When NAFTA was adopted in 1993, Chapter 11 in the trade and investment agreement was too obscure to stir controversy. Eight years later, it's the smoking gun in the intensifying argument over whether globalization trumps national sovereignty. Chapter 11 established a new system of private arbitration for foreign investors to bring injury claims against governments. As the business claims and money awards accumulate, the warnings from astute critics are confirmed--NAFTA has enabled multinational corporations to usurp the sovereign powers of government, not to mention the rights of citizens and communities.
The issue has exquisite resonance with the present moment. On April 20 thirty-four heads of state gather in Quebec City to lead cheers for a Free Trade Area for the Americas. The FTAA negotiations are designed to expand NAFTA's rules to cover the entire Western Hemisphere. The Quebec meeting should provide good theater but not much substance. Tony Clarke of the Polaris Institute, in Ottawa, says the meeting is intended to be "a face lift for the whole global agenda, by portraying free trade as democracy." Protesting citizens will be in the streets, challenging 6,000 police and Mounties, with an opposite message: Democracy is threatened by the corporate vision of globalization.
Chapter 11 of NAFTA should become a defining issue for FTAA negotiations. Many, including Clarke, vice chairman of the Council of Canadians, believe corporate governance was and is the FTAA's intent. "There is a conquering spirit at the heart of all this," he says, adding that the corporations' attitude is: "We have to get into every nook and cranny of the world and make it ours."
Chapter 11 provides a model of how this might be accomplished. The operative principle is that foreign capital investing in Canada, Mexico and the United States may demand compensation if the profit-making potential of their ventures has been injured by government decisions--"tantamount to expropriation." Thus, foreign-based companies are given more rights than domestic businesses operating in their home country. For example:
§ California banned a methanol-based gasoline additive, MTBE, after the EPA reported potential cancer risks and at least 10,000 groundwater sites were found polluted by the substance. Methanex of Vancouver, British Columbia, the world's largest methanol producer, filed a $970 million claim against the United States. If the NAFTA panel rules for the company, many similar complaints are expected, since at least ten other states followed California's lead. The federal government would have to pay the awards. California State Senator Sheila Kuehl and others have asked the US Trade Representative to explain how this squares with a state's sovereign right to protect health and the environment.
§ In Mexico, a US waste-disposal company, Metalclad, was awarded $16.7 million in damages after the state of San Luis Potosí blocked its waste site in the village of Guadalcazar. Local residents complained that the Mexican government was not enforcing environmental standards and that the project threatened their water supply. Metalclad's victory established that NAFTA's dispute mechanism reaches to subnational governments, including municipalities.
§ In Canada, the government banned another gasoline additive, MMT, as a suspected health hazard and one that damages catalytic converters, according to auto makers. The Ethyl Corporation of Virginia, producer of MMT, filed a $250 million claim but settled for $13 million after Canada agreed to withdraw its ban and apologize.
§ The Loewen Group Inc., a Canadian operator of far-flung funeral homes, lodged a $750 million complaint against the United States, claiming that a Biloxi, Mississippi, jury made an excessive award of $500 million when it found Loewen liable for contract fraud against a small local competitor.
§ Sunbelt Water Inc. of California has filed the largest and most audacious claim--seeking $10.5 billion from Canada for revoking its license to export water by supertanker from British Columbia to water-scarce areas of the United States.
§ Canada's Mondev International is claiming $50 million from the United States because the City of Boston canceled a sales contract for an office building with a shopping mall. Boston invoked sovereign immunity against such lawsuits and was upheld by a local judge and the Massachusetts Supreme Court. The US Supreme Court declined to hear the appeal. So the company turned to NAFTA for relief.
"When just the threat of a Chapter 11 action may suffice to wrest a financial settlement from a government, investors have unprecedented leverage against states," Lydia Lazar, a Chicago attorney who has worked in global commerce, wrote in Global Financial Markets magazine. Mexico, Canada and the United States effectively waived the doctrine of sovereign immunity, she explained, when they signed NAFTA.
As many as fifteen cases have been launched to date, but no one can be sure of the number, since there's no requirement to inform the public. The contesting parties choose the judges who will arbitrate, choose which issues and legal principles are to apply and also decide whether the public has any access to the proceedings. The design follows the format for private arbitration cases between contesting business interests. With the same arrogance that designed the WTO and other international trade forums, it is assumed that these disputes are none of the public's business--even though public laws are under attack and taxpayers' money will pay the fines. The core legal issue is described as damage to an investor's property--property in the form of anticipated profits. The NAFTA logic thus establishes the "regulatory takings" doctrine the right has promoted unsuccessfully for two decades--a retrograde version of property rights designed to cripple or even dismantle the administrative state's regulatory powers. "NAFTA is really an end run around the Constitution," says Lazar.
The fundamental difference in Chapter 11, unlike other trade agreements, is that the global corporations are free to litigate on their own without having to ask national governments to act on their behalf in global forums. Clearly, some of the business complaints so far are more exotic than anyone probably anticipated. These initial cases will set precedents, however, that major global firms can apply later. If nobody stops this process, the national identity of multinationals will become even weaker and less relevant, Lazar points out, since they have status to challenge government as "an open class of 'legal equals.'"
In Canada a private lawsuit was filed recently challenging the constitutionality of Chapter 11, since Canada's Constitution states that the government cannot delegate justice to other bodies. The Canadian government, itself embarrassed by the cases against it, expressed doubt that Chapter 11 should be included in the hemispheric agreement, though it appears to be backing away from outright opposition. In US localities, the cases are beginning to stir questions, but lawmakers and jurists are only beginning to learn the implications.
Does George W. Bush understand what he is proposing for the Americas? Did Bill Clinton and Bush the elder understand the fundamental shift in legal foundations buried in NAFTA's fine print? They knew this is what business and finance wanted. As the public learns more, the smoking gun should become a focal point in this year's trade debate, confronting politicians with embarrassing questions about global governance. Who voted to shoot down national sovereignty? Who crowned the corporate investors the new monarchs of public values?
In the clash over tax cuts and social programs, much of what progressives need to do is defensive. But it would be a mistake not to float new ideas, too.
A tough bill is falling victim to the power of warlords and corporations. Meanwhile, diamond sales pay for wars that are killing thousands in Africa.
In recent months, as a newly elected senator, I have had to decide whether to join the Democratic Leadership Council. I have chosen not to because while I shared its founding purpose, which was to frame a successful response to President Reagan's efforts to portray Democrats as the party of "tax and spend," social engineering and failed personal responsibility, I believe that purpose has been largely accomplished.
Today, I believe that it is vital for Democrats to stand up for a sharply defined progressive agenda--one that is committed to fighting for practical and progressive policies for working families and America's middle class--even when that means challenging powerful interests and the status quo. I am absolutely convinced that, standing on the foundation of fiscal stability that Democrats have built and to which the DLC contributed, we now have to fight for our convictions. If we begin to negotiate from the middle, the end result inevitably takes us to the right of where I believe our nation should be.
Nothing is more relevant to this point than today's debate over the Bush tax cut proposal. Democrats must remain firmly opposed to this budget-busting plan, which provides disproportionate benefits for the richest 1 percent of our population. It is relevant and essential to our argument that this tax cut is not only unfocused and poorly timed but also unfair. In fact, if we yield on fairness before the debate begins, we forfeit our fundamental ground. That is one reason I have proposed a tax cut that gives an immediate break to everyone equally and is targeted toward working families.
Moreover, the DLC has not convinced me that we should turn away from advocating an activist government--one that, for example, sees healthcare as a basic right for all Americans. And while compromise is an acceptable end, too much of it too soon has led to a paralysis on fundamental concerns such as healthcare, gun safety, the environment and educational opportunity.
The critical point to be made by progressives in our national debate is this: While there are programs that have failed and should be reformed or eliminated, proactive government has often succeeded. An activist government was a driving force in the prosperity of the 1990s, as well as in providing our historic safety net, including Social Security, Medicare and Head Start. An activist government invested in the development of the Internet and the space program and spurred today's technological revolution. It was government investment that built our highways, air transit system and much of our communications network. And the list goes on. Without progressive leadership, would segregation have been outlawed? Would women have achieved as much access as they now have to equal rights? The pressure for advancement came from grassroots progressives. That said, reform and progress required our government to respond and lead. We're still far from the ideal, as racial profiling and unequal incomes for women and minorities attest. There are no African-American or Latino senators, but at least there are thirteen women senators--surely not enough, but more than there have ever been before. The lesson of history is clear: Equal rights for all depend on public action and so do equal pay, worker safety and retirement security. The barriers to opportunity for all don't just fall on their own.
Today, the progressive agenda must address the great unfinished challenges--for women, for middle-class families, for minorities and the poor. It's a hopeful agenda rooted in ideas and our ideals. As I put it in my Senate campaign, "Everyone ought to have the same access to the American promise I've had." America must be a society of equal opportunity and equal protection before the law. So I believe the progressive agenda of our party is more important than ever. And the principle that should guide us is clear: While we can't achieve equal outcomes, we can and must assure equal opportunity.
We also have to articulate the truth that advancing social and economic justice advances everyone's prosperity. We need to challenge the special interests that would limit the rights of labor and the opportunities of women and minorities, because we need all the talents of all our people to achieve maximum productivity and growth. We need to challenge the health insurance industry and finally win the battle for universal access to healthcare, because it is morally right and economically rational. Just because conservatives have demonized the term "universal healthcare" we should not walk away from that battle for the sake of a calculated centrism that splits the difference between right and wrong.
When I was a candidate, the polls said that the majority of New Jersey voters disagreed with my opposition to the death penalty. I'm grateful the voters respected that I said what I believed even when it wasn't popular. As progressives, we must be ready to do that. Most of the progressive agenda--healthcare, the environment, gun safety, a progressive tax policy-- reflects the values and the ideals of the majority of our people. They will vote for our agenda if we present it in practical terms and fight for it.
So while I respect the contribution of the DLC and while I respect its leaders, I'm not ready to join. The answer to "compassionate conservatism" isn't timid progressivism. It's a real commitment to equal opportunity, to fiscal responsibility and a fair society. We can and must be a party with the courage to stand tall for our beliefs because that's how we will be able to win as the party of the people.
Depleted uranium constitutes one of largest
radioactive and toxic-waste byproducts of the nuclear age. Over the
past half-century, 700,000 metric tons of DU--more than half of all
the uranium ever mined in the world--was produced at three
government-owned uranium enrichment plants in Oak Ridge, Tennessee;
Paducah, Kentucky; and Portsmouth, Ohio. This DU now sits in some
50,000 steel cylinders, each weighing about thirteen tons, stacked in
huge piles outside the enrichment plants. A major leak in one of the
cylinders could pose an acute risk to workers and the public. After
years of prodding, DOE is starting a multibillion-dollar effort to
convert these wastes to a safer form.
DU is less
radioactive than other isotopes and is officially considered to be
more of a toxic than a radiological hazard. However, whatever the
case with the most common form of DU, there are other forms that have
been proven highly dangerous. From the early 1950s through the 1970s,
some 150,000 tons of uranium, containing plutonium-239 and larger
amounts of equally dangerous neptunium-237, were recycled from
nuclear-weapons production reactors and processed at the three
gaseous-diffusion plants. This material also went throughout the DOE
nuclear-weapons production complex in several states, and some
apparently found its way to the Persian Gulf and Balkans
According to a DOE study released this past
January (www.eh.doe.gov/benefits), workers who handled recycled
uranium at the Paducah plant between the 1950s and 1970s were heavily
exposed. The report noted that some workers were required to strike
large cloth-filter bags with metal rods to remove heavy
concentrations of uranium laced with neptunium and plutonium. They
were given little protection, and no effort was made to measure
exposures or inform workers about the dangers of handling this
material because the union might have demanded hazard
Workers' exposure risks were revealed in an official
review of DOE occupational epidemiological studies, which found that
workers at fourteen DOE facilities bore increased death risks from
cancer and other diseases following exposure to radiation and other
substances. Excess deaths from various cancers and nonmalignant lung
and kidney diseases were found among uranium workers at six
facilities. This report prompted the Energy Department to concede
officially on January 28, 2000, that its employees were harmed by
workplace exposures, and it served as an underpinning for a major
nuclear-weapons worker-compensation program enacted by Congress last
year. Under the new law, workers at the three gaseous-diffusion
plants exposed to recycled reactor uranium are eligible to receive
compensation for twenty-two listed cancers through a process in which
the burden of proof is shifted to the government.
are not the only casualties of the cold war uranium mess. The
National Academy of Sciences concluded last year that large areas at
DOE nuclear-material production sites cannot be cleaned up to safe
levels and will require indefinite, long-term institutional controls.
Official cost estimates to deal with this daunting problem are $365
billion and climbing. In effect, the production of depleted uranium
and other nuclear materials may have created de facto "national
sacrifice zones." Meanwhile, the Pentagon gets DU free of charge, as
our nation pays an enormous cost in terms of workers, the
environment, public safety and the US Treasury.
This is not about profits and
patents; it's about poverty and a devastating disease." That
statement did not come from AIDS activists struggling to provide
sub-Saharan Africa's 25 million HIV-positive people with access to
life-extending medications. It came from the executive vice president
of Bristol-Myers Squibb, which recently announced it would slash
prices on its two AIDS drugs and forgo patents on one of them. A week
earlier, Merck & Co. said it would lower prices on its two AIDS
drugs not just in Africa but, pending review, in other heavily
affected countries as well.
What's going on is not a
change of heart on the part of "Big Pharma"--which John le
Carré describes in this issue as a group of
"multibillion-dollar multinational corporations that view the
exploitation of the world's sick and dying as a sacred duty to their
shareholders." Far from being a humanitarian action, the price
reductions represent an attempt to preserve patent rights by
diffusing international pressure for generic manufacturing.
Revealingly, neither BMS nor Merck has withdrawn from a suit against
the South African government brought by thirty-nine pharmaceuticals
seeking to prohibit importation of generic drugs, which they claim
would violate their patents.
The Indian generic
manufacturer Cipla announced in February that it would sell the
entire AIDS triple-therapy combination at $350 per person, per year,
and other generic manufacturers, in Thailand and Brazil, currently
offer AIDS drugs at a fraction of multinational prices. By
comparison, the Wall Street Journal reported that a
combination of AIDS drugs from BMS and Merck would cost between $865
and $965 per person, per year. If those prices were multiplied by the
number of AIDS patients in, say, Zimbabwe, a relatively prosperous
country by African standards, the total would come to about 20
percent of its GDP. And that sum doesn't include the investments in
healthcare infrastructure needed to distribute and monitor the drugs'
But even if poor African countries could somehow find
the money to pay the high patent-protected prices of the drug giants
(the $26.6 billion a year it would cost to provide all Africa with
AIDS drugs is no more than about a third of what Bush's tax plan
would give to America's wealthiest 1 percent), that would not be the
end of their problems. Rather, such a course would lock them into
exclusive trade agreements with multinationals and put them at the
continual mercy of Western foreign aid budgets. As new treatments are
developed, Africa would have to negotiate new price reductions,
country by country, company by company.
If the solutions
lie with generic manufacturing (not just for AIDS medications but for
a slew of vital drugs for malaria and other ills), then circumventing
existing international patent regulations is a necessity. The trial
in South Africa over compulsory licensing is one crucial test of the
viability of this option. Another potential plan would be for the
National Institutes of Health to give patents owned by the US
government on publicly funded AIDS drugs to the World Health
Organization, thereby licensing it to oversee generic manufacturing.
Why not, in fact, let governments underwrite the entire cost of drug
research--rather than, as now, underwriting substantial amounts of
the research, which drug companies then exploit--and do away with
Whatever the recourse, and despite the
well-publicized gestures by multinational pharmaceutical companies,
the solutions to Africa's AIDS epidemic lie in sustainable
competitive drug production, not momentary self-interested
Many compared it to marching through a dream.
After seven years under siege by 70,000 Mexican Army troops in the
jungles and highlands of Chiapas, the Zapatista National Liberation
Army (EZLN) sent twenty-four delegates, including its pipe-smoking
writer-spokesman Subcomandante Marcos, on a triumphant two-week
motorcade that landed in Mexico City on March 11.
believe that in any place, in any space in this world--and I have the
memory of my own revolution twenty-six years ago--I don't remember a
more moving moment than I lived yesterday," declared the
septuagenarian Portuguese Nobel Prize-winning author José
Saramago the next morning.
The US press coverage of the
march, limited though it was, hinted at such an apotheosis: the
cheering multitudes that greeted the Zapatistas from the roadsides
and at mass rallies in twelve states along the route, the flowery
words of peace and civil rights coming to Mexico's mythical newfound
democracy. But for the Zapatistas and Mexico's indigenous movement,
the struggle now turns into a battle to codify the movement's
progress into law.
The caravan came to demand
constitutional recognition for Mexico's 10 million indigenous
citizens, subjected to generations of repression, poverty, racism and
exploitation of their lands and labor. As Mexico's President Vicente
Fox passed his hundredth day in office, he reiterated calls to the
Zapatistas to negotiate a peace. Not until the government fulfills
the promises it has already made, answered the rebels: release of
Zapatista political prisoners, closure of seven of the 259 military
bases in Chiapas, and congressional passage of the law that would
ratify the 1996 San Andrés peace agreements signed by the
government [see Jerry W. Sanders, "Two Mexicos and Fox's Quandary,"
The geographical advance was accompanied by a
steady rise in the popularity of Marcos and the Zapatistas in opinion
polls, an average gain of two percentage points per day, with over 50
percent in support. The implementation of the San Andrés
Accords is now the sticking point. Marcos and the Zapatistas, with
more than 1,000 delegates from the Indigenous National Congress,
encamped at the base of Mexico City's Cuicuilco pyramid--a circular,
370-foot-diameter stone monument that has survived at least 2,600
years of lava flows, earthquakes and urban
Underscoring their credo, "We will not sign a false
peace," the Zapatistas caused a fierce uproar when, as the caravan
was launched from San Cristóbal, Chiapas, they named architect
Fernando Yáñez Muñoz as their representative to
the federal Congress. Mexican police agencies have long claimed that
Yáñez is Comandante Germán, the feared national
guerrilla leader of the 1970s and '80s who, they say, helped found
the Zapatista army in the jungle in 1983, a charge that
Yáñez has denied. The Zapatistas have also, for the
first time, called upon other guerrilla movements to protect their
journey and remain alert, implying that if the state doesn't keep its
word, an armed guerrilla response could explode
María Luisa Tomasini, 78, a Chiapas
native designated by Marcos as the "grandmother of all the
Zapatistas," analyzed his call to the other insurgent groupsas she
was returning from the March 7 Zapatista rally in Iguala, Guerrero, a
state with at least sixteen armed clandestine guerrilla
organizations. "Clearly," she said, "it was a threat to the
government that it had better comply."
The powerful sectors
that have always gotten their way in Mexico--bankers, chambers of
commerce chiefs, right-wing clergy, the TV networks and key
legislators--are working furiously to sabotage the road to a genuine
peace. Fox's party, the PAN, teamed up with the former ruling party,
the PRI, against the left-wing PRD party to propose that the
Zapatistas meet with twenty congressional leaders instead of the
entire Congress. Marcos, noting that the indigenous of Mexico have
always been hidden "in the kitchen, on the back porch," rejected the
offer, arguing that the Zapatistas and the Indigenous National
Congress deserve to address the whole Congress. Hard-liners continue
to seek any roadblock to passage of the full indigenous rights bill
with hysterical claims that autonomy would fracture the nation, and
they vow radical surgery to the initiative.
On March 19 the
Zapatistas announced they will return to the jungle, citing the
"close minded" attitude of "cavemen politicians," saying, "Nothing
will be able to stop the popular mobilization" that stems from the
Congress's failure to act. "We will return with everyone who we are."
Immediately, thirteen national peasant-farmer groups pledged
nationwide marches, students plotted direct action and five major
indigenous groups in Oaxaca vowed to close the Pan American Highway
until Congress passes the accords. Congressional leaders begged the
Zapatistas to stay, Fox urged the Congress to meet with the rebels
and the drama now moves in unpredictable directions.
guiding principle of the San Andrés Accords is autonomy. The
word has galvanized many beyond Mexico's indigenous populations. The
battered Mexican left--peasant farmers, urban workers and especially
the nation's youth--view themselves, too, under the banner of
autonomy. Indeed, the popularity of the Zapatista struggle around the
world derives at least in part from the coherent language of
opposition to globalized and savage capitalism that they have
constructed. French sociologist Alain Torraine, who accompanied the
caravan, praised the Zapatistas during a March 12 discussion with
Marcos and the comandantes in Mexico City, marveling, "The entire
world, and we are speaking of the left, is looking for a new
language." Comandante David, a Tzotzil delegate who was a chief
negotiator and architect of the San Andrés Accords,
acknowledges that the demand for autonomy goes far beyond indigenous
rights. "We are going to explain directly to the indigenous and
nonindigenous brothers of the country that indigenous rights are for
the good of all the peoples," he said while preparing to leave on the
Autonomy--what might be called "home rule" in
other parts of the world--includes local control of land use, a sore
point for big business in Mexico, its eyes on natural
Beyond Mexico, US investors and corporate
interests, with expectations that Fox will be the most effective
deliveryman yet of Mexican resources under NAFTA, are stoking the
subterfuge. Former US Ambassador to Mexico James Jones, now a
railroad baron and rainmaker for the Manat, Phelps and Phillips law
and lobbying firm in Washington, is on the board of directors of TV
Azteca, the most notorious manipulator of public opinion among all
the Mexican media. TV Azteca joined the other broadcasting giant,
Televisa, to present a March 3 Concert for Peace live from Aztec
Stadium, featuring a laser light show, a Woodstock-style logo and the
usual condescension toward "our indigenous brothers." The prepackaged
video aired with the concert didn't mention autonomy, or indigenous
political prisoners, or 500 years of conquest--certainly not justice
in connection with the 1997 massacre of unarmed indigenous peasants
at Acteal. The only proposed solution was to send aid to the poor,
barefoot indigenous communities, an approach known in Mexican
politics as "clientism." Many analysts saw Fox's fingerprints on the
TV peace show, as both stations rely on state permission to broadcast
in Mexico. Indeed, one of the demands of the San Andrés
Accords is the right of indigenous peoples to break that control by
forming their own media, including the use of radio and television
The question of indigenous autonomy also has
consequences for the US-imposed "war on drugs." The San Andrés
Accords would restore indigenous rights to the use of currently
illicit sacred plants and codify the pre-eminence of ancient forms of
community justice. Luciano, a spokesman for the Zapatista community
of Polho, explained to me in 1998 how the autonomous system works
without constructing a single prison cell: "If a young man grows
marijuana, he goes before a municipal judge to be disciplined and
oriented so that he won't ever do it again. If the youth does it
again, there is no response whatsoever: He cannot be pardoned a
second time. He would then be expelled from the
That the Zapatista communities have had far
more success in driving out the narcotraffickers and preventing drug
and alcohol abuse than any other region of the Americas is of little
concern to the big talkers of law and order. Opponents charge that
autonomy in matters of criminal justice would "balkanize" the country
and subvert the "rule of law."
Indigenous and social
movements across Latin America--in Ecuador, Colombia, Bolivia, Peru,
Panama, Brazil and other nations--had representatives quietly
observing the caravan. In spite of the powers stacked against them,
the Zapatistas, newly strengthened, their national support deepened,
have many cards yet to play in forcing legislative victory. In the
latest of the ironies under NAFTA, autonomy may thus, and soon,
become Mexico's leading export product.
Click here to read "Wealth Report," the latest installment of Doug Henwood's quarterly Nation column "Indicators" in PDF format. Acrobat Reader required.