A key issue may not be what is in the TPPA, but that by not adopting it we may ruin the other international agreements we are pursuing. 

In the 1960s I was an active member of the Campaign for Nuclear Disarmament. It was a moral crusade with unrealisable objectives such as withdrawal from SEATO (a now defunct treaty), a nuclear-free New Zealand and withdrawal from ANZUS. The dreams of youth can become a reality.

I was there the night CND morphed into the Committee on Vietnam. We didnt win that one; the troops went, although we were broadly right as the resulting debacle and withdrawal demonstrated. Perhaps we did better than we thought at the time. The Ministry of Foreign Affairs was deeply divided on our involvement in Vietnam; perhaps we outsiders contributed to the doves who argued for – and got – the minimalist response that New Zealand could get away with, given the network of international relations in which the decision was imbedded.

Those outside often have little understanding of the complexity of the network. For instance a consequence of the legislation which made New Zealand nuclear-free and led to our ejection from ANZUS changed the balance in our relations with Australia and the US. Our practice had been to play one off against the other. When the US withdrew in a huff, we found ourselves much more dependent upon Australia; in one way our independence was reduced by being nuclear-free.

These complex interdependences also apply to trade negotiations. While there has been much focus on the TPP deal, there has been hardly any mention of the WTO (World Trade Organisation) agreement in Nairobi which prohibits agricultural export subsidies. Some 30 years ago a trade negotiator commented to me that getting rid of this dumping might be the best single thing we could do for our exporters. Not only would it stop the undercutting of their markets but it would force domestic agricultural reform because the dumping nations could no longer export the surpluses arising from their subsidies. There is not a lot of this subsidising going on at the moment but without an agreement export subsidies are likely to come back – to New Zealand’s detriment.

What was not always mentioned was that the chair of the WTO agricultural committee which negotiated the deal was a New Zealand ambassador, who is the fifth New Zealand chair in succession. This not only reflects the excellence of our Geneva ambassadors and the priority we give to agriculture in the WTO, but that the powerful – most notably the US – trust New Zealand to do a good job. That trust arises from the way we behave in other trade negotiations, including the TPP. The implication is that if we defaulted on the TPPA we would damage that trust and our ability to function effectively in a wide range of other international negotiations we care about, including on climate change.

That puts us in an extremely invidious position over the TPPA. Sure, we could turn it down, losing both its benefits and its downsides. Were we to do so, however, we would compromise the trust our international activity depends upon, especially the possibility of other trade deals which would open up markets currently restricting our exports.

Briefly, there are five (or six if you treat ASEAN as a unity) major trading groups in the world, plus Australia, which are particularly important to us. We have deals with ASEAN, Australia and China but we need the whole seven so that we do not become too dependent on any one of them (especially as the three just mentioned are closely interdependent). We have trade negotiations with India and are beginning soon with the EU but we are low on their priority lists. Frankly I am not optimistic about India which is proving especially recalcitrant with everyone, but we might do a bit better there with RCEP, the Regional Comprehensive Economic Partnership, which includes India and also ASEAN, Australia, China and Japan.

Japan and the US (indeed the whole of the North American bloc) are members of the TPP. We have been struggling for ages to get deals with these two but have been too low on their pecking order to be noticed. So you might think of the TPPA as a means of getting the deals.

That is a positive, but of course the deals have to be favourable to us. Many argue they are not although their vehemence is offset by those who argue the opposite. The truth is that there are positives and negatives and different people balance them differently. In my opinion it is not much use focussing on a subset of the outcomes and ignoring everything else. Deals are about giving and taking.

The logic in this column is that we now do not have much choice about the TPPA. The government is trapped into agreeing to it because rejecting it has implications for other trade deals and our wider international relations. That is probably what our MFAT officials are advising, although no doubt there are many diverse views in there, just as there were with Vietnam. Here is my best guess about what is likely to happen.

There is a signing of the agreement in Auckland this Thursday. The exercise is primarily ceremonial – agreeing to a common text and exhibiting solidarity. I suppose the protests outside are ceremonial and for solidarity too.

The twelve partners then go away and prepare for the implementation of the text. Some things can be done by regulation, some require a change in law. The degree to which each partner has to do this differs according to their constitutional arrangements.

New Zealand requires some change in law. The government will drive those through by using its dominance in parliament, despite a large minority of the public having doubts (and much of the rest being thoroughly confused). I am afraid that, just as it did during the negotiations, the government will not seek consensus, but it will aim to disrupt the opposition for short term political gain whatever the long term consequences.

Even so, the government should try to meet specific legitimate concerns. For instance, Maori do not trust the government to reject certain actions if they compromise the Treaty of Waitangi. International treaties, such as the TPPA, are between governments, but they do not prevent a government enacting domestic legislation which would require it to consult and get a mandate from parliament.

Everyone will be watching the US, where the passage of the measures is likely to be most contentious. Many of the predictions of what will happen reflect the soothsayers’ view of the TPPA rather than a solid political assessment. There is considerable division among those who are informed. Some think the US Congress will agree to the deal this year because it is so crucial to US economic hegemony, particularly relations with Japan and the reducing of China’s economic leadership. Others think the Congress will not bear to give Obama a win and will hold it over to next year. Another view is that there are so many fish-hooks in the deal that Congress will not be able to get an agreement.

Until each of the partners has demonstrated they can implement the agreement, its provisions do not come into effect. When they have all done this the partners ratify the treaty. (Most required legislation will not come into effect until ratification.)

By now there are so many imponderables that there is insufficient room in a column to pursue them all in a balanced way. My guess is that, given the way we are trapped by the wider international issues, the cautious advice is to proceed on the path of implementing the legislation for the TPPA, making as much international progress elsewhere. We can then review whether we really want to go ahead with the implementation. Legislation can always be reversed, agreements abrogated, although if the government changes its mind it is better that some other partner pulls the plug. Much of what is due to happen will be less ceremonial than this Thursday.  

Comments (14)

by Wayne Mapp on February 02, 2016
Wayne Mapp

A very good argument for those who are not directly persuaded by the merits of TPP, but rather are more aware of the risk of exclusion from trade negotiations.

It seems that in some respects this is Labour's position. They know they can vote against any enabling legislation, because in a very real sense their vote doesn't matter. But if they had the power, i.e been in government, is it really very likely they would not have participated in the TPP negotiations? And if so what would have been the likelihood they would have walked away at the last minute. In fact none of negotiating states did so. They stuck at it until it was good enough for each of them.

While I understand the attractions of "cheap politics" when in opposition (National was guilty of this from time to time in Opposition - such as on the Supreme Court) it does mean that many people conclude you are not ready for govt, especially if you have taken the cheap politics route on a really big issue.

To my mind TPP is one of those issues. The decision to oppose TPP results in Labour having to explain why they would not be in a trade and investment agreement with the majority of the Asia Pacific economies. Not a good place to be, as Helen Clark made clear last year. Her opinion cannot just be airily dismissed by Andrew Little as of no particular importance.

Presumably Labour is hoping that TPP will quickly become yesterdays news as the political cycle moves on, so that their stance on TPP can be seen as one of those things you do in opposition, but would not do in government.


by Ian MacKay on February 02, 2016
Ian MacKay

This morning the report on RNZ National, said that there is "confusion" over the length of copyright. The text named it as for 5 years. The USA wants to change it to 8years or even 12. (To satisfy the Republicans in Congress.)They say it might not be done on Thursday but each country will be asked to do so in a side letter. So set in concrete is it unless you are big and powerful.

by Brian Easton on February 02, 2016
Brian Easton

I think they are talking about IP rather than copyright, Ian. It is true that the US wanted 12 years. However the other 11 rejected it, and the actual provision in the text is much shorter. In passing what is reported is not always correct. 

by Andrew Geddis on February 02, 2016
Andrew Geddis


The confusion is over the length of time that "biologics" (i.e.  medicines that are made using certain types of cells to produce the right kind of protein) will be given protection through a "market exclusivity period" in which "biosimilars" (which are akin to generic medicines) are prohibited. There's an explainer on why this matters here.

It seems like NZ thinks we've agreed to a 5 year protection period, but the US wants at least 8, and no-one is quite sure exactly what the TPPA text says.

by Andrew Geddis on February 02, 2016
Andrew Geddis

For anyone interested, here's the relevant bit of the text on biologics - suffice to say that it is ... complicated.

Article 18.51: Biologic

1: With regard to protecting new biologics, a Party shall either:

(a)  with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least eight years from the date of first marketing approval of that product in that Party; or, alternatively,

(b)  with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection:(i)  through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least five years from the date of first marketing approval of that product in that Party,(ii)  through other measures, and(iii)  recognising that market circumstances also contribute to effective market protection

to deliver a comparable outcome in the market.

2: For the purposes of this Section, each Party shall apply this Article to, at a minimum, a product that is, or, alternatively, contains, a protein produced using biotechnology processes, for use in human beings for the prevention, treatment, or cure of a disease or condition.

3: Recognising that international and domestic regulation of new pharmaceutical products that are or contain a biologic is in a formative stage and that market circumstances may evolve over time, the Parties shall consult after 10 years from the date of entry into force of this Agreement, or as otherwise decided by the Commission, to review the period of exclusivity provided in paragraph 1 and the scope of application provided in paragraph 2, with a view to providing effective incentives for the development of new pharmaceutical products that are or contain a biologic, as well as with a view to facilitating the timely availability of follow-on biosimilars, and to ensuring that the scope of application remains consistent with international developments regarding approval of additional categories of new pharmaceutical products that are or contain a biologic. 

by Fentex on February 02, 2016

I think, from what I've been reading recently, that we can trust the U.S will ratify the TPP after their elections.

The argument that NZ pulling out now would hurt our broader interests by an apparent reneging sowing anger and distrust is, I think, an argument against the manner in which the TPP was negotiated.

As Brian points out it will be sad if our government bludgeons it's way to enacting the necessary law rather than building a consensus which would have been much easier had the treaties history been more about bringing people in than shutting them out.

I don't like the TPP for a few particular reasons - by and large on my reading it's mostly about adhering to a number of agreements NZ has no problem with, except for a few specific requirements that require us to reduce our liberties to trade (i.e adopting U.S IP standards) that are the trade off for incremental increase in access to other markets.

Brian writes...

The truth is that there are positives and negatives and different people balance them differently. 

...and I balance the IP related trade-offs heavily against our interests.

But I find the argument made in this column that it's too late, considering the broader implications, to reasonably ask our government to withdraw, quite strong and depressingly grounded in real politik.

by Andrew R on February 02, 2016
Andrew R

What you are effctively arguing Brian is that we have to give up our sovereign choice to stay a member of the club of sovereign nations involved in trade deals.

Well I say tear that temple down.

by Murray Grimwood on February 03, 2016
Murray Grimwood

Chuckle. The temple is busy falling down for overriding reasons.

The effects of which are just making the current business-as-usual winners ever-more pressured and therefore ever-more pressuring.

It's a discussion about deckchairs on a sloping deck, though. It appears the global system is wobbling like a slowing spinning-top; we are on the cusp of a rapid reversion to localism when the top topples. Rendering global issues in the direction of irrelevant.

Sue Bradford was interesting to hear this morning; still wanting trade and still wanting to eliminate 'poverty'. Somewhat like wanting to unlock the steerage passengers; laudably altruistic but doomed to failure by morning. The corporates, of course, are bent on hogging the still-dry parts of the ship, and will no doubt go on to monopolise the lifeboats.

Good article, interesting times.

by Rich on February 03, 2016

Why would the major economic blocs agree to losing their right to subsidise agricultural exports?

Europeans nearly starved in WW2 due to their pre-war dependence on imported food that could no longer be shipped. The archaic US system, as you might have just noticed, gives an Iowan farmer way more political influence than a Californian tech worker. And Japan has a visceral attachment to it's agricultural sector.

They aren't going to drop the rules that preserve that - especially when they have pretty much got global access for their exports anyway. 

by Petone on February 03, 2016

I get the feeling I have read this argument before.

Ah.. yes, I have!  Over here at the Dimpost.  It's just that the conclusion is 180 degrees different.

by Brian Easton on February 06, 2016
Brian Easton

Thank you, Andrew for the clarifications. My understandings is that we have some room to moanouvere in the implentation of them.


Fentex: ‘The argument that NZ pulling out now would hurt our broader interests by an apparent reneging sowing anger and distrust is, I think, an argument against the manner in which the TPP was negotiated.’

I agree that the government has handled the domestic dimension of the TPP negotiations very badly – and is continuing to do so.


Andrew R: ‘What you are effective arguing Brian is that we have to give up our sovereign choice to stay a member of the club of sovereign nations involved in trade deals. Well I say tear that temple down.’

I do not think we are big enough, Andrew, to ‘pull the temple down’. At best we could leave by a side door. That could be costly. For instance, we have had favourable WTO rulings in regard to apple access to Australia and lamb access to the US – in each case a larger power was bullying us. Presumably there are other cases which the bullies did not go that far because of our trade agreements with the WTO enforcement.


Thankyou, Murray.


The fact of the matter, Rich, is that the international barriers to our farm products have been falling slowly but (too) many remain. My impression is that the ‘governments’ are not too fussed about abolishing them in principle, but they bow to domestic political pressures which favour protecting their self-interests at the cost to everyone else.

On the question of food security, I support the FAO view that a world without barriers to agricultural trade would be more food secure – able to respond to local supply outages – than one which reduces the flexibility by external barriers to supply. I have wondered whether New Zealand ought to pursue an international food security agreement in which partner countries would eliminate barriers in exchange for measures which would improve their access to international food supplies during local crises. A useful adjunct would be that agreement partners would agree not to restrict food supplies as a political sanction (and, personally, I would add pharmaceuticals – what happened in Iraq was pretty horrible).


Actually, Petone, Dimpost and I are referring to quite different phenomenon. As Danyl points out the Prime Minister has a proclivity for going into international negotiations claiming he would bring home results which he cannot and does not deliver. Of the ones I know about, his advisors must surely told him that he was not going to get his demands. I don’t know why he tells the journalists such things because it makes him seem to be a very inept international negotiator.

However some of the demands he made during TPP negotiators were much more calculated. I do not think he ever said we had a bottom line of zero barriers for dairy products although that was certainly our ideal. He did say that we would walk out of the TPP negotiations if we did not get substantial improvements in dairy access and we got some. (We were not alone in not getting our ideal; the US got neither its ideal in intellectual property nor in investment state dispute systems.)

But suppose you are right, Petone. That would demonstrate exactly a point made in the column. Two people with identical assessments of the facts could come to different policy conclusions because they weighted the good and bad differently.

by Petone on February 12, 2016

I'm not sure which post of Danyl's that you are referring to, but the one I am referring to is not about the Prime Minister "going into international negotiations claiming he would bring home results which he cannot and does not deliver".  It is about how "our punditocracy gets very excited and explains that these relationships are very valuable at the international level".  I think the likes of the chair of the WTO agricultural committee, whilst not being filled by John Key,  is one of these relationships and so I think it is the same phenomenon being talked about.  Whether or not that particular relationship really is valuable, I have no idea.

I agree the different conclusions here do demonstrate that two people can come to different policy conclusions on the same issue, but that is not at all to say they can come to different conclusions on identical assessments of the facts.  TPPA facts are hard to come by.  They have been kept confidential (except to powerful parties who may benefit at the expense of everyone else), obscured (eg the wording on biologics), ignored (eg much of the 'bads' don't appear at all in the government's CBA),  or dismissed (eg Josie Pagani describing evidence of abuse of the ISDS process as "hysterical scare mongering").  The process has been the opposite ot confidence inspiring.

Anyway, this is still a good article and makes some good points, thank you.  Its just a pity we haven't been allowed informed debate years before it was presented as a fait accompli.





by Hugh Thorpe on February 28, 2016
Hugh Thorpe

This is not an original thought but one made by Naomi Klein in her book "This Changes Everything" on climate change.  In it she notes that the TTPA means more trade, therefore more production, transportation and consumption inevitably leading to greater greenhouse gas emissions.

Obviously, this is the exact opposite of what the assembled nations agreed to work towards in Paris last December.

Which is the more critical?

by mark skelding on March 04, 2016
mark skelding

its interesting that many of us are concerned that the TPP will undermine our sense of being our own masters, as it were, due to being enrolled in the international compact.  in that regard it is very like climate change itself, which is no respecter of independent nations.  Probably my primary concerns in regard TPP are, firstly, that any in-country attempts to address environmental/climate concerns could be challenged and thwarted and, secondly, that further possibilities for a socio-cultural emergence to realise the potential of the Treaty may be distorted or limited by our commitment.

It seems to me that (unless it was written over several decades by bureaucrats kept locked in mountain cells on a desert island under a dome on Mars) the document must be quite deliberate in not mentioning climate change in any of its 6,000 pages.  To my mind, this TPP document is an ideal place to lay out a draft of climate related values and objectives that international business would and can subscribe to.  I don't think we should ratify it until it is finished - or, if we do, we should ratify it as unfinsihed document that will not take effect in New Zealand until the TPP section on climate, species loss, and soil degradation is complete.

Furthermore, it should also refer to the a priori rights of indigenous people of any nation, and acknowledge that where there is an historic, foundational document like the Treaty that seeks to guarantee the rights, responsibilites and freedoms of parties in a land, that this document should be seen as a limitation on the TPP agreement, and companies wishing to do extensive business in New Zealand be encouraged to issue statements recognising the Treaty.

We worry that national concerns will be over-ridden by an international agreement.  Perhaps, in our connected, global world, the future will see national and regional interests and concerns written into such agreements, so that they are held, respected and protected on a bigger stage.  

Several commentators in this thread have noted that its very difficult not to be "in" the game.  Although I have tended to be of the opinion that out may be better than in, I am today wondering how such international agreements can be used to raise up the values and standards for which participating nations would like to stand.  Maybe these agreements need not drag us all down to a lowest common denominator, but, rather, be a mechanism to raise the bar all round.

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