Application of the Vienna Convention on the Law of Treaties in respect to

Trans Pacific Partnership and Aotearoa New Zealand - April 2016

1. Introduction

The Vienna Convention on the Law of Treaties is a foundational element of

International Law and codifies the arrangements whereby nations enter into treaties
both bilateral (between two parties) and multilateral (more that two parties).Vienna
Convention on the Law of Treaties was done at Vienna on 23 May 1969 and
entered into force in 27 Jan 1980.1

2. Summary of Findings

i. I find from an ordinary reading of the relevant clauses that the New Zealand
Government is in breach of the terms of the Vienna Convention, by it's
signing the of TPP agreement treaty.2

ii. Due Process was denied with the signing on the 4th February.3

iii. The TPP is clearly a diminishment of sovereignty and thus represents

constitutional change. The people have not been consulted and have not
consented.4

iv. The demand of true democracy is a public test and free consent. As such the
Government must defer ratification to allow due process to occur.

v. Specifically my finding is:

The government if it wishes to persist with the TPP, must initiate a binding
referendum5 to discover the attitude of the people of New Zealand to the
TPP.
1
https://en.wikisource.org/wiki/Vienna_Convention_on_the_Law_of_Treaties and from the UN:
http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/
2
This is my opinion. It is based on my reading of the ordinary meaning of the conventions and laws
referenced within this report. This is based in following simple logic, to arrive at valid conclusions, as to
the literal interpretation of the law. If the law lacks for logic it is not fit for purpose, unless the purpose is
corrupt.
3
Due Process is a familiar term used to describe the correctness of a serious of actions or events
related to an issue. For instance, one would expect due process would direct that the democracy would
be consulted in the event of major alterations of power relations and in terms comprehensible. The TPP
secrecy has been maintained throughout the 5 years of negotiations. The TPP was a secret upon the
occasion of the 20 September 2014 general election. No possibility for anyone to know what they were
consenting to. No attempt to gain consent nor to inform is available until a proposed TPP Roadshow
following tabling of the TPP in the Foreign Affairs, Defence and Trade (FADT) Parliamentary Select
Committee, which all occur after the Government signs TPP on the 4 February 2016.
4
No one has rebutted this basic fact.
5
The Flag Change Referendum is the standard that ought be applied.
3. Convention and the Value of Precedent.

The standard is surely established with the NZ Government's desire to amend the
design of one6 of the official flags of New Zealand.7 The NZ real politik, for whatever
reason, demanded that an initiative to alter the 1902 NZ Government flag of the
incorporated nation state, required a clear mandate. This is achieved through a
binding referendum with two ballots. There were many organised opportunities for
people to engage in consultation events, all prior to the people making a decision
by casting their vote.8 This lends itself to support the principle, that constitutional
alteration requires a specific mandate from the democracy.

It is clear that sovereignty is constrained in TPP. As such our constitution is

amended with its entry into force. The real effects might be profound, not least the
new supra constitutional institution that is created to oversight TPP's
implementation and review. There is also the impact and effects in our political
economy that flow from TPP.9

The Flag referendum and earlier 'what do we stand for' workshops' object appeared
to be driven by a need to build a consensus and mandate for change.

The people of Aotearoa New Zealand deserve to be well informed, before being
asked in a referendum, their attitude to TPP treaty. Its implications for the
constitution and the state are many orders of magnitude greater than for the NZ.Inc
branding change envisaged with the flag referendum.

TPP demands a positive mandate from the public similar to the flag change

6
http://www.nzhistory.net.nz/politics/flags-of-new-zealand
7
The First Flag of the nation state Aotearoa New Zealand was the United Tribes Flag:
http://www.nzhistory.net.nz/politics/flags-of-new-zealand/united-tribes-flag
8
The flag referendum is an extended affair involving two referendums and a host of sessions and
processes involving the public to allow individuals to discover the idea and to respond with the
development of images that they would have as the flag. It also asked the public what do you stand for?
and apparently the public responded with an outpouring providing 43,000+ offerings:
http://www.standfor.co.nz/ There were 10,000+ flag designs offered:
https://www.govt.nz/browse/engaging-with-government/the-nz-flag-your-chance-to-decide/how-we-got-
here/asking-new-zealanders-what-you-stand-for/ Interestingly the link to the list of 43,000 offerings of
what New Zealanders Stand for is broken: https://www.govt.nz/browse/engaging-with-government/the-
nz-flag-your-chance-to-decide/what-new-zealand-stands-for perhaps the 'values component' is not what
the flag change exercise is really about.
9
Groser quotes, "Of course trade agreements involve concessions over the sovereign rights of
countries to do things," he told the Weekend Herald. " That's the point of international law." and "We
needed to control their sovereign right to do whatever suited their fancy. The whole point of international
law is to put limits around countries' sovereignty on the basis of negotiated understandings.":
http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10817978
exercise.10

The government established the gold standard for constitutional amendment,

despite the fact that a simple legislative act to change the flag might have satisfied
the constitutional imperative.11 Consistency demands a binding referendum for
TPP.

I have become intrigued with this exercise and by way of OIA application requested
information of the Office of Prime Minister and Cabinet as to where one can access
a qualitative analysis of the more than 43,000 public inputs in response to the
question what do we stand for?12

The government has said the TPP is the gold standard for trade and investment
treaties. To what does the gold standard apply, and what are the parameters that
make it gold?

Gold for investors, or gold for the maintenance of ecological values and human
rights.13

It is international investors and some domestic trade interests that are clamouring
for TPP, whereas most of NZ civil society is opposed.14 Apart from industry groups
for primary producers and some manufacturers the balance of the public evidence
to the FADT Select Committee appears to be opposed to the ratification of the
TPP.15

10
Link to the petition and explanation here: http://nomandatedonotsigntppaggpetition.blogspot.co.nz/
Also the fifth and final Demand of the November 14 TPP Rallies was for a binding referendum in the
following context: 5. initiate a full public and parliamentary debate on the TPPA, including Select
Committee hearings with public consultation, and put the TPPA to a public referendum, before formal
signing.
11
The Flag is established by the 1902 Act, superseded by the Flags Emblems and Names Protection
Act of 1981: http://www.legislation.govt.nz/act/public/1981/0047/latest/DLM51358.html A little history,
which incidentally reveals the interventionist nature of the Governor General at that time:
http://www.nzflag.com/history1902.cfm
12
Letter dated 26 March 2016, attached as appendix. The Ombudsmans office OIA response
calculator suggested I was due an answer on the 26 th April 2016 Im still breathlessly waiting for it.
13
At the heart of TPP is the Investment Chapter and Investor State Dispute Settlement (ISDS) clauses
which provide rights for investor parties to the settlement of disputes raised by corporations against
partner governments through private arbitration panels. Assent to TPP grants ISDS arbitration jurisdiction
to the Investors of the TPP nation states. This act usurps the NZ Court system and constitutes an
alteration of Sovereignty and thus a constitutional question. The following link is to papers reviewing the
Investment and ISDS provisions of TPP: https://tpplegal.wordpress.com/commentary/investment-isds/
14
Kiwis still to be convinced of TPP 20 November 2015, 3 News Reid Poll 52% opposed, 34%in
favour and 14% undecided is 'no mandate': http://www.3news.co.nz/nznews/kiwis-still-to-be-convinced-
on-tpp-2015112017#axzz3v7aDpgBT
15
FADT Select committee evidence TPP: http://www.parliament.nz/en-nz/pb/sc/documents/evidence?
Criteria.ViewAll=1&Custom=00dbsch_itr_68247_1
4. Vienna Convention relevant clauses

I've reviewed this Vienna Convention on the Law of Treaties (VCLT), which governs
treaty development, negotiation, agreement, enforcement, termination and a
provides dispute resolution process.

One element relevant to our inquiry is the VCLT preamble's acknowledgement of

the foundational charter and the primary principles of the United Nations.16

Article 31 of the VCLT provides a general rule of interpretation (my emphasis in

bold):

1. A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:

Articles 53 and 64 provides that If a new peremptory norm of general

international law (jus cogens)17 emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.

The likelihood is that a new norm will emerge soon to replace the Investor State
Dispute Settlement (ISDS) component of investment treaties. One trusts that the
Government of New Zealand in line with its humanitarian constitution18 will assist
this project. It would require a deviation from their modus operandi of recent.19

16
The UN Charter on the UN website: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?
page=topic&tocid=499d17822&toid=459d17a82&docid=3dda1f104&skip=0 and here:
http://www.un.org/en/sections/un-charter/introductory-note/index.html The Wikipedia entry which might
be easier to penetrate to components of interest: https://en.wikipedia.org/wiki/United_Nations_Charter
'Repertoire' or 'practice of the UN Security Council': http://www.un.org/en/sc/repertoire/principles.shtml
Which leads to the 4 pillars of the UN established in the preamble of the UN Charter:
http://outreach.un.org/mun/guidebook/introduction/un-at-a-glance/4pillars/ Which say;
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,
in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom.
17
http://www.iccnow.org/documents/WritingColombiaEng.pdf
18
What is the nature of the NZ Constitution? Our Constitution Act of 1986
19
New Zealand has become extremely pragmatic and willing to do business with any nation,
irrespective of its human rights record; Saudi Arabia in respect to its war on Yemen and its treatment of
citizens and its proven record of supporting terrorism in Syria, and Indonesia in relation to its treatment
of West Papua.
In any event the UN Independent Expert Alfred de Zayas has charged that ISDS20
is opposed to human rights and environmental protection. As such it would breach
the UN declaration on human rights. This point is well made by prominent jurists
from several nations emphasising the international consensus of those who uphold
the 'rule of law' as central in their professional vocations. Their 2012 open letter on
ISDS21 makes the following points;

We have diverse views about the TPP generally. However, we are

united in our view that the foreign investor protections included in some
recent Free Trade Agreements (FTA) and Bilateral Investment Treaties
(BIT) and their enforcement through Investor-State arbitration should not
be replicated in the TPP. We base this conclusion on concerns about
how the expansion of this regime threatens to undermine the justice
systems in our various countries and fundamentally shift the balance of
power between investors, states and other affected parties in a manner
that undermines fair resolution of legal disputes. and;

Simultaneously, the substantive rights granted by FTA investment

chapters and BITs have also expanded significantly and awards issued
by international arbitrators against states have often incorporated overly
expansive interpretations of the new language in investment treaties.
Some of these interpretations have prioritized the protection of the
property and economic interests of transnational corporations over the
right of states to regulate and the sovereign right of nations to govern
their own affairs. and;

..Tobacco companies have also used Investor-State dispute settlement

to challenge government tobacco control policies enacted to implement
obligations under the World Health Organization Framework Convention
on Tobacco Control. and;

The current regimes expansive definition of covered investments and

government actions, the grant of expansive substantive investor rights
that extend beyond domestic law, the increasing use of this mechanism
to skirt domestic court systems and the structural problems inherent in
the arbitral regime are corrosive of the rule of law and fairness.

5. What Mandate?

The process to negotiate the TPP treaty within Aotearoa New Zealand has been
done without consultation with the people who inhabit the democracy.22 We can

20
Searchable listing of known ISDS cases: http://investmentpolicyhub.unctad.org/ISDS also
chronological list of WTO state to state disputes:
https://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm
21
https://tpplegal.wordpress.com/open-letter/
22
reinforce this point by referencing efforts through the Official Information Act which
have failed to secure any of the TPP content, nor any negotiating texts.23 The
Government kept the TPP text secret during the September 2014 general election.
No attempt has been made by the government to consult the people who comprise
the democracy, in respect to the TPP content text and implications. The
Government proceeded to negotiate in secrecy, agreeing with the TPP nation
parties on the 5th October 2015. The text was finally released 5th November 2015.
We've had a short space in which to assimilate the text content in order to
comprehend the implications.24 The Government made no effort to gain a mandate
prior to signing, on the 4th February. The process is arbitrary and usurps any
reasonable definition of democratic process.25 Government follows convention
where there is no established law, apart from Crown prerogative.26 It is time to
break convention in order to forge a new standard more in keeping with the
principle of democracy.27
Democracy etymology and definition, for an extensive description go here:
https://www.princeton.edu/~pswpc/pdfs/ober/090704.pdf ...which on page offers the following: passage
from a court case of the mid-fourth century B.C. (Demosthenes 21: Against Meidias) Here,Demosthenes
employs a rich vocabulary of strength, control, ability, and protection in summing up the democratic
relationship between law, action, and public goods:
For in fact, if you [jurors] cared to consider and investigate the question of what it is that gives power and
control (ischuroi kai kurioi) over everything in the polis to those of you who are jurors at any given time ...
you would find that the reason is not that you alone of the citizens are armed and mobilized in ranks, nor
that you are physically the best and strongest, nor that you are youngest in age, nor anything of the sort,
but rather you'd find that you are powerful (ischuein) through the laws (nomoi). And what is the power
(ischus) of the laws? Is it that, if any of you is attacked and gives a shout, they'll come running to your
aid? No, they are just inscribed letters and have no ability (ouchi dunaint) to do that. What then is their
motive power (dunamis)? You are, if you secure them and make them authoritative (kurioi) whenever
anyone asks for aid. So the laws are powerful (ischuroi) through you and you through the laws. You must
therefore stand up for them (toutois boethein) in just the same way as any individual would stand up for
himself if attacked; you must take the view that offenses against the law are public concerns (koina)...
(21.223-225).
So if the original meaning of democracy is the collective capacity of a public to make good things happen
in the public realm, where does the idea of democracy as defined in the first instance by voting rules and
by the monopoly of offices on the part of the many come from?
23
Summary of case: https://tpplegal.wordpress.com/legal-challenge/
24
TPP Text at MFAT: http://tpp.mfat.govt.nz/text There's 6000 pages of documents plus side letters.
The construction has taken at least 5 years to come to negotiated agreement and they've allowed
another 2 more to allow all nations process to arrive at fomalisation by altering any domestic
arrangements that run counter the TPP's terms of settlement.
25
Sir Thomas on limits of Parliamentary Sovereignty: In a full and free democracy, sovereignty rests
with the people it is absurd to suggest that the plenary power delegated to Parliament by the people
embraces the power to destroy representative government If Parliamentproceeded to enact
legislation undermining the democratic basis on which it exercises the sovereign power of the people,
there is nothing in the notion of Parliaments omnipotence which would preclude judicial resistance
(Centennial Lecture The Relationship of Parliament and the Courts: A Tentative Thought or Two for
the New Millennium, Victoria University of Wellington law Review, 2000.)
26
Treaty making in NZ: http://www.parliament.nz/en-nz/about-parliament/how-parliament-
works/ppnz/00HOOOCPPNZ_431/chapter-43-international-relations
27
The failed 2002 International Treaties Bill is a previous attempt to place the NZ Crowns treaty
6. Our efforts to educate ourselves and the public in respect to TPP

New Zealand civil society has made many attempts to both discover the content,28
and to convey to government a negotiating mandate that was beneficial, to the
interests of the people, who inhabit the democracy.

One initiative was the development of a TPP policy solution. This highlighted
bottom lines or a standard to be attained in any multilateral trade and investment
agreement including TPP.29 This was supported by a number of New Zealand
Regional Councils and Territorial Authorities who in their territories represent 60%
of the Aotearoa New Zealand population, based on 2013 census data.

The NZ negotiator the then Minister for Trade Tim Groser, managed to ignore most
of the suggestions in the TPP policy solution, with the exception of a partial gain in
trade liberalisation.

Additionally and following the 5th October agreement the Greater Wellington
Regional Council meeting of 4 November 2015, adopted a position on TPP that
proposed a process for dealing with the TPP prior to signing.

That the Council:

1. Notes the content of the report.

2. Reviews the Trans Pacific Partnership (TPP) text against the TPP
Policy Solution adopted by councils representing a majority (60%) of the
NZ population.

3. Asks that central government initiates a full public and parliamentary

debate before proceeding with formal consideration of the TPP, including
formal signing.

4. Asks that central government carry out independent human rights,

health and environmental impact assessments of the potential effects of
the TPP on the people and the land of New Zealand, as urged by the
United Nations independent expert Alfred de Zayas, and make this
information publicly available.

5. Asks that central government consults with local government prior to

any further action taken that might compromise the ability of local
government to make decisions in the interests of our region, the people
making powers fully within the ambit of Parliament. This measure should be revisited with Fletcher
Tabuteaus International Treaties Bill, in the private members ballot.
28
TPP is a secret up to the October agreement, and the 5th November release of the text, which was
not final until 26 Jan 2016 following the legal scrub, which further altered the TPP content particularly in
relation to IP which will massively expand criminal penalties for copyright infringing activities:
https://www.eff.org/deeplinks/2016/02/sneaky-change-tpp-drastically-extends-criminal-penalties
29
http://www.actionstation.org.nz/tpp_policy_solution
 and their environment.

6. Instructs the Council Chair to write to the President of LGNZ,

requesting that a local government evaluation, based on an independent
analysis of the implications of the TPP for local government, and for the
social, cultural, economic, environmental and health and wellbeing of
communities, be undertaken as a basis of LGNZ input into parliamentary
consideration, and that the evaluation report should be made publicly
available and widely publicised.

TPP Action public meetings developed a set of Demands for processing TPP prior
to Signing. These were endorsed at meetings and Rallies around the nation in
November 2015.

Aotearoa NZ Peoples' TPPA Demands

The Government has no democratic mandate to sign away our

democratic powers in the TPPA. Before it takes any steps towards
signing the agreement, the Government shall:

1. undertake independent human rights, health, environmental and

climate change impact assessments of the potential effects of the TPPA
on the people and land of New Zealand, and make this information
publicly available.

2. support Local Government New Zealand to undertake an independent

assessment of the impacts on local government of the TPPA, and consult
fully with local government.

3. fully engage with its Treaty of Waitangi partners to hear and address
their concerns about the TPPA and refer the text and any proposed
legislation to the Waitangi Tribunal to conduct a full risk assessment of
impacts on tangata whenua; iwi and hap.

4. withdraw its consent to the secrecy pact among the twelve TPPA
countries and release all background documentation relating to the
negotiations.

5. initiate a full public and parliamentary debate on the TPPA, including

Select Committee hearings with public consultation, and put the TPPA to
a public referendum, before formal signing.

We will continue to mobilise New Zealand citizens in opposition to the

TPPA until our demands have been met.

The theme is consistent and clear, independent assessments of the implication of

TPP are required and binding referendums of the people to provide their clear
consent or otherwise.
The concept of 'jus cogens'30 is of immense interest as it enables, at least in theory,
the opposite of the ratchet effect31 in favour of corporations that is evidenced in
international trade and investment treaties negotiated by the world's governments.
Invariably the affected people are not consulted nor involved in trade and
investment treaty negotiation and agreement. The governments enforce their
sovereign prerogative to treat with their fellow governments to settle alleged
disputes. Where is the dispute notified? What does the treaty settle? Who pays and
who gains in this arrangement?32

7. Previous failure to rein in the Crown prerogative to enter treaties in

arbitrary fashion.

A prior attempt was made by parties within the New Zealand Parliament to bring the
treaty making powers under the full authority of Parliament in the International
Treaties Bill of 2002. This was lost at its second reading.33

Fletcher Tabuteau NZ First MP introduced a private member's bill Fighting Foreign

Corporate Control, which would have stopped our NZ Government entering treaties
with ISDS provisions.34 He has a further bill in the ballot International Transparent
Treaties Bill which proposes that all international treaties shall be approved by
Parliament prior to the treaty being signed.35

8. The UN Independent Expert makes the case Investment treaties conflict

with human rights treaty obligations - does this render them illegal in a rule of

30
Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental,
overriding principles of international law, from which no derogation is ever permitted.
31
Ratchet effect in Trade legislation: https://en.wikipedia.org/wiki/Ratchet_effect#Trade_legislation
The term was included by the MAI Negotiating Group in the 1990s as the essence of a device to enforce
legislative progress toward "free trade" by preventing legislative rollback with the compulsory assent of
governments as a condition of participation. Rollback is the liberalisation process by which the reduction
and eventual elimination of nonconforming measures to the MAI would take place. It is a dynamic
element linked with standstill, which provides its starting point. Combined with standstill, it would produce
a ratchet effect, where any new liberalisation measures would be locked in so they could not be
rescinded or nullified over time.
32
TransCanada US15 billion ISDS suit against the US for shutting down the Keystone pipeline, couldn't
have arrived at a better point to reference and prove my assertion:
33
International Treaties Bill 2002 Hansard second reading 19 Feb 2003. All the excuses by the Labour,
National and NZ First parliamentarians were about administrative issues of work overload. The
substantive issue remains to be resolved, who has the power to alter the constitution? Where does the
mandate derive if the people who comprise the democracy are excluded from consideration of the matter
being determined? Despotism? http://www.parliament.nz/en-
nz/pb/debates/debates/47HansD_20030219_00001032/international-treaties-bill-%E2%80%94-second-
reading
34
Fighting Foreign Corporate Control Bill:
35
International Transparent Treaties Bill: http://www.parliament.nz/en-nz/pb/legislation/proposed-
bills/51HOH_MEMBILL189_1/international-transparent-treaties-bill
law constitution?

The Report of the United Nations Independent Expert Alfred de Zayas36 urged the
UN system and Governments across the world to radically reform the international
investment regime by putting an end to free trade and investment agreements that
conflict with human rights treaty obligations.37 In his full-length report to the Human
Rights Council, he also called on States to conduct human rights, health and
environmental impact assessments before and after entering into bilateral and
multilateral investment agreements.

Over the past decades free trade and investment agreements have had adverse
impacts on the enjoyment of human rights by interfering with the States
fundamental functions to legislate in the public interest and regulate fiscal,
budgetary, labour, health and environmental policies, said Mr. de Zayas, the first
UN Independent Expert on the promotion of a democratic and equitable
international order.

Europe is negotiating a parallel treaty with the USA called, Trans Atlantic Trade and
Investment Partnership (TTIP) and is party to the negotiations for the Trade in
Services Agreement (TiSA) as is New Zealand. On Wednesday 8 July 2015, the
European Parliament adopted a resolution supporting the transatlantic trade deal,
but rejected a key US demand for an extra-judicial arbitration mechanism ISDS.38

New Zealand is in negotiations with a variety of partners for bilateral and

multilateral trade and investment agreements besides TPP. The New Zealand
Government appears to disregard its obligations to uphold the rule of law in its
international relationships and dealings where trade and economics is concerned.39
It might be that the current disagreement surrounding whether to include the words
'rule of law' in the Judicature Modernisation Bill40 has its ground in the desire of the
36
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16439&LangID=E Full
report available from this link:
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Pages/ListReports.aspx in the list
this one: A/HRC/30/44. Report of the Independent Expert on the promotion of a democratic and equitable
international order, Alfred-Maurice de Zayas:
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_44_ENG.
docx
37
I impose here, that if this point is proved or fact, then the bilateral and multilateral trade and
investment treaty project, minus popular mandate, is despotic and a denial of international law and
justice.
38
http://www.euractiv.com/sections/global-europe/european-parliament-backs-ttip-rejects-isds-316142
39
All governments are requires to be good global citizens and report illegal activity. So if one nation
knows that another is committing war crimes, there is a requirement that states intervene to protect the
rights of the civilian population. Such rights as - to a peaceful life.
40
Law Society's page on the Judicature Modernisation Bill: http://www.lawsociety.org.nz/news-and-
communications/latest-news/2013/judicature-modernisation-bill-aims-to-update-courts critique by
Richard Cormes: http://pundit.co.nz/content/is-parliament-about-to-drop-our-commitment-to-the-rule-of-
government to cause New Zealand to institutionally disregard the 'rule of law' in its
relations with other nations. There is a parallel with the removal of the 4
Wellbeings from the purposes of the Local Government Act (LGA2002).41 There's
likely more.42

The proposed Gulf Cooperation States Trade and Investment Partnership with New
Zealand, has been under negotiation and consideration since 2011.43 Saudi Arabia
is notorious for its disregard for civil and political rights of its people44 including
human rights as codified in the UN covenants. Any agreement with these is a direct
challenge to the rule of law as codified in this Vienna Convention on the Law of
Treaties.

9. My thesis and finding is

That the New Zealand Government's negotiation of the TPP to agreement

and signing programmed for the 4th February without first obtaining a clear
mandate from the public majority is contrary to the spirit, preamble and text
of the Vienna Convention on the Law of Treaties.

Further it is contrary to the New Zealand Governments obligations under

International Law especially considering the UN Covenants: the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights, which
together are the foundation stone of humane international law.

The two Covenants, together with the Universal Declaration of Human Rights, form
the International Bill of Human Rights, setting out the civil, political, cultural,
economic, and social rights that are the birth right of all human beings.45

Article 1 provides All peoples have the right of self-determination. By virtue of that
law
41
The Government reviewed the LGA2002 in 2012 and removed that local government purpose was to
attend to the environmental, social, economic and cultural wellbeing of the community, despite the
suggestion that this was daft from most institutions and individuals including the Human Rights Council.
42
These are the two I know without going looking. The probability of me randomly encountering all
such deletions of public interest, humane purpose and deep principle favouring the social must be very
low. I imagine there are many more, which can only add weight to my thesis, that populist leaders do not
deserve to be viewed as attaining a popular mandates for specific policy settings. If it did it is likely we
are in despotism.
43
https://www.mfat.govt.nz/en/trade/nz-inc-strategies/gulf-strategy/
44
Saudi Arabian Human Rights violations include the current uproar over the execution of Shia leader
Nimr al-Nimr and 46 others a few days after New Years Day 2016:
http://www.aljazeera.com/news/2016/01/saudi-announces-execution-47-terrorists-
160102072458873.html and generally:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16487&LangID=E
45
http://www.un.org/en/events/humanrightsday/
right they freely determine their political status and freely pursue their economic,
social and cultural development.

New Zealand is a party to the Covenant, and also to its First Optional Protocol,
which provides an avenue for complaint to the UN when there has been a breach of
Article 1, and all domestic remedies have been exhausted.

New Zealand's position on the UN Security Council (UNSC) is also an important

consideration. We worked for many years to attain that position. We sit at the table
with the giants of the world, the Powers. We pitched our justification for our
ambition to the UNSC seat on the basis we would be advocates for the smaller
states,46 we would pursue their interests.

10. Climate Change and UNFCCC another nice to have to be ignored?

NZs and the planets nations poor performance on climate change has direct
impact on our nearest neighbours in the Pacific region. Sir Geoffrey Palmer made
the point that our law is defective and not fit for purpose to meet the climate change
challenge in his 15 February 2015 speech at VUW.47

I provided a paper to the recent VUW In the Eye of the Storm Pacific Climate
Change Conference. From my paper:

Fundamentals and first principles.

Climate change is not causal - it's the symptom of a sick World.

Addressing this issue brings attention to the fundamental problems. Then

ask;

Should governments lead society? And in which direction?

The core issue of concern in TPP is the national surrender to corporate

interest through the advance grant of ISDS arbitration jurisdiction without
recourse to appeal or reliance on rule of law.48

There is no mandate for TPPA!

11. The following is the preamble of the treaty:

46
In the New Zealand campaign for the seat at the UN Security Council and ultimate chair, we made
many utterances as to our platform upon ascension to that august board:
47
http://www.victoria.ac.nz/law/about/news/new-zealands-defective-law-on-climate-
change/ClimateChangeSpeech16Feb2015Final.pdf
48
In the Eye of the Storm - Pacific Climate Change Conference:
http://www.victoria.ac.nz/vicpasifika/our-community/events/in-the-eye-of-the-storm-pacific-climate-
change-conference-2016 Panel session 16 Neoliberalism, the TPPA and climate change in the Pacific
-11.30am Tuesday 16 February. A Renewables of Motueka and TPP Action perspective. The paper is
also attached to my evidence to FADT Select committee 29 Feb 2016.
 Vienna Convention on the Law of Treaties Done at Vienna on 23 May
1969

The States Parties to the present Convention,

Considering the fundamental role of treaties in the history of international

relations,

Recognizing the ever-increasing importance of treaties as a source of

international law and as a means of developing peaceful cooperation
among nations, whatever their constitutional and social systems,

Noting that the principles of free consent and of good faith and the pacta
sunt servanda rule are universally recognized,

Affirming that disputes concerning treaties, like other international

disputes, should be settled by peaceful means and in conformity with the
principles of justice and international law,

Recalling the determination of the peoples of the United Nations to

establish conditions under which justice and respect for the obligations
arising from treaties can be maintained,

Having in mind the principles of international law embodied in the Charter

of the United Nations, such as the principles of the equal rights and self-
determination of peoples, of the sovereign equality and independence of
all States, of non-interference in the domestic affairs of States, of the
prohibition of the threat or use of force and of universal respect for, and
observance of, human rights and fundamental freedoms for all,

Believing that the codification and progressive development of the law of

treaties achieved in the present Convention will promote the purposes of
the United Nations set forth in the Charter, namely, the maintenance of
international peace and security, the development of friendly relations
and the achievement of cooperation among nations,

Affirming that the rules of customary international law will continue to

govern questions not regulated by the provisions of the present
Convention,

Have agreed as follows:

11.1 The following section provides guidance for the interpretation of

treaties:

SECTION 3. INTERPRETATION OF TREATIES

Article 31
 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall

comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the

interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which

establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations

between the parties.

4. A special meaning shall be given to a term if it is established that the

parties so intended.

11.2 Treaties conflicting with a peremptory norm of general international law

(jus cogens)are void or invalidated.

Article 53

Treaties conflicting with a peremptory norm of general international law

(jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character.

11.3 The emergence of a new peremptory norm of general international law

(jus cogens) might give grounds for termination or amendment of a treaty.

Article 64
 Emergence of a new peremptory norm of general international law (jus
cogens)

If a new peremptory norm of general international law emerges, any

existing treaty which is in conflict with that norm becomes void and
terminates.

12. Lord Cooke not just an average jurist.

Sir Robin Cooke was the president of our Court of Appeal and a member of our
highest Court, then the Privy Council, and he later became a life peer of the House
of Lords. And hes regarded as the greatest judge New Zealand, he said;

the modern common law should be seen to have a free and

democratic society as its basic tenet and, for that reason, to be built on
two complementary and lawfully unalterable principles: the operation of a
democratic legislature and the operation of independent courts if a
change, by legislation or otherwise, were seen to undermine either of
them to a significant extent, it would be the responsibility of Judges to say
so and, if their judgements to that effect were disregarded, to resign or to
acknowledge frankly that they are prepared to depart from their judicial
oath and to serve a state not entitled to be called a free democracy.
(Fundamentals, New Zealand Law Journal, May 1988.)

13. Conclusions

The Vienna Convention on the Law of Treaties, article 31 states in clause1:

A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.

1. My ordinary reading of the various elements above, describe the International

Law in relation to international treaties.

2. TPP has been found to breach UN principles through its inclusion of ISDS, this is
established with the evidence of 100 jurists in their open letter. None of these would
have lent their name to it lightly. Secondly the report of the Independent
Investigator Alfred de Zayas points to ISDS as the matter of greatest concern.

3. TPP's Signing by the NZ Government without first obtaining a specific mandate,

breaches the requirement that people have a say in the matters that effect them
when governments are making decisions. The democratic principle and right to self
determination is broken with TPP's signing absent a clear mandate.

14. Demands or recommendations your choice?

Accordingly I recommend the following:

Before it takes any steps towards signing the agreement, the New Zealand
Government shall:

1. undertake independent human rights, health, environmental and climate change

impact assessments of the potential effects of the TPP on the people and land of
New Zealand, and make this information publicly available.

2. support Local Government New Zealand to undertake an independent

assessment of the impacts on local government of the TPP, and consult fully with
local government including future agendas to extend TPP's coverage to all/more
local Government activity.

3. fully engage with its Treaty of Waitangi partners to hear and address their
concerns about the TPP and refer the text and any proposed legislation to the
Waitangi Tribunal to conduct a full risk assessment of impacts on tangata whenua;
iwi and hap.

4. withdraw its consent to the secrecy pact among the twelve TPP countries and
release all background documentation relating to the negotiations.

5. initiate a full public and parliamentary debate on the TPP, including expanded
Select Committee hearings with public consultation.

6. expedite the consideration of the International Transparent Treaties Bill, and

7. put the question of TPP to a binding public referendum, before any further action
to ratify TPP is taken.

Greg Rzesniowiecki April 2016.

gregfullmoon013@gmail.com