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The Art of Treaty Making?
“The principle of the MAI is offensive because it regards works of art purely as investments, not as creations. Countries should be allowed to implement their own policies on the arts and education. The MAI would end each country’s policy of arts subsidies ….”
Generally, photographers have little time and energy to be involved in the wider political issues that surround us. Most of us would struggle to de-acronym the initials OECD, and until recently, WTO. So we’ve just got our heads around these - WTO is the World Trade Orgainsation; OECD refers to the Organisation for Economic Co-operation and Development - and along comes the MAI.
The Multilateral Agreement on Investment is a proposed treaty which those avid news watchers may have heard of. But if you rely on the conventional New Zealand media, you may well not understand much of it.
Governments and media around all the OECD countries have until recently been very quiet on the matter. In Canada and Australia, MP's have denied that it even existed. Germany and Australia until recently refused to release the draft agreement, so that not even their MP's were aware of it. Lockwood Smith has called it "an innocuous agreement that won't affect anything" and the Herald has accused those who oppose it of protectionism and being flat earthers.
Conspiracy theorists from the media and government see a collusion of activism coming from the internet, and have attempted to trivialise this opposition by invoking all the internet bogies. But unfortunately for them, the internet activists are articulate, informed, and reject this name-calling. It is on newsgroups, discussion groups and web sites that the MAI is discussed with an element of sense, and a willingness to delve. In these forums the text has been available for over a year. The NZ government was accused of secrecy late last year, and Winston Peters decided to make it available in New Zealand, well after its online debut.
The October draft, at 176 pages, is admittedly, boring., Only those who have a specific interest in the consequences of such agreements will read it. Unfortunately, this does not seem to include some of the commentators.
What’s all the fuss about?
The pro-MAI lobby group answer ‘no’ to the first and ‘yes’ to the second, but when asked to justify this, there is something of a silence. The silence has been punctuated in part, by quotations from a 1995 KPMG survey of NZ businesses with more than 25% foreign ownership. This report tells us that 399 of every 400 jobs in such companies are held by NZers, that those jobs are, on average, paid at 28% higher than average.
What that survey neglected to tell is at what level those jobs are - ie how many are in the top echelons and how many are at the production level? And which jobs contribute to the 28% higher wages, those in the factories or those in upper management? Without this breakdown of the figures it is impossible to tell if NZers have high end jobs in foreign owned companies and whether the NZ held jobs are in fact better paid. It doesn't many top management salaries to bring up the average.
The KPMG report starts by saying it is not trying to put a slant on foreign ownership, but ends with the following quote "The hard choice really is between risking our destiny in dancing with foreigners, or having no destiny at all”. Hardly likely to encourage impartial debate.
Another widely quoted but un-sourced figure is one that tells us 1/3 of NZ jobs are from foreign investment. Statistics NZ gives a figure of 17.6%. From whence then, the other 16.7%?
How will the MAI affect us?
The MAI takes away the ability to impose performance requirements on an investment. So, for instance, a local body requirement for 50% of staff in East Cape logging industry to be locals (as an employment relief project, say) could and would be challenged by any foreign logging investor as contravening the MAI performance requirement clauses. The MAI is likely to apply to pre-existing investments too, so it would not necessarily be just for new projects.
The expropriation clauses may act as deterrents to implementing environmental, health and other laws which protect the public, but affect an investors' profit. A photographic instance might help here.
Imagine a city such as Wellington or Auckland, with many small and large photo processing establishments, where contaminants including silver (a heavy metal, of environmental concern) can be flushed into the waste-water, and hence the sewage system, by meeting a few requirements on percentages of silver and solids concentration (and paying a fee).
Now imagine if health or environmental departments had information which showed that silver concentration was above safe levels, and suggested that local bodies implement limits on silver discharges.
The tribunal would consist of 3 members, one appointed by each party, and the third (presiding arbitrator) on the agreement of both. Set up anew, to handle each specific case, the arbitrators may have little environmental law experience, or knowledge of local law, but an arbitration award is ‘final and binding”, and non-disputable. The likely outcome is that threatened by such a procedure, the ‘offender’ may simply back down. Future councils etc, would be extremely wary of imposing on investor profits. Interestingly, the US, who are pushing others to cut back on the total of over 600 reservations to the MAI, are pushing their own reservation which would exempt all US sub-national government laws.
Finally, the Arts Council will potentially be forced to offer any funding to both local and foreign artists. Under ‘National Treatment’ rules, the government and local bodies cannot discriminate between domestic and foreign investors. So if an overseas artist wanted funding to create a work here, it is likely they could apply for funding. Similarly, if a foreign producer was to create a TV documentary in NZ, they could apply to NZonAir. This assumes that intellectual property rights are included as investments in the MAI, and at present this seems to be the case. http://www.oecd.org for MAI proponents