Tag Archive | "Colombia"

Photo Credit: Fernando Vergara/AP

The Road Ahead for Colombia, as FARC Agrees to Peace

Photo Credit: Fernando Vergara/AP

Photo Credit: Fernando Vergara/AP

The Western Hemisphere has reason to celebrate… The Revolutionary Armed Forces of Columbia finally agreed to end the longest running armed conflict of the Americas.  Colombia’s Marxist FARC (“Fuerzas Armadas Revolucionarias de Colombia”) rebel group began as a peasant uprising against the national government in 1964.  The group’s ideologies encompass Marxism, the antithesis of capitalism, and advocates for values such as “from each according to his ability, to each according to his needs.”  Colombia’s President, Juan Manuel Santos, has been in negotiations with the group for the past four years.  Although the peace accord has Santos’ blessing and FARC’s acquiescence, the Columbian nation will keep its fingers crossed that voters approve the deal in a national referendum.

The peace agreement will wrap up over a half a century of conflict, close to a quarter of a million deaths, and over 5 million internally displaced persons (IDPs) in the ravaged nation.  (Some estimates of the FARC conflict even have the number of IDPs in Colombia upwards of 8 million.)  The controversial peace pact will grant rebel combatants amnesty for any and all crimes committed during conflict.  This reality is painful for many in the country who’ve witnessed FARC forces thrive though kidnapping, extortion, and involvement in illicit drug trade.  Additionally, the accord will allow rebel forces to form a political party and seek political office.

The deal will also have a profound impact on Columbia’s illegal narcotics industry as it requires farmers to destroy coca plants- the source of cocaine manufacturing.  This land will then be redistributed to former FARC rebels and facilitate new crop industries directed towards job creation on their behalf.  As FARC forces step down from cocaine trading, an event anticipated with both optimism and skepticism, this begs the question of who may be waiting in the wings of the jungle to claim control of the lucrative drug crop which supplies about 60 percent of the world’s cocaine.  After all, these billions of acres of emerald green coca crops have brought in $2.4B – $3.5B annually for the FARC organization, and that is not an effortless surrender.

Arguably its greatest accomplishment, the peace agreement calls for the release of child soldiers.  The first group of minor ex-militants was released to the Red Cross this past week, with FARC leaders stating “We the FARC believe that the outing of minors from war zones is only the first step towards a better future for new generations.”  The Colombian army estimates that roughly half of its soldiers became FARC combatants as children.  This relentless recruitment of children over the past fifty-plus years constitutes egregious abuse to the minors’ innocence, in violation of several human rights conventions, and is recognized as a war crime under the Rome Statute of the International Criminal Court.  In 2000, the world’s first international treaty focused on ending the military exploitation of minors came into being- OPAC, the Optional Protocol to the Convention on the Rights of the Child.  The treaty prohibits the conscription of children under the age of 18 and their participation in hostilities. It also prohibits the voluntary recruitment of children by non-state armed groups, although it allows state armed forces to recruit from age 16, as long as the children recruited are not sent to war. However, the promise of peace may not be the end of struggle for these “child soldiers,” but rather a different beginning as it will be the first time some of the insurgents have surrendered arms in their lifetime.  Furthermore, the former soldiers will likely need appropriate DDR (Disarmament, Demobilization, and Reintegration) programs to facilitate their successful re-entry into a society of post-conflict peace- without arms.

If history has taught us anything, it is that violence begets violence.  While the ceasefire may be a wonderful beginning to peace within Colombia, there are still many ancillary hurdles that the nation will need to overcome as a unified front.  Nonetheless the peace accord is a giant step towards an end of possibly not acceptance, but certainly understanding, between Santos’ government, FARC forces, and the nation’s people.  It is an agreement that highlights the country’s determination and cooperation… and most deserving of the world’s respect and praise.

Tahli Salem is a third year law student and staff editor on the Denver Journal of International Law and Policy.

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Photo Credit: Federico Rios/Native - NYTimes

A Bittersweet Ending to the Longest Civil War in Latin America: Colombia-FARC

Photo Credit: Federico Rios/Native - NYTimes

Photo Credit: Federico Rios/Native – NYTimes

Colombia has struggled for decades to combat the illegal drug trade, terrorism, and violence that FARC (Fuerzas Armadas Revolucionarias de Colombia) has contributed to since 1966. Known for being one of the richest guerrilla armies in the world,  FARC has approximately 8,000 rebel fighters that control many rural areas in the south and eastern portions of the country. Most of the economic support for this guerrilla group comes from the illegal drug trade, profits from high profile kidnappings, extortion, and “taxes” it collects from those individuals who reside in areas that they control.

Many administrations have tried to bring peace to Colombia by eradicating, fighting, and even negotiating with FARC, none of which have been successful until President Juan Manuel Santos came into office. On August 24, 2016, the Colombian government announced a cease fire peace deal with FARC rebels, putting an end to the 50-year conflict. In the same peace deal, the FARC agreed to set free the children soldiers they kidnapped and enslaved to serve in its army.

But what did Colombia and its government really have to sacrifice in order to strike this peace deal? FARC is known to have committed massacres, kidnapped, extorted, and forced children into labor and servitude. These crimes are internationally condemned. However, now that this treaty will be put in place, those FARC members who will confess to their crimes, will get reduced sentences, in many instances community service. Is community service a fair punishment for those who have committed human rights violations for 50 years?

Colombian Ex-President doesn’t seem to think so. Alvaro Uribe, has publicly criticized the cease-fire as an amnesty and has accused President Santos of being a traitor. Part of this criticism is rooted in the idea that the peace deal seeks to reintegrate FARC members into society and transition members from war-mongering guerrillas to a peaceful political movement. Can that be classified as impunity? President Santos claims that the individuals responsible for violent crimes will receive punishment commensurate with the crimes they committed. That is yet to be seen.

A large percent of the Colombian population seems to be in favor of the deal. However, a point of contentious negotiations that has not been agreed to, has been FARC surrendering its control of drug trafficking in the region. As the United States State Department has illustrated, FARC is responsible for the production and distribution of several tons of cocaine entering the U.S. every year.

The world continues to watch the negotiations and execution of this peace deal. Those who are watching closely, are human rights watch groups and foreign administrations looking to see if this deal amounts to impunity for human rights violations.

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Marked "D"

Who is to Blame for the Venezuela – Colombia Border Crisis?

Columbian Crossing River
Many Colombians are leaving Venezuela by crossing the Tachira river. (courtesy of BBC)

In an effort to restore peace and order along the Colombian border, the President of Venezuela, Nicholas Maduro, has declared a state of emergency. Border crossings between Venezuela and Colombia have closed, martial law has been enacted in border regions, and Colombians living in border towns in Venezuela illegally were given 72-hours to pack up and leave their homes, many fleeing back across the river to Colombia. This decision comes after smugglers and border police engaged in gunfire last week, leaving three soldiers wounded.

The identity and nationality of these smugglers is still yet unknown, an investigation is underway. One other individual involved in the attack was arrested, he is a Venezuelan citizen. President Maduro has accused Colombian paramilitary individuals of having a link to Colombia’s former president, Alvaro Uribe.  However, Colombian President, Juan Manuel Santos has suggested that the smuggling problem is rooted in Venezuela, not Colombia. For many years, Venezuelan citizens have used the border to smuggle gasoline and other Venezuelan goods into Colombia in order to sell them at higher prices to Colombian citizens. This smuggling practice is facilitated by Venezuela’s government subsidies which allow Venezuelan citizens to use these subsidies to purchase food, cosmetics, and gasoline that they later re-sell in Colombia, which has resulted in these items becoming scarce inside Venezuela. However, President Maduro attributes the scarcity of these items to mismanagement and not to smuggling. The black market economy originating in Venezuela has been the source of income for Venezuelan families living along the border of these two countries for some time.

Marked "D"
Colombian President Juan Manuel Santos said the marking of houses reminded him of “bitter episodes” in history. (courtesy of BBC)

The state of exception instituted by President Maduro has been the subject of international criticism. Venezuelan army soldiers have marked the cinder block homes of these evicted families with a red letter “D” indicating demolition.  The declaration of a state of emergency allows Venezuelan soldiers to search businesses without a warrant. News outlets around the world have condemned these actions. The families with only a 72-hour eviction notice, have been forced to walk across knee-high river waters with their belongings, leaving the oil-rich country where they established a life behind. There have been more than 1000 Colombian citizens that have been deported since the law was implemented. Although President Maduro blames these citizens for Venezuela’s smuggling and violence problems, these families have fled poverty, famine, and violence and moved to Venezuela hoping to benefit from the country’s natural resources labor. More than 800 Colombians live in this border region. President Santos has already pledged to providing government subsidies for these families and helping these them find a home in Colombia.

The effects of this border closing have already been seen in both countries. In Colombia there is a scarce supply of gasoline, leaving many motorists competing for fuel to power their engines. In Venezuela, the trade halt has left many poor families that relied on this trade without means to support their families. Although President Maduro is satisfied with the halting of the smuggling practice, this border closing has done anything but address the root of the smuggling problem, which originates in Venezuela.

Sandra M. Ortega is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

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A march for those enslaved by Mexico’s drug cartels.

Critical Analysis: Colombia’s FARC Admits That Its Role in the Civil War “Affected Citizens”

November 15, 2014

Colombia’s largest rebel group, Revolutionary Armed Forces of Colombia (FARC), recently acknowledged that its actions have affected citizens in the nearly 50 years of internal conflict.  This is the first admission of this kind by FARC.  Going further, Farc has stated that its rebels are ready to take responsibility for their actions during the 50 years of conflict in Colombia.

FARC joined negotiations in Cuba with the Colombian government in November 2013.  The purpose of the talks has been to get FARC to sign an agreement in which it renounces its armed struggle in order to join the legal political process and stop the internal conflict, and to provide for victim reparations.  However, as a part of working towards an agreement on disarmament and the eventual implementation of a peace deal, FARC is expected to seek an amnesty agreement.

A march for those enslaved by Mexico’s drug cartels.

A march for those enslaved by Mexico’s drug cartels.
Photo Credit: CM Keiner/Flickr, at http://abcnews.go.com/ABC_Univision/News/farc-victims-seek-truth-peace-talks/story?id=17593438

Several important questions emerge from FARC’s admission.  First, what type of reparations are appropriate, when family members are still searching for over 400 victims who were kidnapped by FARC and went missing between 2002 and 2011? Second, should FARC members receive amnesty, or is that in conflict with the notion of FARC taking responsibility for their role in the violence?

In order to determine what type of victim reparations are appropriate, it is important to understand the nature of the conflict. The conflict in Colombia has claimed around 250,000 lives and displaced over 5 million people.  The majority of killings were carried out by the Colombian army, police, and state-linked right-wing paramilitary groups, including FARC.

Between 2002 and 2011, it is alleged that rebels kidnapped 2,678 civilians, and that more than 400 of these victims are still in captivity or have gone missing.   Members of victims’ associations such as Los Que Faltan, or “Those Who are Missing,” state that they are not opposed to the peace process, and support it, as long as there is transparency with what has happened to the victims. Other victims rights groups have stated that they do not want peace talks to advance unless FARC is willing to provide answers to the families of those victims that have been kidnapped or disappeared.  During the peace talks, FARC commanders have stated that the rebels no longer hold any captives.  This leaves family members of missing victims with little in the way of hope of finding their loved ones.  Farc has also threatened throughout this process that without government concessions, peace talks will fail.  The group states that unless the government is willing to guarantee the rights and security of the opposition and cease killing guerrilla commanders in the field, the peace talks will not succeed. Thus, FARC has provided few answers to the families of victims, and has only demonstrated willingness to take responsibility to the extent that members receive amnesty for their actions.

Parties involved in the talks have argued that in order to truly find a solution, it must address the roots of conflict.  Integral in this process would be acknowledgement of the violence caused by FARC, for FARC to provide answers to the many families with missing family members and little in the way of answers.  It is unlikely that the peace process will be successful, or that victims and their families will accept any sort of reparations without getting the answers that they are looking for.  It remains to be seen whether FARC’s admissions and willingness to take responsibility will include providing victims and their families with meaningful reparations and the answers they have been searching for.

With regard to the issue of amnesty, the same perpetrators that have been responsible for large-scale human rights abuses, which have continued and in some cases increased despite the peace process, are now seeking integration into the Colombian political process. Providing amnesty to these perpetrators of violence and integrating them into the legal and political process would send the wrong message to victims, delay the peace process, and could potentially result in violence.  When FARC last attempted to take part in electoral politics, several thousand members and elected officials were murdered. Even if FARC agrees to victim reparations, it is unlikely that the integration of these perpetrators into the political process will be welcomed by victims and their families, and even less likely that they will support the continuation of peace talks.

The question remains what recourse victims will have if FARC opts not to provide victims and their families with the information they are seeking regarding the whereabouts of missing persons.  FARC negotiator Jesus Santrich stated that any punitive measures would have to be taken by an independent tribunal, not the state or its “corrupt and venal judiciary.”  If the Colombian government agrees to amnesty or refuses to prosecute for crimes committed by FARC member over the 50 years of violence, members of the international community may call for an independent tribunal to investigate crimes committed by FARC members.

 

Emily Boehme is a 2L law student at the University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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taxation without representation plate on presidential motorcade

Voting Rights and Wrongs

It is Sunday the 9th of March.  Imagine if today, voting day for Congress in Colombia, Bogotanos could not go to the polls because they live in the Districto Capital (nation´s capital district) and not in a departmento (state); would this violate human rights law?  Imagine this same day if afro descendants, indigenous, women or those with modest incomes that don´t own property could not vote; would that violate human rights law?

former mayor of bogota

Former mayor of Bogota Enrique Penalosa after casting his vote (Guillermo Legaria/AFP)

Today, almost everyone would answer of course, it would violate human rights law and many would think that this just does not happen anymore.  But oddly, these types of violations of political rights are not a thing of the past.  Often, national courts go to great lengths to avoid having to strike down mechanisms and procedures that from an outside observer seem to be a clear violation of the right to vote. Often, those working in human rights organizations are puzzled by how some politicians and judges refuse to see what is a plain and egregious violation and how society has come to grow accustom to a violation.

Human Rights law is quite clear.  The International Covenant on Civil and Political Rights (a treaty to which 167 nations are state parties including all countries of North and South America) in Article 25 states:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 (without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status) and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

My own country, the United States, actually excludes people who live in Washington, D.C. (District of Columbia) from voting for members of the U.S. Congress. Residents of Washington, D.C., the nation´s capital, who are citizens of the United States, have no voting representatives in the Senate or in the House of Representatives. The District of Columbia needs assistance from the international community, including Colombia, to fix this clear human rights violation, as here in Bogota, D.C., citizens are busy voting for their Congressional representatives.

Imagine how residents of Bogota, Districto Capital would feel today if everyone else in Columbia was voting for Congress, but they could not?

In fact, Mexico and Brazil, which both borrowed from the U.S. federal system and created capital districts where their citizens residing in the D.C. could not vote in Congressional elections, have both recognized the clear violation and changed the law.

It is hard to understand how this human rights problem persists in the U.S., especially when compared with rhetoric from that country on the importance of voting and how sacred this right is and how important it is to protect the voting rights of the people.

Former President Lyndon B. Johnson, who did a great deal to address race-based problems in voting in the US, stated: “The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”

Over the years there have been a number of legal challenges to this restriction of voting rights.  U.S. courts have often decided that exclusion of individuals for race, economic status or gender violated their rights.  As Justice Black said in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”

It is important to compare this with the cautious language and decisions related to the right to vote of U.S. citizens living in Washington, D.C.

But so far the close to 5 million U.S. citizens that do not live in a state continue to be denied the right to vote and the courts have always prioritized a mechanism found in the  constitution over the rights of the citizens who do not live in a state.

If a U.S. citizen moves from any state to Washington, D.C., or to another non-state U.S. entity (Virgin Islands, Puerto Rico, Guam, Northern Mariana Islands and America Samoa), she will find herself denied the right to vote in federal elections.  If that person moves from that state to Riyadh, or Reykjavik, or Bogota though, she would still able to vote absentee as a state resident. This is an injustice that needs to be fixed.

taxation without representation plate on presidential motorcade

Members of DC Vote demonstrate to get the “Taxation Without Representation” plate on the presidential motorcade, which the administration did in January 2013 (flickr/ekelly80)

In 1998, two complaints (the Adams and Alexander cases) were filed, each alleging, inter alia, that inhabitants of the District of Columbia are being unconstitutionally deprived of their right to vote for representation in the House of Representatives and the Senate.  They note that the citizens of the District pay federal taxes and defend the United States in times of war, yet are denied any vote in the Congress that levies those taxes and declares those wars. This, they continue, contravenes a central tenet of our nation’s ideals: that governments “deriv[e] their just powers from the consent of the governed.” The Declaration of Independent, para. 2.

In its original form, the U.S. Constitution provided: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” U.S. Const. art. I, § 3.

The Seventeenth Amendment provides: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”

Basically, if you do not live in a state, you have no right to vote in U.S. federal elections. Odd, as human rights law is clear that voting attaches to citizenship.  For years courts have tried to avoid the rights of the citizens and tried to contort their logic to not see how the right of a citizen is violated when they cannot vote for those that make decisions that impact them.

In Ballentine v. United States, Ballentine was born in St. Louis, Missouri on October 22, 1936. After working for a number of years as a deputy United States Marshal in the continental United States, Mr. Ballentine was transferred in 1973 to the U.S. Virgin Islands, where he has remained ever since. Mr. Ballentine brought an action on July 30, 1999, claiming that he has been denied his constitutional right to vote in presidential elections, and his right to be represented in Congress by a regular voting member, because of his status as a United States citizen residing in an unincorporated territory of the United States.

In this case, like so many others, it was decided that “the franchise for choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the Constitution itself provides.”  Odd, as the U.S. Constitution also provided for the exclusion of slaves and indigenous peoples from voting.  Rights should trump mechanical sections of the Constitution.

So how did rights override parts of the Constitution but not other parts?  Courts in the U.S. have been unwilling to find the Constitution unconstitutional, so they have done the changes in terms of voting rights within the framework of the Constitution, not touching the mechanism for voting, which is just with the states.

Countries that have integrated human rights law into their constitution have an easier time holding mechanisms within a constitution unconstitutional as they violate a developing notion of rights.  The U.S. has only two choices to bring their current practice into conformity with their human rights treaty obligation.  One, the Courts could read the 9th Amendment , which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,”  to conform to current thinking of rights and the right to vote as found in the International Covenant on Civil and Political Rights. The other would be for the U.S. to pass an amendment to the Constitution to create one non-state voting district for all those who are U.S. citizens, but do not have the right to vote in Congressional and Presidential elections.

Importantly, one poll shows approximately 80% of adult Americans are not aware that DC residents pay federal taxes and have no voting representation in the House or Senate. But once aware of this aberration, they overwhelmingly support federal voting rights for the residents of the District of Columbia.

The difficulty with this is that process defined by the Constitution to pass an amendment requires States to pass an amendment.  As this will dilute the voting power of States, there are forces of the status quo that impede this change.

The Fifteenth Amendment (1870) states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Nineteenth Amendment (1920) provides that: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” Although these amendments seem to indicate that every U.S. citizen has the right to vote, the U.S. Supreme Court holds that this right only applies to residents of one of the fifty states.

There have been six countries that modeled their governments so closely after America’s that they, too, created the “D.C. voting problem” in their countries, including Brazil and Mexico. All six rectified the problem, in recognition of the need for all citizens to vote.

For those that don´t think the U.S. is violating its human rights obligations by excluding about 5 million citizens from voting in Congressional elections, they should come to Bogota and try to convince the people here that those living in Bogota, D.C., should not have the right to vote unless they moved to a departmento or state.  People would find the argument ridiculous.  Discriminating against citizens based on place or birth or residence can no longer be sustained in the U.S.  Allowing all citizens to vote is long past due.

 

Todd Howland is the Representative of the UN High Commissioner for Human Rights in Colombia and a graduate of the University of Denver Sturm College of Law

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President Barack Obama

Lessons to Heed in the Wake of the Free Trade Trilogy

President Barack Obama is currently intensifying talks with Colombia, Panama and South Korea regarding proposed free trade agreements (FTA) inherited from the Bush Administration. The President hopes to submit all three agreements to Congress by the end of the year.  Worrisome is that similar provisions granting substantial investor rights as those written in precursor agreements, such as NAFTA and CAFTA, are included within each of the prospective pacts, which threaten the public good of the international community.

Within the last 15 years, there has been an explosion of bilateral and multilateral FTAs around the world.  Proponents of trade agreements argue that such pacts are valuable tools for increasing foreign investment, promoting fair competition and encouraging transparent regulations.  However, in order to encourage investments by foreign multinational corporations in signatory nations, FTAs incorporate investor protection provisions that defy public interest policy by bypassing domestic regulations.  Specific provisions included in FTAs that are particularly damaging to the public interest include: (1) provisions that provide for “expropriation and compensation” to investors when the investor feels that the host nation has breached its duties under the FTA; and (2) provisions that contain relaxed regulations regarding nationality requirements for investors wishing to bring arbitration claims against signatory nations.

President Barack Obama

President Barack Obama

A good illustration of the risks posed by state-investor enforcement terms is apparent in Pac Rim Cayman LLC v. Republic of El Salvador, which is currently pending before a CAFTA arbitration panel.  The Canadian mining company, Pacific Rim, sought to establish “El Dorado”, a gold mine in El Salvador’s largest watershed, the Rio Lempa, which flows not only through El Salvador but also through the neighboring countries of Guatemala and Honduras.  Pacific Rim planned to use appalling amounts of water and cyanide to extract gold from the ore it plans to excavate.

Within the most densely populated country in Latin America, over 96% of the surface water in El Salvador is contaminated and 1.5 million people, a quarter of the population, lack access to clean water.  The threat of gold processing chemicals leaking into the Rio Lempa would affect thousands that rely on the Rio Lempa for clean water and farming to meet their basic needs.  Staunch local activism against the exploitation of Pacific Rim’s proposed gold mine prompted the Salvadoran Government to investigate and eventually refuse to issue an exploitation permit that would allow the establishment of “El Dorado”.

In 2008, the Salvadoran President, Elias Antonio Saca, announced that El Salvador would not grant any exploitation permits until the government modernized current mining laws, in addition to critically analyzing the environmental impact of proposed mines.  That same year, Pacific Rim ceased exploratory drilling, and the Canadian-based mining company changed its course of action.  Aware that El Salvador became a signatory nation to CAFTA, Pacific Rim chose to reincorporate one of its subsidiaries, Pac Rim Cayman LLC, to Nevada.  With a subsidiary now incorporated within the United States, Pacific Rim seized the opportunity to forum shop, thus permitting the corporation to file suit against El Salvador under CAFTA’s investor-state enforcement provisions.  Specifically, Pac Rim is claiming that by denying the mining permit, El Salvador expropriated any future earnings and therefore demanded hundreds of millions in compensation for possible losses in future earnings.

Thus, a legitimate fear surrounds the notion that if investor claims succeed, such as those brought by Pac Rim against El Salvador, signatory governments of FTAs with strong investor-state enforcement terms will avoid implementing new laws that promote the public interest in fear of owing millions to foreign corporations through arbitration claims brought under the FTA.  The risk, therefore, is the long term, detrimental impact that investor rights have when incorporated into FTAs, preventing domestic policy change that aim to protect the ecosystem or further public health and human rights initiatives. With the price of gold now soaring, numerous foreign mining investors have filed for expropriation permits in El Salvador alone.  Irrespective of the arbitration panel’s decision in Pacific Rim Cayman, El Salvador, one of the hemisphere’s poorest nations, will be forced to pay millions to defend itself against investor to uphold policy that protects indigenous rights, public health and the environment.

Congress cannot simply ignore the negative impact investor-state enforcement terms have once applied in international tribunals.  The United States – Korea FTA creates an additional component that is relevant to this discourse.  Unlike U.S. pacts with developing nations, South Korea, like the U.S., is a major capital exporter.  South Korea has 85 multinational companies with over 250 establishments operating in the United States.  Lori Wallach, director of Public Citizen’s Global Trade Watch, stated that under the proposed U.S.-Korea FTA, “Korean firms operating [in the U.S.] would get new rights to skirt [the U.S.] court system and laws and use foreign tribunals to demand taxpayer compensation for laws that they do not like, just like Pac Rim is doing to El Salvador.”

The United States must take note of the lessons exposed through previously arbitrated and currently pending cases that elucidate the danger of increased investor-rights in FTAs before it ratifies future trade agreements that defy the greater public good.  Congress must implement changes to state-investor enforcement terms to ensure that FTAs comport with the minimum standards of international customary law.

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