Advocacy, U.S. Relations

The Salvadoran Roundtable Against Mining Releases a Statement Against the P3 Law

Yesterday the Salvadoran Legislative Assembly passed the controversial Public Private Partnership Law. The Law passed 84-0, meaning that no representative in the Legislative Assembly opposed the Law. The vote doesn’t necessarily reflect the public’s opinion of public-private partnerships or the Law. Many groups throughout El Salvador oppose the Law for a variety of reasons.

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Over 75 leaders of communities throughout the Bajo Lempa and Bay of Jiquilisco gathered the day before yesterday’s vote to again denounce the law and the implications that public private partnerships have for the region (click here for more on that). In addition to opposing privatization of more state resources and services, leaders throughout the region oppose the plan to use public-private partnerships to promote tourism in the region.

Simiarlly, the labor movement organized a couple of protests this week and circulated an online petition (click here for more on that). They are concerned that public-private partnerships will cost thousands of public-sector jobs and a deterioration of workers rights.

The Salvadoran Roundtable Against Metallic Mining (MESA, in Spanish) are concerned that the PPP Law will result in government-sponsored mining activities. The MESA released a statement yesterday afternoon and this morning quickly translated it to English (apologies in advance to the authors for any errors) – it is posted below, first in English and then the original in Spanish.

The MESA Statement in English


With regards to the debate around the Public-Private Partnership Law (PPP) and its dishonorable approval by the Legislature, the National Roundtable Against Metallic Mining releases its strong rejection of this new attempt to privatize public services .

As the National Roundtable Against Metallic Mining, we also express our deep concern that the PPP Law opens the door for approval of mining projects in [El Salvador]. When there is no law that prohibits metalic mining or a General Law on Water to alieviate the water shortage that we suffer, it is irresponsible and reprehesible that [the Legislature] would pass a law like the PPP Law that creates the conditions for severe predation and environmental degradation, and a the socio-environmental crisis in which we live.

It is foolish and wrong to repeate actions that have already been proven to be the cause of many of our structural problems. Vulnerability to disasters, along with environmental degradation, massive budgetary and institutional weaknesses in addressing climate change, forced migration, social exclusion and violence are the result of not keeping the voracious markets under control. The State’s goods and resources should serve to provide a dignified life for the population, not to finance predatory corporate profits.

The proposed public-private partnerships are a continuation of the neoliberal policies of the privatization of public services that affect the economic, social and cultural rights of the Salvadoran population. From an environmental sustainability perspective, we urge government authorities and the Legislative Assembly to stop implementing programs promoted by the International Monetary Fund, and pass with equal importance and speed, the General Law on Water, the Ban on Metallic Mining, and the ratification of Article 69 of the Constitution, which establishes the right to water and food.

We reject and deny that private concessions are the solution to improve the delivery of services to the population. We emphasize that if El Salvador prosecuted those who avoid and evade their tax liabilities, and adopt of a progressive tax code that requires those who have more to pay more, the State would have the conditions and resources to provide adequate public services.

We also call on legislative representatives to defend the sovereignty of our country. There are several international treaties such as the Convention for the Conservation of Biodiversity of SICA, Convention 169 of the International Labour Organization ILO, 1992 Rio Convention, the Universal Declaration of Human Rights which recognizes the right of people to participate and decide on the use that will be given to the resources of their territories. The Law on Public Private artnerships are nothing more and nothing less than an affront to any possibility of building a worthy development model that is just and sustainable.


No to the proposed Public Private Partnership law!

The MESA Statement in Spanish



En el contexto de discusión de la Ley de Asocio Público-Privado (APP) y su deshonrosa aprobación por parte de la Asamblea Legislativa, la Mesa Nacional frente a la Minería Metálica hace público su más enérgico rechazo a este nuevo intento de privatización de servicios públicos.

Como Mesa Nacional frente a la Minería Metálica  manifestamos además nuestra profunda preocupación de que la Ley de APP abra las puertas para la aprobación de proyectos mineros en nuestro país.  Mientras no se cuente con Ley que prohíba la Minería Metálica o una Ley General de Aguas orientada a revertir el estrés hídrico que sufrimos, es irresponsable y repudiable que se apruebe un marco jurídico como la Ley APP, que sienta las condiciones para agudizar gravemente la depredación ambiental y por ende, la crisis socioambiental que vivimos.

Es absurdo y equivocado que se repitan medidas que ya demostraron ser la causa de muchos de nuestros problemas estructurales. La vulnerabilidad ante desastres, al igual que el deterioro ambiental, las enormes desventajas presupuestarias e institucionales para enfrentar el Cambio Climático, la migración forzada, la exclusión y la violencia social son el resultado de no controlar la actitud voraz  del mercado. Los bienes y recursos que son patrimonio del Estado deben orientarse para garantizar la vida digna de la población, no para financiar el lucro depredador de las corporaciones.

Las propuestas de Asocio Público constituyen la continuación de las políticas neoliberales de privatización de servicios públicos que afectarán los derechos económicos, sociales y culturales de la población salvadoreña.  Desde una lógica por la sustentabilidad ambiental, exigimos a las autoridades del Gobierno y a la  Asamblea Legislativa que en lugar de hacer valer los programas del Fondo Monetario Internacional, hagan valer con la misma importancia y celeridad, las leyes de agua, de la prohibición de la minería metálica, así como la ratificación del artículo 69 de la Constitución que establece el derecho humano al agua y a la alimentación.

Rechazamos y desmentimos que las concesiones a privados sean la solución para mejorar la prestación de servicios a la población. Enfatizamos que si en El Salvador se persiguiera la elusión y evasión fiscal, así como si se aprobara un pacto fiscal progresivo donde los que tienen más pagan más, el Estado contaría con las condiciones y recursos suficientes para hacerlo.

Llamamos a las y los diputados de la Asamblea Legislativa para que hagan respetar la soberanía de nuestro país. Existen diversos tratados internacionales como el Convenio para la Conservación de la Biodiversidad del SICA, el Convenio 169 de la Organización Internacional del Trabajo OIT, la Convención de Río de 1992, la Declaración Universal de los Derechos Humanos que reconocen el derecho de las poblaciones para participar y decidir sobre el uso que se le dará a los recursos de sus territorios. Los Asocio Públicos Privados son nada más y nada menos que una afrenta más para cualquier posibilidad de construir un modelo de desarrollo digno, justo y sustentable.


¡No a la propuesta de ley de Asocio Público Privado!


Cabanas, Mining

Canadian Embassy Denies Access to two of its Own in San Salvador

Yesterday morning (June 13), a small group of anti-mining activists held a peaceful protest and press conference on the sidewalk in front of the Canadian Embassy. The protest was the culmination of a two-week effort by anti-mining activists to hand-deliver a letter to the Canadian Embassy asking them to end their support for Pacific Rim’s lawsuit against El Salvador. (For background on the lawsuit and Pacific Rim’s efforts, click here and here).

One highlight from the event was when two Canadian law students (Erica and Leah) who are interning for Voices on the Border and FESPAD this summer, tried to enter the embassy to deliver the letter, and talk to Embassy officials about the case. The Embassy turned them away without explanation. Yesterday afternoon, Erica wrote:

“This is outrageous treatment. Any citizen of any country is allowed to enter their embassy while traveling abroad – that’s what embassies are for. Your political affiliations don’t affect this basic right, nor do your stances on controversial issues. The embassy is Canadian territory. As citizens, we have the right to enter our embassy. They do not have the right to refuse entry to law-abiding Canadians.”

When they pressed the issue with security guards, they received word from Embassy officials that one of them could enter if they had document problems, otherwise they could not enter. That’s true solidarity! Erica and Leah experienced the kind of exclusion that Salvadorans and impoverished people around the world experience every day as they try to defend their environment, protect their economic security, and build a healthy life for their children.

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Yesterday’s events came almost two weeks after the International Center for Settlement of Investor Disputes (ICSID) tribunal announced their decision on preliminary objections in Pacific Rim’s lawsuit against El Salvador. This round of objections focused on jurisdiction – determining whether ICSID had the authority to hear Pacific Rim’s claim against El Salvador. In their lawsuit, Pacific Rim argues that El Salvador violated rights protected under the Central American Free Trade Agreement (CAFTA) and El Salvador’s investment law. The tribunal decided it did not have jurisdiction to hear the CAFTA claims (Pacific Rim is a Canadian firm and Canada is not a CAFTA signatory), but that it would hear the claims under El Salvador’s investment law.

Following the decision, Gus Van Harten, Associate Professor of Law at Osgoode Hall Law School, said,

“The case will now be one of the rare ones that proceeds under the host state’s domestic law on investment, but it is no less threatening than the treaty cases because of this. The arbitrators retain essentially the same wide-ranging powers, including to decide what a regulatory expropriation is, what is fair or unfair regulation, etc…. and to award damages or make affirmative orders against the government. Their award will also be widely enforceable in the manner of any treaty case.”

The Salvadoran Attorney General has tried to spin the decision as a victory, and that CAFTA works, but few agree. Pacific Rim’s lawsuit is still alive and a victory under Salvadoran law is just as enforceable as a victory under CAFTA.

What happens next remains a little unclear. It could be that Pacific Rim and El Salvador proceed to the next phase of the trial. Pacific Rim will present their complaint and EL Salvador will present their defense. Then the tribunal will hand down their decision. Or it could be that Pacific Rim and El Salvador negotiate a settlement; though El Salvador has yet to indicate they’d even consider doing so.

There is another, more extreme option worth mentioning, if for no other reason than highlighting El Salvador’s more serious problem – the fact they give corporations the right to sue them in the first place.

Historically, individuals and corporations did not have the right to sue a country – only a country could sue another country. That began to change when the U.S., Mexico, and Canada signed the North American Free Trade Agreement, which gave corporations the right to seek arbitration if a signatory country appropriated an investment. International law still dictates that a country has to submit to jurisdiction, and unless they have, individuals and corporations cannot sue. By signing CAFTA, the U.S., Mexico, and Canada all agreed that they would give international courts jurisdiction to arbitrate any disputes with investors.

El Salvador first submitted to jurisdiction in 1999 when the Flores Administration and ARENA-controlled Legislative Assembly passed the Foreign Investment Act – the law Pacific Rim is using now. The also agreed to give international tribunals jurisdiction to arbitrate disputes when they signed CAFTA and other trade agreements.

Professor Van Harten suggested after the recent ruling that one way El Salvador could get out of the Pacific Rim suit would be to repeal part or all of the 1999 Investment Law and no longer submit to jurisdiction. The Legislative Assembly would have to explicitly state that the law is retroactive and apply to any current actions. While that would likely be a popular move at home, it probably wouldn’t go over well with the U.S. and other international bodies, and it seems unlikely that the Salvadoran government would put those relationships at risk without careful consideration.

Withdrawing from jurisdiction may be something El Salvador wants to do anyway. Pacific Rim is only one of many mining companies that have applied for but not received exploitation permits from the Salvadoran government. If Pacific Rim is successful in their lawsuit, many others will likely follow. If El Salvador is unsuccessful in defending itself, it may end up granting more than 30 mining permits or face defending itself against an equal number of very large lawsuits.

Another reason to withdraw jurisdiction from international arbitration panels like ICSID is because future trade agreements may grant investors even more protection and rights than NAFTA and CAFTA.

Just yesterday, Public Citizen published a report on the investor protection provisions in the Trans Pacific Partnership (TPP) – a trade agreement being negotiated by Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the U.S. According Public Citizen’s analysis, some of the most outrageous provisions would:

  • Limit how countries can regulate foreign firms operating within their jurisdiction, with requirements to provide them with greater rights than domestic firms;
  • Establish a two-track legal system that gives foreign corporations to avoid domestic courts and laws, and sue States in foreign tribunals; and
  • Grant foreign corporations the right to demand compensation for financial, health, environmental and land use regulations they claim undermine their TPP privileges, and demand compensation for costs of complying with financial or environmental regulations that apply equally to domestic and foreign firms.

El Salvador is not a signatory to the TPP, and the agreement has not even been signed or ratified, but the pendulum seems to be swinging very far in favor of these kinds of pro-investor rights. Once that is the standard, any efforts to protect local environments and resources are subject to the desires of international corporations… until countries organize and push the pendulum back to protect their interests.

Corporations and the U.S. have worked hard to keep concerned citizens and civil society groups from influencing negotiations of these trade agreements. Public Citizen’s account of how hard the U.S. has worked to keep the TPP negotiations sounds a lot like the CAFTA negotiations eight and nine years ago. While Corporations and business interests have a say in the process, concerned citizens and civil society organizations are left on the sidewalk to protest.

In that context, it’s not really surprising that the Canadian Embassy denied Erica and Leah (the Canadian law students interning in El Salvador) entry to the Embassy – they were hanging out with the wrong crowd. Perhaps if they were interning for Pacific Rim or any other international corporation they  would have had a different experience.

Cabanas, Mining, U.S. Relations

Oxfam Petition on El Salvador and Mining

Word on the street is that the ICSID (International Center for Settlement of Investment Disputes) tribunal hearing Pacific Rim Mining Company’s lawsuit against El Salvador will hand down a decision on the second round of preliminary objections before the end of the month. (Here is an article and a webpage with good information on the case).  Pacific Rim, a Canadian firm based out of Vancouver, filed suit against El Salvador over three years ago for not granting them the permits necessary to extract gold from their Cabañas properties. Between 2002 and 2008, Pacific Rim allegedly invested $77 million in exploring properties in Cabañas and other parts of El Salvador. When the government and people of El Salvador said the mining company could not mine, Pacific Rim sued to recover their investment, lost profits, and damages. If Pacific Rim wins, they could receive a judgment worth more than $100 million.

El Salvador responded to the lawsuit by filing two rounds of preliminary objections, asking the court to dismiss Pacific Rim’s claim on procedural grounds. The first round of objections was unsuccessful, and we should hear about the second round in the next week or so. If the Tribunal finds in favor of El Salvador, they could dismiss part or all of Pacific Rim’s case. If they find for Pacific Rim, the mining company’s suit lives to see another day.

Oxfam is currently organizing a petition asking U.S. citizens to demand that the U.S. end their support for Pacific Rim and their claim against El Salvador. The petition reads:

Act Now: Speak up for El Salvador’s Right to Decide

In El Salvador, communities are fighting for their right to decide how companies can use their lands. Many of them have made a decision: they don’t want the metal mining industry to continue to destroy the environment they live and farm in. And they’re paying the price – each day, community leaders and activists face threats of violence and death because they’re standing up to metal mining companies.

What’s making this fight even harder? Right now, Canadian mining company Pacific Rim is trying to force El Salvador to keep metal mines in business by suing El Salvador for $77 million under the US-Central America Free Trade Agreement (CAFTA). This case could not only cost El Salvador a significant portion of its GDP, but it could prevent citizens from deciding which industries develop in their country.

A win for El Salvador in this case means that El Salvador could choose to stop metal mining – for good. The US government’s support for El Salvador over Pacific Rim in this case has been crucial. That’s where you come in. Will you help us make sure the US supports El Salvador in this case?

Tell Secretary of State Clinton: Support the people of El Salvador.

Please visit the Oxfam site and sign the petition!

The petition is important because some within the US State Department associate anti-mining with being anti-development. They argue that if El Salvador passes a law that bans mining, it means the country is hostile to foreign investment. In 2009, Former Chargé d’Affairs Robert Blau wrote a cable to the U.S. Secretary of State with the Subject line: “New Environment Ministry Moves to Ban Mining, Sends “Anti-Development” Signals.” A ban on mining is not anti-development, it is respecting the wishes of the people who would be most affected by its disastrous environmental impacts.

The cable is worth a read. We recognize that Robert Blau has a pretty extreme view of U.S. foreign policy and that his view may not represent everyone within the Embassy (Blau is no longer at the Salvadoran Embassy). His view, however, exemplifies how neoliberalism affects policies in countries like El Salvador. The same people who want to gut the EPA and remove the environmental regulations that protect air, soil, and water in the U.S., also want to remove any barriers that might prevent them from pillaging resources around the world. Any efforts to protect the environment and the communities where people live are called anti-development.

The petition is important because we have to make sure the State Department understands that Salvadoran communities said no to mining because they want to protect their very limited natural resources. They are not anti-development, rather they don’t want their vision of development trumped by an international corporation that is only interested in profit. The U.S. should not support Pacific Rim and other corporations, but ought to respect the wishes of the affected communities.

Oxfam’s petition is not the only anti-mining news to report. Yesterday the MESA (Roundtable Against Metallic Mining in El Salvador) released a statement expressing their frustrations with the Salvadoran government’s inaction on mining. , the government commissioned a Strategic Evaluation of the Mining Sector to determine whether mining was feasible in El Salvador. The report was supposed to inform the Legislative Assembly and government ministries on how to manage mining, and whether they ought to pass an all out ban on mining, which is what the MESA has been advocating.

The MESA is frustrated with the lack of transparency in completing the study and the release of its findings. They recently filed a request for information about the report under El Salvador’s relatively new Law on Access to Public Information. They also requested information about what mining companies have applied for or hold mining permits. Lina Pohl, the Vice-Minister of the Environment and Natural Resources recently said the only possible scenarios are the suspension of mining permits (so far for just exploration, no mining company currently has an exploitation permit), and not granting new ones. The MESA believes this to be insufficient and that the study fails to take on the most important issues concerning the impact that mining would have on the country. They call on the government to be more proactive in defending Salvadorans and banning mining altogether. The MESA has posted several interviews on Youtube detailing these issues. If you speak Spanish, they are worth watching.

Please sign the petition today!