On free trade, the rights of multinationals and the dilemma of the State
On free trade, the rights of multinationals and the dilemma of the State: "The FTAA is a stronger MAI, and Canada is letting it happen."
"By trying to win it all, large private companies are making class struggles reappear."
It is regrettable that the Peoples' Summit of the Americas ended in a kind of general rejection of free trade. Several of the participants had shown perspicacity in their study of the multiple facets of the Free Trade Area of the Americas. But, finally, all distinctions and nuances grew blurred to the profit of a dogmatic judgment. You do not condemn tides. You build dams, piers, in a word, you protect yourself. You cannot excommunicate the sea.
International free trade expends in the world as intranational free trade was established inside each country, a long time ago.
The role of the GATT
The movement begins in 1947, with the creation of the GATT. The depression of the Thirties and the Second World War left us with very high barriers to trade; commercial reprisals had ?ransacked? commercial movements. The objective of the GATT is simple: to gradually lower tariffs and to gradually remove quotas on imports. The privileged instrument to reach these ends is also simple: the reduction to trade barriers given by a member State to another member State is automatically granted to all the other members. This is the clause of the most favoured nation. As nobody will authorize a reduction on a product without obtaining, on the other hand, a reduction on another product, the negotiations of the GATT become a kind of immense fair where its members exchange reductions which are automatically extended to all.
The instrument is powerful. At the beginning, there were only two dozen members. They are 140 today. Everyone wants to be part of it. Even, and especially, China.
The barriers are gradually reduced. The GATT obviously lives very well with the fact that some of its members are in a rush to organize free trade areas or customs unions.
And thus appeared the European Common Market, the European Free Trade Area, The Canado-American Agreement on Free Trade, the NAFTA, the Mercosur, the FTAA (at least, the project...). These are the most known ones, but there are others.
The negotiations became more sophisticated than the former bilateral exchanges. And the fields of application more numerous. Whereas the first negotiations normally had to do with products, we started to liberalize services (financial, transportation, data processing, commercial, etc). But one does not provide a service of insurance, financing, or consultation as one moves an oil barrel. One usually needs a local establishment. The company which sought to establish itself in a foreign country wanted to be treated like a local company. The clause of national treatment appeared.
The objective of multinationals
Why limit the application of this clause to services? It would have to apply, some said, to all foreign investments. Why would a country agree to let in the franchise of a foreign steel company and not agree to offer national treatment to the company that wanted to build a steel factory?
If a conflict appears between a foreign investor and a government, how will it be regulated? For a long time, commercial conflicts were recognized only between governments, and an arbitration was established to decide the type of reprisals to which a country could resort with regards to the delinquents.
How to regulate a conflict between a company and a government today? The conflicts are all the more likely to arise as the objectives of the private sector are increasingly demanding. In 1995, the president of the Dutch-Swedish company ABB (which is strongly established in Québec by the way) summarized the objective of multinationals and transnationals in a concise way:
"I would define globalization as the freedom for my group to invest where it wants, when it wants, to produce what it wants, to get supply from or sell where it wants while having to support the least amount of constraints as possible with regards to labour laws and social conventions."
The International Chamber of Commerce embraces this vision with enthusiasm and the pressures became increasingly strong so that, in the conflicts that such a vision would not fail to cause, a company could sue a government in front of an international court and obtain financial compensations from them for the profits lost because of the policies pursued by this government. Vast program!
The Canado-American Treaty
At the end of the Eighties, the American Congress becomes very protectionist. The bills to limit the importation of such and such product multiplied. The list ended up reaching more than 200 proposals. As the principal supplier of the United States, Canada was directly aimed. That only a few of these projects be adopted and Canada would be exposed to a serious recession. The White House, conscious of the danger, wins the Congress by proposing a free trade area to Canada. Mr. Mulroney accepts. Ontario, which greatly benefitted from the installation of American branches, sheltered by the Canadian tariff, is against. In Québec, the Prime Minister Robert Bourassa would be rather for but hesitates. The official opposition, the Parti Québécois, would be rather against but hesitates. An agreement between the two political parties made it so that the non-partisan support of Québec to Mr. Mulroney gave him the political force to conclude. Under the influence of the Ontario labour unions, the labour unions of Québec were against, but the most important labour union in the private sector, the Metal-workers, will refuse, in the name of the interest of its members, to align itself on Ontario's fears. The game was won.
And yet, the interest of Québec was clear. What creates jobs here, are less the branches of American companies than indigenous small to medium businesses. For them, the lifting of the American tariffs was a gift from heaven. Their exports to the South were going to explode. Never again could English Canada blackmail the sovereignists as it had done since so many years: if you leave, we will no longer buy your products. Canada ceased to be the largest market for Québec; it was now the United States. To remove a sovereign Québec from the recently created free trade area? Difficult, very difficult, since, after the extension to Mexico, the United States were aiming for the FTAA.
A great number of general exemptions were included in the treaty, for what pertains to trade as well as investments: products and cultural industries, transport services, telecommunication services, maritime services, financial products (except insurance) and stock markets.
All things considered, the Canado-American Free Trade Agreement ensured an important liberalization of exchanges but did not throw the baby out with the water of the bath. Governments kept the possibility of exerting a structuring action and culture was clearly recognized as a general exception.
The slip began with NAFTA. The Canado-American Agreement had come into effect in 1989. For NAFTA, it was 1994. American investors are wary of the behavior of Latin American governments. They want rock-solid protections. Neoliberalism is raging. The governments of the Soviet kind are gone. The great search for foreign investment is everywhere. Governments will yield. Investors will have their obligatory international arbitration for governments.
It is not obvious if the Canadian government saw the extent of what it signed. It is true that the Mexican government caused a lot of mistrust. And the arbitration clause seemed so logical in order to encourage foreign investment in Latin America. When the American company Ethyl sued Canada on the basis of the NAFTA provisions, the alarm clock was brutal.
For the remainder, however, and particularily for the general exceptions, the clauses of the Canado-American agreement, as a whole, were maintained. The cultural exemption remained, but as a clause of the American agreement rather than as a clause of NAFTA. It is not indifferent to what followed. The MAI
What followed was, for our matter, a kind of detour outside of the Americas. It is the draft treaty of the MAI (Multilateral Agreement on Investment). It is an initiative of the OECD, which gathers, as we know, only modern industrialized countries, of which Canada and the United States.
The members of the OECD will name negotiators who, without the Parliaments being really informed, will work out a charter of investments which came close to what the president of ABB desired.
The examples are too numerous to all be quoted here, but here are some.
- A government will have to respect a long list of prohibitions of performance conditions or results. The list of NAFTA lengthens. It will even be prohibited to force a foreign investor to recruit a given share of its labour locally.
- We express the wish that foreign companies do not require a foreign State to lower its environmental standards before investing but we force the governments to pay a compensation to companies for losses of profit which would arise from a rise of the environmental standards.
- The cultural exception disappears. Any country that wants to register specific exceptions does it in an appendix, and they are negotiable.
- All these provisions are prone to compulsory arbitration by companies.
The text of the draft agreement is made public on Internet by an American association of consumers. Protests take place a little everywhere (of which that of the SalAMI in Montréal). In all parts of society, we begin to realize that governments are about to give up some their essential responsibilities. Free trade overflows on a resignation of the State.
The last negotiations of the MAI are to begin in Paris, on October 20, 1998. October 13, Lionel Jospin (PM of France) declares that if it is normal for a country to transfer some elements of its sovereignty to an international organization, it should not transfer some elements of its sovereignty to private interests. And he asks the French delegation to withdraw from the negotiations. That was enough for the the project to collapses.
Québec escaped it by luck. The federal government informed us very badly on what was happening. It gave up the general cultural exception without stating it. And if the project had passed, a good chunk of what we call the Québécois Model of Development would have become illegal. Since this episode, Québec requires to be present at international negotiations crucial for its future.
Another attempt will come with the meeting of WTO in Seattle but demonstrators will prevent the meeting from taking place.
The next occasion was the meeting on the FTAA in Quebec. In this case still, an leak on the Internet revealed the content of the chapter of the FTAA which deals with foreign investment. The responsibility, this time, is that of the Institute for Agriculture and Trade Policy.
Reading this text, we soon realize that it is a new attempt at writing, for the three Americas, a great charter of the rights of multinationals. It is a stronger MAI, if that is possible. The rights of the gouvernments are even more reduced, more diluted than they already were in the MAI.
When reading the text, we can see that it is a new attempt at writing, for three Americas, a great charter of the rights of the multinationals. It is a harder MAI, if that is possible. The rights of the governments are reduced, more edulcorated than they were it in the MAI.
The negotiation was secret. The Group of negotiations on investment sat on five occasions during the year 2000. It submited a report to the ministers responsible for trade after their meeting of November 27 to 29. It is the text of their report that we have. It was discussed again during the Committee of trade negociations held in Lima, in Peru, in January 2001. We do not know what occurred there. All that we know, it is that the Quebec Summit, which was supposed to deal with the free trade agreement, dealt with democracy instead; it is interesting, but it is not what the initial objective of the conference was supposed to be.
The majority of governments on our continent seek to get as much investment as possible. They look at what Mexico obtain with NAFTA and they drool. Brazil, whose population is close to 180 million inhabitants, whose industrial development makes it the leader of Latin America and created the Mercosur, is nevertheless hesitant even though its economy develops quickly. Argentina, which is going through a serious economic crisis, is ready to accept anything.
M. Pettigrew, Canadian minister of International, promised that the FTAA agreement did not contain the most controversial clauses of the NAFTA agreement and that, in particular, that of the obligated arbitration imposed to private corporations. He is not denying that the object of the leak in the media is authentic. He only tries to indicate that this document was a draft and that Canada has not yet taken its decision on the matter. Ater the five meetings of the Group of negociations on investment in 2000? Not even after the meeting of Lima? You have to take people for imbeciles to declare something like that. In fact, as with the case of the MAI, Canada was impressed by the importance of the issue and decided to let it pass. "Laisser faire, laisser passer." Not only do we give no opposition to the sea, we are not even trying of buidling dams.
And the Government of Québec can't do anything by proclaim the presence of Québec, its existence, and the nature of its interets. It is doing that quite well.
Thank God for the existence of the so-called "civile society". That is the conjugaison of various labour unions, students, political activists in need for a cause, the Monde diplomatique and a few old-style liberals (in the original sens of the word) such as myself, who wish to establish something resembling an acceptable balance, to assert that there is a life beyond multinational corporations and their interests and that the State must not abdicate on its responsabilities.
I conclude with some observations on the debates around the Québec Summit.
- Had it not been for the finale declaration of the Peoples Summit of the Americas, we should salute one more time the revealing role of those who call themselves, pompeusement, civil society. Some claimed their method of action was undemocratic. It certainly is not less democratic than that of the Americas Business Forum, which was granted an official consultative status by the head of states and governments; neither less democratic than the admission of business people to the negociation tables. We we have no access to the meetings rooms nor to the reports, the only place left is the street.
- Québec is in a délicate situation and a potentially dangerous one. Kept asside from the negociations, it is not truly aware of what is going on. To erect a public sign in front of the meeting place to signal who we are has something pathetic to it. It probably had to be done, no doubt, but we can't escape the thought that short of 52 000 votes, Québec would have participated to the meetings along with other countries much smaller than itself.
Some are saying that since a sovereign Québec would only be a fraction of today's Canada, it would have little influence on the direction of these meetings. It is not so. It would be a progress. And by the way, the little importance of the small countries in international negociations does not correspond to reality.
- We can be in favor of free-trade and at the same time refuse the course that neoliberalism is trying to impose. We can recognize the merits of a free market economy without wanting to impose the domination of great multinational corporations whose interests often coincide with the common interest but not always and not necessarily.
- By trying to win it all, great multinationals are in the process of making a class war reappear. On voit maintenant se répandre la crainte, la suspicion et la confrontation. Les gouvernements ont leur part de responsabilité en laissant s'accréditer l'impression qu'entre politique et affaires, il y a plus que collaboration, il y a collusion.
Former Prime Minister of Québec