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TILMA, NAFTA, SPP, PNWER have Violated and Will increasingly Violate International Norms. PDF Print E-mail
Justice News
Thursday, 22 May 2008 02:11

2008 May 22

TILMA, NAFTA, SPP, PNWER have Violated and Will increasingly Violate International Norms

PEJ News -Joan Russow – Global Compliance Research Project - Canadian trade lawyer, Steven Shrybman, has described "Bill 32 [BC implementation bill] and the Agreement [TILMA] it seeks to implement as presenting an unprecedented challenge to the most fundamental principle and norms of Canada's constitutional arrangements". Mr. Shrybman, as a trade lawyer, appears to ignore the international norms that would also be violated. TILMA (Trade, Investment and Labour Mobility Agreement) not only violates norms of Canada's constitutional arrangements but, along with NAFTA (North American Free Trade Agreement), SPP (Security and Prosperity Partnership) and PNWER (Pacific North West Economic Region) , also contribute to the violation of international peremptory norms.

www.PEJ.org

 

These trade agreements or "Public Private Partnerships among Nations" have led and will increasingly lead to violations of international peremptory norms. Anti- trade activists must finally use international law related to human rights including civil and political rights, social, cultural and economic rights, labour rights, rights of indigenous peoples, rights of migrant workers,children's rights, rights to a safe environment.. .etc to counteract these trade agreements. Citizens must wonder if governments even read the international instruments that they sign and ratify, or if they do, if they have any intention of discharging obligations and of acting on commitments, and citizens must also wonder why these instruments are not being used to counter trade agreements.

NAFTA and SPP (agreements among Canada, US and Mexico); TILMA (an agreement among BC and Alberta and possibly other provinces)  PNWER (an agreement among Alaska, Idaho, Montana, Oregon, Washington in the US and British Columbia, Alberta, and the Yukon).

INTERNATIONAL LABOUR ORGANIZATION CONVENTIONS DISREGARDED

In the official website on TILMA, the agreement is heralded as “a partnership between the Government of British Columbia and the Government of Alberta”. … The agreement builds upon the prosperity in both provinces by giving businesses and workers seamless access to a larger range of opportunities in all areas, including: energy; transportation; agriculture; and investment”.

On the site the purpose of the agreement is “to remove barriers to trade, investment and labour mobility between the two provinces.” …”

It is tauted as an “agreement between two parties to recognize each other’s standards, qualifications, licensing requirements, or testing procedures and results to contribute to the expansion of trade through removing some technical obstacles.”

Other than the above reference to technical standards there is no reference to the long-standing substantive obligation related to key international trade norms: many of which will probably be deemed to be “obstacles”.

TILMA along with other trade agreements have led and will continue to lead to an increased disregard for international peremptory norms related to the numerous International Labour Organizations Conventions most of which have not been ratified by Canada, and the United States. If one examines the ILO Conventions, and the important provisions that have been agreed to, it is difficult to understand the reason for there not being a full scale demand from the Labour movement in Canada and the United States for the Canadian and US governments to sign and ratify these agreements, and to enact the necessary legislation to ensure compliance.

For years the Labour movement nationally and internationally has advocated the principle of fair and just transition. This principle advances the undertaking that when an industry contributes to harm to human health and to the environment, labour will support the sunsetting of the industry if society institutes a fair and just transition for  workers and communities affected by this transition.

DISCRIMINATION ON THE GROUNDS OF POLITICAL AND OTHER OPINION, AND RACIAL PROFILING

Both Canada and the US have signed and ratified the International Covenant of Civil and Political Rights; among the listed grounds for which there shall not be discrimination is on the ground of race, and political and other opinion.

The SPP agreement, has various provisions which are leading to the violation of civil and political rights; it is possible that TILMA (the agreement among BC, Alberta) , and the potential extended PNWER (Pacific North West Economic Region. PNWER would also lead to the violation of civil and political rights. PNWER is described in a press release as "a bi-national public/private partnership that has been working with Washington State, British Columbia". This PPP is proposed to be extended to Alberta and Saskatchewan and Alaska.

It was announced in a PNWER press release on March 23, 2008 [on the third anniversary of the signing of the Waco Declaration on the Security and Prosperity Partnership Agreement.] that there would be new border requirements:

"In advance of implementing the Western Hemisphere Travel Initiative (WHTI) next year, the Department of Homeland Security and the State of Washington have agreed to launch a driver's license pilot project that would let travelers use an enhanced driver's license to cross the border. It will be the nation's first pilot project to test an alternative to requiring all US citizens to show a passport when they cross the border. "

The SPP Agreement has led to the violation of civil and political rights, by placing citizens' names on no-fly lists, or by stopping citizen advocates at the border. This new provision in hailed by the public/private/partnership (PNWER) will undoubtedly follow the lead of the SPP in violation of civil and political rights of citizens.

INTERNATIONAL ENVIRONMENTAL NORMS VIOLATED THROUGH INCREASED DEREGULATION

The above corporate-led trade/PPP agreements are leading increasingly to deregulation through corporate voluntary compliance, and through disregard for years of international environmental norms. Institutional government memory is short: governments at all levels are reneging on their commitments to ensure that corporations including transnational corporations comply with national codes… and international law, including international environmental law (Habitat II, 1996). In addition, every state made a commitment to reduce the ecological footprint; these trade agreements do and will increase the ecological footprint.

Under these trade/PPP agreements, particularly under the SPP agreement, there is an expressed demand for “a reliable source of energy”. Essentially this is a provision that has increasingly brought about demands to exploit sites such as the Canadian oil sands irrespective of the environmental and health impacts, and the violation of international norms agreed to under the Framework Convention on Climate Change, and under the Convention on Biological diversity.

TRANSBOUNDARY PRINCIPLE AND EXTRATERRITORIALISM BYPASSED

These Trade agreements have and will increasing result in the violation of the transboundary Principle. The violations will undoubtedly impact on the “human right to water.

The transboundary principle initially arose from a successful US case against Cominco, and then became and international peremptory norm

In the 1920s the United States successfully sued Cominco for polluting the Columbia River in the United States. A precedent was set that Cominco was held legally responsible for polluting the Columbia River on the US side, and was required to compensate Washington State.

As a result of that case an international principle was established that countries could be held responsible for the activities, on their territory, that have serious environmental consequences on the environment of an adjacent Country. A version of this principle was included in the Convention on the law of the Seas, and in the Rio Declaration which was adopted by all member states of the United Nations at the 1992 UN Convention on Environment and Development.

"Principle 2: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
Principle 14 States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health."
For years, states and their chartered corporations have used the guise of "extraterritoriality" to justify engaging in practices, forbidden in their own states, in other states. With hand on heart, the states and corporation claim what right to we have to impose out higher standards on other states.

ENVIRONMENTAL ASSESSMENT OF NAFTA

In October 1992, the Mulroney Conservative government, carried out an environmental review of NAFTA, and in that review, declared that all international environmental agreements ratified by Canada would take precedence over NAFTA. Yet, Canada has never been willing to invoke provisions in the Biodiversity Convention or the Framework Convention on Climate Change, to which Canada is a signatory, to address egregious actions of corporations suing the Federal government under NAFTA.

ENVIRONMENTAL PROVISIONS IN NAFTA IGNORED.

TILMA, and SPP Agreement will even perpetuate, as NAFTA has done, the violation of perhaps the only valid environmental provision in NAFTA.

Article 1114: Environmental Measures
1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.
The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.

CANADA AND THE US HAVE FAILED TO PROTECT MIGRANT WORKERS, AND INDIGENOUS PEOPLES

MIGRANT WORKERS

The trade agreements have led and will increasingly lead to the violation of the rights of migrant workers. The following rights have been proclaimed in the Convention on the Protection of the Rights of Migrant workers and their families is:

Article 25 1. Migrant workers shall enjoy treatment not less favourable than that, which applies to nationals of the State of employment in respect of
remuneration and:
(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work, which, according to national law and practice, are covered by this term;
(b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.
3. States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of any such irregularity.

Article 26 1. States Parties recognize the right of migrant workers and members of their families:

(a) To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned;
(b) To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;
(c) To seek the aid and assistance of any trade union and of any such association as aforesaid.
2. No restrictions may be placed on the exercise of these rights other than those that are prescribed by law and which are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.”

Both Canada and the US have failed to ratify the Convention for the Protection of the Rights of Migrant Workers and their families.

RIGHTS OF INDIGENOUS PEOPLES

Also the trade agreements have lead and will increasingly lead to the abandonment of the rights of indigenous peoples. In 1992 every member state of the United Nations made the commitment to do the following:

the lands of indigenous people peoples and their communities should shall be protected from activities that are environmentally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate (26.3. ii., Agenda 21)
On September 13, 2007, Both Canada and US were among the four UN member states that refused to adopt the Declaration of Rights of Indigenous Peoples.

THESE AGREEMENTS SHOULD BE DECLARED NULL AND VOID AND THE CHARTERS OF CORPORATIONS INCLUDING TRANSNATIONAL CORPORATIONS MUST BE REVOKED.

These agreements do and will lead to increased violations of international peremptory norms. Anti- trade activists must finally use international law related to human rights including civil and political rights, social, cultural and economic rights, labour rights, rights of indigenous peoples, rights of migrant workers, children's rights, rights to a safe environment etc.

These trade agreements and Public Private Partnerships among Nations should be declared null and void for violating international peremptory norms, the Charters or the licences of the corporations that have violated international peremptory norms must be revoked, and a fair and just transition program must be instituted for workers and communities impacted by revocation of corporate charters and licence.

INSTITUTIONAL COLLUSION BETWEEN GOVERNMENTS AND CORPORATIONS

The Corporations either sponsor these trade conferences, control the dialogue in the conferences, form partnerships with government officials on drafting of policy. The corporations are like "snakes in the Grass": on their websites they flaunt their concern for the preserving the environment, for instituting sustainability, for enhancing the quality of life; yet when one compares their rhetoric with their actions it is obvious that they are "snakes in the grass" (see snakesinthegrass.net)

Last Updated on Tuesday, 28 July 2015 17:52
 

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