Vila to talk about PACER-Plus. Kaltonga told media that "[Australian Government representatives] are coming to force Pacific island countries into signing the PACER agreement with the view, for example, for Vanuatu to reducing tariffs on Australian imports".
Then, when Pacific Trade Ministers met to discuss PACER-Plus in June 2009, the Cook Islands Trade Minister Wilkie Rasmussen said "Ministers at the trade meeting were concerned about the haste of the push by New Zealand and Australia for PACER-Plus negotiations to start, and the intrusion of the agreement on the sovereign rights of each country".
Another problem for McMullan’s argument that PACER-Plus is just "good for the region as a whole", is that there is very little evidence that a standard free trade agreement will reduce poverty in the Pacific.
Pacific island countries already have duty-free and quota-free access to Australian markets for most of their exports, and most Pacific countries are already integrated into the global economy, with trade-to-GDP ratios that are well ahead of Australia’s own.
What we do know is that PACER-Plus has the potential to increase poverty in the island countries. Forcing deep cuts in tariffs will slash government revenue across the region — further undermining attempts to realise health and education outcomes. Expected increases in Australian imports are also likely to displace local production, leading to job-losses and business closures.
The Rudd Government knows deep down that PACER-Plus will hurt the Pacific. The most recent Parliamentary Secretary for Pacific Island Affairs, Duncan Kerr — who vacated the position in October last year — acknowledged that PACER-Plus "will not come without some pain — all reforms do. However, as Simon Crean, Bob McMullan and I have said on many occasions, Australia stands ready to support the region through such tough transitions."
The inconvenient truth is that the parts of PACER-Plus that will hurt the Pacific are just not necessary — and McMullan, Crean and Kerr all find it hard to acknowledge that these are the very parts that are designed to benefit Australian and New Zealand exporters.
The Solomon Islands Government has pointed out that the linking of a trade agreement to Australia’s aid program will make it very difficult for any island countries to refuse a final PACER-Plus agreement. A briefing paper prepared by the Solomon Islands Department of External Trade explained that "Australia has made it clear that they are seeking to push the negotiation of a new free trade agreement as quickly as they can. Realistically, it is difficult for Pacific islands — many of whom are highly dependent on aid from Australia — to resist this pressure."
Perhaps it is time for the Australian Government to put aside its template for a standard free trade agreement — to stop pretending that its trade interests are the same as the interests of the poor in the Pacific — and start asking what Pacific island countries want out of a trade agreement.
The Pacific’s lead spokesperson on PACER Plus, Solomon Islands Trade Minister, William Hoamae, told trade ministers last year that his "greatest concern is the possibility that we might not be able to involve all the groups that will be affected by a PACER-Plus agreement from the very start of the negotiating process. I want every one of my countrymen that will have a stake in this agreement to have a say. And I believe that this must happen before my country’s position is finalised and important decisions are made."
Forget about Julie Bishop. Here’s a real voice speaking on behalf of poor people in our region. Are McMullan and Crean listening?
Links:
[1] http://www.abc.net.au/news/stories/2010/05/25/2908239.htm?section=justin
[2] http://www.nationaltimes.com.au/opinion/blogs/the-bishops-gambit/effectiveness-matters-in-aid-debate/20100526-wbc4.html
[3] http://www.theage.com.au/opinion/politics/poverty-knows-no-borders-20100526-wdii.html
[4] http://www.ausaid.gov.au/publications/pdf/track_devgov09.pdf
[5] http://peb.anu.edu.au/pdf/PEB25_1_Penjueli_Morgan.pdf
[6] http://www.aph.gov.au/house/committee/jsct/12March2002/pacernia.pdf
[7] http://www.radioaustralia.net.au/pacbeat/stories/200904/s2531920.htm
[8] http://www.dfat.gov.au/geo/spacific/pacer/index.html
[9] http://www.radioaustralia.net.au/pacbeat/stories/200904/s2535733.htm
[10] http://www.cinews.co.ck/2009/July/Wed01/local.htm#11
[11] http://newmatilda.com.au/2008/09/23/balancing-trade-and-aid
[12] http://www.trade.gov.sb/lib/exe/fetch.php?media=0907_status_update_on_pacer_plus.pdf
[13] http://www.trade.gov.sb/doku.php?id=press:pacer_statement_to_ftmm
[14] http://newmatilda.com.au/2009/06/18/trade-winds-blow-pacific-away
[15] http://newmatilda.com.au/2008/09/19/whats-so-new-about-rudds-pacific-policy
[16] http://newmatilda.com.au/2007/11/28/view-honiara
[1] http://www.abc.net.au/news/stories/2010/05/25/2908239.htm?section=justin
[2] http://www.nationaltimes.com.au/opinion/blogs/the-bishops-gambit/effectiveness-matters-in-aid-debate/20100526-wbc4.html
[3] http://www.theage.com.au/opinion/politics/poverty-knows-no-borders-20100526-wdii.html
[4] http://www.ausaid.gov.au/publications/pdf/track_devgov09.pdf
[5] http://peb.anu.edu.au/pdf/PEB25_1_Penjueli_Morgan.pdf
[6] http://www.aph.gov.au/house/committee/jsct/12March2002/pacernia.pdf
[7] http://www.radioaustralia.net.au/pacbeat/stories/200904/s2531920.htm
[8] http://www.dfat.gov.au/geo/spacific/pacer/index.html
[9] http://www.radioaustralia.net.au/pacbeat/stories/200904/s2535733.htm
[10] http://www.cinews.co.ck/2009/July/Wed01/local.htm#11
[11] http://newmatilda.com.au/2008/09/23/balancing-trade-and-aid
[12] http://www.trade.gov.sb/lib/exe/fetch.php?media=0907_status_update_on_pacer_plus.pdf
[13] http://www.trade.gov.sb/doku.php?id=press:pacer_statement_to_ftmm
[14] http://newmatilda.com.au/2009/06/18/trade-winds-blow-pacific-away
[15] http://newmatilda.com.au/2008/09/19/whats-so-new-about-rudds-pacific-policy
[16] http://newmatilda.com.au/2007/11/28/view-honiara
8/15/09
THE LEGALITY OF EXCLUDING FIJI FROM PACER-PLUS DISCUSSIONS
Prof Jane Kelsey LLB(Hons), BCL (Oxon), MPhil (Cantab), PhD
School of Law, University of Auckland
Summary
Article 1 of PACER defines a ‘Party’ to mean a State that has signed and ratified the Agreement pursuant to Article 19. The Republic of the Fiji Islands is such a State. It is therefore a Party to PACER.
It should be presumed, in the absence of provisions to the contrary, that decisions under PACER are to be made in accordance with the convention of the Forum, being by consensus. That would require the participation of Fiji.
In any case, a process or decision under PACER that involves all parties to the agreement collectively must include Fiji. There is nothing in PACER to suggest that any implied power to suspend a Party from its rights and obligations under PACER was intended.
There are three routes by which a decision to launch free trade negotiations under PACER might lawfully be made:
(i) Commencement of negotiations in 2011 as agreed in Article 5. There is nothing in Article 5:1 (or the rest of the treaty) that entitles any Party to PACER or any group of such Parties to exclude any other Party to PACER from those collective negotiations, although a Party may elect to do so by withdrawing from the agreement.
(ii) If a PIC Party to PACER commences negotiations on a free trade agreement in goods with a non-PACER Party, it may trigger earlier consultations with a view to negotiations as soon as practicable. There are two relevant triggers:
Ø In Article 6:3 this applies to individual countries. Any such obligation is strongest in relation to Fiji and PNG, which have initialed (but not signed or ratified) the Interim EPA on trade in goods. It ceases to apply to individual FICs whose negotiations have concluded without an agreement.
Ø Article 6:4 applies where all the Parties to PICTA jointly commence such negotiations and requires collective action by PICTA Parties under PACER. Fiji is a Party to PICTA. Any collective action required of PICTA Parties, especially relating to the EPA goods negotiations with the EU, must include Fiji.
(iii) Agreement to launch negotiations before 2011 following a general review of PACER under Article 16:2. Article 16:3 states that one purpose of a review of PACER is to make decisions on the opening and timetabling of negotiations for economic integration agreements or arrangements. This provision must refer to a general review, unless a general review transferred that power to another forum. General reviews involve all Parties collectively. A Party cannot be arbitrarily excluded from the conduct of such a general review, or decisions as to its form or timing, or as to the transfer of any exercise of its functions.
A general review is distinct from an annual review by Parties to PACER of ‘the implementation and operation of the agreement and all aspects of trade and economic cooperation’ under Article 16:1. The Government of Fiji as a Party to PACER is entitled to attend this annual review. The annual review of PACER is distinct from the Forum Trade Ministers’ Meeting and may be held at the FTMM of or otherwise.
The exclusion of Fiji from either an annual or general review on the grounds that Fiji’s participation in the FTMM has been suspended cannot be justified. There is an implied obligation on the Parties to PACER to convene such meetings at a time and place from which no Party is excluded. Failure to do so would render decisions taken at such meetings open to legal challenge.
It is important to stress that Article 17 formally assigns to the Pacific Islands Forum Secretariat certain administrative and clerical functions under PACER that are separate from the responsibilities that it performs under its legal personality as the Pacific Islands Forum Secretariat. The suspension of Fiji from the Forum cannot affect the responsibilities of the Forum Secretariat in relation to Fiji under PACER.
What are the implications of this argument for the validity of any decision to launch the negotiation of ‘PACER-Plus’? The Parties, convened as the Pacific Island Forum Leaders, agreed in Niue last year on ‘the need for officials to formulate a detailed road map on PACER Plus, with the view to Leaders agreeing at the 2009 Forum to the commencement of Negotiations.’ However, no decision to commence those negotiations has been taken.
That decision is being sought by Australia and New Zealand at the Forum Leaders’ Meeting in Cairns in August 2009. The Leaders’ decision is largely contingent on a decision of the Trade Ministers of the Parties to PACER in Apia on 18 and 19 June 2009. That decision is intended to take place within the Forum Trade Ministers’ Meeting. The Government of Fiji has been excluded from both those meetings.
This opinion concludes that it is not lawful for the Parties to PACER other than Fiji to convene for their annual review, or to make a decision to launch negotiations under PACER, in the absence of the Government of Fiji.
The only way to proceed with the forthcoming meetings or to make decisions regarding PACER-Plus negotiations in a manner that is consistent with PACER, in the absence of the Government of Fiji, would be if:
(a) Fiji has consented. There is no evidence of such consent; or
(b) the PACER text has been amended to legitimize the exclusion of a Party to the agreement from activities in which it would otherwise be entitled to participate. Article 18 requires unanimous agreement of the Parties to any amendment to the text. Fiji’s exclusion from participation makes that impossible per se. Fiji would presumably veto any such amendment if its agreement were sought.
If the Government of Fiji considers that the actions of other Parties to PACER have breached its rights under the agreement it can notify them, through the Forum Secretariat, of its wish to enter consultations. The other Parties must respond in good faith and as soon as possible, with a view to seeking a mutually satisfactory solution.
THE LEGALITY OF EXCLUDING FIJI FROM
PACER-PLUS DISCUSSIONS
Prof Jane Kelsey LLB(Hons), BCL (Oxon), MPhil (Cantab), PhD
School of Law, University of Auckland
This legal opinion is provided for the Pacific Network on Globalisation PANG).
FIJI’S STATUS IN THE FORUM
Fiji was ‘suspended from full participation in the Forum’ as of 2 May 2009 on the terms agreed by the Forum Leaders in Port Moresby on 27 January 2009.
Participation ‘by the leader, ministers and officials of Fiji from all Forum meetings and events arranged by the Pacific Islands Forum Secretariat, including the annual Pacific Islands Forum Leaders Meeting’ was suspended indefinitely.
The Chair of the Forum made it clear that Fiji was not being expelled from the Forum and that the Republic of Fiji remains a member of the Forum group of nations.
FIJI’S STATUS UNDER PACER
Article 1 of PACER provides a number of relevant definitions:
‘Party’ means a State that has signed and ratified the Agreement pursuant to Article 19. The Republic of the Fiji Islands is such a State. It is therefore a Party to PACER.
‘Forum Island Countries’ are explicitly defined to include the Fiji Islands.
‘Forum’ means the Pacific Islands Forum, as referred to in the agreement establishing the PIFS. As noted above, suspension from participation is not expulsion. Fiji remains a member of the Forum.
DECISION MAKING PROCESSES UNDER PACER
Article 16 sets out the institutional mechanisms for decision-making under PACER, but it does not specify the rules for making decisions.
It should be presumed, in the absence of provisions to the contrary, that decisions under PACER would be made according to the convention of the Forum, being by consensus. That would require the participation of Fiji.
That interpretation is consistent with the requirement under Article 18 that any amendment to PACER can only be made by unanimous agreement of the Parties. The exclusion of Fiji would be a de facto amendment to the treaty to which it has not agreed.
Even if the requirement for consensus in general under PACER was doubted, any process or decision that involves all parties to the agreement collectively must include Fiji.
It might be argued that an activity involving or decision by ‘all parties’ means all parties present and voting or participating in an attempt to reach a consensus, and that a decision in the absence of Fiji would still be valid. However, United Nations’ precedents to that effect involve situations where a state has voluntarily absented itself from a meeting or decision, not the exclusion of a party from the process without its consent.
There is nothing in PACER to suggest that any implied power to suspend a Party was intended.
THE ROLE OF THE FORUM SECRETARIAT
In Article 17 the Pacific Islands Forum Secretariat is formally assigned the responsibility to provide secretariat services for PACER and other international agreements established pursuant to it.
The Secretariat is performing administrative and clerical functions under PACER that are separate from the responsibilities that it performs under its legal personality as the Pacific Islands Forum Secretariat. The suspension of Fiji from the Forum cannot affect the responsibilities of the Forum Secretariat in relation to Fiji under PACER.
Its functions are articulated in Article 17:2, as being a repository and conduit of communications and the provision of administrative and technical support services.
The Forum Secretariat has no other role in relation to PACER. Any direction of the Parties to the Secretariat requiring it to perform other functions would need to involve all the Parties, unless one or more Parties has voluntary absented itself from making such a decision.
The Secretariat cannot therefore act in any way that denies Fiji access to PACER meetings or decisions, or the right to send or receive communications among PACER Parties.
PROCESSES FOR A DECISION TO LAUNCH PACER-PLUS NEGOTIATIONS
There are three routes by which a decision to launch negotiations under PACER might lawfully be made:
1. A pre-commitment to negotiations in 2011 under Article 5;
2. ‘Triggering’ consultations with a view to negotiations before 2011 under Article 6;
3. Agreement to launch negotiations before 2011 following a general review of PACER under Article 16.
It is not clear which of these is currently being relied on, but it seems likely to be the third.
1. A Pre-commitment to begin negotiations in 2011 (Article 5)
Article 5:1 is a pre-commitment among the parties, including Fiji, collectively to enter into collective negotiations with a view to establishing reciprocal free trade arrangements between the Forum Island Countries (including Fiji) and Australia and New Zealand.
Such negotiations must be entered into eight years after PICTA came into force, i.e. 2011, unless earlier agreed under Article 16 or triggered by the provisions of Article 6.
There is nothing in Article 5:1 (or the rest of the treaty) that entitles any Party to PACER or any group of such Parties to exclude any other Party to PACER from those collective negotiations.
[Article 5:2 allows any party to PACER (eg Australia or NZ) to notify the Forum Secretariat that it wants to enter consultations with a view to negotiating the terms and conditions of new trading and economic integration arrangements. Whether or not Australia or NZ has formally notified the Secretariat under this provision, there is no corresponding obligation on any Parties who receive such notification to respond. It seems likely that any such notification would inform discussions under Article 16.]
2. Triggering of negotiations before 2011 (Article 6)
It might be argued that the process of consultations with a view to commencement of negotiations with Australia and NZ before 2001 has been triggered by the action of the FICs in two ways. It is important to note that these triggers relate to negotiations with non-PACER countries for a free trade agreement in goods.
Ø Article 6:3: an individual FIC that is party to PACER begins formal negotiations for a free trade agreement in goods with one or more developed non-Forum countries.
The trigger activates the obligation to ‘offer to undertake consultations with a view to commencement of negotiations free trade arrangements’ with Australia and/or New Zealand ‘as soon as practicable’.
Any reliance on this provision is strongest in relation to the two Parties that have initialed the Interim EPA on trade in goods, being Fiji and PNG.
This obligation is on each individual FIC Party to PACER that has commenced negotiations with an external developed country. It does not presume collective negotiations, as are currently under discussion.
The Article 6:3 obligation ceases, pursuant to Article 6:9, if the negotiations with the non-Forum country are discontinued without an agreement on trade in goods being reached. It is arguable that Article 6:3 no longer applies to the majority of FICs who have not signed the interim EPA on trade in goods and indicated that they do not intend to do so.
Ø Article 6:4: all the Parties to PICTA jointly commence negotiations for a free trade agreement with a non-Forum country.
This trigger involves a collective action by all the Parties to PICTA. Fiji is a Party to PICTA.
When, and even whether, formal negotiations a free trade in goods agreement with the EU commenced is disputed. However, it is certainly arguable that all the Parties to PICTA, organized as the PACP states, did jointly commence such negotiations.
A number of PACP states appear to have since discontinued their participation in the goods EPA, which would remove any obligation under this paragraph. That seems to contradict the purpose of this trigger, which is to entitle Australia and NZ to negotiations where all PICTA Parties have negotiated an agreement on goods. Whatever, that situation does not apply to Fiji.
Assuming that the triggering has been activated, the obligation under this paragraph is for the PICTA Parties collectively to offer to undertake consultations, as soon as practical, with Australia and New Zealand, individually or separately.
The words ‘individually or separately’ must be read as referring only to the consultations with Australia and/or New Zealand, given identical wording in paragraph 3, which refers to an offer of negotiations by an individual FIC, and the joint action by PICTA parties that triggers this obligation.
Again, any collective action required of PICTA Parties, especially relating to the EPA goods negotiations with the EU, must include Fiji.
3. A General Review of PACER (Article 16)
Article 5 states that negotiations with a view to establishing reciprocal free trade arrangements between the FICs and Australia and NZ may be agreed to earlier than 2011 as part of a general review under paragraph 2 of Article 16.
Article 16 provides for two different kinds of reviews of PACER.
Article 16:1 provides for an annual review by Parties to PACER of the implementation and operation of the agreement and all aspects of trade and economic cooperation.
This annual review may take place at the annual meeting of the Forum Trade Ministers or ‘otherwise as appropriate’.
The meeting of PACER Parties is clearly distinct from the Forum Trade Ministers’ Meeting and could be held in a different form, time or place.
The Republic of Fiji is a Party to PACER and is entitled to attend this meeting. The exclusion of Fiji from the annual review of PACER on the grounds that Fiji’s participation in the FTMM has been suspended cannot be justified.
There is an implicit obligation on the other Parties to PACER to convene an annual meeting from which no Party is excluded. Failure to do so would render decisions taken at such a meeting open to legal challenge.
Article 16:2 mandates a general review of the operation of PACER no later than three years after it enters into force, and every subsequent three years, unless otherwise agreed by the Parties.
‘Otherwise agreed’ relates to the conduct of a general review at three yearly intervals. The wording is ambiguous. It could relate to agreement to conduct a general review of PACER otherwise than through three yearly reviews; or that the frequency may not be every three years. Whichever, it still refers to the conduct of a general review.
Paragraph 2 refers to all Parties collectively. This does not justify the exclusion of any Party from the conduct of the general review or decisions as to its form or timing.
As argued previously, it must be assumed that decisions under Article 16:2 are made by consensus in the absence of any contrary intention. Fiji is therefore entitled to be present at and participate in the conduct of any general review, in any decision on any agreed alternative to a general review, and in any such alternative process.
Article 5 explicitly states that the decision to launch negotiations earlier than 2011 would be made as part of a general review under Article 16:2, not an annual review under Article 16:1.
As Fiji is entitled to participate in the activities mandated under paragraph 2, it is entitled to participate in any decision to launch negotiations.
Article 16:3 refers generically to ‘the reviews’, whereas paragraphs 1 and 2 distinguish between annual reviews and three yearly general reviews.
One of the purposes of ‘the reviews’ specified in paragraph 3 is to make decisions on the opening and timetabling of negotiations for economic integration agreements or arrangements. This cannot override the explicit intention of Article 5 that a decision to begin negotiations prior to 2011 must be made at a general review conducted either three yearly as otherwise agreed.
The Parties, convened as the Pacific Island Forum Leaders, agreed in Niue last year on ‘the need for officials to formulate a detailed road map on PACER Plus, with the view to Leaders agreeing at the 2009 Forum to the commencement of Negotiations.’
No decision to commence those negotiations has been taken. That decision is being sought by Australia and New Zealand at the Forum Leaders’ Meeting in Cairns in August 2009.
The Leaders’ decision is largely contingent on a decision of the Trade Ministers of the Parties to PACER in Apia on 18 and 19 June 2009. That decision is intended to take place within the Forum Trade Ministers’ Meeting.
The Government of Fiji has been excluded from both those meetings.
CONCLUSION
It is not lawful for the Parties to PACER other than Fiji to convene for their annual review, or to make a decision to launch negotiations under PACER, in the absence of the Government of Fiji.
If Fiji considers that the actions of other Parties to PACER have breached its rights under the agreement it can notify them, through the Forum Secretariat, of its wish to enter consultations. The other Parties must do so in good faith and as soon as possible, with a view to seeking a mutually satisfactory solution.
The only way to proceed with the forthcoming meetings or to make decisions regarding PACER-Plus negotiations in a manner that is consistent with PACER, in the absence of the Government of Fiji, would be if:
(a) Fiji has consented. There is no evidence of such consent; or
(b) the PACER text has been amended to legitimize the exclusion of a Party to the agreement from activities in which it would otherwise be entitled to participate. Article 18 requires unanimous agreement of the Parties to any amendment to the text. Fiji’s exclusion from participation makes that impossible per se; and Fiji would presumably veto any such amendment if its agreement were sought.
8 June 2009
6/1/09
Pacific Islands Bullied by Australian, NZ Trade Officials, Say Experts
By Diane Cordemans
source: Epoch Times
AUCKLAND, N.Z.-Tactics employed by Australia and New Zealand to push Pacific Island countries into signing a free trade agreement are a form of “contemporary colonization,” said academic and respected analyst on Pacific Island affairs, Professor Jane Kelsey at a seminar in Auckland last week.
Pacific Island officials involved in the Pacific Agreement on Closer Economic Relations (PACER) negotiations with Australia and New Zealand are worried that they are being pressured into signing an agreement that they do not fully understand, she said.
PACER is a framework for a free trade deal between Australia, New Zealand, and thirteen Pacific Island nations.
At a Forum Leader’s meeting in Nuie in August 2008, Australian Trade Minister Simon Crean pushed for free trade negotiations (PACER-Plus) to begin at this year’s Pacific Leaders Forum in Cairns. Trade officials were given a mandate to devise a plan for negotiations to begin.
This, experts say, signaled a more aggressive approach.
Pacific Network on Globalisation (PANG) Coordinator, Maureen Penjueli, and Communications Officer, Westley Morgan, say that Australia and New Zealand are fast tracking the process and ignoring wishes previously expressed by officials in Nuie for Forum Island Countries (FICs) to be well-prepared.
“Academics in the Pacific are predicting that 80 percent of Pacific manufacturing could close down under PACER-Plus,” said PANG last November, “leading to unemployment for thousands of workers.
“Most Pacific countries lack secure social nets, such as state welfare, to assist unemployed workers ... “These expected outcomes of PACER-Plus could leave many Pacific people faced with a bleak future.”
Vanuatu Minister for Internal Affairs, Patrick Crowby, said the issue cannot be fast-tracked if advisory institutions are not set up. “How will the government fund its essential public services if we lose out on vital revenue? Depend on aid donor money? I don’t think so,” he said to the Vanuatu Post recently.
Australia and New Zealand agreed to fund a Trade Advisory Office which could support national consultations and research, but only if the FICs did not seek funding from other quarters.
Professor Kelsey said the funding is inadequate. “It undermines claims that Australia and New Zealand are genuine about helping the Pacific develop trade policy to meet the regions’ development needs.”
“Those national consultations not only aren’t being funded but if Australia and New Zealand have their way there won’t be the time to do them properly anyway,” she said. “What we have seen, is a whole lot of behind the scenes practices that are highly manipulative.”
The FIC’s do not want to go into negotiations while some of their members are still negotiating other free trade deals-the Economic Partnership Agreement that Fiji and Papua New Guinea are involved in, and the World Trade Organization negotiations that Samoa, Vanuatu, and Tonga are involved with.
New Zealand’s Minister of Foreign Affairs, Murray McCully, announced earlier this month that foreign aid would no longer be directed to “poverty elimination” but linked to trade and economic development and should be compatible with New Zealand’s foreign policy.
This sort of pressure, says Professor Kelsey, places the Pacific Island nations in an even more vulnerable position.
The principal reason for Pacific Island nations participating in free trade negotiations is that they are hopeful that it will lead to the opening of more doors into Australia and New Zealand for temporary migrants. “That is seen as a lifeline,” Kelsey said. “It soaks up unemployment, helps the balance of payment, puts money back into villages and households, as well as potentially creating investors.”
“But until you get to the end of the negotiations, you are not going to know what is on the table, and the promises that you made in the process of those negotiations will be very hard to take off the table if you don’t get what you thought you might, at the end,” Professor Kelsey said.
Despicable treatment during free trade negotiations in the past have taught the Pacific Island nations to tread warily, says Professor Kelsey.
Samoa, Vanuatu and Tonga have experienced “unconscionable demands” in their attempt to enter into WTO negotiations-the prospect of unfettered operations by foreign businesses, privatization and big cuts in tariffs that would reduce government revenue, she said.
“To date, only Tonga has agreed to pay that price, although a statement out from Vanuatu suggests that they might actually be getting a bit closer to doing so.”
The Pacific Island Forum’s member states are: Australia, the Cook Islands, the Federated States of Micronesia, Kiribati, the Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tonga, Tuvalu, and Vanuatu. Since 2006, associate members territories are New Caledonia and French Polynesia. Fiji was suspended on 2 May 2009.
5/20/09
G20 SOLIDARITY FUNDRAISER
MUSIC BRUTALITY BY
RASCAL AND BONEZ (violin and accordian madness)
SCUM SYSTEM KILL (3rd last australian show ever - you know us - we're loud and obnoxious)
VOTING WITH BRICKS (fast political punk with a trombone)
AMAZING PERFORMANCES BY
S.N.A.G (Sensitive new age gang)
BROWN COUNCIL (amazing sydney performance group)
and DJ DEADBEAT
PLUS SPEAKERS talking about what is still happening in regards to charges brought against folx post g20 protests
FRIDAY 22 MAY
8pm
$8
--
The Red Rattler Theatre
6 Faversham St.
Marrickville NSW 2204
5/17/09
Public Lecture: PACER A Tool To Recolonise The Pacific - Jane Kelsey
Public Lecture: PACER A Tool To Recolonise The Pacific - Jane Kelsey
Prof. Jane Kelsey will present a public lecture at AUT University's School of Art and Design, focusing on recent developments in the negotiation of free trade agreements in the Pacific.
In her 2001 reports for the Pacific Network on Globalisation, Big Brothers Behaving Badly and A People’s Guide to PACER, Jane Kelsey outlined what the Pacific Agreement on Closer Economic Relations (PACER) between Australia, New Zealand and the Pacific Islands Countries might mean for Pacific peoples. Australia and NZ are now pushing for Pacific leaders at the Forum Leaders’ meeting in Cairns in August to agree to negotiations for a free trade agreement known as PACER-plus. Jane Kelsey’s talk will examine the geopolitical, social and economic implications of a ‘trade’ treaty that is the latest tool for recolonising the Pacific.
Prof. Jane Kelsey is one of New Zealand’s best-known critical commentators on issues of globalisation, structural adjustment and decolonisation. She is an active member of a number of international coalitions of academics, trade unionists, NGOs and social movements working for social justice. She has written numerous books and articles on the neoliberal restructuring of New Zealand since 1984, including the best-selling ‘The New Zealand Experiment. A World Model for Structural Adjustment?’. Her latest book on globalisation, ‘Serving Whose Interests? The Political Economy of Trade in Services Agreements’, was published in 2008.
Jane Kelsey will be welcomed by Tina Engels-Schwarzpaul (School of Art and Design), Isabella Rasch (Pacific Media Centre), and Wayne Hope (School of Communications). I'u Tuagalu, Pasifika Academic Lecturer, will provide a response to Prof. Kelsey’s presentation. The lecture is open to the public.
Venue and Time:
WE240, Art and Design Building, Gate 4 (off Lorne Street)
Thursday, May 21, 5-6pm
The lecture is co-hosted by AUT University’s School of Art and Design, the Pacific Media Centre, and the School of Communication.
ends
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