Today, August 15, the International Mission to #StopISDS launched its final report (in English and Spanish), rejecting how transnational corporations are suing Colombia for billions of dollars and calling on Gustavo Petro’s administration to withdraw from this unfair system of foreign investment protection. The Mission, which includes representatives from social and environmental organizations from eight countries in Europe and the Americas, visited Colombia between 22 May and 1 June 2023, to share experiences of action against the Investor-State Dispute Settlement (ISDS) system. The ISDS system allows transnational corporations to sue sovereign countries in secretive supranational arbitration tribunals.
In recent years, Colombia has been the target of attacks by transnational corporations, especially in opposition to recent victories in the defence of life and territories against extractivist projects, including judicial decisions in favour of local communities' human rights, water and health. This foreign investor protection system is entrenched in the Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs) that Colombia has signed. The most often used tribunal is the International Centre for Settlement of Investment Disputes (ICSID), part of the World Bank.
The multi-organization delegation visited La Guajira and Santander departments to learn about the impacts and threats posed by transnational mining companies in these territories. Then, together with organizations from both territories, the mission participated in a public hearing in the Colombian Congress and met with authorities from six state agencies and civil society organizations in Bogota, with the aim of communicating the harmfulness of the system of foreign investment protection and showing that Colombia is not alone. The mission shared experiences from Europe, Ecuador, and other parts of the world where governments have been rejecting supranational arbitration tribunals.
According to the Colombian National Agency for Legal Defence of the State, as of March 2023, there were 14 open cases against Colombia and 8 in the pre-arbitration stage, totalling USD$13.2 billion dollars claimed by transnational corporations. In several cases, the amount claimed is not publicly available.
The report highlights how lawsuits and the threat of lawsuits are endangering vulnerable peoples and ecosystems. For example:
- Swiss mining giant Glencore, owner of Cerrejón, the largest open-pit coal mine in Latin America, is demanding compensation following Colombia’s Constitutional Court ruling in favour of the Wayúu people's rights to water, health and food sovereignty.
- Canadian gold mining corporations Eco Oro Minerals, Red Eagle, and Galway Gold are suing for lost profits following the introduction of environmental protection measures — won following strong mobilization by the Committee for the Defence of Water and the Santurbán páramo.
- Emirati mining company Minesa, in partnership with Canadian company Aris Mining, could potentially pursue similar legal action, should the Colombian government introduce the environmental protection legislation necessary for protecting the water supply to the city of Bucaramanga the surrounding region.
"We witnessed how this system enables corporate impunity and threatens the realization and defence of Colombians' fundamental human and environmental rights. We also observed how this system interferes with judicial independence, environmental regulation, and national sovereignty," the report states.
The Mission also concluded that it is not enough for the National Agency for Legal Defence of the State, the entity in charge of these lawsuits, to defend itself well or negotiate the compensation companies are claiming. Nor would it be enough for the state to decide to modernize its BITs and FTAs, with adjustments to certain clauses that grant exclusive privileges to foreign investors.
“Renegotiating existing agreements, but leaving the ISDS mechanism within the treaties, even with reformed clauses, continues to give special prerogatives to foreign investors over the Colombian population and its companies,” concludes the report.
To this end, the International Mission, affected communities and the social organizations promoting this initiative have launched, in parallel with the Mission's report, an online petition for the creation of a Citizens Auditing Commission of the country’s International Investment Agreements. This petition follows from an international declaration signed by almost 300 organizations worldwide, which the Mission presented in various spaces and meetings in Colombia, requesting the government to review investment agreements and trade treaties that contain ISDS, as well as to withdraw from ICSID and refuse to sign any further agreements that contain investment protection clauses.
Read the full report in English.
Lee el informe completo en español.
Sign the petition here.
MEDIA CONTACT: For more information and to speak with one of the report authors, contact Olivia Alperstein at +1 (202) 704-9011 or [email protected].