Pacific Rim Mining Corp., using its Nevada-based subsidiary Pac Rim Cayman LLC, filed a Notice of Intent on Dec. 9 through provisions in the Central American Free Trade Agreement (CAFTA) that allow transnational corporations to sue governments over laws and decisions that often put public interests ahead of corporate profits.

“We reject Pacific Rim’s claims. Giving over [exploitation] permission would be a death sentence from the country and the arbitration can’t be accepted because it is the mining company that should be sued,” the National Table Against Metallic Mining, and umbrella group of social movements and NGO’s, responded in a statement.

The company and government have 90 days to settle the dispute before the case goes before an arbitration tribunal, while the 90-day period ends just 5 days before the country’s presidential election. The company is looking for permission to begin mining for gold and silver at its El Dorado mine in the department of Cabañas, about 40 miles outside of San Salvador. The lawsuit threat also comes as the government is debating new mining laws.

“They’re either using the threat of a lawuit as leverage or it could be a strategy to help ARENA win the election,” said Burke Stansbury, of the Committee in Solidarity with the People of El Salvador (CISPES), a member of the Stop CAFTA Coalition. The right-wing, ruling Arena party is supportive of new mining laws that loosen restrictions for the industry, but has been delaying any actions because of upcoming local and national elections.

Timothy McCrum, the company’s lawyer in the dispute, in a conference call for investors co-hosted with Pacific Rim President and CEO Tom Shrake, noted a case filed through the North American Free Trade Agreement (which served as a model for CAFTA) he believes serves as a precedent that should work in the company’s favor. The dispute, between California-based Metalclad Co. and the Mexican government, ended with the Mexican government forced to pay the company $15.6 million in damages because it refused to grant Metalclad permission to build a toxic waste site in an area designated as an ecological preserve.

Andrew Gussert, executive director of Citizens Trade Campaign (CTC), said his coalition opposes these provisions that were originally introduced in the North American Free Trade Agreement’s Chapter 11 investor rules.

“They’re ways to circumnavigate laws that cost these corporations profits. And these laws are mainly public interest laws dealing with environmental, health and labor standards,” Said Gussert. “That’s why we have to roll back these investors rights provisions, because we don’t want corporations to have more rights than people.

But the mining opposition, which includes social movements, the Catholic Church, NGO’s, local lawmakers and environmentalists, may have an unlikely ally–President-elect Barack Obama.

Obama, in a February letter to the Wisconsin Fair Trade Coalition (an affiliate of CTC), clearly stated his opposition to these “investor rights” provisions in free trade agreements.

“With regards to provisions in several FTAs that give foreign investors the right to sue governments directly in foreign tribunals, I will ensure that this right is strictly limited and will fully exempt any law or regulation written to protect public safety or promote the public interest,” said Obama, who voted against CAFTA while in the Senate.

Obama added that “we should add binding environmental standards so that companies from one country cannot gain an economic advantage by destroying the environment. And we should amend NAFTA to make clear that fair laws and regulations written to protect citizens in any of the three countries cannot be overridden simply at the request of foreign investors.”

Destroying the Environment

In 2005, hydrogeologist Robert Moran conducted a technical review of Pacific Rim’s Environmental Impact Assessment (EIA) for the El Dorado Mine Project, concluding the company’s study was incomplete and lacked necessary data and testing.

“The El Dorado EIA, unfortunately, presents baseline data that are incomplete and which do not allow a reader to adequately evaluate the pre-mining water quantity conditions. To a lesser extent the baseline water quality data are also inadequate, especially with respect to ground water quality” wrote Moran. “The contents of the El Dorado EIA and the related public review process indicate clearly that neither the general public nor the Salvadoran regulators have been adequately informed regarding the possible environmental or socioeconomic impacts to the local populations.”

According to a study sponsored by the Catholic organization Caritas-El Salvador and the non-governmental Salvadoran Ecological Unit (UNES), local water supplies will be contaminated by mercury, cyanide, arsenic, zinc and aluminum, and can be expected to cause health problems for local populations.

“It is estimated that Pacific Rim will use 7,300 tons of cyanide in the El Dorado site in Cabañas,” said a staff member of U.S.-El Salvador Sister Cities, a solidarity network that has been active in supporting anti-mining advocacy. “The left over cyanide would bring illness and contamination to the people living near and down river from the mining sites. Also open pit process uses 900,000 liters of water day, which is what a family consumes in 20 years.”

The Center for Research on Investment and Trade has also concluded in a study that intensive water use and contamination by the mining industry in El Salvador would devastate the country’s agricultural sector and in turn threaten food security as well as the livelihoods of campesino farmers.

But Pacific Mining CEO Tom Shrake dismisses concerns of long-term environmental damage as “preposterous.” On his conference call with investors he also accused NGO’s of employing “masked armed gunmen” to “chop down trees planted in our reforestation program.” His lawyer McCrum also took shots at the Catholic Church’s opposition to the company’s mine, as well as its criticism of free trade agreements like CAFTA. He said that the church “has allowed itself to be influenced by NGO’s,” has segments that are “almost radically left-leaning,” and that members of the church opposed to mining are not “acting consistent with Catholic doctrine.”

Carlos Peraza Alarcón, a member of Comunidades Unidas, calls mining projects like Pacific Rim’s El Dorado mine a “project of death.”

“These projects, if played out as planned, will destroy most of our resources just to satisfy the interest of a small group of people,” said Alarcón.

Meanwhile, this conflict presents a President Obama with an opportunity to show Latin America that he has the “audacity” to stand up to corporate power, and in the process begin to repair relations with the people of the region while forging a path to the creation of fair trade agreements. Salvadorans, Americans and the rest of the hemisphere will have to wait until after Jan. 20 to see if hope actually translates into change on this issue.

The new constitution gives nature the “right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution” and mandates that the government take “precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles.”

“I think a lot of eyes will be on Ecuador this weekend” said Mari Margil, Associate Director of the Community Environmental Legal Defense Fund.

Margil and other members of the Defense Fund were invited as a result of their environmental litigation and legislative work with municipalities in the United States. They made several trips to Montecristi over the last year where they worked with members of Ecuador’s constitutional assembly on drafting legally enforceable Rights of Nature, which Margil believes marks a watershed in the trajectory of environmental law.

Dr. Mario Melo, a lawyer specializing in Environmental Law and Human Rights and an advisor to Fundación Pachamama-Ecuador, said that the new constitution redefines people’s relationship with nature by asserting that nature is not just an object to be appropriated and exploited by people, but is rather a rights-bearing entity that should be treated with parity under the law.

“In this sense, the new constitution reflects the traditions of indigenous peoples living in Ecuador, who see nature as a mother and call her by a proper name, Pachamama,” said Melo.

Challenging Corporate Power

Ecuador’s leadership on this issue just may have a global domino effect as the Defense Fund is now fielding calls from other countries such as Nepal, which is currently writing its first constitution. This could begin to make neoliberal development models obsolete and have a tremendous impact on multinational corporations, especially those in the extractive industries, from entering new markets and conducting “business as usual”.

“I expect them to fight it,” said the Defense Fund’s Margil. “Their bread and butter is being able to treat countries and ecosystems like cheap hotels. Multinational corporations are dependent on ravaging the planet in order to increase their bottom line.”

The class-action lawsuit in Ecuador against Chevron is a testament to Margil’s forecast. Tens of thousands of Ecuadorians accuse the California-based company of dumping millions of gallons of toxic waste into the Amazon (when it was formerly Texaco), and as a result causing massive environmental destruction and widespread health problems. Chevron, which could be forced to pay as much as $16 billion, refuses to take responsibility and calls the action a “shakedown.”

“The ultimate issue here is Ecuador has mistreated a U.S. company,” a Chevron lobbyist who asked not to be identified told Newsweek in July. “We can’t let little countries screw around with big companies like this-companies that have made big investments around the world.”

Chevron is lobbying Congress to squeeze Ecuador on the issue by threatening to withhold the renewal of the Andean Trade Preference Act. Chevron took similar measures in 2006 by lobbying for the exclusion of Ecuador from Andean Free Trade Agreement negotiations as retribution for the lawsuit–something Democratic Presidential nominee Senator Barack Obama (D-Ill) and Senator Patrick Leahy (D-VT) criticized at the time in a letter to then U.S. Trade Representative Rob Portman.

Jorge Daniel Taillant, President of the Center for Human Rights and Environment (in Argentina), recently wrote, “The crude reality of the Chevron lobbyist comment, brings home what few politicians or oil industry representatives want to admit, that our societies have been unsuccessful in properly balancing our need for oil and containing the negative impacts that this industry has on our natural and social environment.”

It is this lack of success, as vindicated by the symptoms of global warming, and which are becoming all too apparent, that for Margil emphasize the urgent need to try something different, like what’s being proposed in Ecuador. But even this might not be far enough.

Populist Greenwashing?

For all of the hope and tangible progress the Rights of Nature articles in Ecuador’s proposed constitution represent, there are shortcomings and contradictions with the laws and the political reality on the ground.

Carlos Zorrilla, executive director of Defensa y Conservación Ecológica de Intag, who has been a tireless defender of Pachamama against transnational mining companies such as Canada’s Ascendant Copper (which recently changed its name to Copper Mesa Mining Corp.), takes a more skeptical approach to the proposed laws.

“It sounds great,” said Zorilla, “but in practice governments like [President] Correa’s will argue that funding his political project, which will bring ‘well being and relieve poverty’, overrules the rights of nature because the best technology will be used and mining and other extractive industries will be, of course, sustainable.”

The articles place the responsibility of carrying out these laws largely to the government, though it does give citizens and communities legal recourse if its determined that the government is failing in its responsibilities.

“It comes down to the government doing what is the will of the people,” said an optimistic Margil.

But Zorrilla, along with many other critics from social movements, point to Correa’s refusal to include in the constitution a clause mandating free, prior and informed consent by communities for any development project that would of affect their local ecosystems, as well as the Correa Administration’s embrace of an extractive economic model of development, although one with greater State control.

“They aren’t issues you can reconcile,” said environmental lawyer Melo. “On various occasions, President Correa has stated his will to amplify border-region projects for the extraction of natural resources, especially petroleum and metals, and this can only be done in Ecuador at the cost of natural resources important for their biodiversity, since they are the source of rivers and the homes of local communities. The Constitution Project, on the contrary, promotes a development model oriented towards ‘good living’ (buen vivir), which means living in harmony with nature and strengthening environmental rights for this end. This contradiction, between Correa’s statements and buen vivir, will probably provoke an intensification of socio-environmental conflicts in the coming years.”

Despite any shortcomings, the eyes of the world should stay on Ecuador beyond this weekend’s vote when the constitution will most likely pass. If history is any indicator, Ecuadorians will fight for the Rights of Nature, with or without President Correa.

Carlos Enrique Cruz Hernández, a banana worker, was assassinated while working at a farm owned by a subsidiary of Del Monte. Cruz Hernández’s Union of Izabal Banana Workers (SITRABI), was one of six Guatemalan unions who, along with the AFL-CIO, filed a complaint allowed through labor provisions of the Central America Free Trade Agreement (CAFTA) on April 23, charging that the Guatemalan government was not upholding its labor laws and was failing to investigate and prosecute crimes against union members–which include rape and murder. The complaint states that violence against trade unionists has increased over the past two years (since CAFTA was ratified) and that the Guatemalan government may be responsible for some of the violence. The violence from this year alone includes 8 murders, 1 attempted murder, 2 drive-by shootings, and the kidnapping and gang rape of a top union official’s daughter who was targeted because of her father’s union work.

“There is a climate of terror for trade unionists,” said Thea Lee, the chief international economist at the AFL-CIO, in an interview with Bloomberg News. “But so far the Bush administration hasn’t lifted a finger to enforce any of the labor chapters.”

The timing of Cruz Hernández’s murder, just five days after the complaint was filed, is disturbingly reminiscent of a fellow SITRABI member’s murder. Marco Tulio Ramirez, the union’s Secretary of Culture and Sports, was assassinated by assailants wearing ski masks on company property just two days after the Ministry of Defense (MOD) ruled in September 2007 that a military unit should be disciplined for raiding a union office and interrogating officials. SITRABI met several times with the MOD and other government officials to discuss the military intimidation the months leading up to the ruling. According to the AFL-CIO complaint, his murder has never been investigated.

While the Bush Administration was offered an opportunity to informally discuss the complaint with Guatemala’s Colom, the only words concerning CAFTA were about “how it was working.”

“And by the way, we talked about blueberries,” added President Bush. “And-so that blueberries are able to come off-season here to the United States, which is a positive development for Guatemalan farmers.”

While it is unclear how blueberry exports will lift one of the poorest nations in the hemisphere out of poverty, American unions have long argued that free trade agreements which encourage corporate investment without strengthening and enforcing labor laws and human rights protections will keep working families in developing nations mired in poverty and fear. This subsequently drags down the standard of living for workers here in the U.S..

“Guatemalan workers are being targeted for their union activity,” AFL-CIO President John Sweeney said. “Without the freedom from fear to join unions and bargain collectively, how can we expect any workers to benefit from a trade agreement?”

The complaint alleges that five employers, four of which are companies that export goods to the U.S., are failing to abide by Guatemalan laws protecting collective bargaining, freedom of association and other labor protections. According to the U.S. Trade Representative’s office, the complaint will initially be handled through government-to-government consultations. If no resolution can be reached, an arbitration panel consisting of independent experts and labor specialists will rule on the dispute. CAFTA requires countries to enforce their own labor laws or face fines of up to $15 million.

The Violence of Free Trade

Violence carried out to protect the interests of foreign capital in Guatemala is nothing new. The CIA orchestrated a coup in 1954, largely on behalf of the interests of the United Fruit Company, to overthrow the democratic government of President Jacobo Arbenz Guzmán. Arbenz’s “crimes” against capitalism included land and labor reforms. The coup sparked a 36-year civil war marked by military dictatorships, death squads, and genocide that left hundreds of thousands Guatemalans murdered, tortured and disappeared. While Peace Accords were signed in 1996 putting an official end to the violence, unofficially it continues.

“Violence is commonplace in our country. The main source of the violence is the national civilian police force,” said Pepe Pinzón, general secretary of General Guatemalan Workers’ Centre (CTGT). “Government and employers collude with each other, which undermines the population and leads to widespread breaches of trade union rights. It is highly organized and all the more difficult to combat when the source is the government itself.”

CTGT is affiliated with the International Trade Union Confederation (ITUC), an organization that represents 168 million workers in 155 countries and territories, and has 311 national affiliates. The ITUC promotes and defends workers’ rights through international campaigns. The organization sent a letter to President Colom on Wednesday expressing outrage over Cruz Hernández’s murder and the continuous and unabated harassment and violence directed at fellow trade unionists.

In January, the ITUC organized an international trade union conference in Guatemala to end impunity. President Colom gave the opening speech and offered a firm commitment to combat impunity and corruption, “wherever it is found, even in my own family!” The letter urged Colom to follow through with his promise and take the necessary steps to protect the rights and lives of workers in Guatemala.

The U.S. State Department’s annual human rights report released in March offers unexpected support to the claims made by Pinzón and the ITUC, while it also gives credence to the AFL-CIO CAFTA complaint.

According to State Department there were a number of “credible allegations” last year that PNC members carried out rape, murder, torture, kidnappings and other criminal activities. The Guatemalan government determined that PNC personnel were responsible for murder in 16 cases that were investigated. But impunity more often than not trumps justice as, “The PNC routinely transferred officers suspected of wrongdoing rather than investigating and punishing them.”

In addition, the State Department pointed out that Guatemala’s “ineffective legal system” made the enforcement of labor laws highly unlikely, something reported repeatedly year-after-year in previous reports. Some common practices of employers against workers include firing workers for union activity, blacklisting union organizers, and other forms of illegal threats and harassment. Meanwhile Guatemala’s government came under criticism for applying anti-terrorism regulations against unions and trade unionists.

Rewarding Colombia

The ongoing violence against workers in Guatemala makes it clear that talk of free trade improving human rights in developing countries is lost in translation. Free trade has done nothing but exacerbate poverty and inequality, while rewarding governments for sustaining repressive conditions that allow corporations to exploit vulnerable, and often powerless workers. No country in the world exemplifies this hostility towards workers’ rights more than Colombia, a country that the Bush Administration is currently trying to reward by pressuring congress to pass a free trade agreement.

According to the U.S. Labor Education on the Americas Project, Colombia accounts for more than 60 percent of trade unionists killed worldwide. There have also been at least 17 murders of trade unionists just this year, which according to a report released last month accounts for an 89 percent increase of murders during the same time period from 2007. There are also an estimated 2.5 million children working in Colombia and more than 26 million internally displaced people.

As for the notion that U.S businesses working in Colombia can only improve conditions, Chiquita Brands International Inc. was forced to pay the U.S. Justice Department a $25 million settlement last year for giving over $1 million to the right-wing terrorist organization United Self-Defense Forces of Colombia (AUC). Even more damaging is the fact that Secretary of Homeland Security Michael Chertoff, at the time assistant attorney general, knew about the company’s relationship with AUC and did nothing to stop it.

But a free trade agreement with Colombia will require President Álvaro Uribe, who was recently implicated in a 1997 massacre of 15 Colombians by paramilitaries, whose cousin has been charged with working with right-wing death squads, and whose “most prominent political supporters” are being investigated for ties to paramilitaries, to ensure that his government uphold all labor laws.

“We have observed that in some cases the employees of private military and security companies enjoy an immunity which can easily become impunity, implying that some States may contract these companies in order to avoid direct legal responsibilities,” said Jose Luis Gomez del Prado, Chairperson-Rapporteur of the U.N. Working Group on the Use of Mercenaries in a statement before the Human Rights Council.

The alleged human rights abuses are not just against civilians from the countries in which they operate, but also against there own employees. These “soldiers of misfortune” are often recruited from vulnerable populations in developing countries, such as Honduras and Ecuador, countries the U.N. group visited last year to conduct investigations. The massive unemployment, low wages, fragile governments and the history of violent conflicts in these countries make their populations an ideal labor pool. In addition, the report expresses worry about the “phenomenon” of Latin American governments outsourcing domestic security and military functions to the private sector and the use of such operations to “protect” oil and mining companies.

“There needs to be international regulations as well as domestic regulations in these countries,” said Sanho Tree, a fellow at the Institute for Policy Studies.

Tree, who has been monitoring this “out of control” industry for years in its role in the “War on Drugs” in Latin America, said that the lack of regulations and oversight is due to the fact that that it’s been under the radar for years and just coming to light because of the Iraq War. It’s estimated that there may be as many as 50,000 mercenaries working in Iraq—making it the second largest force in the so-called “coalition of the willing.” Many of them may end up fighting alongside U.S. soldiers in combat situations.

“The number of personal security specialists we utilize in Iraq alone is more than all the Diplomatic Security agents we have globally”, said Gregg Starr, a State Department official in testimony before Congress in June of 2006.

Although there has been some reporting on high profile companies, the issue still may not be garnering the attention it deserves as no media outlets have reported on the U.N. report.

According to the Working Group, there may be as many as 280 private security companies operating illegally in Honduras. A number of Honduran nationals working in Iraq, for a subsidiary of the Illinois-based Your Solutions Inc., are believed to have suffered “irregularities in contracts, harsh working conditions, wages partially paid or unpaid, ill-treatment and isolation, and lack of basic necessities such as medical treatment and sanitation.” Some former employees have filed labor and criminal claims against the company with Honduran authorities.

Another scandal unearthed against the company in the Working Group’s report involves illegally training Chilean recruits for Iraq in Honduras. The report states that in September 2005 the company brought 105 Chileans, some ex-soldiers, into the country under tourist visas. The Chileans, alongside their Honduran counterparts, were then sent to a former army base in the municipality of Lepaterique to receive training. The former base, now a development center of the Honduras Forestry Development Corporation, was once used by Washington in the 1980s to train mercenaries of a maybe not-so-different sort—namely Contras, Honduras’s infamous death squad Battalion 316, and Argentina’s 601st Intelligence Battalion, a “counter-terrorist” unit initiated under Operation Condor.

The possibility for industry changes in Honduras may be slight as the Working Group pointed out a “campaign of harassment, death threats and slander against the [human rights organization] Associacion para una Sociedad Mas Justa (Association for a More Just Society).” On Dec. 4, 2006 Dionisio Díaz García, a lawyer and journalist with the Tegucigalpa-based AJS, was shot in the head while driving in his car to court where he was scheduled to represent a group of security guards who had their labor rights violated.

In a statement, the AJS wrote: “These companies have resorted to intimidation, smear campaigns, and open hostility toward AJS workers. On Monday, December 11, a board member and staff of CRWRC-Honduras partner group Genesis received a text message stating, ‘You are the next.’”

In Ecuador conditions are more of the same: immunity, impunity, exploitation and human and labor rights violations. The report expressed concern that private security companies were using the U.S. military base in Manta to recruit employees for foreign operations (Iraq and Afghanistan) and to conduct aerial spraying and other counter-narcotics operations under “Plan Colombia”.

“A transnational private security company was performing counter-insurgency and counter-narcotics tasks from the military base in Manta,” said the U.N.’s Gomez del Prado, adding that these functions should be carried out exclusively by U.S. military personnel.

Manta has become a political lightning rod as Ecuadorian President Rafael Correa has threatened to not renew the “Agreement of Cooperation” with the U.S. (which expires in 2009) that allows Washington to use the Air Force base. The agreement also grants immunity to U.S. military personnel and civilian contractors—a clause which the Working Group views as problematic. The report and its documentation of abuses of the use of the base along with public opinion firmly on the side of Correa may make it even easier for him to kick Washington out when the agreement expires.

Jeffrey Shippey, a former DynCorp International employee at Manta created a ghost company, Epi Security and Investigations, and recruited more than 1,000 Colombians and Ecuadorians to work in Iraq. The report noted that the company wasn’t registered in Quito nor with local provisional authorities. NGO’s told the Working Group that the company allegedly was using Chilean instructors and former Colombian military personnel.

Shippey wrote in an advertisement promoting his company at the Iraq Job Center Web Site that, “These forces have been fighting terrorists for 41 years and … have been trained by the U.S. Navy Seals and the U.S. DEA to conduct counter-drug/counter-terror ops in the jungles and rivers of Colombia.”

Another virtue of his mercenaries is that they get paid considerably less than their U.S. counterparts. In July 2005, Shippey told the Los Angeles Times, “The U.S. State Department is very interested in saving money on security now. Because they’re driving the prices down, we’re seeking Third World people to fill the positions.”

Adam Isacson, Director of Programs at the Center for International Policy, worries about the stories that haven’t come to light yet. He mentioned a report translated on his website about Colombians working in Iraq for a subsidiary of Blackwater USA who had their return tickets taken away from them when they complained that they would only get paid $1,000 a month after being promised $4,000. They were essentially held hostage.

“It was almost slavery,” said Isacson. “Lord knows how many more cases there are.”

Tree, of the Institute for Policy Studies, said that there are other consequences that we might not see for years. One of the most worrying is that these people may take this training and use it for violent criminal activities. An example of this is the story of the “Zetas”, a group of Mexican paramilitary commandoes trained by U.S. special-forces to fight drug gangs. Many members of this group now work for the notorious Gulf Cartel, which is believed to supply large amounts of cocaine to the U.S.

“Don’t train people if you don’t know what side they are going to fight for at the end of the day,” said Tree.