Over the past several decades, multinational corporate Goliaths have helped to write and rewrite hundreds of rules skewing tax, trade, investment and other policies in their favor. The extraordinary damage these policies have caused has become increasingly apparent to the communities and governments most directly affected by them. This, in turn, has strengthened the potential of a movement that’s emerging to try to reverse the momentum. But just like David with his slingshot, the local, environmental and government leaders seeking to revise rules to favor communities and the planet must pick their battles carefully.
One of the most promising of these battles takes aim at an egregious set of agreements that allow corporations to sue national governments. Until three decades ago, governments could pass laws to protect consumers, workers, health, the environment and domestic firms with little threat of outside legal challenge from corporations. All that changed when corporations started acquiring the “right” to sue governments over actions—including public interest regulations—that reduce the value of their investments. These rights first appeared in little-known bilateral investment treaties. Twenty years ago, corporate lawyers embedded them in the North American Free Trade Agreement (NAFTA). Today, more than 3,000 trade and investment agreements and even some national investment laws grant foreign investors these powers.
The Obama administration is attempting to insert similar anti-democratic investor protections in new trade and investment agreements with countries that border the Pacific and with the European Union. Hoping to expedite the so-called Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), congressional leaders introduced fast-track trade promotion legislation on January 9 that would severely limit Congress’s ability to amend such agreements. The widely anticipated move set off a storm of protest from unions, environmentalists, liberal members of Congress and others, and will likely remain a high-profile fight in the coming weeks.
The forces aligned against these proposed agreements are not alone. Activists across the globe are developing creative and increasingly effective strategies to push back against investor assaults on their communities, environment and national sovereignty. An important front has opened up in El Salvador, where a multinational firm is using investor powers to sue the government over the “right” to mine gold. This case represents an extreme assault on democracy, as local communities, the majority of the Salvadoran public and the Salvadoran government all oppose the gold mining. But what’s happening in El Salvador is not an anomaly. There are crucial battles brewing in several other Latin American countries—including Argentina, Venezuela, Bolivia and Ecuador—as well as in other parts of the developing world.
At the very least, these struggles should give the Obama administration pause as it considers the next round of trade agreements. But what makes them so strategic—and promising—is that powerful citizen groups are persuading governments to take up the challenge. As they do, they are building momentum in a broad global fight against investor rights.
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Salvadoran land sits atop a wide belt of gold running down the middle of Central America, a vein that has enticed profiteers for more than a century. In the early 1900s, the US miner Charles Butters began plundering the region using a lucrative process that employed cyanide to separate gold from rock. Within years, Butters was making millions. But what he seems not to have contemplated—and what the farmers in these parts know well—is that the area is vulnerable to earthquakes and tropical storms, both of which make it difficult to contain the toxic chemicals used to mine gold. And no one appears to have known that the heavily concentrated sulfides found in the rock that often surrounds gold become sulfuric acid when they are exposed to the elements during the extraction process. The acid leaches other toxic materials into the soil and water. In July 2012, at the San Sebastián site of the mine that Butters opened more than a century ago, the Salvadoran environment ministry found levels of cyanide and iron that were through the roof.