Investor Rights Strip Communities of their Basic National Sovereignty
On the day of the expected Pacific Rim decision, the National Roundtable against Metallic Mining organized a press conference with members of the Midwest Coalition against Lethal Mining (MCALM) and U.S.-El Salvador Sister Cities in anticipation of the imminent news.In a show of solidarity of community organizer from Wisconsin, a state also facing the threat of open-pit mining, and MCALM founder Marc Rosenthal read a statement (below) highlighting the importance of">Video of the Mesa’s press conference and the statement
On behalf of U.S. El Salvador Sister Cities and the Midwest Coalition against Lethal Mining we want to affirm our solidarity with the Mesa Nacional Frente a La Mineria as it prepares to respond to the decision of the International Centre for the Settlement of Investment Disputes on the Pacific Rim lawsuit against the Salvadoran government.
I am here representing the Madison-Arcatao Sister City project which has been working with CRIPDES and the community of Arcatao, Chalatenango for 26 years. Throughout the years we have been working together around issues facing the people of El Salvador, from the implementation of the Peace Accords to land reform to health and education. In recent years, it became clear that the greatest threat was one that we had in common: the threat posed by multinational mining corporations. And when we talk of mining what we are really talking about is the threat to water. Nothing highlights the commonality of our struggles like the fundamental human need for and right to clean water.
We formed the Midwest Coalition against Lethal Mining (MCALM), to educate communities throughout the state and the Midwest about the devastating effects of large scale mining that affect us both in the state of Wisconsin and El Salvador. Like the Salvadoran social movement, MCALM is guided by the principle that only organized people can defeat organized money. And like El Salvador, Wisconsin has its own history to draw on in fighting back. In 2003, a grassroots Indian, environmental and sport-fishing alliance defeated the proposed Crandon zinc-copper mine by one of the most powerful corporations in the world, Exxon. As in the case of El Salvador, the mining corporations attempted to divide people and exploit their fears and need for jobs. Like Pacific Rim they lied about the environmental effects of mining. After 28 years of resistance, this project was defeated by a broad coalition.
Today, Wisconsin is once again facing the destructive effects of corporate mining with proposed gold and iron mines and the expansion of sand mining for hydraulic fracturing. The corporations involved demanded major changes to our environmental protection laws.
Drawing from our inspiration of the Salvadoran anti-mining movement, we mobilized and defeated the attempt to change these laws. But the threat remains.
Today, as we wait with the Mesa for the ICSID’s decision, it is important to note the need to change the way free trade agreements like CAFTA affect our ability to defend our communities and environment. The investor rights in these agreements strip our communities of our basic national sovereignty and pose a direct threat to our future.
When we speak of international solidarity it is not a romantic notion but actually central to our capacity to confront these very powerful corporations. So, in the name of the Midwest Coalition against Lethal Mining, U.S.-El Salvador Sister Cities and international solidarity we stand with the Mesa and the Salvadoran people in rejecting the imposition of multinational corporations and the World Bank in issues so central to our lives.
The ICSID Rules the Pacific Rim Case will Continue
As the clock ticked towards five pm on Friday, June 1st, the International Centre for the Settlement of Investment Disputes (ICSID) released its ruling in the Pacific Rim vs. the Government of El Salvador case. For background on the case see here.
The ICSID tribunal ruled that it did not have jurisdiction under Central American Free Trade Agreement (CAFTA) to hear the case because Pacific Rim had not been a U.S. company long enough to sue using that mechanism. However, the tribunal did consider the ICSID to have jurisdiction under Salvadoran Investment law.Article 15 of Salvadoran Investment Law states that companies can sue the Salvadoran government through ICSID. Therefore, the case will proceed to a third round of hearings.
As one source analyzing the decision put it:
This was not a decision about the content of the case or the issues of mining and water contamination in El Salvador. This was a decision on whether the tribunal set up under ICSID has jurisdiction to hear the case at all. Pacific Rim argued that it had two different legal on-ramps to the ICSID process, one under CAFTA and the other under El Salvador investment law. The tribunal only needed to agree with them on one to let the case move forward and they decided to make it under El Salvador investment law. The bottom line is that the investment rules and ICSID system has once again paved the way for a foreign corporation to menace people with millions of dollars in forced payments, in this case for the sin of pressing their government to say no to a gold mining operation that will contaminate their water and threaten the health of their families.
U.S. and Canadian Organizations Respond
Public Citizen and Sierra Club responded to the decision in a press release saying “ The fact that corporate attacks on a sovereign country’s domestic environmental policy before a foreign tribunal would even be possible – much less cost a country millions when a key element of the attack is dismissed – highlights what is wrong with our ‘trade’ agreement model,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “These investor rules are an outrageous example of how ‘trade’ pacts have been stuffed with special-interest terms that empower corporate attacks on basic democratic public interest policymaking at home and abroad.”
The Institute for Policy Studies released their own statement where Director John Cavanagh said “The world should applaud the efforts of the Salvadoran people to safeguard their country’s long-term health and prosperity by becoming the first in the world to ban gold mining. Instead, this ruling is one more example of international investment rules undermining democracy in the interest of short-term profits for foreign investors.” Spanish Version
From Canada, Mining Watch Canada covered the decision and said "The lawsuit has been and will continue to be costly. To date, El Salvador has had to spend at least $5 million of public funds in legal fees. Five million dollars could provide one year worth of adult literacy classes for 140,000 people in El Salvador or feed 60,570 families in temporary housing for a full two weeks during a natural disaster. One would presume that the small junior mining company has paid out a similar amount and one wonders how long its few remaining shareholders will hang on for the risky ride. "
Oxfam American also showed their disappointment to the ruling in their press statement, “We are very disappointed by (ICSID’s) decision to rule against El Salvador. It goes against the views the Salvadoran people who are overwhelmingly against mining,” said Keith Slack, manager of Oxfam America’s oil, gas and mining program. “We are concerned that the continued presence of Pacific Rim in El Salvador will contribute to further human rights abuses. We urge Pacific Rim not to pursue this case and to listen to the voice of the Salvadoran people.”
Response from El Salvador
In El Salvador, the ">National Roundtable against Metallic Mining held a press conference on Friday andissued a written statement on Saturday in response to the ruling. In their statement they highlighted the need for reforms in order to protect El Salvador from these types of attacks:
"[...]President of the Republic Mauricio Funes today, in his speech after three years of government, [...] referred reforms for some laws, among them the Investment Law. We would like to call on the government to include the elimination of Article 15 in its proposals for reforms, so as to not continue being subordinate to ICSID jurisdiction."">Video of the Mesa’s press conference regarding the Pacific Rim decision
Somewhat surprisingly,the Attorney General’s Office is construing the decision as a success.In a post on the AG’s website, it says “It was made clear that during the preliminary stages of arbitration, Pacific Rim was incapable of refuting the evidence presented by El Salvador…”However, after review of the document, analysts in the U.S. and El Salvador alike coincide that El Salvador actually lost on three of its four main arguments, and that while the CAFTA claim was thrown out the case will continue essentially intact.
At about 12:30 pm on Saturday, around 200 of organizers from El Salvador, Canada, the U.S., and all over the world who were participating in the "Shout Out Against Mining Injustice" marched about 6 blocks from the "Shout Out" to PacRim headquarters in the middle of Vancouver's mining and financial center to show their opposition to the Pacific Rim case and their outrage that the ICSID ruled that it should continue. For more information see here.
Recent Statements Cause Alarm for the Anti-Mining Movement
After months of waiting for the Salvadoran central government to release its mining sector Strategic Environmental Assessment, the Vice-Minister of the Environment and Natural Resources was quoted in a local newspaper as saying “It is not possible in the present conditions […] to introduce mining activities in the country and guarantee environmental measures.”She went on to say that there are two possible solutions for the problem:to not give out any more mining permits or suspend current mining activity.
The Vice-Minister’s statements have been strongly criticized by the communities and organizations resisting mining in El Salvador.In its news bulletin the National Roundtable against Metallic Mining (the Mesa in Spanish) responded “The news could be interpreted positively, but, on the contrary, the Mesa is very worried that, instead of considering a definitive ban on subsoil metal extraction, the only possible scenarios, according statements from officials, are not to give out more exploitation permits or the suspension of current mining activity. This is particularly alarming because it would indicate that the Salvadoran government is looking towards a moratorium on mining actively that would allow them to create the institutional and technical conditions necessary to active said industry in the future, in spite of the all the negative impacts on an environmental, social, and human rights level which are inherent in metallic mining."
In response to the statements by government officials, as well as news that mining companies have been increasing their activities in communities, on May 23rd members of the Mesa presented four separate requests for information to the Ministry of the Economy, using the recently enacted Access to Public Information Law.They asked for an official copy of the Strategic Environmental Assessment, as well as the names of the companies applying for mining permits and the names of their legal representatives.
At first the Mesa was told only one representative would be allowed to enter the Ministry building to present the requests, and that none of the press covering the event would be allowed in.This unexpected response provoked the question by many in the Mesa: “Why does the Ministry of the Economy not want to deal with us?” After some negotiating and standing outside a locked door for a while, all of the Mesa representatives and press were allowed into the Ministry to present the paperwork.
According to the Ministry official who received the petitions, the information will be returned within 10 days.However, the Mesa is not fully confident that all the information they requested will actually be provided.
The National Roundtable against Metallic Mining demands information and an honest debate about the future of metallic mining in El Salvador
The National Roundtable against Metallic Mining (the Mesa in Spanish) asks the Salvadoran Government for all public information related to mining companies that have applied for operations permits in El Salvador, how far they have advanced in the application process, as well as the names of the applicants and their legal representatives.
The request for public information is based in the recently enacted Access to Public Information Law (LAIP in Spanish) and is a call to the government to present transparent information.This information is currently being manipulated in a way that lacks transparency and is behind the back of the population.
The National Roundtable against Metallic Mining criticizes the ambiguous and non-transparent way officials from the Ministries of the Environment and the Economy have dealt with the issue, especially with respect to the completion of the Strategic Environmental Assessment (SEA) of the mining sector.
After almost a year of setbacks and then silence from the authorizes that forced, last March, the National Roundtable against Metallic Mining to leak a draft of the SEA to the press, Lina Pohl, the Vice minister of the Environment, stated that the only possible scenarios related to mining are the suspension of mining permits or not-issuing new licenses.
For the Mesa, this stance is insufficient and reinforces its belief that the results of the SEA don’t deal with the mining problem in an integral way and are, actually, an investigation into the feasibility of mining which would favor large multi-national corporations.The Government should be proactive in defending Salvadorans lives and should energetically promote a definitive ban on metallic mineral mining in the country.There are not the environmental conditions necessary to support this industry, and therefore, the government should take clear and resounding actions to ban it.A moratorium only allows for more mining companies to continue to buy officials off and trick to the people with small donations that don’t resolve the structural problems of poverty and social exclusion.
The Mesa calls on the Legislative Assembly to begin the discussion of the proposal for a lw to Ban Metallic Mining which is stuck in commission.President Funes, on his part, should demonstrate his commitment to not allow mining projects by supporting a metallic mining ban.
NO TO METALLIC MINING PROJECTS.NO TO A EXPLOITATION PERMITS MORATORIUM. WE DEMAND THAT METALLIC MINING IS BANNED IN EL SALVADOR.
National Roundtable against Metallic Mining in El Salvador
Mientras el movimiento contra la minería en El Salvador y sus aliados por todo el mundo esperan ansiosamente el fallo del Centro Internacional de Arreglos de Diferencias Relativas a la Inversión (CIADI) en el caso de Pacific Rim, el Commerce Group, con su sede en Milwaukee, aparentemente está latente.Para todos los efectos, parece que el caso ya estuvo, pero la compañía tiene dos meses para armar un último esfuerzo y salvar su arbitraje.
Sin embargo, y afortunadamente para el pueblo salvadoreño, el Commerce Group está casi en bancarrota.En noviembre, mandó una correspondencia al CIADI asegurando que no tenía suficiente fondos para pagar los $150,000 requeridos en costos de arbitraje del CIADI.La empresa, también, se atrevió pedir que el CIADI obligara al gobierno de El Salvador pagar $68,776.02 del monto correspondiente a la empresa, alegando que había sobre pagado IVA en El Salvador y que el gobierno le debía la devolución de un depósito para un terreno que la empresa había alquilado anteriormente.
Los seis meses del Commerce Group vencen el 19 de junio. Mientras el movimiento contra la minería espera la decisión en el caso de Pacific Rim con ansiedad, también debe de cruzar los dedos con respeto al caso de Commerce Group por un mes más.
Hace días que no se habla sobre los arbitrajes con Commerce Group y Pacific Rim que han demandado a El Salvador por la falta de autorización para explotar minas de oro en el país.
Con respecto al arbitraje iniciado por Pacific Rim, El Salvador continúa esperando la decisión del tribunal sobre las objeciones jurisdiccionales interpuestas por el país. Como se recordará, ya transcurrió casi un año desde la audiencia. Las partes han recibido información de parte del tribunal que la decisión podría darse en las siguientes seis semanas (para finales de mayo).
Existen dos posibilidades sobre la decisión que está pendiente: 1) que El Salvador gane el arbitraje en este etapa, o 2) que el tribunal decida que el arbitraje continúe a la siguiente etapa (del fondo de la disputa), en la cual Pacific Rim por primera vez tendrá que llevar la carga de la prueba y convencer al tribunal que El Salvador ha incumplido a sus obligaciones internacionales y que ese supuesto incumplimiento le ha ocasionado daños.
Pero aún si sucediera esta última posibilidad (que el arbitraje continúe a la siguiente etapa), El Salvador tiene muy buenas probabilidades de ganar, pues ya en la etapa anterior (de objeciones preliminares) se planteó una defensa sobre el fondo del caso ante la cual Pacific Rim no tuvo una respuesta convincente. Por la naturaleza limitada de las objeciones preliminares, el caso debió continuar, pero esta limitante preliminar anterior desaparecería de llegarse a la etapa del fondo de la disputa.
Por otra parte, la solicitud de anulación presentada por Commerce Group para intentar anular el laudo que le fue favorable a El Salvador en marzo del 2011, continúa suspendida por falta de pago de los costos del proceso por parte de Commerce Group. El proceso ya tiene cuatro meses de suspensión, y al llegar a los seis meses, el CIADI (Centro Internacional de Arreglo de Diferencias Relativas a Inversiones) puede darlo por terminado definitivamente.
After months of waiting for the Salvadoran central government to release its mining sector Strategic Environmental Assessment, the Vice-Minister of the Environment and Natural Resources was quoted in a 
