[Derek MacCuish is program co-ordinator at the Social Justice Committee in Montreal (http://www.s-j-c.net.) and policy analyst with the Halifax Initiative Coalition. He is the author of the CD-ROM Pillaged Lives: Third World Debt and Global Institutions.]
For starters, the FTAA "will stop the growing movement by poor countries to manufacture cheap AIDS drugs, to treat the 30 million people with AIDS in the global south", according to ACT-UP.
More specifically, the trade agreement will kill people in Brazil.
The problem is that Brazil provides generic equivalents to AIDS drugs, despite patent laws granting companies that invented the drugs exclusive rights to charge whatever the market will bear for their product. Except in Brazil, where the same drugs are available for much, much less.
With FTAA, the government of Brazil will be liable to some hefty penalties if it doesn't comply with the laws of the market as codified by the trade laws. It will be forced to abandon its program of providing AIDS medication for those that need it, regardless of what they can or cannot afford.
Only about 5% of people dying of AIDS worldwide have access to high priced medication that costs pennies to produce. In Brazil, the AIDS death rate has been cut in half, and other countries are ready to follow suit. Pharmaceutical companies are anxious that their profits be protected in international agreements like FTAA, which provide rock-hard protection for corporate ‘property rights’ that would force generic medication programs to grind to a halt.
Trade deals like FTAA put corporations on an equal legal footing with the governments we vote into power. An American waste disposal company, Metalclad Corporation, successfully sued the Mexican government for violating Chapter 11 of NAFTA when it was unhappy that a state governor refused to allow it to reopen and expand a toxic dump site, in large part because a geological audit showed that the facility would contaminate the local water supply. (The previous owners of this same site were ordered to close it by the Mexican government. They refused, and local people took the matter into their own hands and enforced the order by getting together with their machetes.)
Metalclad called it an "expropriation," and last August a NAFTA tribunal agreed, awarding $17 million in damages. Under NAFTA, expropriation claims damages include profits that the company might expect to gather in the future, affected by actions that are "tantamount" to expropriation. It is now considered that a wide range of government actions or laws has a "similar effect" to appropriation, and only needs to affect some portion of the commercial value to count.
This broad definition of "expropriation," which gained strength in the US judicial system during the Reagan years, effectively includes any government regulation that limits the commercial value of investments or restricts profit earnings.
So there are two big problems. One is the vagueness of wording like "tantamount to expropriation", which is found in trade agreements like the FTAA, and those already signed by Canada with Argentina, Bolivia, Ecuador, Honduras, Venezuela and other countries in the hemisphere. The other is that since trade agreements give corporations legal status equal to that of elected governments, the vague wording allows a damaging, pro-corporate interpretation by which national laws can be overturned.
Following the example of Ethyl Corporation, which beat Canadian laws banning its gasoline additive MMT and got a multimillion dollar settlement despite health concerns about its product, the Methanex Corporation, based in Vancouver, is suing the US government. California wanted to fund a study of the public health and environmental effects of methyl tertiary ether (MTBE), a gasoline additive derived from methanol, which Methanex produces. California wasn't banning the stuff, but funding the university study was too much for Methanex.
As Methanex president and CEO argued, "Our mandate is to act in the best interests of our shareholders." Methanex does not produce MTBE, but is concerned that the California study will affect its earnings since the stuff is made from methanol, which it does make (MTBE is 30% of methanol demand). Ipso facto, it doesn't make MTBE, so the effects aren't its problem, but the profits are.
Not surprisingly, in a defence statement the US government argued that it was "absurd" to consider that "whenever a State takes action to protect the public health or environment, the State is responsible for damages to every business enterprise claiming a resultant setback in its fortunes."
The US government lawyers will need more than luck with their "public health" argument. NAFTA Chapter 11 proceedings are secretive processes, with no participation by citizens' groups, and limited (if any) public knowledge that they even exist.
Of course people are going to fight the FTAA. In the absence of anything comparable protecting human rights and the environment, the whole thing is a shameless abrogation of state responsibility, leaving us vulnerable to the worst kind of corporate thirst for profit.