The dictatorship of the market

The dictatorship of the market

By Ramiro Chimuris Sosa

Uruguay has taken a very important step in order to undermine its national sovereignty, and submit to the market rules imposed by the United States, the head of the TRIADA, which composes with Europe and Japan.

Uruguay has taken a very important step in order to undermine its national sovereignty, and submit to the market rules imposed by the United States, the head of the TRIADA, which composes with Europe and Japan.

National irresponsibility is demonstrated with the approval of the TPPI (called the Treaty for the Promotion and Reciprocal Protection of Investments between the Eastern Republic of Uruguay and the United States of America), Law No. 17,943 published in Official Gazette No. 26,913 on January 10, 2006. It is in this rule where the bases are to “negotiate” in accordance with the interests of foreigners. The door has already been knocked down, or rather it was opened from the inside so that the wolf could enter with impunity. As proof of what we say and of its clear intention of subjection and political intervention, it is enough to read art. 16 of the TPPI: "This Agreement shall not be repealed by any of the rules set forth below that empower an investor of a Party or the covered investment to receive more favorable treatment than that granted by this Agreement.", if more beneficial conditions are achieved in a later treaty, it will subsist, the answer is very simple, the signed legal precedent has already been signed, the mark on the clean slate, that's it, the interference in national sovereignty, it has a name and those responsible, foreigners and nationals.

We have already seen that when encountering resistance to the FTAA, the United States chose to continue its strategy through the TPPI, BIT and FTA, seeking to tighten its clamps in the different regions, weakening blocs such as Mercosur, beyond its intrinsic fragility.

The FTAA, like the FTAs, try to go further, in the most legalized looting, than the limits of the World Trade Organization. In other words, we could summarize that the TPPI are framework treaties (they point to the form) and the FTAs ​​are specific treaties (refer to the contents) of the goods and services to be commercialized, beyond the fact that each one must be the object of specific study meticulous of its effects and scope. The US tries to get the most out of its competitors, we must be clear that it is the interests of the American and European transnational corporations that shape the conditions of world trade, and their logic is "to eat or be eaten", obviously that it is a fight where the small fish and the unicellular organisms, we have no opinion. We are only seen as one link in the food chain in the diet of the squalid of global capitalism.

The backbone of BITs, FTAs, or whatever they are called, has in its contents, provisions and chapters a matrix that is repeated, just as an example: general definitions, national treatment and access to goods markets, rules of origin and origin procedures, customs administration and trade facilitation, sanitary and phytosanitary measures, safeguards, investment, competence policies, intellectual property rights, environment, labor, transparency, exceptions, among others. In turn, each chapter has several sections and several articles.

There are also certain chapters specific to the particularities of the production of the area and the interests to be marketed, a specific example of the draft of the US-Peru FTA dated January 6, 2006: Chapter 2 National Treatment and Access of Goods to the Market, Section E: Other Measures. Article 2.12: Distinctive Products. 1. Peru will recognize Bourbon Whiskey and Tennessee Whiskey, which is a pure Bourbon Whiskey that is only authorized to be produced in the State of Tennessee as distinctive products of the United States… 2. The United States will recognize “Pisco Peru” as a product distinctive of Peru. Accordingly, the United States will not allow the sale of any product such as “Pisco Peru” unless it was made in Peru, in accordance with the laws of Peru that govern Pisco.

We want to highlight some fundamental and strategic components in the interests of the hegemonic power, used in these types of treaties regardless of their names: natural resources and biodiversity.

One of the key pieces of the FTAA and these treaties (FTAs, BIT, TPPI, etc.) are natural resources, seeking the deregulation of the energy sectors and in general of natural resources. The letters of intent of the F.M.I., the structural adjustment plans of the B.M. They have hidden patients very well, they know their ailments, their needs, and their dependence "in eternum" on their prescriptions, these elements help to achieve their objectives from within each family of countries.

Skillfully, the United States and the industrialized countries allow exports of raw materials and natural resources to enter, free of tariffs or with very low tariffs.

In order to attract foreign investors, the same neoliberal dogma was also applied: the legislation must be changed so that it gives the investor security, otherwise they will not come. During the last 20 years Latin America has prepared the legal ground, Chile is perhaps the most paradigmatic case, an intensive use of natural resources in the "investment" production and export.

Never before in the history of humanity has there been so much liberality in the management of natural resources. However, this approach is only valid for developing countries since the countries that lead the world ... are more protectionist, interventionist and statist and put issues such as heritage conservation and internal security before dealing with potential investors " [1]

Once again the recipes of the F.M.I. they came wrong. The 80s and 90s were characterized by the external debt crisis, the contraction of international private credits and a panorama of internal economies of fiscal restriction in compliance with the fiscal adjustment programs of the B.M. to meet the payment of the illegitimate foreign debt and its abusive services and interests. As this was not enough, the most profitable public companies in all of Latin America and the Caribbean were privatized, thus establishing a strong deregulation and liberalization of the economies.

The 2002 World Bank recommendation: “ not turn your back on its natural resources, its geographical proximity to the United States, its natural beauties or the competitiveness of its workforce. The best way to achieve success is to remain open to international competition ”(…)“ It is clear that welcoming foreign investment can be a key element in increasing the efficiency of existing economic sectors and also in developing new activities and create new job opportunities " [2]

“As countries compete in the capital market, the treatment of investments tends to depend less on discretionary factors, subject to political decisions… For this reason, the modalities of legal relationship between companies and national states tend to be increasingly uniform, to which are added investment guarantee agreements and agreements to avoid double taxation. Likewise, the use of arbitration and the appeal to supra-national instances for the resolution of conflicts is increasingly frequent " [3]

US natural resources as a national security target.

In 1990, President George Bush (father) through the Initiative for the Americas, establishes as a priority objective of US foreign policy the expansion of trade and investment.

At document from Santa Fe IV from 2000One of the fundamental geostrategic elements for the national security of the United States, is that the resources are available to respond to its national priorities. Guaranteeing the free flow of trade and investments related to natural resources, access routes to oil and mineral deposits, as well as access to the genetic potential present in the enormous biodiversity of the Southern Hemisphere, especially Latin America, are central objectives in the national security strategy of industrialized countries.

The IIRSA (South American Regional Integration Infrastructure) plan signed in 2000 in Brazil, at the Summit of Presidents it will serve as access channels to these resources, financed by Latin American countries to lower the costs of transnational companies, with loans from the IDB, supervised by the CAF. In this way we are favoring looting at lower costs. The IIRSA Plan is the continuation of the Puebla Panama Plan -which connects Mexico with Panama-, through infrastructure works, canals, highways, mega dams, which are subject to the investment scope within the definition chapters of covered investments (FTAs and TPPI).

The Trade Promotion Authority (TPA) Act of 2002, authorizes the government of the United States to negotiate, under certain parameters, Free Trade Agreements with other countries, establishes that the expansion of international trade " it is vitally important to the national security of the United States. Trade is a critical factor for the economic growth of the country and its leadership in the world (…) Stable commercial relations promote security and prosperity. Today trade agreements serve the same purpose as security pacts during the Cold War, committing nations through a series of rights and obligations. [4]

For jeremy Rifkin Genes are the raw material of the 21st century, and in his opinion whoever controls the genes will control the world, the monopoly of the information of the future in their hands, so transnational corporations avidly search for rare genes of plants and animals in the world. southern hemisphere, home to the largest concentration of biodiversity on the planet [5]

For which the South American region does not have the technological means, nor the adequate technical resources to defend our natural wealth, and within these treaties there are specific clauses to facilitate the application of the looting and pillaging of these resources that belong to us.

The FTAs ​​include in the Services Chapter, as in the General Agreement on Tariffs and Trade (GATS), provisions to guarantee access to markets and national treatment for foreign capital that enter into service areas that governments decide to liberalize, such as energy supply, water, regulations that could require certain conditions for national and foreign companies (mixed economy, associations).

The FTA and these treaties not only seek the elimination of tariffs - taking care of the interests of the strongest party -, but also constitute a legal tool of political strategy with a primary objective which is to seal the hegemony of the United States in Latin America, just read the Trade Promotion Authority (TPA) " Free Trade Agreements maximize opportunities for critical and essential sectors for the US economy, such as environmental technology and intellectual property… trade will create new opportunities for the US to preserve its strength without checks and balances on economic issues, political and military ”.US Trade Act. United States Trade Act of 2002.

We cannot consider a government that wants to conquer and plunder me as a friend. That is not the logic of the neediest peoples, that is the logic and interests of the rulers, but not of friendly governments.

If we are going to negotiate with the United States, we must know the rules and strategies they impose. And to them we must add the ATPDEA which is the system with tariff preferences and another North American law that grants a “0” tariff to national producers, the so-called System Generalized from preferences ( SGP), which will mean in fact the unilateral restriction of the conditions of entry of our products.

The bilateral or multilateral investment treaties of the interests of the peoples.

Almost all the treaties contain additional protocols, annexes, by which the signatory parties exclude or limit the application of certain matters or for a certain time. Those exceptions contained in said annexes break the bilaterality and reciprocity between the exporting states and investors and the importing states, obviously the lion still raised by goats continues to be a lion.

If the economically strong part in the contracting reserves - in the chapters of exceptions - large sectors of its economy or strategic for its development, favoring and protecting its local investors, we cannot speak of bilaterality and reciprocity with its counterpart, which in addition to weak, signing under abusive conditions distorting the lawful purpose it had to enter into the contract.

It is an issue that appears very simple, but it is a modern legal tool for domination, subjugation and control between capital exporting states and their multinational companies and capital importing states in peripheral economies. We use the expression of exporters and importers, from the perspective of these contracts, since we know that once the investments are installed they are true suction valves and currency transfer, as well as an international legal cobweb so that currencies circulate with absolute freedom without knowing in a certain way if they are the product of legal or illegal activities (money laundering is grateful). We must also bear in mind that the foreign debt is included as an investment object in the Uruguay US TPPI. In this way, the countries of the poorest economies bear the waste and embezzlement of the richest or central or developed treasurers.

Furthermore, the Uruguayan State itself guarantees foreign investors, which it does not guarantee to its nationals, even protecting and defining pre-investment as investment (Law 17.943 published in Official Gazette No. 26913 of January 10, 2006, section Article 1, definitions: investment: " any asset owned or controlled by an investor, directly or indirectly, that has the characteristics of an investment, including among others the following: commitment of capital or other resources, expectation of obtaining profits or profits, or the presumption of risk”. In art. 5: minimum level of treatment. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment, as well as full protection and security ”).

The signing of these treaties obeys the purpose of attracting capital, giving guarantees of protection against any act that involves a lack of knowledge of the rights arising from these contracts.

The Leitmotif prescribed by the World Bank and the Monetary Fund for the Latin American and Caribbean peoples continues to be: Socialize losses and privatize profits, an infallible formula of multinational capitals.

Bilateral investment treaties are a kind of international business insurance, in which foreign investors participate in such succulent profits that not even in their own country could obtain, and as an extra attraction it is oblivious to losses, which pass exclusively to the hands of of the capital-receiving peoples.

Placing the foreign investor outside, immaculate and immune from the consequences of the general measures provided by the national governments receiving the investment breaks the principle of equity, the principle of equality, the economic principle that the higher the profitability, the greater the risk.

Investors under the umbrella.

The umbrella clause that offers a cloak of international protection, a protective glass bell, cannot become an antidote or a bunker in which the investor is untouchable, immunized, and totally oblivious to the vicissitudes of the local economy. We remember that Argentina was convicted by ICSID arbitrations for departing from the TPPI contract, according to ICSID arbitration, CMS Gas Tranmission Company v. Argentine Republic, case Nº ARB / 01/8, of 04.25.05, paras. 181-186 and 273-284, “… has The guarantee of "fair and equitable treatment" has been found to have failed, due to the lack of regulation of fair and reasonable rates, caused by the abandonment of the dollar standard and its adjustment mechanisms ". Leaving in an unarmed paper the provisions of its national constitution, in addition to the fact that the pesification and devaluation measures were not aimed at directly affecting foreign investors. The equality of art. 16 of the Argentine National Constitution, and art. twenty " foreigners enjoy in the territory of the Nation all the civil rights of the citizen ”.

However, it does not say that in fact foreigners have more rights than nationals. The World Bank, and its friends, at ICSID, recognize an omnipresent and omnipotent subject of law : the god of treaties is the foreign investor. You only have rights, but you have no obligations.

The colonizer of the 21st century comes with a treaty that is sharper than the sword that his ancestors used in the conquest of our territories.

In several Latin American countries, the voices of the peoples have manifested themselves against the looting, the delivery of their goods, their resources, their rights and their lives that these treaties imply. We only mention some specific events, of the many that happen in the will of the Latin American peoples. But that the information multinationals do not receive or try to distort the facts according to their interests, which are antagonistic to the interests of the Latin American peoples.

In Colombia The Administrative Court of Cundinamarca on December 12, 2005 and notified on the 15th of the same month, issued a judicial order that prevents the national government from signing the Free Trade Agreement with the United States, as a precautionary measure and in accordance with current legislation in Colombia, the court order orders the President of the Republic and the Foreign Minister not to sign the FTA in those aspects that are harmful to the collective rights of Colombians, among other violated rights would be: agriculture (increased imports such as wheat, corn, rice, chicken parts ...), phytosanitary measures (the United States rigorously and excessively protects the entry of products into its territory - non-tariff barriers - affecting the real entry of products to its market); subsidies (the subsidies granted by the US to its agricultural sector, Colombia is not in a position to supply its farmers); medicines (concessions regarding intellectual protection relating to medicines, threatens health and may affect public assets due to the increase in spending on health care), intellectual property (the patenting of living organisms affects international treaties related to protection of biodiversity harms the right to the protection of animal and plant species), ancestral knowledge (it is prohibited to sign a FTA that includes patents on the knowledge of indigenous peoples).

The judicial mandate in Colombia not to sign an FTA is mandatory for the President of the Republic, non-compliance by the government would be as serious as ignoring a Constitutional Court ruling, would entail criminal and disciplinary consequences and would invalidate the treaty, since it would be signed against the constitutional order (, This popular action and the judicial decision determined that in December 2005, despite advanced negotiations, Colombia could not sign the FTA that overwhelms the collective rights of its citizens.

Bolivia. The Admission Commission of the Constitutional Court admitted the direct appeal of unconstitutionality filed by the social movement against the laws (Law No. 1593) that ratified Bolivia's adherence to six bilateral investment treaties with: Argentina, Kingdom of the Netherlands, France, Great Britain, Spain, the United States and the Convention on the Settlement of Disputes relative to investments between States and investors (ICSID) dependent on the World Bank. The Political Constitution of the State, determines that any company that operates in the country and has a dispute with the Bolivian State, must resort to national judges and courts. If we read two articles of the same they will clarify the subject: art. 135 " All companies established for exploitation, exploitation or business in the country will be considered national and will be subject to the sovereignty, the laws and the authorities of the Republic " and art. 228 " The Political Constitution of the state is the Supreme Law of the national legal system. The courts, judges and authorities will apply with preference to the laws, and these with preference to any other resolutions ”.

By resolution 006/2006 issued on January 4, 2006 of the Constitutional Court, the claim filed by social organizations merits a constitutionality test and an analysis of the problem raised ( print.php3? id_article? = 3590)

Civil society, as it is currently customary to refer to popular movements, in Bolivia have presented to the Constitutional Court a claim of unconstitutionality against the concession of water sources in La Paz and El Alto to the company Aguas de Illimani (AISA), a subsidiary of the transnational SUEZ since water sources as natural resources can only be concessioned with the approval of Congress.

In Uruguay after the Constitutional reform carried out as a mechanism of direct democracy (art. 331 of the Uruguayan National Constitution) of October 31, 2004, which definitively reflected water and sanitation as fundamental human rights, and which can only be provided by state legal entities. President Vazquez in the Council of Ministers and by a Decree dated May 20, 2005, allows the contracts of the two concessions to be maintained to private companies, subsidiaries of multinationals, one of which is currently in the country is a subsidiary of the Suez. At the constitutional level, we consecrate drinking water as a human right, not as a commodity, however the actions of the current government (decree of the executive power of May 20, 2005; US TPPI - Uruguay) support the interests of private companies , which consider water as a commodity, like the trade agreements and the rules of the World Trade Organization, the FTAA, BITs, FTAs, etc. Perhaps it is time to demand compliance with the popular will expressed in the constitutional reform by 64.7% of Uruguayan citizens, otherwise we would be legitimizing actions “outside the National Constitution and outside the law”.

When the walls speak ...

"Think Brain, don't give the country away"

Grafitti in Montevideo, La Paz and Juan Paullier streets

With a caricature of the cartoon "Pinky and the Brain", Brain is the one who wants to conquer the world.

Part of PRESIDENT TABARE VAZQUEZ'S SPEECH at the Council of the Americas in WASHINGTON on May 3, 2006.

First, Uruguay is interested in working with the United States to deepen the legal framework between the two countries to improve our access to markets for goods and services… Second, Uruguay is willing to improve the regulations and commercial rules that regulate exchanges between both countries, as we already did in the investment area through the Bilateral Treaty signed in November 2004 ...

We claim, because we are entitled to it, the opportunity to compete on equal terms in what we know we are efficient. We demand that economic liberalism is effectively such for all sectors of commerce. We demand that political liberalism and economic liberalism go hand in hand, because political authoritarianism is to democracy what protectionism is to international trade. We demand quality investments that bet on our potential, that are profitable both for the investor and for Uruguayan society ... "

From the words of Dr. Vazquez regarding the deepening of the rules of the treaty for the promotion and protection of reciprocal investments with the United States

and the idea of ​​competing on equal terms, shows the total lack of protection and inequality for Uruguay as he himself acknowledges in another part of his speech: "trade relations between the United States of America and our very little Uruguay."

True equality lies in treating equals on equal terms and unequally with unequals, if we are the weakest and smallest party, we must obtain benefits and advantages, which are the complete opposite of what is embodied in the TPPI Uruguay - US law 17,943 published Official Gazette No. 26,913 on January 10, 2006 (just read the national treatment clauses -art.3-, treatment of the most favored nation -art. 4-, minimum level of treatment: fair, equitable , protection and full security –art. 5-, transfers –art. 7-, denial of benefits –art.17- essential security –art.18., consent of each of the parties to arbitration –art.25- among others provisions). In that direction we will not achieve the desire expressed by Dr. Vázquez, much less will the happiness and development of the Orientals be achieved. It may be for the benefit of a tiny elite of foreign and national businessmen, but not for the majority of the Uruguayan people. His speech is an example of a “fantastic story” in the best style of Felisberto Hernandez: “… Great economic growth would be of no use if it did not favor all the inhabitants of that country”.

The reality of the legal norm - Law 17.943 or TPPI - Article 8 Performance Requirements, denies the benefits of these treaties for the vast majority of Orientals, since it establishes what cannot be “imposed or demanded any requirement or demand. commitments or obligations regarding ”and the list is very long but it has to do with, among other things:… therefore these treaties are a true legal trap for the free self-determination of peoples, (it is worth remembering the case of water as a human right fundamental enshrined in article 47 of the CN in the 2004 reform, and the philosophy of these treaties inspired by the rules of the WTO (water as a commodity).

As Chomsky teaches: "Modern political theory underscores Madison's belief that" in free and fair government, both property and individual rights must be effectively protected. "... There are no rights from ownership, rights only to property: that is, rights of people with property. ("The profit is what counts ...", p. 52). The concern of the "symptoms of a leveling spirit, according to Madison to prevent the threat to democracy due to the increase in" the proportion of those who will be victims of all the hardships of life and, secretly, yearn for a more equitable distribution of its blessings"And the possible influence they could gain was" a future danger "if the right to vote put" power over property in the hands of those who did not share it ", it is not expected that "Those without property, or without hope of acquiring it, sympathize enough with that right"His solution was to keep political power in the hands of those who" represent and come from the wealth of the nation "," the set of the most capable men ", keeping the general population fragmented and disorganized.

Among Madison scholars - says Chomsky - there is agreement that: “ the Constitution was intrinsically an aristocratic document designed to curb the democratic tendencies of the time", Which handed power over to the" good guys "and excluded those who were not rich, well born or prominent for having exercised political power (Lance Banning). Is it a coincidence that the same story is repeated in almost everyone? ...

We remember that Madison was pre-capitalist, like Adam Smith and other founders of classical liberalism, and saw how the "infamous maxim" of the Smiths was fulfilled: "Everything for us, nothing for others". Which aroused concerns, and premonitions, about the birth of that capitalist state in 1792 and warned that it was “ substituting the motive of serving the public for private interests”, Which led to a authentic domination of a few under the apparent freedom of the most”. Deplored "The daring depravity of the times" in which private powers “They would become the government's praetorian guard, both its instruments and its tyrant, bribed for its liberality and intimidating it with clamors and alliances”. Madison also said “a popular government without popular information, or without the means to obtain it, is nothing more than the prologue to a farce or a tragedy; or maybe both”. (Noam Chomsky: "Profit is what counts. Neoliberalism and Global Order", Ed. Critique, May 2002, pp. 57, 58, 59)

El mantra sagrado del neoliberalismo y sus gurúes económicos, invocan el libre comercio como la religión económica de la potencia hegemónica estadounidense y sus corporaciones multinacionales, pero la mentada reciprocidad, la cual se han vanagloriado los parlamentarios que votaron el Tratado de Promoción y Protección de Inversiones Recíprocas entre EE.UU. y la R.O.U. ¿dónde y cuándo se cumplirá? ¿Cuántas empresas uruguayas se instalaran en los EE.UU. con este tratado? ¿Cuántos trabajadores uruguayos se beneficiarán con este sistema? ¿En que niveles se abatirá la mortalidad infantil uruguaya, la desocupación; los niveles de desnutrición de niños, mujeres y ancianos?

Parece que a este gobierno le resulta más conveniente generar un clima de inversión adulando a los gobernantes de los Estados Unidos y seguir respondiéndoles “Yes Sir” o invitando a pescar al Sr. George W Bush, sin consultar a los uruguayos si queremos sumarnos a su “Club de Amigos”.

De aprobarse un tratado de libre comercio con los Estados Unidos, sobre las mismas reglas que impone la potencia hegemónica, siguiendo las pautas de los restantes TLC que se vienen firmando, en secreto, de espaldas a los pueblos, Uruguay de seguir la misma línea tendrá asegurada la exportación de 3.000.000 de pares de zapatos y alpargatas, ya que caminaremos de rodillas.

* Ramiro Chimuris Sosa
Doctor en Derecho y Ciencias Sociales
Plataforma DESCAM Uruguay
Mayo 2006

Sánchez Albavera, Fernando, Cepal “Bases conceptuales para la elaboración de una nueva agenda sobre los recursos naturales”, serie Recursos naturales e Infraestructura Nº. 89, Santiago, Chile, marzo de 2005).
David de Ferranti, Guillermo E. Perry, Daniel Lederman, William F. Maloney “De los recursos naturales a la economía del conocimiento” Banco mundial, 2002.
(Sanchez, Fernando, CEPAL, ob. Cit.).
Trade Promotion Authority, Division B, Titulo XXI.
Jeremy Rifkin: “El siglo de la biotecnología: el comercio genético y el nacimiento de un mundo feliz”, págs. 20, 21. editorial Crítica – Marcombo, Barcelona, España, 1999. citado en un excelente trabajo de Ariela Ruiz-Caro: “Los recursos naturales en los tratados de libre comercio con Estados Unidos”, Cepal, serie Recursos naturales e infraestructura, nº. 92, Santiago de Chile, mayo de 2005.

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