The “Contaminated” Environmental Chapter of the Free Trade Agreement
RECALCA: Colombian Action Network confronting Free Trade and the FTAA
March, 2007.
1. The Environmental Chapter of the Free Trade Agreement
An environmental chapter has been included in the proposed Free Trade Agreement with the United States. This chapter has the objective of ensuring that exports to the U.S. do not use natural resources where their cost is not reflected in the price of goods, which is defined as environmental dumping.
The U.S. Democratic Party has demanded this chapter in order to protect U.S. production in the face of competition from countries with which it signs agreements. This regulation implies, for example, that the cost of the wood exported by Colombia would not just reflect the cost of cutting it down, but also the cost of replacing it and reforestation, which would make it impossible for Colombian wood to compete with wood produced in the U.S.
This chapter does not truly seek to protect the environment, but instead limits itself to demanding that the Colombian government comply with its own very lax environmental laws. Colombian environmental legislation has been aggressively reformed in recent years, and compliance with the regulations that do exist is overseen by a government incapable of applying the law; a government that is committed to privatizing its environmental resources in an attempt to attract foreign investment, no matter how predatory it is.
What has been negotiated in the environmental chapter of the Free Trade Agreement between the United States and Colombia does not guarantee in any form the protection of biodiversity and natural resources. The chapter is explicit in affirming that the countries should assure "the commercial and environmental policies should be mutually supportive"[1], in other words, environmental legislation should not affect commerce. The levels of environmental protection are exclusively limited to those defined by internal legislation and in Colombia this legislation is being weakened.
This agreement puts a commercial stamp on the environment, allowing natural resources to be seen as products. According to its definition in chapter 10 of the text, investment rights are awarded for "exploitation, extraction, refinement, transport, distribution, or sale"[2]. This permits transnationals to act outside of the environmental legislation of the country, which they could justify as an unnecessary non-tax barrier.
In the same way, the chapter about Intellectual Property opens the possibility of patenting life forms and natural resources. In effect, it says that the countries would try to make "all reasonable efforts" to give patents for plants and animals.[3]
The Free Trade Agreement also doesn't establish environmental norms in accordance with international standards, since it only recognizes multilateral environmental agreements "which everyone is a party to"[4], which indicates that it does not include the principle international environmental agreements that the United States has not signed, such as the Kyoto Protocol, the Convention on Biological Diversity (CBD), the Basilea Convention and the Cartagena Protocol on Biosecurity. The United States is one of the 13 countries with nuclear arms that has not ratified the Nuclear Test Ban Treaty, which has been signed by 164 countries.[5]
With respect to the Convention on Biological Diversity, Colombia, as a member of the Group of Mega-Biodiverse Nations and in accordance with Andean Decision 486, should never have contemplated the possibility of patenting plants and animals. Colombia should follow through on its obligation to safeguard and respect it biological and genetic resources, as well as the traditional knowledge of Indigenous, Afro-Colombian, and local communities.
The Uribe government felt proud about having achieved concessions from the United States in the subject of biodiversity through a Letter of Understanding with Respect to Biodiversity and Traditional Knowledge[6], annexed to the Free Trade Agreement, where the parties "recognize its importance". In exchange, however, this letter opens up the possibility that contracts could be signed between private parties. This means that contracts could be signed as long as they include "terms mutually agreed to between users and providers", with the simple requirement of having the "informed consent of the pertinent authority" and the "equitable distribution of benefits." This is just a ruse for the legalization of biopiracy. In Colombia, the ethnic communities are the owners of the territories with the greatest concentration of biodiversity. These local communities, which lack the capacity to negotiate, would be pressured to hand over their biodiversity, their germ plasm and associated knowledge, which are all heritage of the people and the nation, to the multinationals and their laboratories for bioprospecting.
The Colombian government hoped to have as few environmental regulations as possible. This was illustrated when the government held up as a victory that the Free Trade Agreement would only affect national environmental legislation, not regional legislation. Since most environmental policies are decentralized in Colombia and depend on legislation passed by regional entities, this means most of the FTA regulations wouldn't apply to much of Colombia's environmental regulations. With this ruse the government is trying to avoid the incipient environmental definitions of the agreement. It is also trying to present its autonomy in this area as a concession it gained from the U.S. The Colombian government is calling upon a feigned nationalism and defense of sovereignty to justify this position, something it did not do in the other chapters of the proposed FTA.
Colombian Environmental Legislation
With the policies of economic liberalization in Colombia, the country seems to be gradually dismantling its environmental legislation. Reforms have been introduced that stimulated investment and the export of natural resources, and that steered recent government administrations to quickly hand over the management of exploration, extraction, and export of natural resources to private capital.
During the government of President Álvaro Uribe, environmental policies have suffered changes that have furthered this deterioration, in the sense that private capital exercises more influence over the State, environmental movements, and academia. The government has:
- Substantially reduced public spending;
- Fused the Environment Ministry with the Ministry of Housing and Territorial Development;
- Promoted the reduction in personnel in the regional organizations responsible for carrying out environmental policies, endangering the regulatory and monitoring work that they should be doing;
- Expedited legislative projects aimed at making natural resources subject to free trade and handing them over to private investors, such as the project of the law of waters, the law of forests;
- Handed over national parks to the private sector for them to administer and make use of;
- Promoted agro-industrial initiatives, such as those involving biodiesels, carbon, African palm, and hydroelectric projects which negatively impact the environment.
In a similar vein, a plan known as Colombia Vision II Century has been proposed for the year 2019, which consolidates environmental issues as a policy for economic exploitation. In this plan, business interests are given primacy over the health of the planet, and the focus is "selling the country and its goods to possible foreign investors".[7]
There are multiple cases where irresponsible governmental measures have had a negative environmental impact. For example, the government has granted an environmental license to the U.S. transnational company Drummond Co. for a project focused on carbon exploitation in various areas of the department of Cesar, which would affect important regions of the country and displace numerous municipalities.[8]
Another important case is related to the U'wa indigenous communities. The U.S. transnational Occidental Petroleum Co. was granted authorization to explore and extract petroleum taken from U'wa territory, which included sacred lands and national parks. In 1995, following the many problems that these communities suffered because of petroleum exploitation, the U'wa sued the company. In 2000, the community was the victim of violence perpetrated by Colombian soldiers. This violence gained international attention and forced the investment company Fidelity Investments to sell off its shares in Occidental through pressure from activists. Finally, in May of the same year, the company announced it was pulling out of the region.[9] On December 15th, 2006, six years later, the government of President Uribe announced its decision to reinitiate activities of petroleum exploration in U´Wa territory under the name Project Sirirí-Catleya. This community possesses colonial land titles given by the Spanish Crown in 1802 that confirm its ownership of the territorial property. Their right to these lands was reaffirmed by Colombian Law 153 in 1887, and again by Article 332 of the 1991 Colombian Constitution. Additionally, the decision of the government to reinitiate oil exploration violates Convention 169 of the International Labor Organization and the recommendations of the Harvard-OAS Commission of 1998.[10]
Another difficult case occurred in the municipality of La Jagua de Ibírico, in the department of Cesar. Coal has been mined there in an open pit for 21 years, and the Swiss transnational Glencore International AG has been operating there since January of 2005. They have obtained the concession for the La Jagua mine[11], the second coal reserve in Colombia. The residents of the region organized a march on February 8th, 2007 in order to protest the harmful environmental impact caused by the extraction and transportation of carbon, and the health problems caused by the mining activity in the zone. "We are seeing that our rights are vulnerable, that the environmental contamination is affecting a very high percentage of both children and adults", said local resident José Jimenez. La Jagua is bordered by three rivers: the Tocuy, the Sororia and the Ánimas. The delicate situation has led the national government to admit that Glencore should comply with the Environmental Plan, guaranteeing the sustainability of the land and rivers, agreeing to replant and double the vegetation in the exploited zone, and to move the coal processing area.[12]
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The government of President Uribe has been emphatic about carrying out its commitment to provide incentives the production of biodiesel and bioethanol in the country. The government has made extensive efforts to make this a reality, from expediting the laws that regulate it and require it to be mixed with gasoline and diesel with ethanol and biodiesel, to determining the income that the producer would receive and giving multiple exemptions, to paying the rent for new plantations and providing subsidies to make it attractive to investors. [13]
In the case of biodiesel, during the first term of Uribe's government almost 117,000 hectares of palm oil were produced. Now, there are 301,810 hectares in cultivation, more than double the number in 2002, and the number is expected to reach one billion hectares in the Pacific, Northwest and Caribbean regions of Colombia.[14] Behind many of these projects are the intentions of diverse armed groups, including narco-traffickers and paramilitaries, to appropriate extensive and important regions of biodiversity through the forced displacement of the population. Palm oil companies then illegally acquire this land. In Tumaco, for example, vast territories of semi-tropical jungle have been replaced by monocultures of palm that today cover more than 20,000 hectares. The community was violently stripped of their land and culture, and valuable natural resources were destroyed.[15]
According to the Prosecutor General's Office -the Colombian government's own government watchdog office- it appears that the government's principal objective in promoting biodiesel is to "legitimize the cultivation of palm in territories of the Community Councils of Jiguamiandó, Curvadaró, Alto Mira and Frontera (Chocó). [These plantations were] developed without the consent of the community's legitimate authorities within the context of systematic and the recurrent violations of human rights, which have manifested as threats against and murders of those that have opposed them [the plan cultivations]."[16] In spite of the official complaints of the communities in Chocó and the pronouncements of the Interamerican Commission on Human Rights, it is known that during the last five years the Agriculture Bank has given loans to various palm companies in order to expand their production on land that, since November of 2000, in compliance with the Colombian Constitutional, has been awarded to the afro-Colombian communities of the Chocó. Additionally, the government has proposed a law that would, according to the Prosecutor General's office, legalize estates illegally acquired by paramilitaries.[17]
The accelerated advance of biodiesel and ethanol in Colombia could negatively affect food security, the way of life of the rural populations and the natural resources of the country. The national government is promoting the expansion of monocultures of palm oil and sugarcane, which has become the principal cause of displacement and deforestation. The probable effects of increased palm oil and sugarcane are:
- An increase in the local competition for land availability, which generates a greater concentration of land use.
- The conversion of food-producing agriculture into energy-producing agriculture, which will result in decreased food availability in rural zones and urban centers. This will cause an increase in prices, leading to hunger, malnutrition and more poverty in the country. This will be most acutely true in communities that are most dependent on natural resources like forests and water.[18]
Nonetheless, given the uncertainty of the prospects for the exportation of biodiesel, the current production has not yet increased beyond internal demand.
The rich natural resources of Colombia
Colombia has many regions full of biodiversity, especially in the Andean region, the Chocó jungle, and the Amazon rain forest. The availability of water and the abundance of forests make Colombia one of the richest countries, in terms of natural resources, in the world.
This natural heritage is claimed by transnational corporations. They transform renewable and non-renewable natural resources into profits, but still don't have access to the quantity of natural resources that their growing demand requires. Private investors see in the free trade agreements, like those promoted by the U.S. since 1994, the possibility of investing in this sector and gaining access to other resources in order to satisfy their demand. It is not a coincidence that primary materials and natural resources, necessary for the industrial transformation, are many times imported to the U.S. with very low or non-existent taxation.[19]
The Andean region of Colombia, composed of the sub-Andean forests, the Andean mountains, and the high plains, holds almost half the total biodiversity of the Neotropic ecozone, which includes South America, Central America, and the Caribbean. It is one of the 12 regions in the world from which cultivated plants come from. Unfortunately, it is also one of the most threatened regions, with highly degraded ecosystems that have resulted from urban expansion and the concentration of the population.[20] Colombia possesses 68,143 square miles of Amazon rain forest[21], of the million and a half square miles of land; it is the largest and richest tropical jungle in the world. The Amazon contains 2,500 species of trees, a third of all species of plants, a third of the tropical wood in the world, and the largest diversity of fresh-water fish, birds and butterflies anywhere. The Amazon River is the longest river on the planet, crossing close to 4,000 miles to the Atlantic Ocean, where it spills about 20% of the world's river water into the ocean.[22]
The aforementioned arguments are weighty and sufficient enough to ask the Congress of the United States and the Congress of Colombia, to reject the ratification of the Free Trade Agreement. As has been demonstrated, it is not only the environmental regulations that should be negotiated in the FTA, but the text in its entirety, which negatively and gravely affects the environmental conditions not only in Colombia, but in the entire world.
[1] Text of the Free Trade Agreement between the United States and Colombia. Chapter 18. Environment. Objectives
[2] Text of the Free Trade Agreement between the United States and Colombia. Chapter 10. Investment. Article 10.28.
[3] Text of the Free Trade Agreement between the United States and Colombia. Chapter 16. Intellectual Property Rights. Article 16.9.
[4] Text of the Free Trade Agreement between the United States and Colombia. Chapter 18. Environment. Article 18.12.
[5] Op Cit. The Environmental Dimension in the Negotiations of the Free Trade Agreement between the U.S. and Colombia and the Free Trade Area of the Americas.
[6] Ministry of Commerce, Industry, and Tourism. http://www.mincomercio.gov.co/tlcmemorias/ConsultaCapitulosTLC.aspx
[7]The New Environmental Policy. Julio Carrizosa Umaña. Censat - Agua Viva. 2006 http://www.censat.org/A_A_Documentos_177.html
[8] The projects of El Descanso, Similoa, and Rinconhondo, according to a diverse array of organizations, would gravely affect the hydrological systems of the rivers Fernambuco, Sicarare, Calenturitas, Maraca, Tucuy, San Antonio, Platanal, Pérez, Guasimal, and the channels of Las Animas, Jobo, El Zorro, Mocho, Tamasucal. The same is true for the swamps of Matepalma, which are part of the slope of the Cesar river, and which are interrelated with the ecosystem and life of the inhabitants of La Aurora, La Estación, Aguas Frías, Ojo de Agua, Cerrajones, Platanal, Mechoacan, Plan Bonito and Potrerillo. These communities would undoubtedly be displaced. Source: Letter to the Minister of Environment, Housing, and Territorial Development, signed by Central Unitaria de Trabajadores (CUT), the Polo Democrático Alternativo, the Asociación Nacional por la Salvación Agropecuaria and other organizations. Valledupar, January 31, 2007.
[9] Fights with Large Companies. Friends of the Heart International. http://www.foei.org/esp/publications/pdfs/clashes_corporate_giantsesp.pdf
[10] Letter to the President of the Republic of Colombia, Álvaro Uribe. Signed by 171 environmental, social, and political groups from around the world. December 22, 2006.
[11] Glencore is also the owner of the mine Consorcio Mineros Unidos, acquired in August 2006, the mine Calenturitas in La Lona, acuired in July 2004, and the port Prodeco, located in Santa Marta, which exports carbon to Europe and the United States. Source: http://www.glencore.com/pages/worldwide_operations.htm
[12] "La Jagua de Ibírico: A rich community converted into a forgotten land," Semana, 13 February 2007. "A rich community with the symptoms of a poor one," El Tiempo, 13 February 2007. "The inhabitants of La Jagua de Ibírico protest," Colombia.Indymedia.Org, 10 February 2007.
[13] Presidency of the Republic of Colombia. 1 February, 2007. http://www.presidencia.gov.co/prensa_new/sne/2007/febrero/01/12012007.htm
[14] Tatiana Roa. The biodiesel of palm oil. Censat Agua Viva. 2006
[15] Ibid. And setter to President of Colombia, signed by las autoridades étnico territoriales y representantes legales de los Consejos Comunitarios de Comunidades Negras del territorio étnico del Kurrulao (Pacífico sur colombiano). 2005.
[16] Concept by Prosecutor general's office, Edgardo Maya, about Law of Rural Development, of Minister of Agriculture and Rural Development. 2006.
[17] "Land Law could lend itself to the "washing" assets." (‘Ley de tierras podría prestarse para el lavado de activos'.) El Espectador. October 23rd, 2006
[18] "Biocombustibles: A disaster waiting to happen." (Biocombustibles: un desastre en potencia.) Declaration of the Marco Convention on Climatic Change. December, 2006. Signed by 173 international organizations. http://www.censat.org/A_A_Noticias_Nacionales_416.html
[19] Ibid.
[20] Nature Foundation of Colombia (Fundación Natura Colombia). http://www.natura.org.co/prog-andes.htm
[21] Nature Foundation of Colombia (Fundación Natura Colombia). http://www.natura.org.co/prog-amazonico.htm
[22] World Wild Life. http://worldwildlife.org/wildplaces/amazon/about.cfm