The Trans-Pacific Partnership & Human Rights in Latin America

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Remarks by Lisa Haugaard, Latin America Working Group Education Fund
Presented at a Briefing on Human Rights and the Trans-Pacific Partnership
Sponsored by Representatives Rosa DeLauro and James McGovern
July 14, 2016

The Trans-Pacific Partnership trade agreement is concerning for human rights in Latin America due to:

  1. The history of lax enforcement of labor and environmental provisions in other free trade agreements concerning Latin America;
  2. The ways in which provisions regarding investor rights undermine labor, environmental and human rights as well as democratic processes;
  3. The fact that advances in protection of labor rights and human rights are not required before joining –particularly concerning in the case of Mexico; and
  4. Finally, the problem of rising violence against labor leaders, environmental activists and other human rights defenders, which is generally not considered part of the labor and environmental issues covered in trade agreements.

1. The history of lax enforcement in Latin America makes it difficult to believe that even “enforceable” provisions will be enforced.

DR-CAFTA:  It took seven years for U.S. and Guatemalan labor groups to convince the U.S. government to bring a trade tribunal case against Guatemala under the DR-CAFTA agreement for its failure to protect core labor standards.  Sixty-two trade unionists were killed in Guatemala since the filing of this complaint against Guatemala in 2008. Seventy-two trade unionists have been killed since CAFTA came into effect.  Guatemala fails to protect freedom of association and collective bargaining by inadequate labor inspections, obstacles to registering unions, failure to ensure compliance with court orders, and failure to effectively investigate and prosecute threats and attacks against unionists.  Guatemala is ranked 5 on a scale of 1-5, with 5 being the worst, in the International Trade Union Confederation’s list of the World’s Worst Countries for Workers.

Yet, CAFTA benefits continue for Guatemala.

Peru Free Trade Agreement:  The U.S.-Peru agreement attracted support with its supposedly more enforceable labor and environmental provisions, including a separate annex on forestry issues.  But the Peruvian government still rolled back worker protections once the agreement came into effect.  According to the Labor Advisory Council to the U.S. Trade Representative, since the agreement came into force, the Peruvian government has reduced protections for workers and weakened mechanisms to enforce labor legislation.  According to the Sierra Club, much of Peru’s wood slated for export is harvested illegally.   The U.S. government is reluctant to act to deal with violations of labor and environmental clauses, including the forestry annex—even though these were heralded as important advances in protecting labor and environmental rights.

U.S.-Colombia Free Trade Agreement:  The U.S.-Colombia Labor Action Plan signed in 2011 is not part of the free trade agreement, and it is not enforceable; rather, it is a separate agreement signed prior to the passage of the FTA.  Unfortunately, the U.S. government did not require Colombia to comply with the Labor Action Plan prior to the approval of the FTA.  The Labor Action Plan does cover many of the right issues, and has had some impact, for example in creating institutions to protect labor rights and in reducing the still extremely serious problem of anti-union violence and impunity for such attacks.  But this violence remains a serious obstacle to freedom of association in Colombia.  The joint complaint filed by U.S. and Colombian unions in May 2016, five years after the Labor Action Plan was signed, highlights continued failures to address violence against trade unionists. There were 99 murders and 955 threats registered between the time the agreement came into effect and April 19, 2016, according to the National Labor School. Colombia remains the country with the highest number of murders of trade unionists in the world in 2015, with 20 trade unionists assassinated, according to International Confederation of Trade Unionists.

In Colombia, violent repression of strikes and protests by state security forces continues.  New forms of subcontracting obscure direct employment relationships between a company and its workers, thus skirting labor laws that offer basic protections to workers.  Moreover, the Colombian government fails to sanction companies for violations of worker rights.

The Labor Action Plan remains an important blueprint for change.  We welcome the efforts by some members of the U.S. Congress, including the hosts of this briefing, to press for compliance, which is one reason it has had some traction.  But today, the plan’s promises are still largely unfulfilled.

2. The second problem is the lack of preconditions for joining the Trans-Pacific Partnership.   As we can see in the Colombia case, the greatest leverage for positive change in a country’s labor, environmental, or human rights framework occurs before a trade agreement comes into force.  Neither Mexico nor Peru would be in compliance with core labor standards prior to joining the TPP.  And unlike in the cases of Vietnam, Malaysia and Brunei, there are not even Consistency Plans for Mexico or Peru in order to encourage compliance with key issues.

Mexico is especially concerning on labor rights and human rights fronts.  On labor rights, the Mexican government is far from consistently protecting worker rights.   The major issues include the widespread use of “protection contracts” which are often signed without the knowledge of workers. Instead of proper collective bargaining agreements, workers are governed by contracts they have not ratified or in many cases even seen.  The Conciliation and Arbitration boards that are supposed to protect worker rights routinely fail to do so.  Not independent, in effect “false” unions remain a persistent problem.  Mexico is ranked 4 on a scale of 1-5, with 5 being the worst, in the International Trade Union Confederation’s list of the World’s Worst Countries for Workers.

The overall human rights picture is even more alarming.  To name a few of the major challenges: the persistent use of torture by security forces; the failure to investigate the vast majority of some 27,000 disappearances since 2007; the involvement of security forces and corrupt local officials in disappearances of Mexican citizens and abuses against and killings of migrants.  There’s no more disturbing example than the case of the 43 students of Ayotzinapa who disappeared while in custody of Mexico’s security forces in Iguala in September 2014.  Despite Mexico’s welcome invitation to the Interdisciplinary Group of Experts to assist in the investigation, the Mexican government has not followed up on the experts’ recommendations. This case that has convulsed Mexico remains in impunity.

3. The third problem is the potential impact of investor-state provisions.  The enormous power given to investors to challenge laws protecting labor, human rights and the environment are of grave concern for Latin America.  Take the case of Peru.  According to a former environmental vice minister of Peru, José de Echave, foreign investors use the investor state dispute settlement powers to pressure the Peruvian government to pardon polluters and strong arm mining concessions in areas where indigenous communities rise up in opposition to environmentally damaging projects. In one case, Renco vs. Peru, the Renco mining company argues that Peru had violated the U.S.-Peru FTA by not granting the company a third extension on its overdue commitment to install pollution abatement equipment in a metal smelter it owned in a polluted site in La Oroya, Peru. 1 In Colombia, Tobie mining claims that the government’s decision to create a nature reserve and prohibit mining within its borders violates the corporation’s broad rights under the U.S.-Colombia Free Trade Agreement, and is asking Colombia to allow mining in the Amazon, or pay $16.5 billion to the company.

These investor powers limit the capacity of the state to protect their citizens and are especially harmful for indigenous and other local communities whose well-being are affected by environmentally damaging kinds of development over which they have few resources to defend themselves.

4. Finally, there’s the refusal to include violence against labor unionists, environmental activists, and human rights defenders as a relevant issue in trade agreements. The Colombia Labor Action Plan is an exception, but it is not a binding part of a trade agreement.

Rights do not exist just because someone puts them on paper. Rights are won through organizing. If those who organize for rights are not protected, then I do not know what we are talking about when we speak about defending labor and environment.

This is a deadly problem in Latin America. Let’s look at trade unionists.  Of the 6 countries worldwide singled out by the International Trade Union Confederation for most concerning issues of violence against trade unionists in 2015, three are in Latin America (Colombia, Guatemala, and Honduras).

Now let’s look at environmental activists. No less than 122 of 185 killings of environmental activists in 2015 documented worldwide by Global Witness were in Latin America.  Twelve were in Peru, the country with the fourth largest number of murders of environmentalists in the world in 2015. From 2010 to 2015, 50 environmental activists were killed in Peru and 33 in Mexico.  Many of those killed are indigenous peoples.

Threats and attacks against environmental activists are increasing in Latin America and this is one of the most concerning human rights challenges facing the region today.  The Trans-Pacific Partnership as it stands does nothing to protect such activists and indeed through the investor provisions undermines their strength.

Thank you.

  1. Since this presentation was delivered, the arbitration panel ruled against Renco’s claim, but Renco may refile the claim in the future.