Community Development Institute
PO Box 24009
Phoenix, AZ 85074
www.tonatierra.org
September 13, 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 of last year, 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 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 be 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.
Completely disregarding these fundamental Human Rights concerns, the House of
Representatives passed the USMCA on December 19th, and the Senate Finance
Committee then passed the United States-Mexico-Canada Agreement on January 9,
2020.
CONTEXT
The Universal Declaration of Human Rights (UDHR) was adopted on December
10 in 1948 by the United Nations General Assembly. The UDHR, together with the International
Covenant on Civil and Political Rights and its two Optional Protocols,
and the International Covenant on Economic, Social and Cultural Rights,
form the so-called International Bill of Human Rights.
When the General Assembly adopted the UDHR in 1948 it was proclaimed as a:
"common standard of achievement for all peoples and all nations", towards which individuals and societies should "strive by progressive measures, national and international, to secure their universal and effective recognition and observance".
Yet in terms of Human Rights of Indigenous Peoples, it would take 59 years for the international system of the United Nations to extend the principle of “universal and effective recognition” to include Indigenous Peoples in equality as “Peoples, equal to all other peoples….” with the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) on September 13, 2007.
Today, September 13, 2020 marks the 13th anniversary of the adoption of the UN Declaration on the Rights of Indigenous Peoples, yet to date there is no record of the Tom Lantos Human Rights Commission ever having invoked or referenced the principles of UNDRIP in any of its deliberations before House Committee on Foreign Affairs.
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 (2007), the signatories of USMCA must comply with the minimum standards of Free, Prior, and Informed Consent (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.
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 today in the USMCA trade zone, this 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 "White Christian" 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 the case of Canada, these same legaloid tenets of “dominion” based on “discovery” serve as the basis of the claims to “Crown Title” derived from the Royal Proclamation of 1763.
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) is a violation of contemporary Human Rights law.
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?
At this point, it becomes relevant and timely to reference the August 18, 2020 request for information directed to US Secretary of State Mike Pompeo by the Inter-American Commission on Human Rights (IACHR) for the purposes of monitoring compliance by the US government in regards to recommendations set forth by the IACHR in the land claims Case 11.140 of the Western Shoshone (1999) with Mary and Carrie Dann as petitioners:
1. Considering that Mary Dann passed away in 2005, inform whether the State has taken actions to provide Carrie Dann with an effective remedy from the State for the human rights violations that she suffered, including the adoption of legislative of other measures to ensure respect for the Danns' right to property in accordance with Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.
2. Considering the information provided by the State in the working meeting held in the 169th IACHR's Period of Sessions, inform the process' progress of reforming regulations and procedures to ensure that the property rights of indigenous persons are determined in accordance with the rights established in the American Declaration, including Articles II, XVIII and XXIII of the Declaration. Also inform whether there has been progress in the Federal Government's initiatives to protect the rights of Indigenous peoples, including the actions to inform State agencies about the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples.
The IACHR has advised Secretary Pompeo that a deadline of October 15, 2020 has been set to receive information in timely manner.
USMCA-TMEC-CUSMA 2020
The final approval of the 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
Original Nations of 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.
In April of 2019, President Andres Manuel Lopez Obrador (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.
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.
Tupac Enrique Acosta
TONATIERRA
Continental Commission Abya Yala
Secretariat
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 Biological 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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