Multiple countries are rejecting investor state dispute settlement clauses in free trade agreements

by Janet Eaton

There appears to be a growing awareness that NAFTA-style foreign investor privileges and their private "investor-state dispute system [ISD]", which have been among the most controversial aspects of past US trade deals, should be rejected in trade and investment agreements. (ISDs allow corporations to sue to overturn local or national regulations or laws that are perceived as impinging in any way on the "right" of the corporation to profit. Past suits have targeted environmental and health regulations.)

In particular this provision has emerged as a point of major contention in the Trans-Pacific Partnership (TPP) negotiations, with Julia Gillard's Australian government announcing last April that they would reject investor-state arbitration in all trade agreements. It seems that her government was not only concerned about the loss of public policy sovereignty but was also taking seriously the advice of the  Australian Productivity Commission which concluded there were "few clear benefits, and several worrying risks, associated with such provisions."

Following on the heels of Australia, Korea appeared poised to go the same route with polls showing the opposition, which rejected ISD, favoured to win the upcoming election; however, in the election held last week, the governing Conservatives managed to hold on to a slender majority so the jury is still out as regards South Korea. However one clue might be found in a recent April 6th claim by India that it plans to abolish the investor-state dispute system and renegotiate FTAs with South Korea, Singapore, and other countries. According to the English language newspaper, Indian Express,  New Delhi´s decision to abandon the ISD system is based on its first-hand experience with the potential threat foreign companies pose to public policy on the grounds of investment agreement violations.

Other countries that have concerns with, are opposed to, or have rejected, ISD, include the South African government which is re-examining the ISD system after a policy of affirmative action for blacks, aimed at reducing economic disparities between white and black people, was targeted in 2007 by a multinational corporation; the Brazilian parliament which has refused to ratify a number of investment agreements on the grounds that they infringe on legislative sovereignty and Ecuador and Bolivia that have pulled out of the International Center for Settlement of Investment Disputes convention.

Meanwhile in the US and Canada, both President Obama and Prime Minister Harper are pushing Investor State Dispute settlement in their frenzy to initiate  free trade deals in every corner of the world. In the case of Obama this is in spite of his presidential campaign promises to review NAFTA Ch 11 [investor state] and other harmful aspects of free trade agreements in general and in spite of over 100 members of Congress and many progressive NGOs expressing support for the TRADE [Trade Reform, Accountability, Development and Employment] Act introduced by Representative Michael Michaud [D-Maine] and Sen. Sherrod Brown (D-Ohio).

In the case of Mr. Harper, he ignores calls from civil society, NGOs, institutes, activists and three opposition parties to renegotiate NAFTA Ch 11 while belittling anyone who tries to make the case. . [6]

Hopefully this momentum to reject the ISD system will eventually be powerful enough to influence the Harper government because in the words of a statement of concern initiatied by Canadian academics with expertise relating to investment law, arbitration, and regulation:

"We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability."

Photo: Foreign Policy In Focus

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Bolivia set to pass rights of nature

From The Guardian:



"Bolivia is set to pass the world's first laws granting all nature equal rights to humans. The Law of Mother Earth, now agreed by politicians and grassroots social groups, redefines the country's rich mineral deposits as 'blessings' and is expected to lead to radical new conservation and social measures to reduce pollution and control industry....

"Ecuador, which also has powerful indigenous groups, has changed its constitution to give nature 'the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution'. However, the abstract rights have not led to new laws or stopped oil companies from destroying some of the most biologically rich areas of the Amazon."

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AfD signs on to letter supporting recognition of rights of nature

The United Nations is currently considering a resolution to have the Rights of Nature debated by governments on Mother Earth Day, April 22, 2011. The document is at the informal consultation stage so is not public, but Alliance for Democracy has joined several other organizations in support of the debate, which would force countries to publicly declare their position with reference to the rights of nature and allow individuals and organizations to stand with supportive governments in moving forward on a global campaign for these rights.

Organizers note that these rights are embodied in the Universal Declaration on the Rights of Mother Earth, adopted when 32,000 people from around the world took up the call of President Morales and converged in Cochabamba, Bolivia, April 22, 2010, for the 'World People's Conference on Climate Change and the Rights of Mother Earth.

To read the letter, click on the "read more" link.

His Excellency M. Joseph Deiss
65th President of the United Nations General Assembly

Dear Mr. President,

We, the undersigned representatives of civil-society organizations from around the world,

Expressing concern over the well-documented environmental degradation and negative impacts on nature resulting from human activity,

Distressed by the consequent unsustainable depletion of the Earth's resources and the impacts on the natural systems which support life,

Urge you to convene, at the earliest opportunity, a high-level debate within the United Nations General Assembly focused on the rights of nature.

Mr. President, we believe that all alternatives for reestablishing harmony with nature should be discussed and analyzed within the United Nations, and this is not possible if we limit the debate to a consideration of the market-based approaches that have thus far garnered significant attention. It is also necessary to discuss proposals that consider that we are all part of the Earth's natural system and that, in order to reestablish the balance of this system, we should recognize that all living beings have rights that should be promoted and preserved.

The recognition of the rights of nature already exists in many places of the world at local, national and federal levels, including in some State constitutions. Raising the issue of the rights of nature in an open debate at the United Nations would allow Member States to share differing views and experiences on the subject.

We ask you to consider that such a debate would benefit the ongoing work of the United Nations related to the environment and critical issues such as climate change, forests, water and biodiversity.

We call on you to ensure that these issues, as they relate to the rights of nature and are essential to the future of humanity, are explored in the broadest, most transparent and democratic manner possible during the 65th Session of the United Nations General Assembly.

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A victory on the human right to water and sanitation

Whether or not you called UN Ambassador Susan Rice in response to the alert in our July e-news, you'll be happy to know that despite lack of support from the US, the UN General Assembly has voted in favor of the Bolivian resolution to recognize access to water and sanitation as human rights.

As we blogged here, the resolution opened fault lines between the water-rich, or just plain rich, countries, and developing nations of the global South. Despite concerns that the US and other developed countries would try to defeat the resolution, it passed by a wide margin, with 124 countries voting yea, no "no" votes, and 41 abstentions, including the US.

One positive note: despite Britain, the US, and Canada's abstentions, a few European countries, and twelve of the G20 nations voted in favor of the resolution, including France, Germany, Italy, the Russian Federation, South Africa, China, Brazil, and India. You can see the full list here.

Establishing a global human right to water is not only a victory for public health, but opens some interesting ground in the fight against climate change, and for environmental sustainability as well. You can make a strong case that people don't merely have a right to tap water, but also to rainfall and to the viability of winter snowpack, if that's a source of drinking and agricultural water, as well as free-running streams and rivers if they have traditionally been used for irrigation and fisheries.

Here's an interview with Maude Barlow, of The Council of Canadians/Le conseil des canadians and co-founder of the Blue Planet Project, from today's edition of Democracy Now!. She offers some good analysis of the vote, and the clip also features footage of Pablo Solon, Bolivian UN Ambassador, explaining the massive toll taken on children in the developing world by the lack of access to clean water.

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Action Alert: UN voting 7/28 on Right to Water--US is watering down the resolution

Call Susan Rice, U.S. Ambassador to the U.N., today!

An historic UN General Assembly resolution titled "The Human Right to Water and Sanitation" has been officially tabled by at least 23 co-sponsoring member states and the government of Bolivia. The United States is not yet co-sponsoring.

The date set for UN member states to consider this resolution is Wednesday, July 28th.
We need this resolution to pass with a strong majority so we need to act quickly and collectively!

Calls are needed this week, the International Week of Action on the Right to Water and Sanitation. The UN must hear our calls from around the world.

Call the U.S. Delegation’s Opinion & Comment line: 212-415-4062 and leave a message for Ambassador Rice.

Tell her that the right to safe drinking water and sanitation is fundamental to human rights and to the health of every person on the planet. Yet 1.2 billion people are without access to clean water and 2.6 billion are without access to basic sanitation. Climate change will make the global water crisis far worse. Passing this resolution is a critical step toward making access to water and sanitation recognized as a fundamental human right by the UN.

For current text of the Resolution and more details see www.blueplanetproject.net/RightToWater.

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Action on Water and Climate: Friday June 11 deadline!

We ask for your quick action to sign on to this petition to tell climate negotiators - “Protect Water, Protect the Climate.” The petition will be sent in on Friday, June 11, so please read more and sign the petition at: http://www.thepetitionsite.com/1/Water-and-Climate-Justice-Bonn

Background: Parties to the UN Framework Convention on Climate Change (UNFCCC) are meeting in Bonn, Germany from May 31- June 11 to prepare for the next major climate talks in Cancun, Mexico from Nov. 29 – Dec. 10. The Cancun meeting is the sequel to the failed climate talks in Copenhagen this past December, and already the People’s Climate Justice Movement is organizing to have a large presence and impact.

Unfortunately, protecting fresh water sources is not part of the discussion. The online petition sponsored by the Climate Justice Network, of which the Alliance is a part, seeks to change that, by emphasizing the link between stewardship of water and prevention of climate change.

The petition also asks for a more open negotiating process, and endorses recommendations for action that came out of the recent World People's Conference on Climate Change and the Rights of Mother Earth. These should not be ignored in preference to the Copenhagen Accord. Read here why the Peoples Conference model of inclusion offers only path forward on climate change.

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Action Alert: Get investor rights clauses out of US trade pacts

We urge you to ask President Obama to stand by his campaign pledge to remove investor rights clauses from U.S. trade pacts--negotiations for a new one, the Transpacific Partnership, will get underway in San Francisco later this month. Please visit Public Citizen's site for background and to sign on to the call.

Background:
In 2008, the government of El Salvador lawfully denied mining permits to Pacific Rim Mining Company for a massive gold mine in a rural watershed area 40 miles south of San Salvador. To process the expected haul of gold and silver, mining operations would have used an estimated 22 million liters of water and 950 tons of cyanide, and the threat to water resources, agriculture and health spurred resistance to the plan across the nation. Even Salvadoran President Mauricio Funes has said, "It's very simple: my government will not authorize any extractive mining project."

But now Pacific Rim has gone to the World Bank, and in a closed-door hearing that started last week, the corporation will claim some $77 million in damages against El Salvador based on the controversial CAFTA investor rights rules. Under these rules, a private company can sue governments based on loss of future expected profits. It's the first time the investor rights clause has been used in an environmental protection case, but it won't be the last as multinational extractive industries go after a growing movement in the Global South for environmental justice, sustainability and rights of nature.

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Maine to Cochabamba: El Agua es nuestra, ¡¡Carajo!!

That’s the message which the Alliance’s Defending Water for Life campaign in Maine brought to the Feria Internacional del Aqua in Cochabamba, Bolivia, April 15-18. The message was in the form of an art show brought from Maine by Emily Posner, our Maine organizer, who arrived early to set up the show in the main entrance to the Complejo Fabril (labor center) where the Feria (fair) took place.

We were there with water activists from around the globe to celebrate the 10th anniversary of the people’s uprising in Cochabamba to take back their water from the private international consortium headed up by Bechtel Corporation. The story has been told around the world and featured in two documentaries: first in Thirst and more recently in FLOW.

We heard heart rending stories of the water crisis developing among indigenous communities in the high plains of Bolivia as glaciers are melting far faster than they are being replenished and where already one has disappeared entirely. We heard of the ecological disasters from large dams in the Philippines and from the reversal of river flows for irrigation in Brazil. We heard how the eucalyptus tree farms, an easy way to earn carbon credits, actually consume vast quantities of water and replace native trees. We learned about how 20-year contracts with local communities to maintain forests as a climate initiative, actually puts the community in financial jeopardy and threatens loss of their autonomy.

We heard from indigenous leaders in the Bolivian Andes about how water-intensive mining is threatening protected water basins, contaminating water supplies, drying up springs, and even so, how some water is being sold to Chile for mining.

On Saturday and Sunday, we understood why this really was a “feria” or fair. The large field adjacent to the labor center had blossomed with small tents showcasing the water cooperatives created by local neighborhoods in the poor, southern side of the city. Organizing is not just about throwing out the corporate thugs, but about taking local control. But as was made clear the day before, neighborhoods must work together to combat pollution and to ensure a sustainable source of water. How can the neighborhoods have a meaningful voice in establishing needed regulations to protect their water supplies?

As we turned our attention toward the upcoming People’s World Conference on Climate Change and the Rights of Mother Earth, we starting making the connection between climate justice and water justice. Just as water must not be commodified with the market setting the price, clean air should not be commodified through a reverse pricing where polluters buy carbon credits from native forest communities and tree farm entrepreneurs in the Global South. Clean air, once a commons, is now being given a price in a new market where speculation can run rampant.

Is this what we want? The conclusion of the Climate Change conference which followed was a resounding no. Instead, it was recognized that Mother Earth has intrinsic rights which must not be violated if we humans are to survive. In the working group on Mother Earth Rights in which I participated, alongside several hundred indigenous participants from Andean communities, a Declaration on the Rights of Mother Earth was prepared for presentation to the U.N. General Assembly for its consideration as a critical complement to the International Declaration on Human Rights. Here is the link to the declaration.

Now the organizing to get the declaration adopted by the United Nations must begin! The six local ordinances passed in NH and Maine all of which declare that nature has rights are an important start.

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More from Cochabamba

Too much to summarize here, but for a participant's view of the Feria Internacional del Agua and Conferencia Mundial de los Pueblos sobre el Cambio Climatico y los Derechose de la Madre Tierra/World People's Conference on Climate Change and the Rights of Mother Earth, read these posts by Ruth Caplan at her Cochabamba Rising blog.

Some highlights:

...It was on the last day of our water gathering in Cochabamba that the real meaning of "Feria", the "Water Fair," became clear. Indigenous local communities from the south of Cochabamba which helped to lead the water war against Bechtel have been self-organizing to provide water for their neighborhoods. All around a large field next to the labor center, booths had been set up showing the neighborhoods and what they were doing to provide water for their households. The grounds were filled with people and vendors selling food, ices, and drinks. It was truly a celebration of the people´s local control of water. But there is still much to be done to ensure that this water is clean since contamination of the water by industry in this part of Cochabamba is a serious problem....

...Defending Water held two sessions at the World Conference. Emily Posner presented on "Lessons Learned from the Climate Disaster in the U.S.," describing with words and slides what happened in New Orleans when Katrina and Rita hit the coast and the city. Property was protected while people from the 9th Ward were blocked from getting to dry land. Some African-Americans crossing through the Algiers white neighborhood to get to the evacuation location were shot. When a crisis hits again, is this the way we will behave or will we have learned to act together when the next climate or othr crisis strikes? Some workshop participants reported that in Oakland CA they are trying now to build a cooperative strategy so that they will be prepared if (when?) the next earthquake strikes.

Thursday morning, we led a session on Building a Movement for the International Declaration of Mother Earth Rights. It was good to sit in a circle rather than have presentations from the podium. Brent Patterson from the Council of Canadians talked about how local organizing to stop the Multilateral Agreement on Investment (MAI) led to stopping the trade agreement that would have given corporations and investors unbridled rights. (This was also the first major campaign of the Alliance for Democracy). Emily spoke about our work in Maine. Mari Margil with Community Environmental Legal Defense Fund (CELDF) explained the history and significance of rights-based organizing. Finally, Maria Lauron from IBON in the Phillipines spoke about their success in getting the Supreme Court to put the rights of nature into their law. But, even though people are given the power to enforce the law, she made clear that this would not be an easy route in the Phillipines, where 43 community health workers have been arrested and are now in jail on a hunger strike...

...What is hard to convey are the tears. The tears of Susanna, an Athabascan from Alberta Province in Canada, who lost 13 family members in one month. Multinational corporations such as BP, Shell, Exxon Mobil and even the Norwegian government produce oil from tar sands from mines covering an area as large as New York State and pollute the native lands causing countless cancers and poisoning the fish. One 8 year old boy is afraid to eat the food or drink the water. The land is crying along with the people...

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Feria Internacional del Agua begins

by Ruth Caplan. Posted April 17 at CochabambaRising.blogspot.com.
Friday morning the gathering is in full swing with five groups meeting in tents and in the labor center where there is translation for the session on Water, Climate and Contamination. The session begins by Anil Nadoo from the Council of Canadians explaining why it is essential to keep water in the soil and in watersheds if we are to combat climate change. This fits into our work in Maine to keep water out of corporate hands and in the watersheds and communities.

Janet Redman with Institute of Policy Studies provided the historical perspective that the connection between water and climate change was made 20 years ago. She went on to critique the Clean Development Mechanism established as part of the Kyoto Protocol as establishing a carbon market which pays people in the Global South to compensate for the continuing pollution by people in the Global North, a kind of outsourcing. (Of course these terms are not just geographic for there is mining and industry in
countries in the southern hemisphere just as there are efforts to reduce carbon emissions by communities, states and countries in the northern hemisphere.) She also emphasized that the people most immediately impacted by climate change were shut out of the Copenhagen negotiations. The climate justice platform includes reparations for climate debt from north to south; the rights of all peoples; and that the carbon market is a false solution which is a form of privatizing the air, adding to our concern about water privatization.

The impact of climate change was then brought home dramatically by the report of how the melting glaciers in the Bolivian Andes is already impacting indigenous communities dependent on irrigation using water from the glaciers. The glaciers are now melting rapidly and not being replenished. How can there be a right to water when there is no water? How can there be a right to indigenous culture when these communities may be forced to become climate immigrants? In La Paz the water system is now public and workers have installed 3250 local systems in the last 2 months. Yet there is less rainfall. What will the poor do who can´t afford to buy bottled water? (Not mentioned until another session the next day was the development of new mines in the Alto Plato which consume huge quantities of water. What does this mean for the human right to water?)

False solutions were discussed including eucalyptus plantations which suck up huge quantities of water and cannot be used by rural communities for needed firewood and the World Bank´s promotion of mega hydro projects as a key source of renewable energy when most of this energy is used to fuel industry and displaces thousands of households.

In the end, water justice and climate justice must be pursued as two sides of one coin.

In the afternoon, we heard from the other working groups including the role of local communities in distributing water from cooperative water companies; the need to create strong legal frameworks for the right to water including Emily Posner describing the local water ordinances passed in Shapleigh and Newfield Maine; and difficult questions relating to regulations and autonomy to go beyond words to actual practices, such as
the use of water by the mining industry when water is to be treated as a commons.

This last theme was made graphically clear on Saturday during a session on Derechos Colectivos y Derechos de la Madre Tierre. Here the impact of mines on indigenous communities was made painfully clear. The El Alto indigenous economic system, ayllo, is simply not compatible with the pollution emanating from the mines which is polluting the water of mother earth. For a new copper mine, land was taken from the indigenous communities for building dykes without any consultation with the communities. Both violated the Bolivian Constitution. The pollution also violates the Constitutional protection of the right to water. So clearly the goals of economic development and fundamental rights are clashing in Bolivia. How do words on paper get translated into the practices of government is a question we must all grapple with.

The day ended with a session to prepare a statement to go to the climate conference, raising the fundamental question of how can there be climate justice in a world still following an economic model based on more and more consumption.

Before leaving, I checked out our quilt square project and noticed that many new squares are being made by people visiting our art show, El Agua is nuestra, ¡¡Carajo!!

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Arriving Cochabamba

Defending Water for Life campaign coordinator Ruth Caplan has arrived in Cochabamba and posts about common ground with another visitor:

Early Thursday morning, we arrive in La Paz, at 12,000 feet the highest airport in the world. My first conversation is with a doctor from Wales who is returning to Cochabamba for his mother´s birthday. I explain that I am coming for the 10th anniversary of the uprising in Cochabamba against the privatization of the city´s water by the U.S. corporation, Bechtel. Ah, he says, I remember the march. They were throwing stones and my brother was very upset because he couldn´t fill his swimming pool twice a week! Then he says that his son-in-law works for Bechtel in the U.S. at the Richmond WA nuclear site. How far apart could we be? Yet, he was sympathetic with the marchers and thought his brother selfish. So what is it like to be a doctor in Wales with a government system of health care? He said it was a good system. Everyone got coverage paid by the government and he got a decent salary. Not wealthy like in private systems, but quite adequate. A lesson for me in not jumping to conclusions about people.

After a short flight to Cochabamba, I get a ride to the labor center and upon entering see our art show, "It´s Our Water, Damn It," beautifully displayed by Emily Posner who had arrived several days earlier. The quilt pieces have been sewn together and are hanging on the wall. The 6 foot banner of Nestle sucking water from the towns in Maine is also hung. Even the sculpture of the earth weeping is on display. Cochabamba and Maine don´t seem quite so far apart.

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