NAFTA 2.0, human rights defenders, and the struggle against climate breakdown

Numerous environmental organizations have criticized the United States-Mexico-Canada Agreement (USMCA, also known as NAFTA 2.0) because they argue it serves to accelerate the existential crisis of our time, namely climate change.

As noted in this letter, 350.org, Friends of the Earth, Greenpeace, Oil Change International, the Sierra Club, and Food and Water Action reject the deal.

The Sierra Club has highlighted that the investor-state dispute settlement provision in NAFTA 2.0 “would allow corporate polluters to sue Mexico in private tribunals if new environmental policies undercut their government contracts for offshore drilling, fracking, oil and gas pipelines, refineries, or other polluting activities.”

Furthermore, critics have pointed out that the words “climate change” are not even mentioned in the text of NAFTA 2.0.

Ben Beachy, a trade expert with the Sierra Club, says, “By failing to even mention climate change, it’ll help more corporations move to Mexico, and this is not a hypothetical concern. We cannot simultaneously claim to fight climate change on one hand and enact climate-denying trade deals on the other.”

Climate change and human rights defenders

UN High Commissioner for Human Rights Michelle Bachelet has stated, “We call on leaders and governments to recognise that climate change and environmental degradation severely undermine the human rights of their people.”

Those who challenge those impacts face violence. Over the five-year period between 2014 to 2018, 39 land and environmental rights defenders were killed in Mexico.

The UN Human Rights Council has passed a resolution that “stresses that human rights defenders … must be ensured a safe and enabling environment … in recognition of their important role in supporting States to fulfil their obligations under the Paris Agreement [reached at COP21 in December 2015].”

The Women and Gender Constituency has stated, “We want to highlight that women environmental rights defenders continue to be on the front lines to save the planet, especially indigenous, black and those from the global south, and yet are harassed, threatened and persecuted by those in authority in their own countries and elsewhere.”

And Katharina Rall from Human Rights Watch has noted, “The frequent attacks and threats against environmental rights defenders throughout the world are an example of why governments need to include protecting rights in their climate policies.”

Arguably, language on protection measures for human rights defenders should also be written into trade agreements, including NAFTA 2.0.

Foreign investment and environmental defenders

Martha Pskowski, an independent journalist and M.A. candidate in Latin American and Caribbean Studies at New York University, has written, “Foreign investments have repeatedly been linked to deadly attacks on environmentalists [in Latin America].”

She adds that the killings of environmental defenders has a “chilling effect” on activism and comments that the murders of Rarámuri land advocates in the Sierra Tarahumara region in Chihuahua, Mexico “discouraged some Rarámuri people from speaking out when the energy company TransCanada began building a natural gas pipeline through the area.”

Pskowski highlights, “Investors and companies in the U.S. and Canada have done little to ensure that their money isn’t driving criminalization and attacks on local advocates. Until the companies take clear steps to prevent the violence, they are complicit in — and benefit from — the weak rule of law in their partner countries.”

Indigenous rights

Article 32.5 in the “Exceptions and General Provisions” chapter of the USMCA states, “Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, this Agreement does not preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.”

In an article posted on the Yellowhead Institute website, Tina Ngata has commented, “In general, exception clauses are intended to allay concerns around what these agreements might mean for Indigenous Peoples.”

She adds, “Exception clauses amount to little more than tokenism, and short-change our full rights to determine trade relationships on our land and oceanic territories.”

Furthermore, Global Witness has noted that Indigenous peoples make up a disproportionately large number of the land and environmental rights defenders who are killed.

The United Nations Special Rapporteur on the rights of Indigenous peoples Victoria Tauli-Corpuz has explained, “Disregard of indigenous rights of traditional lands ownership breeds tensions, subsequent violence and criminalization, as indigenous peoples become trespassers or illegal occupants of their own lands.”

A human rights approach to trade deals

In his critique of NAFTA 2.0, Manuel Pérez-Rocha of the Institute for Policy Studies has stated, “Human rights in the broadest sense — including economic, social, cultural, and environmental rights — must have primacy over corporate and investor rights, and there needs to be legally binding obligations on transnational corporations.”

He argues that investor-state dispute settlement provisions that undermine environmental rights should be eliminated from trade deals, that indigenous title to land and resources and the right to free, prior and informed consent should be recognized, and that enforceable obligations to reduce and mitigate the effects of climate change should be enshrined.

Next steps for NAFTA 2.0

The Mexican Senate ratified the USMCA in June 2019. In the United States, it faces a ratification vote in the Senate at some point this year.

The Canadian Parliament has yet to ratify the deal.

The full text of the agreement can be read here.