TRADE AGREEMENTS: Defending the Rights of Corporations at the Cost of the Rights of the People

By Héctor Mondragón
Presented in Chicago September 5, 2008


Greetings to all and my appreciation to those who are present here, to hear my reflections despite my inability to be there with you in person.

I’ve had to turn to the help of technological experts to be able to share with you as had been planned.

You know that I’ve come to speak about the Free Trade Agreement (FTA) between the United States and Colombia. This is an important theme currently in our countries; it’s a topic of much debate.

You know that the unions of the United States, in particular the American Federation of Labor and Congress of Industrial Organizations, have said to Mr. Obama, Democratic candidate, that a central condition for their support of his candidacy will be that the Democratic Party not support the FTA with Colombia.

The unions of the United States have this perspective because they know the terrible reality that their companions in Colombia have been living over the last 20 years; that more than 2,600 trade union leaders have been assassinated during this time. And how the labor rights of the Colombian people have been systematically violated; and that effectively, in Colombia, labor rights are no longer applied in the large majority of economic sectors because unions have been weakened through assassinations and violence.

The reason for my inability to travel for this presentation is related to this terrible reality that Colombia is living; the historic reality of voices of resistance, voices in favor of the rights of the people, being silenced.

We have many years of history of violence in our country, sometimes turning to assassinations and massacres, like those against the union movement. Other times it takes the form of judicial and state repression in an attempt to criminalize social and political protest and the defense of rights of the people.

In my life I have been subject to all of these strategies of the powers that govern Colombia. I’ve been subject to torture that still scars my body and mind. I’ve needed to deal with years of death threats, needing to go into hiding time and again, not because I had violated any laws or state norms, but because of an illegal death apparatus that threatens and kills in Colombia, as has been the case of the union leaders, and that has obliged me, for the most part of my life, to be vigilant for a moment when they might come and kill me, these assassins, sustained by the governing powers in Colombia.

In this moment I’m needing to face this situation in which they are trying to judicially and politically attack me, and I have stayed in Colombia precisely because I don’t want to flee from this strategy to criminalize my activities; this strategy of defamation and slander that is being brought against me. I have decided to confront it with the truth.

It is for these reasons that I am not physically there with you. But I am here to tell you what I had to share with you on this tour.

And thank you to Rebecca who is accompanying me and who now is with you. I hope you will receive this message, which is mine but is also that of the people with whom I work—indigenous peoples, peasant organizations, the labor movement—people whom I have been accompanying for many years and whose weariness—and dreams—I have witnessed. As well as the misfortune of living in a country subject to the terror of violence of a never-ending armed conflict that is used systematically to strip the people of their rights.

In what framework—not just in Colombia but internationally—are these free trade agreements being negotiated? I think that in this moment in the world we are at a crossroads because, on the one hand, we’ve come far—since the French Revolution—in the struggle for human rights. As a result of the strength of the struggle and the mobilization of peoples, these rights—since the moment of the Declaration of the Rights of Man of the French Revolution—have been winning their place in the world. After the defeat of Nazism after the Second World War, the United Nations approved the Universal Declaration of Human Rights, and after that the Declaration of Economic, Social and Cultural Rights. This recognized what many refer to as second-generation human rights, which are, effectively, collective rights. These are an integral part of this generation of rights that humanity has been achieving.

It is within this framework that we find the rights of children, environmental rights, which are not only collective rights of human beings but also of animals, plant life—of all living things. The rights of indigenous peoples, which are also part of this generation of social, economic and cultural rights. There have been significant advances in this area.

The Colombian Constitution also recognizes these rights as constitutional. The international agreements and conventions on human rights are guarantees of individual as well as collective rights. The latest was the declaration on the Rights of Indigenous Peoples that the General Assembly of the United Nations approved on September 13 of last year, 2007—unfortunately with opposing votes from the United States and Canada and abstention by Colombia, which was the only country in all of Latin America that did not vote in favor of this declaration, which, although it does not have co-active force, is a guide for the rights of indigenous peoples.

This process of winning rights, however, is being put into question by another judicial process which is trying to establish a new global constitution, including another set of norms which have as an objective to define new norms which will protect the interests of what we call investors—in other words, the interests of transnational corporations. It is within this framework that the Free Trade Agreements appear.

Initially, the 29 countries named the “most developed” in the world wanted to arrive at a global investment agreement. But it was precisely the resistance of people from Europe, from Japan, from Canada, and the United States that impeded the establishment of this global agreement and made the agreement fail, in 1998. These people—you yourselves—were aware of how this agreement would affect fundamental guarantees of collective and individual rights. Of how this type of agreement would favor rights of transnational corporations and investors which would be in contradiction to the construction of individual and collective rights.

However, they have tried to implement this global trade agreement by other means. Sometimes by the World Trade Organization, which also has not been able to consolidate this global framework, although it has taken steps to establish some norms that have created and perpetuated hunger. But fundamentally the Free Trade Agreements have been the path to establishing this normative framework.

What is the message that I am wanting to bring to you? That the Free Trade Agreements are not simply about trade. Trade is one of the themes that are dealt with in the FTAs. Only one. For example, in the Colombia-U.S. FTA, there are 5 chapters on trade but 15 others dealing with 13 other themes—and these themes are precisely the rights of transnational corporations.

So, then, what do we say?

The FTA does not only jeopardize the people of Colombia, it jeopardizes both peoples, Colombians and citizens of the United States alike. Your rights are also going to be affected, because the rights of the investors are placed above the rights of the citizenry.

I’m not proposing a world without investors. I’m saying that the people must come first, that human beings must come first, that communities must come first—their rights must come before the rights of investment.

What, then are these rights of the investors that are being guaranteed by the FTAs?

First are the extraterritorial provisions, in other words, the rights of the transnational corporation to not respect national domestic legislation, rather be able to refer conflicts to private international tribunals that do not judge according to domestic law but according to the rules and norms of international trade agreements—in other words, according to their own rules of engagement.

This is very serious.

For example, for the indigenous peoples of Colombia, this means that an entire process of construction of rights for them, that the Colombian constitution recognizes, will not be recognized under the FTA.

In fact, this is true for all Colombians and their constitutional rights, but this will be the same for you.

The second right that the transnational corporations are seeking to guarantee is what they call “judicial stability.” This serves to guarantee the rights of investors to sue governments for changing laws that might impede the transnational corporation from making as much money had the laws not been changed.

This is extremely serious. This means freezing legislation. It is an attack on democracy. Basic democratic rights of all peoples include the freedom to change governments and modify laws to best serve the interests of the common good, which is part of the right also to elect them. If the people realize they made a mistake in voting in a certain political party, they have the right to modify their vote, hold a referendum, and vote for a different party. This is the essence of democracy; but the FTA, by establishing “judicial stability” and indemnity for virtual expropriation, is proposing that in the interests of the transnational corporation the laws cannot be modified.

At first glance this is much more serious for Colombia, because many more companies from the United States will invest in Colombia than Colombian companies investing in the United States. But there could be Colombian companies that perfectly enjoy these same conditions, with the only intention of investing in the United States and enjoying the same invulnerability, or impunity, vis-à-vis U.S. domestic law.

The third right that the transnational corporations are seeking is so-called intellectual property rights, according to their perspective. Why do I say “their perspective”?

For example, the indigenous from Mexico began to grow corn 7,000 years ago. In that time, corn was like a thick stick, heavier than other grains. The work of indigenous cultivators over thousands of years, and more recently by peasant farmers, has brought us the corn on the cob we know today and allows us to enjoy the great diversity of corn that exists. Obviously, the transnational corporations do not recognize the immense intellectual property that exists in all the biodiversity just found in the variations in corn. If the transnational corporations obtain rights to corn, they will patent it, and at this point in Colombia a law has already been passed—Law 1033 of 2006—that penalizes peasant farmers for using a patented seed without permissions with 4-8 years in prison—which is coincidentally, the same prison term assigned to a paramilitary who confesses to crimes against humanity and massacres of hundreds of people under the Peace and Justice Law.

So we have a regime of laws that favor the transnational corporation and allow them to gain control of agriculture and other means of production. The FTA seeks to allow for the patenting of living things—not only to patent products developed laboratories through scientific experiment, but to patent living creatures, which is much more serious, and which was prohibited by the Andean Community.

Through pressure to approve these FTAs, the Andean Community approved a revocation—for uncertain reasons, and I say uncertain because it was passed by three votes: from Colombia, Peru and the outgoing government of Ecuador (the current administration does not agree). Bolivia was not allowed to vote because supposedly they were behind on their debt payments, which in turn caused Venezuela to pull out of the Andean Community, jeopardizing an internal process of economic integration between neighbors, as Colombia and Venezuela are, that should be strengthening their economic and commercial relations. And it wasn’t because of the political questions being debated currently, but rather because of a very concrete issue—that being the patenting of life.

So it is these that are the rights of the transnational corporations.

The corporations want everything to be for sale, everything to be commodified. That water be commodified. That the corporation have, by definition, a right to privatize public utilities and services like electricity and water—water, which should be a right for all human beings, and as I have said before, of all animals and plants and all living things. Today it is at risk of being converted into simply a business.

These are the rights of the transnational corporations, which when put together bring us mechanisms that undermine collective and individual rights.

To see how these mechanisms actually operate through the FTAs, let us remember that Colombia has signed the FTA with the United States twice: the first time in November 2005, and the second time in June 2007. Why then has the treaty not been ratified?

Because from the United States there was significant pressure, from the unions and from human rights organizations, not only regarding the FTA with Colombia but also regarding other FTAs being negotiated at that time with Peru and South Korea. These democratic organizations of the United States demanded at the very least three major changes in the agreements:

First, to limit intellectual property rights for the pharmaceutical industry, with the objective of establishing minimum protection of the right to health.

Second, to limit the rights of the transnational corporations by establishing minimum protections for environmental rights.

Third, to obligate fulfillment of the International Labour Organization conventions by the signers of the agreement, in order to protect labor rights.

This was not just in the case of Colombia but for Peru and South Korea as well. In regard to Colombia, these organizations asked for something more, realizing that only putting these provisions in the text of the agreement was not enough: actual adherence to these three conditions was required so that union leaders would no longer be assassinated in this country. So these three conditions, or changes, were introduced so that the United States Congress would approve the FTA with Peru and South Korea, but they would not suffice for the agreement with Colombia: human rights organizations and unions demanded that there be an end to the assassination of union leaders for that agreement to be signed.

The changes in themselves are positive. But as we have seen, these changes still fail to guarantee the respect of fundamental individual and collective rights that are violated by other norms included in the FTA. For a free trade agreement to be just, it would be necessary that such provisions as “judicial stability,” extraterritorial provisions, and intellectual property rights favoring corporations not be included in the agreements that supposedly are trade agreements. It would be necessary that these agreements not be agreements concerning the rights of transnational corporations.

And in Colombia, it is necessary that the grave situation that our country is living come to an end. Because in Colombia, the systematic assassination of union leaders hasn’t been the only problem; it is just one manifestation of an intense violence whose protagonists have been illegal armed groups, like the paramilitary and the guerrilla, as well as the state’s own armed forces.

This violence has not begun recently but has been present for many years now; a violence which has as a primary objective to rob the peasants, Afro-Colombians, and indigenous of their land. It is a violence that expresses intolerance of political opposition as well as social protest. It began in the 19th century with numerous civil wars, products of this social and political intolerance, and resulted again and again, in the dispossession of lands and the concentration of land in the hands of a few. If we think back to the time between 1946 and 1958, 2 million people were displaced, 200,000 assassinated, and the displaced lost 350,000 farms in an undeclared war between the Conservative and Liberal parties.

Today, over the last 20 years, more than 4 million people have been displaced. This has created an extreme level of concentration of land in which some 15,000 people are owners of 67% of arable land in a country with a population of 45 million. And within that group, there is a minority of 1500 people who own more than half of the land in the country.

This has been the result of the violence.

You can investigate every case to see who orchestrated the massacres, who used mechanisms of terror, to see if it was illegal armed groups—the paramilitary or guerrilla—or if it was the military. But we will always find the same result: the dispossession of the peasants, massacres, and displacement.

We will also find the elimination of political opposition, the elimination of grassroots leaders, the destruction of the social fabric. This is evidence that processes that are happening in other countries in Latin America are not occurring here in Colombia. In Ecuador, in Bolivia, in Brazil, in Argentina, in Mexico, we find a widespread resistance movement that is countering the measures of transnational corporations and acting in defense of collective and individual rights of the people over and against the rights of the investors. It explains, for example, why in the last referendum in Bolivia, two-thirds of the voters supported President Evo Morales. These are strong social movements that know what they want to achieve and where they want to go. But in our country, things are not this way. The policies of “free trade” are imposed through blood and bullets, over the debilitation of social movements through the elimination of their leaders and the massacre of their peoples.

This is what we have in Colombia.

This is what has caused the assassination of so many social movement leaders…how many of my friends…? If I tell you that 5,000 of my friends have been assassinated, I may not be counting them all.

These things cause in us, in the social movements, to be constantly living with threats against our lives from legal and illegal actors.

This is the way in which this policy has been imposed, these free trade agreements, and it is why we turn to you, who have a democratic regime in your country, and why it is no surprise that this agreement has not been approved in the United States while it has been approved in Colombia, because our social and political fabric has been destroyed while you in the United States can still organize to block an agreement that violates the rights of the people.

This, however, does not mean that in Colombia there isn’t still massive resistance. In 2004 the indigenous in the Department of Cauca achieved a large march to the city of Cali, and later they conducted community consultations in 6 communities on the free trade agreement, which produced an encouraging result because 85% of the population voted and 80% voted against the FTA. The Catholic Church and other organizations have organized similar consultations, resulting in similar outcomes, and there have been mobilizations, like that of May 2006, which was harshly repressed with, among other things, helicopters bequeathed through Plan Colombia.

But the reality is that the existence of this war serves as a pretext for this regime to continue threatening us, repressing us, and silencing the social movements in Colombia.

For these reasons it is urgent for this terror to cease, by all the perpetrators of the violence. Of the political and economic powers behind the violence—what is being uncovered through the “para-politics” scandal: the groups that have financed paramilitaries. Of the guerrilla forces that commit terrorist acts, which serve as a pretext for the regime to destroy social protest but also cause immense damage to the people. And of the state armed forces that collaborate with the paramilitary, that repress unashamedly, and that have also been perpetrators of serious violations against the population.

For us, the struggle of civil resistance to which we have been dedicated to all these years sometimes causes us to almost lose hope. But the Colombian people have something very important, the social movement here in Colombia has something very important, which is faith.

Faith, which is the experience of what we can hope for because we have known small victories through our struggles.

And with these small victories, like when the indigenous won the constitutional recognition of their rights in 1991, we see as though a ray of lightning lights the night, we see how the future will be, and we maintain our faith.

And this is why we continue the struggle. And in this struggle we are ready and willing to give our lives.

We are in a historical moment that might be compared with what the United States went through in 1860. At that time there was an economist—an economist whom today the neoliberal economists dismiss—who was very important for you, for the United States: Henry Charles Carey. Carey understood that the future of the United States depended on two things: that free trade not be permitted and that slavery be abolished. And he clearly understood the relation between those two things. Carey projected that if the United States allowed for free importation from England, which at that time had much more advanced technology than the United States, the effect would be the ruin of the U.S. economy, the ruin of U.S. small businesses, and the impossibility for the U.S. to become a prosperous country.

For these reasons, he maintained that it was necessary to protect production in the United States, so that the U.S. would prosper. Today he’s viewed as a protectionist, and frowned upon, but what is certain is that you triumphed because Carey’s policy included another essential element, which was the abolition of slavery.

Carey said that if free markets were allowed, the United States would simply become an exporter of cotton and a net importer of industrial goods. And to become an exporter of cotton, it would have to become a country of slavery, because as you know, cotton came from the large cotton plantations where the slaves were. And the United States would have remained what today we call underdeveloped or backward—a colonial country dominated by England. Carey had nothing against England, he only wanted his country to prosper.

A person whom perhaps you are more familiar with, Abraham Lincoln, named him as his chief economic advisor, and you all know the rest of the story. These positions prevailed, slavery was abolished, the United States protected its industry, and for these reasons the United States is today a powerful nation.

What would we like at this moment?

We would wish, just as Carey wanted, that our country not become a country of slaves; we want a country that doesn’t continue being underdeveloped; we want a country where people can live with dignity. This is also our objective when we say we don’t want a free trade agreement.

We don’t want to be another United States of America. This does not interest us. Forget it. I think the experience of being a superpower is not a good one.

But what is good is to be a prosperous country, and this the U.S. has done well.

So now we think that if you fight the ratification of these free trade agreements, in particular the FTA with Colombia, you will be supporting our right to dignity and prosperity.

But, as I’ve said before, in doing this you are not just defending the rights of Colombians; you will be defending your own rights.

Mr. Samuel Huntington, of whom you all know, came up with the idea that the internal enemy of the United States is the Latino community; the reason, according to him, is that Latinos, because of their indigenous ancestry, believe in collective rights and for this reason are threatening to the central thesis of the free trade agreements, which is that collective rights must be eliminated.

I call on you—and this is the central theme of the tour I was going to make and what I want to transmit to you through this medium: Defend collective rights. Because they are your rights—environmental rights, rights to health, rights to shelter and housing—don’t let them take these rights, as is already happening to 2 million U.S. citizens and may happen to 6 million more. These collective rights—your collective rights—depend on our unity in the struggle against the free trade agreements. It is the same struggle, we have the same cause, the defense of our collective rights as peoples, our rights as humanity, against the rights of investment. This struggle for our collective rights is the same cause. There is one difference: we [in Colombia] are giving our lives in this struggle. But be sure that we will continue, and we trust that you and we, together, will triumph.

Thank you.