The Trans-Partnership: Brunei, Trade, and Human Rights
Matthew Rimmer
If we are open for business, should we be open for business with countries engaged in human rights abuses?
The Prime Minister of Australia, Tony Abbott, has said that ‘Australia is Open for Business’. His trade and investment minister, Andrew Robb, has vigorously pursued bilateral trade agreements with neighbours, South Korea, Japan, China, and India — as well as the regional trade agreement, the Trans-Pacific Partnership. Such trade activity raises questions about the relationship between trade policy and human rights. If we are open for business, should we be open for business for countries engaged in human rights abuses? Should enter into trade agreements, which could have an adverse upon human rights?
The Trans-Pacific Partnership highlights a range of problems with Australia’s treaty-making process. One important issue is the question of the relationship between trade and human rights.
The Trans-Pacific Partnership has a wide range of impacts upon human rights. The intellectual property of the agreement has been seen as a threat to basic civil and political liberties. There has been disquiet about the impact of the Trans-Pacific Partnership upon the right to health — particularly in respect of drug pricing, access to medicines, and tobacco control. There has been a consideration about how the Trans-Pacific Partnership will impact upon the right to food. There has been disquiet as to whether the Trans-Pacific Partnership will affect the right to a healthy environment. There has been discussion of violations of labor rights, particularly in Vietnam.
The Trans-Pacific Partnership also highlights larger issues about the relationship between trade and human rights.
Brunei’s repressive criminal laws — particularly in their treatment of gays, lesbians, bisexual and transgender individuals — have attracted a great deal of alarm and disquiet amongst human rights defenders. Amnesty International has said that Brunei’s new Penal Code will take ‘the country back to the dark ages when it comes to human rights.’[1] Rupert Abbott, Deputy Asia-Pacific Director at Amnesty International, said:
Brunei Darussalam’s new Penal Code legalizes cruel and inhuman punishments. It makes a mockery of the country’s international human rights commitments and must be revoked immediately. The new code even permits stoning to death for acts which should not be considered ‘crimes’ in the first place, such as extramarital sexual relations and consensual sex between adults of the same gender.
The laws have been criticised by international human rights organizations and the United Nations. Lesbian, gay, bisexual, transgender and intersex groups have responded by boycotting businesses owned by the head of state, the Sultan of Brunei. Feminists have also criticised the new regime for discriminating against women.
There has also been criticism of Malaysia and its human rights record by Amnesty International.[2]
There has been debate in both the Australian Parliament and the United States Congress over the inclusion of Brunei and Malaysia in the Pacific Rim trade talks.
1. The Australian Parliament
In July 2014, there was a debate in the Australian Parliament in respect of the relationship between trade and human rights.
Senator Peter Whish-Wilson of the Australian Greens moved a motion that ‘the Senate — (a) notes the Government of Brunei Darussalam’s recently adopted penal code, which threatens the human rights of minority groups, including women, religious minorities and lesbian, gay, bisexual and transgender individuals; and (b) calls on the Government to insist that Brunei address these human rights violations as a condition of it participating any further in the Trans-Pacific Partnership trade negotiations.’
The Coalition Government did not address the topic during the debate in the Australian Senate. Paula Gerber, an Associate Professor in Human Rights Law at Monash University, has contended: ‘The significant trade relationship between Australia and Brunei suggests that Australia is well-placed to exert some influence over Brunei.’[3] She suggests that the Foreign Minister Julie Bishop should engage in diplomacy over the issue of human rights abuses.
Senator Claire Moore of the Australian Labor Party was reluctant to debate the matter in the form presented to the Australian Parliament: ‘Consistent with the statement made by the Leader of the Opposition in the Senate, Senator Wong, on 25 March 2014, the opposition does not believe that complex and contested matters, including specifically matters that concern foreign affairs and relations, should be dealt with in the summary fashion by this chamber.’[4] She said that: ‘Serious issues deserve serious consideration — not a vote take in summary form without a word of debate.’[5] Moore noted: ‘This motion sought to be moved by Senator Whish-Wilson deals with matters related to serious human rights abuses and the interaction between foreign policy and trade policy’.[6] She insisted: ‘No-one should mistake our decision to deny formality with support for any discrimination under any legal system based on race, gender, religious belief or sexuality.’[7]
Senator John Faulkner of the Australian Labor Party called attention to past Senate debate about the appropriateness of foreign affairs being dealt with as formal motions.[8] He cited a statement that he made as Leader of the Opposition in the Senate on the 27 May 1998 — in which he expressed his concern that ‘treating general business notices of motion on foreign affairs matters as formal notices was an inappropriate and extremely blunt way to deal with very complex and often contentious matters.’[9] Senator Faulkner stressed: ‘It is an unsatisfactory way to deal with controversial matters, particularly relating to international and foreign policy.’ He maintained that ‘no-one should be under any illusions that this does not mean the matter is important and serious and warrants debate in this chamber.’[10]
Senator Peter Whish-Wilson of the Australian Greens emphasized that it was an important question of transparency: ‘While I understand Labor have a longstanding policy of not discussing these issues, it is my belief that the people out there want to see transparency’.[11] He commented: ‘This is about parliament and parliamentarians making a very clear statement on an issue that is not only important to many Australians; it has gained international attention.’[12] The Senator was concerned that the Australian Government and the Department of Foreign Affairs and Trade were not addressing such concerns about trade and human rights:
I put similar concerns to the Department of Foreign Affairs and Trade at estimates recently relating to the Trans-Pacific Partnership Agreement negotiations and what has been happening in Brunei. While I got acknowledgement from the DFAT officials that they knew this was an issue in the US, it had not crossed their brief at all and they would not comment at all about what was happening in the Trans-Pacific Partnership Agreement trade negotiations.[13]
Senator Peter Whish-Wilson observed that United States Legislators had raised such issues with President Barack Obama and the United States Trade Representative, Michael Froman: ‘It was a very clear statement from US congress men and women that America has a leadership role to play in these negotiations in social, ethical and environmental issues.’[14] Senator Peter Whish-Wilson insisted: ‘We need to use these trade deals as an opportunity to change the way we approach the relationships with our neighbours’.[15] He stressed: ‘We need to make sure that the Department of Foreign Affairs and Trade is well aware of the parliament’s position on obvious human rights abuses in Brunei for the next time I, Senator Wong or any other senator asks it a question on this matter and takes these factors into consideration in our trade negotiations.’[16] He observed: ‘We will show leadership in the Asia-Pacific region to make sure that Brunei gets the very clear message that this is not acceptable to us and we will not be doing business with people who violate the human rights of their citizens.’[17]
The leader of the Australian Greens, Senator Christine Milne, was concerned that there was a lack of understanding in Australia about the criminal law regime in Brunei: ‘I wonder if Australians realise that the Australian government — in talking about participating in and signing up to the Trans-Pacific Partnership Agreement — understands that in Brunei, with its new criminal law regime, punishments include limb amputation for theft and stoning to death for adultery or homosexuality.’[18] She wondered: ‘Why would we want to be involved in a trade partnership with a country involved in human rights abuses like that?’[19] Senator Milne emphasized that there was a lack of transparency about the agreement: ‘The Australian community has been absolutely in the dark about the extent of the negotiations on the Trans-Pacific Partnership and on exactly what is going to be sold out if Australia signs up to it.’[20] She insisted: ‘The sooner we shine a light on what Australia is signing up to, the better.’[21] Senator Christine Milne concluded: ‘This is a disaster for Australia in a range of matters, but giving the nod to — or ignoring the extent of — human rights abuses in Brunei is inexcusable.’[22]
Senator Scott Ludlam contended that ‘pretending that trade issues are entirely separate to environmental or human rights issues is a recipe for utterly amoral foreign and trade policy.’[23] He feared: ‘That is what the government appears to be plunging us into.’[24] Ludlam stressed: ‘We are blinding domestic politics and domestic populations to the consequences of deals that are not being done in our name — deals that are being done in the name of particular industry sectors and then given a kind of veneer of respectability through agreements such as this.’[25] He commented, on the case of the motion on Brunei, that ‘you do not legitimise a country that appears to be bringing that about for its own domestic population; you do not legitimise obscenities like that by signing up to trade agreements, or investors’ rights agreements, with them.’[26] Ludlam commented:
We can no longer pretend that trade agreements, or investors’ rights agreements, are divorced from their human consequences. That is what the TPP effectively does. That is what this amoral foreign policy and trade policy does — it delinks trade and investors’ rights agreements from their environmental, human and community consequences. On the day the Australian government is sued by foreign tobacco multinationals, the gas fracking industry, the atomic energy industry or forestry corporations from overseas for daring to pass laws to protect environmental values or public health and safety, it is going to be absolutely no pleasure whatsoever to stand up here and say, ‘We told you so.’[27]
Ludlam rejected the procedural position of the Australian Labor Party: ‘With regard to Senator Faulkner’s brief comments, I do not understand the distinction the Labor Party has started to draw between complex foreign policy matters and complex domestic policy matters.’[28] He emphasized that both domestic and foreign policy matters could have life and death consequences. Ludlam emphasized: ‘The time for disclosure and transparency on this agreement is now.’[29] He commented: ‘If you are not seeing the red flag put up about the kinds of countries we are proposing to get into bed with as a result of the motion Senator Whish-Wilson has brought forward today, then I have no idea what it would actually take.’[30]
When a division was called, there were 10 votes for the Motion, and 37 votes against.
On the 9th February 2015, Senator Rachel Siewert of the Australian Greens moved a motion on behalf of Senator Peter Whish-Wilson.[31] The Motion observed: ‘That the Senate — (a) notes the Government of Brunei Darussalam’s recently adopted penal code, which threatens the human rights of minority groups, including women, religious minorities and lesbian, gay, bisexual and transgender individuals; and (b) calls on the Government to insist that Brunei address these human rights violations as a condition of it participating any further in the Trans-Pacific Partnership trade negotiations.’[32]
2. The United States Congress
In June 2014, a coalition of celebrities, human rights activists, and LGBT supporters called for the exclusion of Brunei from the Trans-Pacific Partnership.[33] Naomi Wolf, Frances Fisher, Ellen DeGenneres, Jay Leno, the Human Rights Campaign, the Feminist Majority Foundation and the city of Beverly Hills called for a boycott of Brunei. Actress Frances Fisher called for ‘contacting the Obama administration and Members of Congress and urging them to ban Brunei from the pending Trans-Pacific Partnership trade agreement.’[34] Naomi Wolf commented:
The fact that President Obama seeks the Trans-Pacific Partnership to reward Brunei, which has institutionalized the torture to death and violent punishment of gay men, lesbians and women in general, represents a new low in the administration’s abandonment of America’s traditional role in upholding human rights. The Trans-Pacific Partnership is a terrifying development for Americans because it forces us to live under decisions that we have no say about whatsoever, and takes legislation and legal rulings out of the hands of Americans and puts them in the hands of international courts beyond the reach of the will of the people.[35]
Curtis Ellis commented: ‘The barbarism in Brunei shows us everything that’s wrong with the Trans-Pacific Partnership’.[36] He said: ‘The Obama administration should be standing up for American values and human rights, not the Sultan of Brunei.’[37] In his view, ‘It boggles the mind that the administration wants to give economic rewards to bad actors in eastern Asia at the same time it wants economic sanctions on bad actors in Eastern Europe.’[38]
‘At a minimum, the US should not enter into a partnership with a country that just last year adopted a penal code authorizing torture and violence against its citizens,’ said Eleanor Smeal, President of the Feminist Majority, in a blog for the Huffington Post. She insisted: ‘We must call on the President to seriously address the impact of the TPP on human rights’.
In response, a number of United States lawmakers wanted the United States President and the United States Trade Representative to exclude Brunei from the Trans-Pacific Partnership, unless revoked its criminal laws, which threatened human rights.[39]
On the 12 June 2014, Representative Mark Pocan and over 100 congressmen and women wrote to the Secretary of State John Kerry and Ambassador Mike Froman on trade and human rights.[40] The letter stressed: ‘We write to express our concern over the Government of Brunei Darussalam’s recently adopted penal code, which threatens the human rights of minority groups including women, religious minorities, and lesbian, gay, bisexual, and transgender (LGBT) individuals, and urge you to insist that Brunei address these human rights violations as a condition of the United States participating with them in any further Trans-Pacific Partnership (TPP) trade negotiations.’[41] The United States Congress noted: ‘Brunei’s adoption of the revised penal code legalizes violence against its citizens, constituting torture or other cruel, inhumane or degrading treatment.’[42] The lawmakers said: ‘As Members of Congress, we believe that protecting fundamental human rights is a cornerstone of American values and must always be a priority in our relations, both diplomatic and economic, with foreign countries.[43] Pocan and others stressed: ‘Targeting LGBT individuals or religious minorities and opening the door for discrimination and violence against women is a threat we cannot overlook, and should trade agreements like the TPP go into effect with the participation of human rights violators, the United States would lose its leverage to provide economic pressure on countries to reverse unacceptable policies.’[44]
In February 2015, five members of the Congressional LGBT Equality Caucus wrote a letter to President Barack Obama, complaining about the inclusion of Brunei and Malaysia in the trade talks, given their hostility to gay communities.[45] The members of Congress included Mark Pocan, Mark Takano, David Cicilline, Sean Patrick Maloney, and Kyrsten Sinema. (Jared Polis was a member of the Caucus, but did not sign the letter.)
The letter began, with praise for the Obama administration: ‘Your commitment to equality is unrivalled by previous administrations and we have been proud to work with you to make progress on these issues.’[46] The letter endorsed the administration policy articulated by successive Secretaries of State. Hillary Clinton had said in 2011 that ‘The Obama Administration defends the human rights of LGBT people as part of our comprehensive human rights policy and as a priority of our foreign policy.’[47] John Kerry had declared in 2014 that ‘LGBT rights are human rights, and human rights are LGBT rights.’[48] The letter noted that the United States Trade Representative had revoked Gambia’s trade preferences, in light of its laws criminalising homosexuality, and targeting lesbians, gays, bisexual and transgender individuals with harassment, detention, and imprisonment.
The Congressional caucus called upon the Obama administration to review the inclusion of Brunei and Malaysia in the Trans-Pacific Partnership talks.
The legislative representatives stressed that there had been no progress taken to address human rights abuses: ‘Brunei continues to move forward with full implementation of a strict penal code mandating the stoning to death of LGBT individuals.’[50] The caucus was concerned: ‘Despite these abuses, the Administration continues to include them in negotiations around the TPP and lists them as intended signatories to the trade agreement.’[51] The legislators hoped that the administration would bring consistency to its foreign and trade policy: ‘The LGBT community looks to your Administration to fight for human rights across the globe and we hope you will continue this regard of equality by removing Brunei and Malaysia from the TPP if they neglect to address these issues.’[52]
In response, the Obama Administration emphasized that there were significant issues with the human rights record of Brunei.[53] The Office of the United States Trade Representative told the media:
The Administration shares the serious concerns about the new Sharia penal code, which is in the process of being implemented. We have been working closely with the State Department in communicating the strong concerns of both the Administration and Congress to the Bruneian government. In meetings with senior Bruneian government officials, we have made clear that protecting human rights — including the rights of LGBT individuals, women, and religious minorities — is a core U.S. value and a foreign policy priority.[54]
Nonetheless, there seemed to be an unwillingness to link such concerns to the membership of the Trans-Pacific Partnership.
Conclusion
The secretive negotiations over the Trans-Pacific Partnership have failed to adequately and sufficiently address questions about human rights — both in terms of the membership of the agreement, and the content of the trade deal. Both Australia and the United States should engage in open and transparent human rights assessments of their trading partners. In turn, both countries should be open to human rights scrutiny by their neighbours. Moreover, as Olivier de Schutter and Kaitlin Cordes maintain, there needs to be a human rights assessment of the Trans-Pacific Partnership — before any deal is signed.[55] There is a need to ensure that regional trade agreements do not undermine human rights in the Pacific Rim.
[1] Amnesty International, ‘Brunei Darussalam: Revoke New Penal Code allowing Whipping, Stoning, Amputation’, April 2014, https://www.amnesty.org/en/articles/news/2014/04/brunei-darussalam-penal-code/
[2] Amnesty International, ‘Malaysia’s Move to Outlaw Human Rights Groups is an Assault on Freedom’, 8 January 2014, http://www.amnesty.org.au/news/comments/33685/
[3] Paula Gerber, ‘As Region’s Homophobia Turns Deadly, Let’s Stand Up For Rights’, The Conversation, 29 May 2014, http://theconversation.com/as-regions-homophobia-turns-deadly-lets-stand-up-for-rights-27067
[4] Senator Claire Moore, ‘The Trans-Pacific Partnership, Human Rights, and Brunei’, Australian Senate, 7 July 2014, 4223, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fd1c77497-38f3-4411-ace9-fd69e2e4f785%2F0113%22
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Senator John Faulkner, ‘The Trans-Pacific Partnership, Human Rights, and Brunei’, Australian Senate, 7 July 2014, 4225, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fd1c77497-38f3-4411-ace9-fd69e2e4f785%2F0116%22
[9] Ibid.
[10] Ibid.
[11] Senator Peter Whish-Wilson, ‘The Trans-Pacific Partnership, Human Rights, and Brunei’, Australian Senate, 7 July 2014, 4223, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fd1c77497-38f3-4411-ace9-fd69e2e4f785%2F0115%22
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Senator Christine Milne, ‘The Trans-Pacific Partnership, Human Rights, and Brunei’, Australian Senate, 7 July 2014, 4226, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fd1c77497-38f3-4411-ace9-fd69e2e4f785%2F0117%22
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Senator Scott Ludlam, ‘The Trans-Pacific Partnership, Human Rights, and Brunei’, Australian Senate, 7 July 2014,
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Senator Rachel Siewert, ‘A Motion on Brunei and the Trans-Pacific Partnership’, Australian Senate, 9 February 2015, 62, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F99719712-4012-4065-9200-934e1d93d539%2F0160%22
[32] Ibid.
[33] Curtis Ellis, ‘Hollywood Boycott Threatens Trans-Pacific Partnership’, The Huffington Post, 5 June 2014, http://www.huffingtonpost.com/curtis-ellis/obama-administration-want_1_b_5261016.html
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Ibid.
[39] Reuters, ‘Lawmakers Urge U.S. to Shun Brunei in Trade Talks Over Sharia Law’, Reuters, 21 May 2014, http://www.reuters.com/article/2014/05/21/us-usa-trade-brunei-idUSBREA4K1A520140521
[40] Mark Pocan and others, ‘A Letter to the Secretary of State, John Kerry, and United States Trade Representative Ambassador Michael Froman on the Trans-Pacific Partnership, Human Rights, and Brunei’, 12 June 2014, http://pocan.house.gov/sites/pocan.house.gov/files/wysiwyg_uploaded/6.12.2014%20-%20Letter%20to%20Secretary%20Kerry%20and%20Ambassador%20Froman%20RE.%20Human%20Rights%20in%20Brunei.pdf
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Representative Mark Pocan and others, ‘A Letter to President Barack Obama about The Trans-Pacific Partnership, LGBT Rights, and Human Rights’, 18 February 2015, http://big.assets.huffingtonpost.com/LGBTBRUNEI.pdf
[46] Ibid.
[47] Ibid.
[48] Ibid.
[49] Ibid.
[50] Ibid.
[51] Ibid.
[52] Ibid.
[53] Zach Carter, ‘Obama’s Trade Deal Rewards a Brutally Anti-Gay Dictator — And LGBT Lawmakers are Not Pleased’, Huffington Post, 24 February 2015, http://www.huffingtonpost.com/2015/02/19/obama-trade-lgbt_n_6716810.html
[54] Ibid.
[55] Olivier de Schutter and Kaitlin Cordes, ‘Trading Away Human Rights’, Project Syndicate, 7 January 2014, http://www.project-syndicate.org/commentary/olivier-de-schutter-and-kaitlin-y--cordes-demand-that-the-trans-pacific-partnership-s-terms-be-subject-to-a-human-rights-impact-assessment
Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, Intellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual Property: A Handbook of Contemporary Research. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.
