The concepts of justice and discrimination are being turned upside down to favour transnational corporations. Martin Luther King Jr. would be rolling in his grave at the number of ISDS cases piling up across the globe for a corporation’s right to “justice” and “freedom from discrimination”.
Another resource company wins profit rights under NAFTA – The Canadian Press reported last week that Canada has lost another case in the Investor State Dispute Settlement (ISDS) system to a US aggregate rock company, Bilcon, for its right to expand a quarry under NAFTA. The private tribunal sided against a Canadian governmental review’s decision not to enlarge an existing quarry in the southwest part of Nova Scotia. The trade court representatives stated that it was unfair for officials to encourage the quarry’s development and then decide not to go ahead. The company would be shipping 2 million tons of basalt a year to the US from Nova Scotia for the next 50 years. Bilcon is asking for $300 million in damages for loss of profits. This ruling follows a decision earlier this month when Canadians were ordered to pay $17 million to ExxonMobil and Murphy Oil for their profit rights uninterrupted by regional economic development policy in Newfoundland and Labrador. If a nation restricts profit to a foreign corporation for various reasons: the promotion of local economic development (the ExxonMobil and Murphy Oil case) or because a government review panel believes it’s environmentally risky (the Bilcon case), corporations have a legal system to overturn these decisions.
Reversing the meaning of justice and discrimination – Discrimination and justice have been key teachings in raising global consciousness in the struggle for human rights. These concepts were not intended for making profits, nor to be used against citizens’ own public protection policies. The absurdity of appropriating them to protect a corporation’s profits at the expense of a community’s security leaves one speechless. Well, for a moment. Enter “expropriation”. Expropriation is a common trade rule invoked in ISDS cases. Expropriation can make it illegal for a country to diminish anticipated corporate profits if their sector was opened for access in a free trade agreement. Initially, expropriation was intended to protect the physical assets of a company from things like factory seizure. This concept used in ISDS courts is chipping away at the foundation of human rights standards. If a corporation feels they have been treated unfairly by a host country, they may call this “discrimination” and be entitled to a hearing. Through NAFTA’s resource sector openings, both ExxonMobil/Murphy Oil and Bilcon won rights beyond national or provincial decisions. There are over seventy-five known private tribunal NAFTA cases, and they are fast on the rise.
Not just a Canadian problem – ISDS is not just a problem in Canada. Many nations, more vulnerable than Canada, have lost ISDS cases over their local and national policies. Some, particularly in Latin America, have lost against Canadian resource companies especially in mining. ISDS is said to be the framework for many upcoming and far-reaching agreements involving Europe, the US, Canada, and Pacific Rim nations from the TTIP to the CETA to the TPP. It’s essential to remember that the only complaint that can be prosecuted in a ISDS tribunal is the economic rights of a corporation — there is no legal mechanism to prosecute on human rights, ecological safety, or any other grounds. An exploration of NAFTA’s cases unearths future potential ISDS risks. Let’s honour the true vocabulary of justice, developed through decades of civil rights struggle, and have an adult conversation about what this version of trade could mean for the coming generations.
“Law and order exist for the purpose of establishing justice and when they fail in this purpose, they become dangerously structured dams that block the flow of social justice.” Martin Luther King, Jr.