NAFTA and the challenge for water justice

Polluted water next to refinery
Used under creative commons license from Michel G.

The NAFTA talks are advancing rapidly with very little information available to the public on their content or the possible consequences for fair and sustainable food and farm systems. This is the fourth in a series of blogs examining the proposals being made by agribusiness firms that take the failed Trans Pacific Partnership (TPP) as a starting point. The first blog in the series focused on proposals that could be used to delay and repeal public interest protections, the second focused on the risks of including organic standards in NAFTA, and the third focused on the shortcuts that the Ag Biotech sector was looking to get out of the renegotiation, including for GMO crops.

 

What should a post-TPP U.S. trade and investment policy look like, if it is to protect not only workers, farmers, consumers and the environment in the U.S., but also in other countries? What can individuals and organizations committed to water justice do to make sure that the rights to water, food and health of rural and urban communities in North America are upheld? These issues will be very much on the agenda at the next round of NAFTA talks, starting October 11.

The struggles around water have taken many forms over the past decades. These include anti-privatization struggles, campaigns asking governments to keep water out of the WTO and all free trade agreements as well as other ongoing, multi-country efforts that strive to reclaim public water. All these strands came together in the decade-long campaign to ensure that the right to water is recognized as a fundamental human right along with right to food and right to health. Along the way, there have also been some important victories in establishing the right to water in national laws and even in constitutions.

However, we are still at a juncture where corporate friendly governments push policies that are detrimental to people’s right to clean, safe, water in the name of growth and investments. Nowhere is this as evident as in Trump’s vision of America, where the administration is in the process of revisiting the trinational trade and investment agreement, NAFTA. IATP’s recent research on the right to water looks at the implications of a key provision in NAFTA, Investor State Dispute Settlement (ISDS), which has been a millstone in the case of many nations’ ability to meet their right to water obligations.

ISDS is a provision common to many Bilateral Investment Treaties (BITs) and to regional agreements such as NAFTA that cover both trade and investment. It gives foreign investors the right to demand compensation for environmental, public interest and other laws that undermine their anticipated profits. Cases are decided by unaccountable panels of trade lawyers, who might have conflicts of interest. This provision, initially put in place to ensure investors’ rights against nationalizations or expropriations, has evolved to become a tool for corporations to tie up governments in long and expensive legal cases, with chilling effects on public interest rules around the world.

The evolution of ISDS as a go-to instrument to protect private investments, even when faced with legitimate regulation in the public interest, has made it function as an enabling mechanism that protects corporate violations of fundamental principles of public water governance, such as human right to water and sustainability. Starting with Argentina in 1997, transnational corporations have used ISDS to sue several countries that tried to ensure affordable access to water. It is this ISDS provision in NAFTA that allowed the Canadian company TransCanada to sue the U.S. government over the Keystone XL (KXL) Pipeline, where it specifically claimed breach of “fair and equitable treatment/ minimum standard treatment” of foreign investors. As this example shows, no nation is powerful enough to be safe from the overreach of ISDS, even when trying to protect national interest. In practice, these cases are cutting off progress on the right to water at the national and international levels.

Rather than continue with this unnecessary and counterproductive mechanism, Canada, the U.S. and Mexico should take this opportunity to simply abolish it. It is in this context that we should join the civil society effort to direct legislators to oppose ISDS in the up-coming NAFTA negotiations.

Please sign on to this petition, and ask Members of Congress to oppose the inclusion of ISDS in NAFTA.