Wednesday, 18 April 2018

How to achieve a progressive and inclusive trade agreement with the CPTPP


The following post is my paper to the NZ Parliament Foreign Affairs Defence and Trade select committee in respect to the Comprehensive and Progressive Agreement on Trans Pacific Partnership (CPTPP) treaty examination.
The close off for public input was 18 April 2018. Many associates also placed evidence with the committee. The committee will hold hearings on CPTPP in the coming weeks. 
I intend to present in person. I'll add whatever I say on that occasion in a subsequent post. 
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Wednesday 18 April 2018
Greg Rzesniowiecki


To: Foreign Affairs Defence and Trade Select Committee
Subject: FADT CPTPP treaty examination: How to achieve a progressive and inclusive trade agreement with the Comprehensive and Progressive Agreement on Trans Pacific Partnership (CPTPP)


Greetings FADT members,
Thank you for the opportunity to present evidence on the merits of Comprehensive and Progressive agreement on Trans Pacific Partnership (CPTPP).
The alteration to the logo occurred in the closing moves to bring a politically acceptable agreement to the people of Canada by Canadian Premier Justin Trudeau.
The branding appealed to the just installed Prime Minister of New Zealand and her new Minister For Trade and Export Growth.
Does the reality of the agreement match the promotion and proseletysing of the remarkably reformed TPP is one matter to be despatched.
The former Trade Negotiations Minister Hon Todd McClay one of the members of this select committee congratulated the New Zealand Government upon closing the deal, informing all that there were little difference between TPP and CPTPP.
I agree with the Honourable member's informed opinion. The implication being the name change is merely lipstick - so is the lipstick applied to a pig or a thoroughbred?
Is the TPP/CPTPP trained to survive the track of foreseeable history? Is it bred for purpose?
I attempt an answer herein and trust you take the time to read and attempt to consider my perspective and interest in securing a future that ensures the wellbeing of all.
Given the foregoing and after consideration of the following equation CPTPP more or less equals TPP.
TPP = CPTPP – 22 suspended provisions (US to rejoin the TPP/CPTPP = 22 provisions plus or minus what?)
Accordingly I provide evidence already placed before the FADT committee in relation to the TPP - the linked material is available on the Parliamentary website screen capture image here:


For evidence in respect to the TPP legislation I wrote two papers August 2016.
I wrote the New Zealand Governor General Sir Jerry Matapare (copy to Dame Patsy Reddy) late June 2016 in respect to the merits of TPP. The correspondence places the TPP in a context that requires your consideration where this committee is serious about securing the future for all.
In my April 2016 evidence to the TPP treaty examination I provided a paper entitled, “United States (US) vs Aotearoa NZ Values - Do These Correlate?” It establishes that the United States does not share New Zealand's publicly expressed values. Extrapolating we find that the UK and many European states notably UK France (US-NATO) over the bombing of Syria, and earlier the UK US France NATO inflicted 2011 carnage in Libya hold values that New Zealanders find horrid.
Given recent statements from the progressive NZ Government on the 4 March Skripal and 7 April Douma Syria incidents it appears to be as guilty as any party in rushing to judgement and making public statements about guilt without a shred of evidence.
I use Syria for its current and controversial value - many in the public space are able to collect evidence on the facts of matters well before the political leaders gain a clue as to what is at work in the world – some citizen journalists have ex government careers in diplomacy and intelligence.
Contemporary government statements and mainstream news reporting fails to provide historical context which is necessary for any endeavour to appreciate how this came from that.
We the people suffer as we exist in a den of vipers – the United Kingdom, NZ's mother country and her problem contending with her own deep state and its tendency to hurl dead cats onto the dining room table to advance nefarious agendas and hide the troubles at home demonstrates the problem of relying on foreign and five eyes intelligence sources. Is there a secret society that runs the Western Intelligence services? Why are the people the stakeholders of the state the last to find out about a secret cabal's notion of the greater good?
  1. The resultant intelligence is manipulated, or misrepresented
An astonishing number of people have told him things that I, as Prime Minister in charge of the intelligence services, was never told…. It is an outrage that I and other ministers were told so little.”
  • David Lange, Prime Minister of New Zealand 1984-1989
    ref Nicky Hager: Secret Power 1996
It is increasingly evident that the people of the democracy need access to official information on all government endeavours to root out corrupt ideological positions. Who is it that government protects by the secrecy? How is any conflict between public interest and sectional interest mediated fairly without public involvement. Governments of all colours are prone to over-reach and corrupt practice.
Government cannot be trusted with secret negotiation and discussions as inconvenient facts are dismissed with ideology and corrupt interest holding sway. TPP and CPTPP were negotiated in secrecy – thus they are tarred with the same brush.
The use of the current OIA 1982 legislation to protect unlawful behaviour is anathema to human rights protections and the UN Charter.
NZ Governor General Sir Anand Satyanand 4 July 2009 speech to Australian and New Zealand Society of International Law Conference makes a number of salient points. Below is a screen capture from the Sir Satyanand's speech of his reference of a quote from NZ Prime Minister Peter Fraser's address to the 1945 San Fransisco Conference which helped establish the international world order in the aftermath of World War 2 – the development of the UN Charter. Former Prime Minister Helen Clark references PM Peter Fraser's work in her August 2010 speech, “The UN and New Zealand – Peter Fraser’s Legacy” as new head of the UN Development Programme (UNDP)
Does New Zealand support the values of the UN Charter? Actions speak louder than words.


In addition to offering dry evidence I have been active in the democracy assisting a number of initiatives whose main object is to grow awareness about the TPP implications. One exercise was to promote a discussion in New Zealand's regions where the TPP was offered as a matter for engagement for local government on behalf of their communities. An outcome from that was the adoption of the TPP policy solution by 12 Councils who in their territories represent 60% of the New Zealand population. A substantial mandate for the principles contained.
TPP is about New Zealand and its relation to the world. As such it is about provisioning the future.
What assessments has New Zealand made about the future and our place in it?
I note the “Trade for All” theme offered on the MFAT website and note the thrust toward 'including civil society interests' in the considerations.
Who doesn't agree? Anyone?
The Government's initiative to consult on Trade policy is moot and ephemeral as the commencement date of the consultation is kicked down the road. Minister for Trade and Export Growth David Parker stating in respect to the New Progressive and Inclusive Trade Agenda (NPITA), “Consultations on the progressive Trade for All agenda will start in the coming months.
In the meantime the CPTPP and more are advanced without the benefit of the NZ universal NPITA discourse – I fear the TPP/MAI (Multilateral Agreement on Investment) agenda will colour the discussion and the ambition of any democratising and civilising NPITA outcome. Green MP Golriz Ghahraman makes the point eloquently in her contribution to the 28 February 2018 CPTPP debate. That debate arose account public pressure to democratise treaty making – the Standing Orders committee recommended minimal alteration to Parliament's Standing Orders on International Treaties.
I've launched a new initiative at NZ's 78 councils and their Long Term Plans. It will dovetail with NPITA providing the regions with an incentive to enliven the discourse about treaty making and how it fits with the purposes of the nation state. The email was sent to councils just before Easter on 27 and 28 March.
  • democratic governance
  • trade and investment treaty making
  • constituency wellbeing
  • sustainable economics

  • Constituency Wellbeing
The four recommendations have gained traction as the Labour NZ First coalition Government has picked up our third recommendation - adopting Paul Eagle's members bill as a Government Bill the "Local Government (Community Well-being) Amendment Bill" on 5 April with it's First Reading Wednesday 11 April – It's now before the select committee for consideration who report 11 October. One recommendation down and three to go.

  • Democratic Governance
The paper to local government is generic and applies in respect to any trade and investment partnership New Zealand might negotiate; CPTPP, Pacific Alliance, RCEP, China NZ FTA renegotiation, EU, UK, Russian customs union etc.
Human and ecological rights provisions are of a higher order of law than mere property rights.
I assert this is the Law. Do you agree?
This point is of critical importance where any trade and investment treaty is to be considered comprehensive and progressive otherwise what do the words mean? Progressive can mean movement toward any object – what is the progressive CPTPP objective that is being hi-lighted?
When will the people be able to impact NZ's trade and investment treaty agenda – only in a few months when the Government has moved on the many trade negotiations already in train?
What effect will NPITA have where the un-progressive trains have all left the station on the wrong track?
My work is focused on, “looking forward to ensure any outcome promotes the wellbeing of all.”
First recommendation for local government to accept are the 23 principles offered by Alfred de Zayas on International Order.
These principles have international law and the UN Charter as their ground. They identify the priorities for any lawful consideration where the interests of the community or the environment are threatened adversely by property interests. That is the standing in the International Law – I do not see why NZ ought overturn the status quo in its commercial trade negotiations where the agreements are framed as progressive. Progress to what – the roll back of international law?

  • Trade and Investment Treaty Making
As a line in the sand, I offer Recommendation #2 the www.dontdoit.nz petition for its value in proposing a new standard for trade and investment treaty negotiation. I sense that it dovetails nicely with the NZ Government's NPITA principles.
FADT Recommendation A
that the Parliament/Government instruct MFAT to expedite public consideration of the NPITA package and bring the resultant publicly agreed content to the CPTPP partners for discussion and agreement before any new entrants are considered.
FADT Recommendation B
that the NPITA standard be applied as New Zealand's negotiating position in respect to the entry of another nation as partner or any review of the CPTPP.
FADT Recommendation C
that the Parliament/Government promote the publicly agreed NPITA model in all treaty negotiations.


E Commerce and data security
The intersection of Intelligence and Security organisations with the Western Powers Deep State is of profound interest to the democracy.
Revelations highlight the ruthless who gained our trust with false promises and would use any means to disrupt the ordinary functioning of democratic process for profit or nefarious purpose. Notwithstanding those who act creatively whether Cambridge Analytica, the London Train and Bali Bombing perpetrators or the creative genius that opened the millenium with the largest false flag production in history. The Global War on Terror (GWOT) has been a $7trillion bonanza for militarism, intelligence and security.
The 9/11 event might have been perpetrated for a 'greater good'. Who gained from the fallout?
The Cambridge Analytica election hack is merely a symptom of the decadent nature of the modern state and it's deep influencers.
The evidence paper to local government touches on the Cambridge Analytica election hack to make the point about E-Commerce and the UK Skripal poisoning in order to make points about the need for transparency in all areas of government activity.
The paper to local government also makes the connection between closed systems allowing corruption to flourish.
In closed systems privileged information (protected against Official Information Act OIA 1982 disclosure) appears to favour the interests of the war party.
Over the past few years I have asked a series of questions about international relations and foreign policy decisions of the NZ Government. Rarely have I received a straight answer.
Where offered retraction and apology after false accusation can never undo the damage caused by false statement. Image of my OIA questions of 19 March 2018 re Skripal


The Department of Prime Minister and Cabinet provided their considered response to my Skripal questions Wednesday 18 April which provides no answer to any of the questions.
It becomes clear that credible intelligence is not shared by Government with the people. One gains more through discriminating research through available public information.
This confirms that government can utter false accusations with impunity and there's little recourse available to fact-check through official information requests and searches where one wishes for timely turnaround to avoid escalating aggression.
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I am working on a paper which will contribute my thoughts 'on the intersection of trade foreign relations, international affairs, law, and the tendency to wage war.' I will provide it to the FADT committee asap.
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General observations
I encourage a relaxation of Intellectual Property rights to allow for a innovative economy.
A return to the standard embodied in the Statute of Anne is appropriate.
Geopolitics: trade and the war party – transparency required if we are to build trust and create peace
New Zealand's economy is small and has traditionally relied on its nimble fleetness of foot to navigate the vagaries of international affairs commerce and geopolitics.
Recall the historic lesson and consider a decadent US challenged by a professional and business like China. The tussle for top dog.
The need across the global chess board is to achieve a new balance - the issue for NZ is "what is the ethical underpinning to any new order?"
The war party are organised and thrive in the elitist capitalist system, a system NZ appear to be entrenching in TPP/CPTPP etc.
The local government paper is a fair bit to chew on, and some councils might say it is outside their remit - a few did in 2014 when we launched the TPP policy solution most did not. It is well within the Overton Window of the FADT committee given you deal with intelligence.
New Zealand's Councillors rely on the lies offered by the Western mainstream media where they are not able or motivated to research and fact check for their own critical thinking. A big task these days.
Imagine an active NZ Government fact based resource updating the nation with accurate reports on global events.
It would have a remarkable effect on the tone of NZ political discourse, and would have a staggering effect on the global narrative.
An end to fake news and false flags?

  • Sustainable Economics
I urge the committee to find time to read and consider Kate Raworth's “Doughnut Economics” as a framework for thinking about economics in the 21st century given that the challenges we face this century are global in scale whilst local and regional in solution. We need a different mindset from the economics of the past if we are to viably approach these challenges and prosper.
There are more ideas in the public space with New Zealand considering the future of work, taxes and more thoughts on financing government. It is time to loosen the shackles the money cabal imposes on an otherwise sovereign government to do as it ought.

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Two papers on matters that relate:
Additional concern about entrenching neoliberalism with CPTPP, Pacific Alliance and more FTAs arising from two (2) NZ Government consultations. There are more as every matter is connected.
I offered the NZ Government 2 additional papers which have overlap with CPTPP and the trade and investment agreement agenda;
1. On government's Climate Change priorities for the next UNFCCC round:
Which discusses the enforceability of climate action and public policy. There's plenty who know what we need to do. What is clearly missing is uncompromising political will to make it happen!
Government ability to regulate for effective climate action is undermined by trade and investment treaties with ISDS property rights protection for foreign investors.
Critical to good policy and it's implementation is the the legislative freedom to make laws that are unable to be challenged by interests keen on maintaining business as usual.
I further discuss the notion of climate clubs and recommend we include these in all negotiations whether commenced or concieved. I hear that the matter was raised by the New Zealand negotiators at a point in the TPP discussions however it was rejected by the US negotiators - so no real commitment to Climate Action looks likely from NZ's political ally the US.
I recommend that the concept of Climate Clubs be included in all FTA negotiations and the NPITA consideration.
2. On the Child Poverty Reduction Bill - dropbox file:
I focus on the connection between child poverty and government's public policy settings. There's plenty who know what we need to do to ensure the wellbeing of children – they've been ignored for decades.
What has clearly been missing is uncompromising political will to make it happen - that is introduce distributive settings which ensure the consequent wellbeing of all NZ inhabitants including children!
Every event and policy or regulatory setting that affects the community, affects the child located within it. The reality of an increasingly disrupted future from natural and synthetic causes will impact children. What is certain is that children rely on their parents and carers to navigate the future on their behalf. The broader community and the Government have a role in providing a nurturing environment.

In the Climate Change and Child Poverty papers I underline the systemic problem where a state ties it's hands with the trade and investment treaty.
I recommend the Alfred de Zayas 23 Principles for an equitable order, and the www.dontdoit.nz petition for the process toward progressive and fair trade.

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I intend to appear to present to the FADT committee hearing evidence on “the merits of the CPTPP for the New Zealand commonwealth.”


Yours faithfully
Greg Rzesniowiecki

Wednesday, 28 March 2018

2018 Local Government long term plan (LTP) - Four_Recommendations_For_Good _Governance

The following cover letter and evidence paper were circulated via email to NZ's 78 Territorial Authorities and Regional Councils with a courtesy copy to Local Government New Zealand (LGNZ) dated Tuesday 27 March.
We requested Councils consider 4 initiatives in current long term plans; on democratic governance, trade and investment treaty making, constituency well-being, and sustainable economics.
The process for public input to your Council's LTP is open now, however, Auckland closed their public submission process 28 March 2018. Most are open or about to for public input.
Your council's email contacts can be found through the Department of Internal Affairs website. Most Council's LTP consultations are listed on the NZ Government Consultation webpage.
We made a previous approach to Councils in 2014, which resulted in a number of councils adopting the TPP Policy Solution. Additional councils carried statements of concern in their own words and many councils noted or otherwise maintained an active interest in the TPP negotiations.
A benefit of this initiative, is that the discussions within the structures of the democracy are tested and move as a result of pressure and critique. All this requires transparency of government discourse, information and openness to good ideas. Where we know what is happening in government the democracy is provided with a factual ground for a rational discussion and decision making. 
Only at that moment, are the relative powers and interests balanced by the democratic voice of reason. That is the aim of civilisation and enlightenment. Till then power is the dominant force.
The recommendations we've suggested to Local Government are outlined in the cover letter and fully explained in the paper.
The key recommendation concerning TPP/CPTPP is for Councils to endorse the parliamentary petition www.dontdoit.nz  particularly for its value in highlighting a democratic process for the development, negotiation, consultation, signing and ratification of trade and investment treaties, irrespective of the merits of TPP/CPTPP. 
Whilst CPTPP is Signed, it requires Ratification. Finally the legislation must be crowned with the Governor General's Assent. Six nations must Ratify for it to come into force.
As with anything it ain't over till a certain character sings.

Quirky world - it's been Trumped once... ultimate trickster. Predict his next move!  :)

What will the US Trade Representative (USTR) extract from the eager Partners where the scheme plays out?
Add CPTPP (with US?) to RCEP (China, India, Aus, NZ and ASEAN), TTIP (EU US FTA). There's already Pan American agreements including NAFTA under renegotiation. NZ and Australia with Canada and Singapore are negotiating partnership to the Pacific Alliance which is 4 South American nations.
Add Pan Pacific Europe aspirations - Australia and New Zealand are talking to the EU and UK whatever happens with Brexit.
These treaties systemically entrench property rights over human, community, and ecological rights. The result is an coup outside of national or democratic politics - the treaty is shoved down the throats of the democracy.
The sovereign state democracy (the nation's inhabitants) is not asked whether it wishes to participate in the rape of Public Interest law.
The result is similar to the already defeated MAI (Multilateral Agreement on Investment) who's promoters sought to entrench and extend property rights beyond their scope in domestic and international law through a global charter for investors.
October 2018 marks the 20 year anniversary of it's trumping by people power after the MAI text was leaked and publicised.
The trade and investment treaty agenda serve a particular global acquisitive interest's purpose. The domestic democracy is usurped incrementally and in plain sight - that is for those that can see.

How to roll it back? Not by vacating the field.
Engage in the democracy and fight it out!
*if software developers in diverse businesses find it best to collaborate, why does economics 101 say the opposite?

The cover letter...
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27 March 2018

To: All NZ Territorial Authorities and Regional Councils

Subject: For consideration in your 2018 Annual Plan and/or Long Term Plan

Greetings Mayor, Councillors and Staff,
We write as engaged citizens in the New Zealand democracy. Previously in 2014 we wrote to you concerning the Trans Pacific Partnership (TPP) on behalf of the Motueka Renewables where we proposed the TPP Policy Solution. Arising from that a number of Councils engaged with the TPP matter and ultimately 12 Councils adopted the offered policy, many more noted and maintained a watching brief on the negotiations. Presentations were made to over 30 Councils some receiving presentations in multiple forums; workshop, committee and council.
It is fair to say a few councils stated that TPP is not a council matter, however most took an active interest and thanked us for bringing it to their attention.
In the later part of 2015 LGNZ (Local Government NZ) undertook an assessment on behalf of constituents. The resultant report concluded there were some risks to local government interests and some were down the track.
We suggest that trade negotiations are of critical importance to all New Zealanders given the constitutional implications which alter the legal balance between human and property interests and rights.
The TPP has been through a tumultuous process, agreed and signed 4 February 2016, then Trumped January 2017. Since then the remaining 11 nations have negotiated a new agreement signed 8 March 2018 in Chile called Comprehensive and Progressive Agreement on the Trans Pacific Partnership (CPTPP). It is substantially the same agreement with 22 suspended provisions pending the return of the United States (US). Civil Society maintain our concern believing that the entrenchment and extension of property rights for foreign corporations will make it difficult for the NZ Government to ensure the wellbeing of all inhabitants.
All councils will now appreciate the public concern for clean rivers, quality potable water and indignation at allocations from acquifers for bottled water exporters. Whatever your council's attitude, it is acknowledged by Trade Minister Parker that CPTPP would disallow a tax on exported water as it is deemed discrimatory under the CPTPP regime.
With regard to Air NZ – Shane Jones public spat regarding regional air services - the State Owned Enterprises (SOE) Chapter 17 of CPTPP, highlights the government must ensure that Air NZ operates on a purely commercial basis when delivering domestic services unless it has issued a public mandate for it to do otherwise. It's great that regional Mayors are proactive on behalf of their regions and provincial cities. Parliament is displaying bipartisan support for Jones' stance. There's no way the NZ Government has anticipated every angle before locking NZ into CPTPP.
The attached paper also deals with the unfolding Facebook Cambridge Analytics election hacking scandal which demonstrates the dilemma of losing control of one's personal data – the CPTPP E-Commerce Chapter guarantees that the NZ Government will be powerless to prevent misuse of data as NZ will not have any legal right to demand that data is retained in NZ.
CPTPP imposes many constraints on NZ governance, entrenches corporation rights (ISDS) and leaves NZ exposed to whatever amendments are negotiated upon the return of the US which appears likely given statements from their corporate sector.
LGNZ Conference this year is in Christchurch from 15-17 July 2018.
The 2018 conference theme is;
We are firmly focused on the future: Future-proofing for a prosperous and vibrant New Zealand. There will be a strong focus on leadership and addressing the big challenges and opportunities facing New Zealand and its communities.
Question to LGNZ - How does TPP/CPTPP future proof NZ?
We wish you well in your deliberations.
Please consider the attached evidence paper and recommendations for your 2018 Annual Plan and Long Term Planning processes.
We offer four specific recommendations (detail in the attached paper);
Recommendation #1 (page 13 attachment)
We suggest that the Council considers formally supporting the 23 principles offered by Alfred de Zayas in his paper to the UNHRC (A/HRC/37/63) in which he "highlights the urgent need to apply human rights principles systematically and uniformly to all entities and endeavours."
De Zayas states “What we see is a financial system rigged in favour of powerful individuals and corporations, unequal participation in governments and international organisations, and communities suffering from a reduction of social services, imposed austerity, privatization of public utilities, the misplaced priorities of political leaders and a general absence of genuine representation,” - UN Human Rights High Commission press release
Recommendation #2 (page 20 attachment)
Given that de Zayas states “Especially in matters of trade, it is imperative to give all stakeholders the opportunity to weigh in the negotiations so as to ensure transparency and accountability,” we urge Council to endorse the model trade and investment treaty process offered in the www.dontdoit.nz petition
The petition takes the government at it's word where it said to the NZ Parliament in the Speech From The Throne 9 November 2017 that it will exclude investor state dispute mechanisms (from TPP) and avoid their inclusion in all future agreements. The petition acknowledges the Labour Party 2017 Trade election manifesto where it offers “Greater engagement with civil society over trade talks” suggesting a democratic process toward a standing general mandate for New Zealand’s future negotiations to guide NZ's trade negotiators.
Recommendation #3 (page 21 attachment)
We urge the council to support the Local Government (Four Well-beings) Amendment Bill which amends the Local Government Act (LGA) 2002 to reinstate references to social, economic, environmental, and cultural well-being that were removed by the National government in 2012.
The “four well-beings” were a cornerstone of the LGA 2002 when it was introduced. The “four well-beings” provide the modern focus of local government on serving and being accountable to the communities they serve. It highlights the constitutional role that local governments play in community development and nation building.
Recommendation #4 (page 23 attachment)
We urge you to read and consider Kate Raworth's “Doughnut Economics” as a framework for thinking about economics in the 21st century given that the challenges we are facing this century are global in scale but local in solution and we need a different mindset from the economics of the past if we are to viably approach these challenges.

Many thanks for your consideration.
Greg Rzesniowiecki (on behalf of many in civil society)
Ends

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Evidence paper Tuesday 27 March 2018  

NZ on the cusp of greatness - we make the case for action to ensure ethical governance in New Zealand

Evidence paper to NZ Regional Councils and Territorial Authorities March 2018


The TPP has been through a tumultuous process, agreed and signed 4 February 2016, then Trumped January 2017.
The remaining 11 nations negotiated a new agreement signed 8 March 2018 in Chile called Comprehensive and Progressive Agreement on the Trans Pacific Partnership (CPTPP). It is substantially the same agreement with 22 suspended provisions pending the return of the US.
The likelyhood of the US rejoining the TPP is increasing with a number of pronouncements from Administration officials.
The developing trade war prompted by US tariff increases on Steel and Alluminium imports requires careful consideration. The tariffs are directed at the US trading deficit with China. The US has maintained a trade surplus with NZ over the past several years of NZ – US trade.
New Zealand is active in trade and investment treaty negotiations with a number of nations and blocs.
Civil Society opposition to trade and investment treaties centres on several key concerns;
  • Secrecy of negotiations and negotiating mandate
  • Executive/Crown perogative to treat with foreign powers without civil society consultation - then retrospectively legislate the agreement as a fait accompli
  • Entrenchment of property rights as superior to human, community and ecological rights
  • Entrenchment and enforcement of investor property rights through the advance grant of Investment State Dispute Settlement (ISDS) protection
  • ISDS provides greater rights to foreign investors than domestic investors and businesses
  • Trade treaties conflict with states’ obligations in other international agreements, including those protecting human rights, labour standards and the environment
  • Impinge on Māori rights in respect to te Tiriti o Waitangi
  • Limit the ability of Local Government to make decisions for the wellbeing of their constituency
  • Trade treaties confer new monopoly rights over the use and distribution of knowledge and the digital domain or commons.
The duty of government
GENEVA (15 March 2018) – Alfred de Zayas the UN’s first Independent Expert on the promotion of a democratic and equitable international order, shared his seventh and final thematic report to the Human Rights Council at an event on the margins of the Council’s 37th session.
We suggest that the Council considers formally supporting the 23 principles offered by Alfred de Zayas in his paper to the UNHRC (A/HRC/37/63) in which he "highlights the urgent need to apply human rights principles systematically and uniformly to all entities and endeavours."
De Zayas states “What we see is a financial system rigged in favour of powerful individuals and corporations, unequal participation in governments and international organisations, and communities suffering from a reduction of social services, imposed austerity, privatization of public utilities, the misplaced priorities of political leaders and a general absence of genuine representation,” - UN Human Rights High Commission press release. Image of front matter;


From the media release;
In his full report* – based on six years of work on the mandate – the Independent Expert identifies 23 principles of international order which should guide all individuals and institutions to achieve a more just and inclusive world. Among them, he highlights the supremacy of the UN Charter over all other treaties, the validity of the human rights treaty regime over commercial and other interests, and the inviolability of State sovereignty. “Moreover, any and all exercise of power, especially economic power, must be subject to some democratic controls,” said de Zayas.
On the nature of the global order and how it is directed
Alfred de Zayas' purpose promoting a democratic and equitable international order is undermined by the actions of those who would hack elections for sectarian ends. Global news media are reporting the Facebook Cambridge Analytics scandal through late March 2018.
Some investigative journalists highlighted the concern late last year, notably Dr. Nafeez Ahmed who offered this prophetic advice in December 2017;
What do NATO, private military contractors, aerospace firms, wine merchants, the NSA, Trump, British property tycoons, Russian oligarchs, and Big Oil have in common? The world’s largest social network.
Imagine a world in which everybody gave away their freedom, willingly, in return for belonging to a toxic network which, rather than enriching their lives, profited from eroding civil discourse, polarizing communities, and manipulating their minds.
Wouldn’t you wonder what was wrong with these people? You would.
And yet that is the world you are about to inhabit, right now.
Unless you do something about it.
Many individuals and organisations use facebook for it's benefit as a connector, however, where we connect with community building, commerce, social enterprise, family, causes and movement in the democracy, Facebook will be mining our data for end user utility and profit. In the case of Cambridge Analytica through unethical and likely unlawful means.
It is only through exposure of the Cambridge Analytica scandal that Facebook CEO Mark Zuckerberg has announced that he will be reviewing the way his operation does business. It is notable that when Facebook commenced operation Zuckerberg committed to the principle that people who joined would control their data. Here it is demonstated that trust is built on a track record, not on blind faith that a person will honour their word.
The CPTPP E-Commerce chapter becomes crucial to the question, “who directs and benefits from one's data?”
The owners of the data and large E-Commerce corporations are excited about CPTPP's E-Commerce Chapter and seeks to spread it to NAFTA and around the World. What is good for them is not necessarily good for democracy and ordinary people's interests.
Nz's Privacy Commission offers advice in respect to the CPTPP privacy concerns which gained a comment from Eugene Alfred Morgan-Coakle capture on the quality of trust;


In the meantime democracy and human rights to privacy is under threat in a new piece of legislation passed by the US Congress and signed by President Trump Friday 23 March 2018 called the Cloud Act. It passed through both houses attached to a spending bill. Electronic Frontier Foundation (EFF) makes the following observations about the Cloud Act's implications.
There’s a new, proposed backdoor to our data, which would bypass our Fourth Amendment protections to communications privacy. It is built into a dangerous bill called the CLOUD Act, which would allow police at home and abroad to seize cross-border data without following the privacy rules where the data is stored.
This backdoor is an insidious method for accessing our emails, our chat logs, our online videos and photos, and our private moments shared online between one another. This backdoor would deny us meaningful judicial review and the privacy protections embedded in our Constitution.
This new backdoor for cross-border data mirrors another backdoor under Section 702 of the FISA Amendments Act, an invasive NSA surveillance authority for foreign intelligence gathering. That law, recently reauthorized and expanded by Congress for another six years, gives U.S. intelligence agencies, including the NSA, FBI, and CIA, the ability to search, read, and share our private electronic messages without first obtaining a warrant.
The new backdoor in the CLOUD Act operates much in the same way. U.S. police could obtain Americans’ data, and use it against them, without complying with the Fourth Amendment.
All of which has serious implications for NZ data security and personal privacy where data is stored outside of New Zealand, with or without the US in CPTPP. US internet corporations Apple, Google, Facebook, Amazon and more store our data on US servers or overseas.
How stable and secure are these platforms given they rely on public confidence to maintain their share price and corporate value? The Herald ran a story 19 March 2018, “Why the tech bubble is ready to burst” a few days before the markets took vengance on the Facebook share price over election hacking, stripping over US$60billion from the value of the stock. Bubbles invariably burst with unpredictable results – 2008 Great Financial Crisis (GFC) is one recent example.
Who to trust
Increasingly it appears that one's data is being employed to support interests that one is opposed to. Where one loses ownership of one's data, one loses the right to limit its reproduction and use.
No sane democrat wants future local body or NZ general elections to be determined by who is most clever with data manipulation. We cannot allow our democracy to be hacked. Due Diligence demands counter measure planning, to ensure electoral integrity given we are a democracy.
It is of note that the GCSB's role is to protect the NZ Internet space in that it protects certain traffic to facilitate secure communications for NZ Government and selected commerce or NGO operations. One would think the electoral system in a nation would be worth protecting from hacking.
Surely the NZ Echelon partners at the US NSA or the UK GCHQ would be capable to detect election hacking and close it down.
If US intelligence services did detect the Facebook-Cambridge Analytics election hack - they didn't do the democracy any service by thwarting the coup that resulted. Cambridge Analytics parent company is SCL Group is linked to elite personalities in the UK and US establishment with Security and Intelligence connections. This fact might explain why the UK and US Intelligence Services were thwarted from or reluctant to protect their realms. UK and US regulators are moving on the matter with Zuckerberg facing question in the US. NZ Justice Minister Andrew Little coincidentally has announced a review of NZ's Privacy Laws, with the Privacy Commissioner calling for fines for breaches of up to $1million.
Given the level of supposed surveillance it is a puzzle that the breaches are only discovered after the horse has bolted. What tricks will those who desire to hack elections dream up for the next round of ballots?
One question for the NZ Government and its intelligence services, is the degree to which Cambridge Analytics, SCL Group or any other are tampering with or hacking NZ's electoral system.
Local Government has a Duty of Care to ensure integrity of their electoral process
Democracy elections and democratic practice is the basis for the NZ Sovereign State and as such it is integral to the State's existence.
Hacking elections, disseminating fake news, lack of transparency, and deep state interest, threaten the integrity of the democratic process, and call into question the validity of government formation - all of which undermines state cohesion and creates ground for unecessary internal dissent.
British humanist, philosopher, public intellectual and prolific author AC Grayling lectured at the NZ Festival in Wellington the talk theme, “With dirty politics, authoritarian leaders and the simultaneous rise of populism rampant across the planet, what can individuals do to preserve democracy, the “least worst” system of government?” Grayling lays bare the specific problems of 21st-century democracy in his new book Democracy and Its Crisis.
AC Grayling suggests that given the Cambridge Analytics hack of the Brexit Referendum, the result is no longer valid, “We were conned.. and now we need a new referendum” is his response to the hacking of the UK electoral process.
Electronic Ballots – how secure?
NZ is discussing electronic voting on ballots that are machine readable. Is that wise from the perspective of integrity and trust in the process, whether it has been manipulted or otherwise? Why rely on trust, when we can be secure and transparent? It is imperative that we design integrity into our democratic process.
Elections can be gamed - it's all in the code
Clinton Curtis testifies to a US Senate panel that he was asked by Yang Corporation to write code to manipulate a Diebold Vote Counting machine in time for the 2000 Bush Gore Election. Curtis demonstrates that the Florida State vote of the Bush 2000 election was gamed! Politics US style.
US and Dutch scientists ask “Are we witnessing a dishonest election? A between state comparison based on the used voting procedures of the 2016 Democratic Party Primary for the Presidency of the United States of America.” They compared ballots from the 2016 Democrat Primary race between Hillary Clinton and Bernie Sanders and found a curious correlation; Where there was a paper receipt the ballots went to Sanders, whereas those that were only electronic went to Clinton!
On the Deep-State
A majority of the American public believe that the U.S. government engages in widespread monitoring of its own citizens and worry that the U.S. government could be invading their own privacy. The Monmouth University Poll finds a large bipartisan majority who feel that national policy is being manipulated or directed by a “Deep State” of unelected government officials.
Deep-State enemy of choice
The issue of 'Russian hacking' of the US election is of note particularly given the US record of interference in other nations' affairs, elections, to the point of initiating coups and wars for regime change. We do not seek to justify any meddling in the affairs of sovereign nations. It is a fundamantal principle of the UN Charter - the right to self determination.
The UK is employing similar tactics in its bone pointing toward Russia over the alleged nerve gasing of Sergei and Yulia Skripal in Salisbury 4 March 2018.
Craig Murray ex UK Ambassador and 'former' intelligence asset says there's no evidence to connect the Russians. Craig states he's winning the public discussion as there's no valid counter proposal from supporters of the UK line that Russia dunnit.
It is clear that our allied states, UK, US, Canada and Australia in 5 Eyes or Echelon Spy agreement have made many false accusations on the back of 'false or no evidence' – 2003 Iraq War on the basis of Weapons of Mass Destruction (WMD) being one large publicly known lie.
We know that internal processes are insufficiently powerful to correct intelligence services and the government ministers' utterances, prior to declarations of foreign policy intent and war-making.
The tendency to 'lie about the facts' indicates an ideological perspective, that isn't above systemically concoting evidence to support the 'club effort against the declared enemy'. The party interest is known as the Military and Industrial Complex – which utilise the security state to create tension and then profit from it through supplying the materials to conduct the resultant hostilities.
The NZ Afghanistan Hit and Run scandal uncovered by John Stevenson and Nicky Hager in their Hit and Run book highlight NZ involvement and complicity in War Crimes for Empire.
The UK Prime Minister Tony Blair lied to the world about weapons of mass destruction (WMD) in Iraq in order to advance the Iraq War on the basis of false intelligence. The Iraq war is credited with the murder of up to a million people and the displacement of many more, both internally and into neighbouring nations as well as hundreds of thousands to Europe and many to Oceania – the globalised impacts of modern war are far reaching.
It is very apparent that Secretive Intelligence agencies and deep agendas within the deep-state are corrupting global politics through a strategy of tension;
The strategy of tension is a method of social control involving a series of covert attacks upon a population, intended to promote stress and fear amongst them. The purpose is, by inducing a mistrust of one another and of the world at large, to increase child-like dependence upon perceived authority figures (such as national governments). The English phrase originates from the Italian (strategia della tensione), which was first applied to Operation Gladio in Italy.
The hate Russia disease appears to have mutated and spread to New Zealand with the Prime Minister making a statement that Russia was to blame without any tangible evidence to support the assertion;
Despite the further details that have emerged since the NZ government statement earlier this week, and despite the international outcry, the Russian reaction has been cynical, sarcastic and inadequate.
There is no plausible alternative explanation hitherto, that this came from anywhere other than Russia, and no doubt whatsoever that Russia has serious questions to answer.
It appears to be the price of the club membership. The question that John Key then a National MP posed to the Clark Government in respect to the 2003 Iraq War makes clear that gaining a Free Trade Agreement with the US depended on New Zealand joining the Criminal Iraq War.
Is joining criminal wars the price that New Zealand wants to pay for its export trade?
Fact: the nexus between trade, foreign affairs, national competition for control of resources and war making. Last words by Stuff's David Armstrong Monday 26 March where he states there's no evidence of Russian involvement in the Skripal case; “Free trade between morality and economic might.”
Deep-state lies to expedite war-making - how to counter the narrative?
To counter this tendency to spread propaganda and lies for sectarian (deep-state) interest it is imperative that the democracy assert control over the state where it is being engaged for nefarious purpose. The point becomes important in the globalised context to ensure all government dealings and relations with individuals, corportations, interests and governments that lead to commercial, contractual, treaty or legislative amendment are open to public scrutiny.
Open Government - Shine light into the workings of Government
The one vehicle which provides a window into Government action is the Official Information Act (OIA) 1982.
Minister for Justice Andrew Little took a question from National MP Brett Hudson 7 December 2017, who asked about Little's proposed review and/or reform of the OIA, Hudson's question, What reform is he planning to make to the Official Information Act 1982?
The NZ Government is yet to formally notify when the public consultation on any OIA reform proposals might occur.
The NZ Law Commission 2010 issues paper, The Public's Right to Know (IP18) discussed areas of possible reform relating to New Zealand’s official information legislation. It sought public comment on preliminary proposals. This Issues Paper is part of the Commission’s Review of the Official Information Act 1982 and Parts 1-6 of the Local Government Official Information and Meetings Act 1987;
The The key principle of the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 is that official information should be made available unless in the particular case there is good reason for withholding it.
Requirements of a functioning democracy
Everyone says that transparency and open access to government information is critical to the maintenance of a well functioning democracy. We need to instrumentalise that to ensure public trust in government processes and decision making.
We have seen repeated instances where governments; local, central, NZ, and global claim privilege for the information they hold in order to stop the public from knowing what is being done in our name, and often without our consent.
Trans Pacific Partnership both as TPP and CPTPP iterations were negotiated in secrecy which was only penetrated by leaks. Where has the NZ democracy sanctioned the government to reach agreements to alter NZ legislation then return to NZ with an Agreement and claim it's in the National Interest to Sign and Ratify it. Commercial privilege is claimed. Where has the NZ democracy said yes to ISDS in trade treaties?
War making – Creating Tension
War is often initiated with false pretense or through the ruse of a staged events - examples;
  • Nazi Germany's Reichstag Fire scapegoat communists 'regime change'
  • US's Gulf of Yonkin non-event that was employed as the ruse for ramping up the Vietnam War against communists 'regime change'
  • Afghanistan - Osama bin Laden and retribution for the 9/11 event - Taliban 'regime change'
  • Iraq - weapons of mass destruction (WMD) and 'regime change'
  • Libya responsibilty to protect and the case against the leader Gaddafi – 'regime change'
  • Syria and the case for 'regime change'
  • UK Salisbury Skripal nerve agent attack – case for attacking Russia = Putin 'regime change'
Each of the listed nations and disputes is informed to the NZ and global population through the statements of national officials and the reporting of the Mainstream News Media.
The public are told in all of the above examples that the security agency reports or the Government statements and acts make the case for an attack on a sovereign nation.
Here is a critique of the hate Russia narrative by a London businessperson;
On 1st March, Vladimir Putin gave his annual address to the Federal Assembly in Moscow.
Unsurprisingly, one segment in particular drew the attention of the western press – the section on defence. Putin described a number of highly advanced weapons systems scheduled to come online over the next few months and years. He explained the necessity for the development of these systems, particularly since George W. Bush’s withdrawal from the ABM treaty in 2002, and went on to describe the parameters within which they would be used. In the passage below, you will see that he alludes to recent statements made by the United States, in which they have asserted their prerogative to make a first nuclear strike:
We are greatly concerned by certain provisions of the revised nuclear posture review, which expand the opportunities for reducing and reduce the threshold for the use of nuclear arms. Behind closed doors, one may say anything to calm down anyone, but we read what is written. And what is written is that this strategy can be put into action in response to conventional arms attacks and even to a cyber-threat.
I should note that our military doctrine says Russia reserves the right to use nuclear weapons solely in response to a nuclear attack, or an attack with other weapons of mass destruction against the country or its allies, or an act of aggression against us with the use of conventional weapons that threaten the very existence of the state. This all is very clear and specific.
As such, I see it is my duty to announce the following. Any use of nuclear weapons against Russia or its allies, weapons of short, medium or any range at all, will be considered as a nuclear attack on this country. Retaliation will be immediate, with all the attendant consequences.
There should be no doubt about this whatsoever. There is no need to create more threats to the world. Instead, let us sit down at the negotiating table and devise together a new and relevant system of international security and sustainable development for human civilisation. We have been saying this all along. All these proposals are still valid. Russia is ready for this”
Anyone who has followed international politics since the sixties will hear echoes of ‘mutually assured destruction (MAD)’ in this passage. I.E. “No-one can win, we will all lose, so let’s calm it down’…with the addition of what was missing for much of the cold war…”so let’s talk”.
This is not how the speech was reported in western media. Here are some of the headlines:
The Guardian: “Putin threatens US arms race with new missiles declaration”
The BBC: “Russia’s Putin unveils ‘invincible’ nuclear weapons”
The Washington Post: “Putin just bragged about Russia’s nuclear weapons”
Of course, it is easy to understand how those outlets could draw such inferences from the speech – anyone with half a brain and a drum to bang could take any segment and extract a case for ‘Russian aggression’. However, read the whole speech, attempt to put yourself in Russia’s shoes for even a moment…and what you will notice about western coverage is an almost total lack of objectivity, intelligent analysis, or understanding. In short, our media do not attempt to see the world through the eyes of Vladimir Putin...
The author concludes in the following terms;
Finally, let me say this: I have no personal animosity towards individual journalists who peddle this crap. I don’t know them personally. They may have been ‘duped’, they may have been ‘persuaded’, they may be ‘assets’. I don’t know on an individual basis.
What I do know is this: a war-mongering mind-set has taken hold in governments, in our security services, and increasingly in the military…a mind-set that the media is drip-feeding into the population. On that score, I am personally committed to exposing this mind-set for what it is: whether it is print media hacks with their whitewashing of the US funding of al-Qaeda and the White helmet ‘psyop’; or whether it is the televisual media that parrots the governmental line on anything Putin says, does, or doesn’t do…I will not sit quietly by whilst these sociopaths and morons take us to war…again.
To my fellow citizens I say this: Make up your own mind – don’t blindly believe me or anyone else; and for God’s sake don’t let the government and the media make up your mind for you.
To politicians and the media, I say this: I haven’t forgotten Iraq even if you have. If you think for one moment that I’m going follow you down the warpath on the basis of zero evidence or blatant ‘bullshit’ – it’s never going to happen. Either tell the truth, or get out.
Transparency and open government is a public good
Each council and territorial authority has matters that it has hidden from constituents. Likewise Central Government. It could be argued that privilege is necessary, however, where privilege is employed to misrepresent or do unlawful activity – “false accusations of culpability” there needs to be a public interest test mediated in a competent court to ensure that all decsions are taken with the utmost integrity and with a full weighing of facts and the benefit of human rights law.
World Scientists’ Warning to Humanity: A Second Notice published 13 November 2017 co-signed by 15,000 Scientists;
Twenty-five years ago, the Union of Concerned Scientists and more than 1700 independent scientists, including the majority of living Nobel laureates in the sciences, penned the 1992 “World Scientists’ Warning to Humanity” (see supplemental file S1). These concerned professionals called on humankind to curtail environmental destruction and cautioned that “a great change in our stewardship of the Earth and the life on it is required, if vast human misery is to be avoided.” In their manifesto, they showed that humans were on a collision course with the natural world. They expressed concern about current, impending, or potential damage on planet Earth involving ozone depletion, freshwater availability, marine life depletion, ocean dead zones, forest loss, biodiversity destruction, climate change, and continued human population growth. They proclaimed that fundamental changes were urgently needed to avoid the consequences our present course would bring.
The scientists recommend;
Sustainability transitions come about in diverse ways, and all require civil-society pressure and evidence-based advocacy, political leadership, and a solid understanding of policy instruments, markets, and other drivers. Examples of diverse and effective steps humanity can take to transition to sustainability include the following (not in order of importance or urgency): (a) prioritizing the enactment of connected well-funded and well-managed reserves for a significant proportion of the world's terrestrial, marine, freshwater, and aerial habitats; (b) maintaining nature's ecosystem services by halting the conversion of forests, grasslands, and other native habitats; (c) restoring native plant communities at large scales, particularly forest landscapes; (d) rewilding regions with native species, especially apex predators, to restore ecological processes and dynamics; (e) developing and adopting adequate policy instruments to remedy defaunation, the poaching crisis, and the exploitation and trade of threatened species; (f) reducing food waste through education and better infrastructure; (g) promoting dietary shifts towards mostly plant-based foods; (h) further reducing fertility rates by ensuring that women and men have access to education and voluntary family-planning services, especially where such resources are still lacking; (i) increasing outdoor nature education for children, as well as the overall engagement of society in the appreciation of nature; (j) divesting of monetary investments and purchases to encourage positive environmental change; (k) devising and promoting new green technologies and massively adopting renewable energy sources while phasing out subsidies to energy production through fossil fuels; (l) revising our economy to reduce wealth inequality and ensure that prices, taxation, and incentive systems take into account the real costs which consumption patterns impose on our environment; and (m) estimating a scientifically defensible, sustainable human population size for the long term while rallying nations and leaders to support that vital goal.
To prevent widespread misery and catastrophic biodiversity loss, humanity must practice a more environmentally sustainable alternative to business as usual. This prescription was well articulated by the world's leading scientists 25 years ago, but in most respects, we have not heeded their warning. Soon it will be too late to shift course away from our failing trajectory, and time is running out. We must recognize, in our day-to-day lives and in our governing institutions, that Earth with all its life is our only home.
Looking forward - New Zealand assists creating a better World
We encourage New Zealand to adopt Alfred de Zayas' recommended principles to the 9 March 2018 side-event to the 37th session of the Human Rights Council on international order and multilateralism . Alfred focused primarily on his visit to Venezuela 26 November to 4 December 2017 and uses that expedition to highlight the 23 principles of international order which should guide all individuals and institutions to achieve a more just and inclusive world.
Alfred's suggestions bear careful and deliberate consideration the are critical to comprehend for democracy advocates.
It ought be noted that NZ has championed causes previously through the UN - most recently the Security Council resolution 2334 on Palestine 23 December 2016 concerning Israeli settlements in "Palestinian territories occupied since 1967, including East Jerusalem"
We will never achieve justice in law without a concerted global campaign. In a globalised world we require a global movement toward just law. We encourage all NZ Regional Councils and Territorial Authorities to be partners in creating the solution.


Recommendation #1
We suggest that the Council considers formally supporting the 23 principles offered by Alfred de Zayas in his paper to the UNHRC (A/HRC/37/63) thus endorsing their merit and requesting the New Zealand Government similarly endorse them and champion them in International Fora and diplomatic relations and negotiations.
Principles of international order
The reports of the Independent Expert have been guided by numerous General Assembly resolutions, notably resolutions 2625 (XXV) and 3314 (XXIX), which, together with the Charter, propound a vision of a democratic and equitable international order. Based on the work of the mandate holder, the following should be generally recognized as principles of international order:
(a) Pax optima rerum. The noblest principle and purpose of the United Nations is promoting peace, preventively and, in case of armed conflict, facilitating peacemaking, reconstruction and reconciliation;
(b) The Charter takes priority over all other treaties (Article 103);
(c) Human dignity is the source of all human rights, which, since 1945, have expanded into an international human rights treaty regime, many aspects of which have become customary international law. The international human rights treaty regime takes priority over commercial and other treaties (see A/HRC/33/40, paras. 18–42);
(d) The right of self-determination of peoples constitutes jus cogens and is affirmed in the Charter and in common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The rights-holders of self-determination are peoples. The duty bearers are States. The exercise of self-determination is an expression of democracy and attains enhanced legitimacy when a referendum is conducted under the auspices of the United Nations. Although the enjoyment of self-determination in the form of autonomy, federalism, secession or union with another State entity is a human right, it is not self-executing. Timely dialogue for the realization of self-determination is an effective conflict-prevention measure (see A/69/272, paras. 63–77);
(e) Statehood depends on four criteria: population, territory, government and the ability to enter into relations with other countries. While international recognition is desirable, it is not constitutive but only declaratory. A new State is bound by the principles of international order, including human rights;
(f) Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State. Already in 1510 the Spanish Dominican Francisco de Vitoria, Professor of Law in Salamanca, stated that all nations had the right to govern themselves and could accept the political regime they wanted, even if it was not the best;
(g) Peoples and nations possess sovereignty over their natural resources. If these natural resources were “sold” or “assigned” pursuant to colonial, neocolonial or “unequal treaties” or contracts, these agreements must be revised to vindicate the sovereignty of peoples over their own resources;
(h) The principle of territorial integrity has external application, i.e. State A may not invade or encroach upon the territorial integrity of State B. This principle cannot be used internally to deny or hollow out the right of self-determination of peoples, which constitutes a jus cogens right (see A/69/272, paras. 21, 28, 69 and 70);
(i) State sovereignty is superior to commercial and other agreements (see A/HRC/33/40, paras. 43–54);
(j) States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations (Charter, Art. 2 (4));
(k) States have a positive duty to negotiate and settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered (Charter, Art. 2 (3));
(l) States have the duty to refrain from propaganda for war (International Covenant on Civil and Political Rights, art. 20 (1));
(m) States shall negotiate in good faith for the early conclusion of a universal treaty on general and complete disarmament under effective international control (A/HRC/27/51, paras. 6, 16, 18 and 44);
(n) States may not organize or encourage the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State;
(o) States must refrain from intervening in matters within the national jurisdiction of another State;
(p) No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind;
(q) No State may organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State;
(r) The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention;
(s) The ontology of States is to legislate in the public interest. The ontology of business and investment is to take risks to generate profit. A treaty that stipulates one-way protection for investors and establishes arbitration commissions that encroach on the regulatory space of States is by nature contra bonos mores. Hence, the investor-State dispute settlement mechanism cannot be reformed; it must be abolished (see A/HRC/30/44, paras. 8, 12, 17 and 53, and A/70/285, paras. 54 and 65);
(t) States must respect not only the letter of the law, but also the spirit of the law, as well as general principles of law (Statute of the International Court of Justice, Article 38), such as good faith, the impartiality of judges, non-selectivity, uniformity of application of law, the principle of non-intervention, estoppel (ex injuria non oritur jus), the prohibition of the abuse of rights (sic utere tuo ut alienum non laedas) and the prohibition of contracts or treaties that are contra bonos mores. It is not only the written law that stands, but the broader principles of natural justice as already recognized in Sophocles’ Antigone, affirming the unwritten laws of humanity, and the concept of a higher moral law prohibiting unconscionably taking advantage of a weaker party, which could well be considered a form of economic neocolonialism or neo-imperialism (see annex II below);
(u) States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in order to maintain international peace and security and to promote international economic stability and progress. To this end, States are obliged to conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention. States should promote a culture of dialogue and mediation;
(v) The right to access reliable information is indispensable for the national and international democratic order. The right of freedom of opinion and expression necessarily includes the right to be wrong. “Memory laws”, which pretend to crystalize history into a politically correct narrative, and penal laws enacted to suppress dissent are anti-democratic, offend academic freedom and endanger not only domestic but also international democracy (see A/HRC/24/38, para. 37);
(w) States have a duty to protect and preserve nature and the common heritage of humankind for future generations.
Alfred concludes his report with two annexes to frame consideration of the 23 Principles of International Order, Human Rights Annex I and Rule of Justice Annex II.
Annex I - A new functional paradigm on human rights
1. All rights derive from human dignity. Codification of human rights is never definitive and never exhaustive, but constitutes an evolutionary mode d’emploi for the exercise of civil, cultural, economic, political and social rights. Alas, the interpretation and application of human rights is hindered by wrong priorities, sterile positivism and a regrettable tendency to focus only on individual rights while forgetting collective rights. Alas, many rights advocates show little or no interest for the social responsibilities that accompany the exercise of rights, and fail to see the necessary symbiosis of rights and obligations, notwithstanding the letter and spirit of article 29 of the Universal Declaration of Human Rights.
2. The time has come to change the human rights paradigm away from narrow positivism towards a broader understanding of human rights norms in the context of an emerging customary international law of human rights. Law is neither physics nor mathematics, but a dynamic human institution that day by day addresses the needs and aspirations of society, adjusting here, filling lacunae there. Every human rights lawyer knows that the spirit of the law (Montesquieu) transcends the limitations of the letter of the law...(cont.)
Points 2 – 9 in UN report page 21; (A/HRC/37/63)
Annex II - Rule of law must evolve into rule of justice
1. The rule of law is a pillar of stability, predictability and democratic ethos. Its object and purpose is to serve the human person and progressively achieve human dignity in larger freedom.
2. Because law reflects power imbalances, we must ensure that the ideal of the rule of law is not instrumentalized simply to enforce the status quo, maintain privilege, and the exploitation of one group over another. The rule of law must be a rule that allows flexibility and welcomes continuous democratic dialogue to devise and implement those reforms required by an evolving society. It must be a rule of conscience and of listening.
3. Throughout history law has been all too frequently manipulated by political power, becoming a kind of dictatorship through law, where people are robbed of their individual and collective rights, and the law itself becomes the main instrument of their disenfranchisement. Experience has taught us that law is not coterminous with justice and that laws can be adopted and enforced to perpetuate abuse and cement injustice. Accordingly, any appeal to the rule of law should be contextualized within a human-rights-based framework.
Points 4. - 6 in the UN report page 23; (A/HRC/37/63)
Trade and investment treaty effects on public policy
Councillors will note the many references to trade and investment treaties and Investor State Dispute Settlement (ISDS) made by Alfred de Zayas in his 23 principles, namely;
(c) Human dignity is the source of all human rights, which, since 1945, have expanded into an international human rights treaty regime, many aspects of which have become customary international law. The international human rights treaty regime takes priority over commercial and other treaties (see A/HRC/33/40, paras. 18–42);
This statement is reasserted in many ways through the principles, notably in;
(i) State sovereignty is superior to commercial and other agreements (see A/HRC/33/40, paras. 43–54);
(p) No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind;
(s) The ontology of States is to legislate in the public interest. The ontology of business and investment is to take risks to generate profit. A treaty that stipulates one-way protection for investors and establishes arbitration commissions that encroach on the regulatory space of States is by nature contra bonos mores. Hence, the investor-State dispute settlement mechanism cannot be reformed; it must be abolished (see A/HRC/30/44, paras. 8, 12, 17 and 53, and A/70/285, paras. 54 and 65);
(t) States must respect not only the letter of the law, but also the spirit of the law, as well as general principles of law (Statute of the International Court of Justice, Article 38), such as good faith, the impartiality of judges, non-selectivity, uniformity of application of law, the principle of non-intervention, estoppel (ex injuria non oritur jus), the prohibition of the abuse of rights (sic utere tuo ut alienum non laedas) and the prohibition of contracts or treaties that are contra bonos mores. It is not only the written law that stands, but the broader principles of natural justice as already recognized in Sophocles’ Antigone, affirming the unwritten laws of humanity, and the concept of a higher moral law prohibiting unconscionably taking advantage of a weaker party, which could well be considered a form of economic neocolonialism or neo-imperialism (see annex II below);
(u) States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in order to maintain international peace and security and to promote international economic stability and progress. To this end, States are obliged to conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention. States should promote a culture of dialogue and mediation;
The following have implications for trade treaties whilst having general importance;
(v) The right to access reliable information is indispensable for the national and international democratic order. The right of freedom of opinion and expression necessarily includes the right to be wrong. “Memory laws”, which pretend to crystalize history into a politically correct narrative, and penal laws enacted to suppress dissent are anti-democratic, offend academic freedom and endanger not only domestic but also international democracy (see A/HRC/24/38, para. 37);
(w) States have a duty to protect and preserve nature and the common heritage of humankind for future generations.
TPP or CPTPP - on balance a public good?
The best that can be said about the CPTPP is that it provides limited economic benefits to NZ. That benefit is also a potential poor outcome where it expands our primary producing economy in a manner that increases NZ's emissions of greenhouse gases.
The is a lot of material on TPP/CPTPP. The community that oppose its imposition on New Zealand are of a similar mind to the Union of Concerned Scientists, Alfred de Zayas the UN Independent Expert on the promotion of a democratic and equitable international order and Dr Nafeez Ahmed.
We ask, “why take binding and enforceable action to lock NZ and the region into an agreement that is patently against the interests of the present and future NZ State?”
LGNZ previous President Lawrence Yule said in July 2017, “local government’s vision for New Zealand in 2050 is a vibrant country enjoying environmental, social, cultural and economic prosperity” when launching the new Local Government Position Statement on Climate Change, and 2017 climate change declaration signed by 44 mayors from around the country. The statement includes the following passage;
2. Policy alignment and a clear mandate to address climate change
Central government policies can support (or hinder) council, private sector and community action to respond to climate change.
Effective climate policy involves a diverse range of adaptation and mitigation actions. A broad review of existing policy is required to support climate change adaptation and mitigation actions.
To highlight that local government’s actions to address climate change are part of a national effort, we seek an explicit mandate under the Local Government Act to consider how decisions affect climate change outcomes.
We have already demonstrated in clear factual terms the limits that TPP/CPTPP and the ISDS regime will impose on effective climate action. The www.dontdoit.nz petition places importance on ensuring any treade and investment treaty NZ enters will not constrain effective climate action.
NZ must move to a future where everyone's wellbeing is nurtured. This could be ensured by way of amendment to the manner in which NZ negotiates, consults, signs and ratifies international trade and investment treaties.
The petition takes the government at it's word where it said to the NZ Parliament in the Speech From The Throne 9 November 2017 that it will exclude investor state dispute mechanisms (from TPP) and avoid their inclusion in all future agreements. The petition acknowledges the Labour Party 2017 Trade election manifesto where it offers Greater engagement with civil society over trade talks suggesting a democractic process toward a standing general mandate for New Zealand’s future negotiations to guide NZ's trade negotiators.


Recommendation #2
We urge Council to endorse the model trade and investment treaty process offered in the www.dontdoit.nz petition
The dontdoit.nz petition where it is implemented would ensure that New Zealand honours PM Jacinda Ardern's statement that MFAT will negotiate no further FTAs with Investor State Dispute Settlement (ISDS). It would ensure in a transparent and public manner that there would be no surprises or treaties negotiated that are adverse to NZ interests and inhabitants' wellbeing. The petition says in part;
...urge the House to call upon the Government:
k) not to sign the TPPA or the Comprehensive and Progressive Agreement on Trans-Pacific Partnership; (note: the petition was formulated prior to the 8 March 2018 CPTPP Signing in Chile)
l) to conduct a principles-based review of New Zealand’s approach to free trade, investment and economic integration agreements that involves broad-based consultation;
m) to engage with Maori to reach agreement on effective protection of their rights and interests consistent with te Tiriti o Waitangi and suspend negotiations for similar agreements until that review is concluded;
and further, urge the House to pass new legislation that
(n) establishes the principles and protections identified through the principles-based review under paragraph (l) as the standing general mandate for New Zealand’s future negotiations, including;
i. excluding ISDS from all agreements New Zealand enters into, and renegotiating existing agreements with ISDS;
ii. a requirement for the government to commission and release in advance of signing an agreement independent analyses of the net costs and benefits of any proposed agreement for the economy, including jobs and distribution, and of the impact on health, other human rights, the environment and the ability to take climate action;
iii. a legislative requirement to refer the agreement to the Waitangi Tribunal for review prior to any decision to sign the treaty; and
(o) makes the signing of any agreement conditional on a majority vote of the Parliament following the tabling in the House of the reports referred to in paragraph (n) (ii) and (iii);
and for the House to amend its Standing Orders to
(p) establish a specialist parliamentary select committee on treaties with membership that has the necessary expertise to scrutinise free trade, investment and economic integration agreements;
(q) require the tabling of the government’s full mandate for any negotiation prior to the commencement of negotiations, and any amendment to that mandate, as well as periodic reports to the standing committee on treaties on compliance with that mandate;
(r) require the tabling of any final text of any free trade, investment and economic integration agreement at least 90 days prior to it being signed;
(s) require the standing committee on treaties call for and hear submissions on the mandate, the periodic reports, and pre-signing version of the text and the final text and report on those hearings to Parliament;
(t) require a two-third majority support for the adoption of any free trade, investment or economic integration agreement that constrains the sovereignty of future Parliaments that is binding and enforceable through external dispute settlement processes.


Recommendation #3
Support the Local Government (Four Well-beings) Amendment Bill
We urge the council to support the Local Government (Four Well-beings) Amendment Bill which amends the Local Government Act (LGA) 2002 to reinstate references to social, economic, environmental, and cultural well-being that were removed by the National government in 2012.
The “four well-beings” were a cornerstone of the LGA 2002 when it was introduced. The “four well-beings” provide the modern focus of local government on serving and being accountable to the communities they serve. It highlights the constitutional role that local governments play in community development and nation building.
The bill is sponsored by Paul Eagle MP (previously Wellington City Councillor). It would be a great demonstration of the alignment between Local Government and Central Government to achieve wellbeing for all NZ inhabitants. The bill offers the following explanation;
The Bill amends the Local Government Act 2002 to reinstate references to social, economic, environmental, and cultural well-being that were removed by the National government in 2012.
The “four well-beings” were a cornerstone of the Act when it was introduced. The“four well-beings” provide the modern focus of local government on serving and being accountable to the communities they serve. It highlights the constitutional role that local governments play in community development and nation building.
The removal of the “four well-beings” by the National government was based on factual inaccuracies and misconceptions. The effect of the removal of the “four well-beings” is wide reaching and is not limited to section 10 amended by the National government, as the four-well beings permeate the Local Government Act 2002 and there are references to them in other Acts.
Given that the “four well-beings” remain in these other acts of Parliament, the risk of inconsistency and confusion is real, especially with the Resource Management Act 1991 and the Local Government Act 2002. Many Mayors and Councillors continue to be concerned that the National government’s removal of the “four well-beings” and its replacement wording is sufficiently unclear as to almost certainly lead to legal challenges of the way local authorities interpret their responsibilities, especially legal challenges from well-resourced special interest groups.
In its submission on the Local Government Act 2002 Amendment Bill, Local Government New Zealand, the representative body of local governments representing all 78 local authorities in New Zealand, had this to say—
• “There is no evidence that a substantive problem exists that requires legislative change. The examples by the Government to justify the proposed change are not examples of a failure of the well-beings. The examples adduced are either explicable due to the underlying circumstances, for example, holdings in particular business activities which are mandated by the communities affected and deliver an acceptable commercial return or address a community need”
• “There is no evidence that councils are finding it difficult to decline requests for funding. Instead the recently completed long-term planning round suggests that the opposite is the case. Councils have been aware of the straightened financial circumstances that the country is in and have been fiscally prudent as a result. The prime driver of rates increases is infrastructure investment”
• “Most significantly, the proposed amendment will likely have significant legal and cost implications. These implications arise for both decision-makers and the community, who are likely to be confused by its intent or application. It is concerning that the legal (and associated cost) consequences of the proposed amendment do not appear to have been considered by the Government. The Regulatory Impact Statement is silent on this point. The proposed new purpose, and how it changes the proper interpretation of specific obligations under the LGA 2002, is sufficiently unclear as to almost certainly lead to legal challenges of the way local authorities have interpreted their responsibilities. In light of the body of case law under the existing provisions, it would be naïve to think that changing those provisions would not encourage further litigation by well resourced interest groups who opposed particular local authority decisions. As a result, the proposed change is likely to produce significant costs without any concomitant benefit”
• “Given the lack of a problem definition, the lack of any evidence to substantiate the general claims made by Government about the impact of the well-beings, and the un-scoped legal risk associated with the change, the proposal to alter the well-beings appears somewhat reckless”
• “As a result of this analysis, the members of LGNZ resolved unanimously at its Annual General Meeting on 15 July 2012 that the Government should retain the well-beings”
We believe that NZ Local Government support this initiative as there was universal opposition to the removal of the Wellbeings from the LGA 2002.


Recommendation #4
We urge you to read and consider Kate Raworth's “Doughnut Economics” as a framework for thinking about economics in the 21st century given that the challenges we are facing this century are global in scale but local in solution and we need a different mindset from the economics of the past if we are to viably approach these challenges.
More of Kate Raworth's publications and writings are available at her website.





Ends.

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