TONATIERRA: Open Letter to the Tom Lantos Human Rights Commission, House Committee on Foreign Affairs
TONATIERRA
Community Development Institute
PO Box 24009
Phoenix, AZ 85074
July 8, 2020
Tom Lantos Human Rights Commission
House Committee on Foreign Affairs
5100 O'Neill House Office Building
200 C Street SW
Washington, D.C. 20515
Good greetings.
In our letter
to the USMCA Working Group of the US House of Representatives on September
13th, 2019, we informed the Working Group members and House Speaker Pelosi that
upon review of the public record of debate concerning the Human Rights of
Indigenous Peoples in the context of the proposed US-Mexico-Canada Agreement
(USMCA), the systemic disregard for the human rights of Indigenous Peoples is
blatantly discriminatory, unacceptable, and must be addressed before the
agreement is put to vote before the House of Representatives.
Specifically,
we called for a full public hearing before the appropriate committees and/or
Working Group formations of the US Congress for the purpose of informing the US
congressional representatives on the right of Indigenous Peoples to Free,
Prior, and Informed Consent (FPIC) as stipulated in the UN Declaration on the
Rights of Indigenous Peoples (2007) regarding projects which impact their
collective rights.
On January 1,
2020, we reiterated this concern to the Tom Lantos Human Rights Commission of
the House Committee on Foreign Affairs, urging the Commission to conduct a full
public hearing on this issue before the vote of approval on the USMCA in the US
Congress.
Neither the
USMCA Working Group nor the Tom Lantos Human Rights Commission ever responded
to our petition.
Disregarding
these fundamental Human Rights concerns, both the US Congress and subsequently
the Canadian Parliament adopted the USMCA-TMEC-CUSMA as had been negotiated
with the government of Mexico, without any substantive input from the
Indigenous Peoples of the region. In
Mexico, the Spanish text of the agreement was never even published until our
organization TONATIERRA received a copy from the Mexican Consulate in Phoenix,
Arizona, on December 5, 2018.
The USMCA has been promoted as a necessary "update" of the North American Free Trade Agreement (NAFTA). In distinction from NAFTA which was adopted in 1994 thirteen years before adoption of the UN Declaration on the Rights of Indigenous Peoples - UNDRIP (2007), the signatories of USMCA must comply with the minimum standards of FPIC or the corporate consortia investing in any development project in violation of FPIC will immediately become financially liable and exposed to the risk of legal challenges and financial penalties that must be presented before their constituencies (states) and shareholders (corporations).
This principle is now well established, having been the subject of the Soft Woods Lumber Dispute (1982) between the US and Canada which acknowledged the proprietary rights of Indigenous Peoples over territories and resources in the international trade tribunals. Recognizing this fact, the World Bank has restructured its procedures, protocols, and practices regarding Indigenous Peoples and the right of Free, Prior, and Informed Consent under the Environmental and Social Standard 7 to shield its interests.
Indeed, the perpetuation of an international systemic pattern of human rights violations committed by the states against the Human Rights of Indigenous Peoples is the fundamental purpose why the UNDRIP was developed as a necessary instrument of contemporary international human rights law after decades of negotiations among all parties.
Yet in the USMCA trade zone, the pattern of systemic human rights violations persists and is granted impunity, protection, and corporate profitability by the trade policies and agreements among the states that take as a “given” the surrender of the territorial rights of the Original Nations of Indigenous Peoples of the continent. It is a narrative of 526 years of expropriation, looting, and dispossession: the Master’s Narrative of cultural supremacy and colonial dominion.
In the case
of the Indigenous Peoples of Mexico, the gross systemic violation of Human
Rights under the successive regimes of political corruption over the past 100
years has its roots in the concept of “Original Property of the State” which
was invoked in the Constitution of 1917 after the Mexican Revolution. The concept of Original Property of the State
is the Civil Law concomitant to the “Marshall Trilogy” of US Supreme Court
decisions under Common Law that are framed in the legaloid tenets of the
Johnson v. M’Intosh (1823) case which affirmed the basis of US territorial
jurisdiction on the continent as the Doctrine of Discovery of Christendom
(October 12, 1492). In Canada the tenets of Doctrine of Discovery of Christendom are upheld to this day by the federal government policies of assimilation, and continued colonization as set forward in the Royal Proclamation of 1763. The continental extrapolation of the Doctrine
of Discovery in the geopolitics of today’s times [America] is contextualized by
the US Monroe Doctrine (1823).
The approval of USMCA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC) must be addressed and rectified. The Indigenous Peoples have never consented to have our inherent Human Rights, Territorial Rights, and Right of Self Determination subverted under the regional commercial framework of the USMCA. Consultation is not consent. Simulations of consultations are a travesty and a fraud.
To what depth are the three USMCA governments willing to descend to mask their involvement and complicity in perpetuating the 526-year old pogrom of corporate colonization and genocide? More to the point, to what standard will the respective constituencies of the states hold their representatives in government accountable in terms of Civil Rights, Human Rights, Indigenous Rights, and most importantly the responsibility to protect the Territorial Integrity of Mother Earth?
On May 20, 2020 the Assembly of Defenders of the Maya Müuch Xîinbal Territory in the Yucatan issued a proclamation in denunciation of the “Maya Train” project being promoted by the government of president Andrés Manuel López Obrador in the southeast region of Mexico. Replicating the model of corporate collusion that the Canadian government subscribed to by purchasing the Trans Mountain Pipeline from Kinder Morgan for $4.5 billion in 2018, AMLO has positioned the Mexican state as the chief promoter of the “Maya Train” project.
And just like D.Trump
did upon first taking office as president of the US, when he fast tracked
approval for the Dakota Access Pipeline, AMLO is pushing the “Maya
Train” without any environmental impact studies and without genuine
consultations with the affected indigenous peoples, as stipulated by International
Labor Organization (ILO) Convention 169. Indigenous organizations
have consistently and unequivocally been opposed to the project, beginning with
the name the government has given it, questioning: “Who allowed them to
appropriate the Mayan identity?”
In fact, in April of 2019, AMLO made public announcement that President D.Trump was willing to have the US government invest in the “Maya Train” project. The international consortia of corporate interests that are investing in the scheme includes the U.S.-based firm BlackRock Investment Fund, and Operadora Carso, controlled by one of the wealthiest men in the world, Carlos Slim. Portugal’s Mota-Engil, China Communications Construction Company, Grupo Cosh, and Eyasa y Gavil Ingenieria have also won initial bids for the mega-development industrial development project. What involvement any Canadian corporations may have in the project has yet to be identified.
Which brings us back to the message of our original communique of January 1, 2020, to the Tom Lantos Human Rights Commission. Also in January of 2020, in Campeche, Mexico, a federal district court issued an Order of Protection against the Maya Train project, due to the fraud and abuse of the government officials in the consultation process, simulating a public consultation when the contracts for the project had already been approved.
This is fraud. There can be no legitimate implementation of USMCA-TMEC-CUSMA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC). Consultation is not consent.
We reiterate our call to the Tom Lantos Human Rights Commission to conduct a full public hearing on the implications of the blatant systemic violation of Human Rights in the international USMCA trade zone, and specifically to address the violation of the inherent Human Rights of Indigenous Peoples, equal to all other peoples, cited in USMCA as follows:
32-1
CHAPTER 32
EXCEPTIONS AND GENERAL PROVISIONS
Section A –
Exceptions
Article
32.5: Indigenous Peoples Rights
Final
Clarifications:
1.) The designation of Indigenous Peoples in the USMCA is definitive, in terms of the recognition of Indigenous Peoples as “peoples”. In the context of the 2007 UN Declaration on the Rights of Indigenous Peoples, which was not yet in place in 1994 during the original NAFTA agreement, the recognition of Indigenous Peoples in an international commercial agreement necessarily is accompanied and contextualized by the recognition of the Rights of Indigenous Peoples as articulated and affirmed in the principles and articles of the UN Declaration on the Rights of Indigenous Peoples.
2) The principle of non-discrimination is a preemptive norm in international law. Therefore, the recognition of Indigenous Peoples as “peoples’ in USMCA Article 32.5 Indigenous Peoples Rights must be taken as an affirmation and commitment to uphold, recognize, respect, and institute guarantees of protection for the collective rights of Indigenous Peoples, equal to all other peoples, without illegal or arbitrary discrimination, including effective consequences in the form of legal remedies to address the violation of these rights. Colonization must not be disguised as development.
3) The official text in Spanish (or any indigenous language) of the USMCA agreement was never published in Mexico or anywhere else until the date of December 5, 2018 when our organization TONATIERRA requested an official copy at the offices of the Mexican consulate in Phoenix, Arizona. Without having the text of the USMCA agreement in advance, there is no legitimate or rational narrative that can explain how the Indigenous Peoples of Mexico have been consulted at least with respect to the protection of their particular and collective rights under the USMCA, much less taken into account with the opportunity to approve or DENY CONSENT.
TONATIERRA
Maya Visión – Centro Cultural Techantit
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BLACKROCK TRANSPARENCY PROJECT
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BLACKROCK TRANSPARENCY PROJECT
On the other hand, there have already been hints that overhauling
Mexico’s system of corruption and cronyism will be easier said than
done. In what appeared to be a change of heart, the populist candidate
backed away from some of his campaign promises as Mexico’s Presidential
election approached this summer – vowing that energy contracts would not
be canceled, only reviewed, and reassuring investors that he was not a
“radical leftist.”
Importantly, AMLO’s moderation coincided with a May 2018 meeting with the 28th most powerful person in the world – BlackRock CEO Larry Fink. It now seems that AMLO, like Peña Nieto before him, could embrace the political benefits he can garner from BlackRock’s power.
Importantly, AMLO’s moderation coincided with a May 2018 meeting with the 28th most powerful person in the world – BlackRock CEO Larry Fink. It now seems that AMLO, like Peña Nieto before him, could embrace the political benefits he can garner from BlackRock’s power.
Free Prior
and Informed Consent
FPIC
All Peoples have the right to self-determination. It is a fundamental
principle in international law, embodied in the Charter of the United Nations
and the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The standard, Free, Prior
and Informed Consent (FPIC), as well as Indigenous Peoples’ rights to lands,
territories and natural resources are embedded within the universal right to self-determination.
The normative
framework for FPIC consists of a series of international legal instruments
including the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), the International Labour Organization Convention 169 (ILO 169), and the Convention on
Diversity (CBD), among many others.
FPIC is a specific right
that pertains to Indigenous Peoples and is recognized in the UNDRIP. It allows
them to give or withhold consent to a project that may affect them or their
territories. Once they have given their consent, they can withdraw it at any
stage. Furthermore, FPIC enables
them to negotiate the conditions under which the project will be designed, implemented,
monitored and evaluated.
Consultation is not consent.
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