Hey everybody,
The investor-state dispute settlement mechanism of the North American Free
Trade Agreement (NAFTA) has been invoked again; or, as today's Globe &
Mail headline had it: "Another U.S. firm sues Ottawa under NAFTA".
Writing in the Tuesday, February 16/99 edition of the G & M,
Heather Scoffield reported that Pope & Talbot Inc., a US forest products
concernment based in Portland, Oregon, has filed for $30-million (U.S.) in
damages against the Canadian government. Ironically, Pope & Talbot's
complaint arises from restrictions on Canadian lumber exports adopted by
Ottawa under pressure from Washington.
It is hard to imagine a more pellucid demonstration of the absurdity of
Canada's trade policy. Here we have an American firm suing the Canadian
government, using provisions of a treaty which Canada signed to please
Washington, because Canada has voluntarily embargoed its own products at
the behest of the supposedly pro-"free trade" American government, which
prevents the American company from shipping all the wood it wants to out
of Canada!
Scoffield notes that Canadian officials have attempted to put the best
possible face on this development, lauding themselves for their
public-spiritedness in deigning to apprise Canadians of the Pope & Talbot
action (Chapter 11, the relevant NAFTA statute, enjoins confidentiality
rather than transparency in proceedings of this type). Leaving aside the
fact that such disclosure should be seen not as an act of generosity but
as a duty, Scoffield reveals that only last week Ottawa claimed that all
current Chapter 11 suits were public knowledge; yet Pope & Talbot
initiated proceedings in December of '98! One wonders how many other
Chapter 11 disputes the federal government has forgotten to tell us about.
This latest case underscores yet again the disastrous nature of NAFTA, the
single most grievous feature of which is Chapter11. A meeting of NAFTA
signatories is planned for April 22-23/99 in Toronto. Chapter 11 is on the
agenda, apparently, but the Chretien administration has given no
indication that it plans to adduce serious complaints about it. On the
other hand, the
First Report (December 29, 1998) of the British Columbia
Legislature's Special Committee on the MAI : "recommends that the
government of Canada reopen NAFTA chapter 11 to eliminate the
investor-state dispute settlement procedure."
My own feeling is that, in the absence of a campaign equivalent to that
which derailed the MAI, redress of NAFTA's ills will not be forthcoming.
However, with each new lawsuit, and with the impending showdown on water
exports, the potential for such mass activity grows.
Even then it must be appreciated that organization against NAFTA will
encounter problems not faced by anti-MAI efforts. To begin with, MAI was
prospective; NAFTA is a done deal. It is usually much easier to obstruct
than to abolish and - in view of the integration of the Canadian and US
economies (indeed, societies) which NAFTA has brought about - this
definitely holds true in the present instance.
Another major difference is the line-up of forces. At the end of the day
the MAI was shot down in the Organization for Economic Co-operation and
Development by Europeans. This is due to two factors : the more
progressive political culture of Western Europe which is rather less
disposed than Canada's to favor narrow economic objectives over broader
social considerations; the political structures of Western Europe - the
proportional representation system common to these states makes ruling
parties more vulnerable, hence more responsive to popular pressure.
Both the government and the major opposition party in the Canadian
Parliament backed the MAI to the very end; it is no thanks to them that
the treaty was not concluded. As also during the national debates
preceding the signing of NAFTA and the Canada-US Free Trade Agreement
Canadians are apt to find it impossible to persuade their federal
representatives to oppose Washington's wishes.
It is true that there is some disaffection in the US with NAFTA and more
still in Mexico, and alliances should certainly be sought with activists
in these countries. Even so I doubt very much that sufficient strength
could be found to implement a political solution. The legislatures in all
three of our countries are packed with neoliberals; we cannot meaningfully
threaten to "throw the bums out" (the recommended treatment in liberal
democracies) because all parties subscribe to the same agenda.
It strikes me that we would do better to look to the courts for relief.
In the present decade the judiciary has become the mainspring of
progressive - indeed radical - institutional agency. In the main it is
legal rulings which have compelled legislatures to take steps to eliminate
discrimination against non-heterosexuals; the Supreme Court of Canada
ordered Ottawa to implement pay equity between women and men; the Supreme
Court of British Columbia, in the Deljamuukw case, at last properly
recognized aboriginal title. Even the recent decision to strike down the
law against the possession of child pornography - a decision with which I
strongly disagree - is remarkable in that it demonstrates the willingness
of Canadian judges to challenge received opinion.
The United Steelworkers of America (USWA) have already adopted this
tactic. They have brought a constitutional charge against the executive
arm of the US government, claiming it exceeded its authority in signing
NAFTA without adequate support from the Congress.
It is too early to predict how the matter will turn out but it obviously
bears watching, as does the charter challenge brought against the Canadian
government, re MAI, by the Defence of Canadian Liberty Committee (DCLC).
However, I think there is much to be said for propounding a simultaneous
assault on NAFTA in the Canadian courts. On the one hand I am
uncomfortable with consigning my fate to the mercies of the American legal
system; on the other the DCLC may be undone by the technical point that
the object of their gravamen - the MAI - has never existed in legal terms.
None of this is to suggest that NAFTA can be tackled in one way only. With
such all-encompassing issues a diversity of approaches is essential. No
matter which method(s) we prefer, however, the time is upon us when we
must seek to implement them.
---Antoni