The Right and US Trade Law: Invalidating the 20th Century
http://www.thenation.com/doc/20011015/greiderNAFTA's arbitrators cannot overturn domestic laws, but their huge damage awards may be nearly as crippling--chilling governments from acting once they realize they will be "paying to regulate," as William Waren, a fellow at Georgetown law school, puts it. On its face, this strange new legal system's ability to check democratically elected governments confirms a principal accusation of those much-disparaged protesters against corporate-dominated globalization. Elite power politics, they contend, is imposing rules on the global economy that effectively shut out competing voices and values, that slyly undermine the sovereign capacity of a nation to defend its own citizens' broader interests. Indeed, the US multinational community dreams of establishing Chapter 11's provisions as the worldwide standard, to be applied next in the proposed Free Trade Area of the Americas.
The most disturbing aspect of Chapter 11, however, is not its private arbitration system but its expansive new definition of property rights--far beyond the established terms in US jurisprudence and with a potential to override established rights in domestic law. NAFTA's new investor protections actually mimic a radical revision of constitutional law that the American right has been aggressively pushing for years--redefining public regulation as a government "taking" of private property that requires compensation to the owners, just as when government takes private land for a highway or park it has to pay its fair value. Because any new regulation is bound to have some economic impact on private assets, this doctrine is a formula to shrink the reach of modern government and cripple the regulatory state--undermining long-established protections for social welfare and economic justice, environmental values and individual rights. Right-wing advocates frankly state that objective--restoring the primacy of property against society's broader claims. A tentative majority on the Supreme Court agrees in theory--the same five who selected George W. Bush as President.
"NAFTA checks the excesses of unilateral sovereignty," Washington lawyer Daniel Price told a scholarly forum in Cleveland. He ought to know, since he was the lead US negotiator on Chapter 11 a decade ago. As for anyone troubled by the intrusions on US sovereignty, he said, "My only advice is, get over it." Price, who heads international practice at Powell, Goldstein, Frazer & Murphy, a premiere Washington firm, says that contrary to the widely held assumption that suits like Methanex's represent an unintended consequence of NAFTA, the architects of NAFTA knew exactly what they were creating. "The parties did not stumble into this," he said. "This was a carefully crafted definition."
http://www.clm.com/pubs/pub-990359_1.htmlThe Metalclad award found that Mexico had, through the actions of a local municipality, effectively expropriated the property of a U.S. investor that had secured all required permits from Mexican federal authorities to construct and operate a hazardous waste facility and that the U.S. firm was therefore entitled to recover $ 16.5 million (plus interest) directly from Mexico. The decision, issued as the earlier article was going to press, has shocked those environmentalists and governmental officials in the three NAFTA countries who have been working to enhance and "harmonize" environmental enforcement and thus to prevent the "race to the bottom" predicted by labor unions and others who view free trade as a convenient way to circumvent hard-won U.S. environmental standards.
http://www.citizen.org/trade/nafta/CH__11/The North American Free Trade Agreement (NAFTA) includes an array of new corporate investment rights and protections that are unprecedented in scope and power. NAFTA allows corporations to sue the national government of a NAFTA country in secret arbitration tribunals if they feel that a regulation or government decision affects their investment in conflict with these new NAFTA rights. If a corporation wins, the taxpayers of the "losing" NAFTA nation must foot the bill. This extraordinary attack on governments' ability to regulate in the public interest is a key element of the proposed NAFTA expansion called the Central American Free Trade Agreement (CAFTA).
NAFTA's investment chapter (Chapter 11) contains a variety of new rights and protections for investors and investments in NAFTA countries. If a company believes that a NAFTA government has violated these new investor rights and protections, it can initiate a binding dispute resolution process for monetary damages before a trade tribunal, offering none of the basic due process or openness guarantees afforded in national courts. These so-called "investor-to-state" cases are litigated in the special international arbitration bodies of the World Bank and the United Nations, which are closed to public participation, observation and input. A three-person panel composed of professional arbitrators listens to arguments in the case, with powers to award an unlimited amount of taxpayer dollars to corporations whose NAFTA investor privileges and rights they judge to have been impacted.
This account, instead of delving further into Chapter 11's legal complexities, turns to explore its murky political origins. How could all this have transpired so unobtrusively? And how did the right wing's novel concept of "regulatory takings" find its way into an international trade agreement? The story, in passing, is another devastating commentary on the decay of representative democracy. These now-controversial legal innovations were ostensibly adopted in broad daylight, yet the public never had a clue. Nor did the media, watchful policy experts or members of Congress. Yet the stakes are as fundamental to public life as the Constitution itself. The transmission of big ideas among elite interests is always a more supple and elusive process than backroom conspiracy--not exactly secret, yet withheld from general understanding. To fully appreciate the momentous risks for law and justice, one starts by stepping back in history to see what exactly the right-wingers are trying to overthrow. The answer, in their own words, is the twentieth century.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
