MARCH 1996 · VOLUME 17 · NUMBER 3
T H E F R O N T
MARCH 1996 · VOLUME 17 · NUMBER 3
T H E F R O N T
ON JANUARY 8, 1996, Brazil's President Fernando Henrique Cardoso signed into law Decree 1775, dubbed the "Genocide Decree" by human rights activists.
The new decree reverses the tenets of existing laws that protect indigenous people by allowing commercial interests to protest the demarcation of land as indigenous territory. Brazilian indigenous and environmental groups and international indigenous rights organizations charge that the new law will undermine the rights of indigenous people to their traditional lands as guaranteed in Brazil's constitution, and could strip local communities of control of the natural resources on which they depend. Furthermore, they say, formal challenges by commercial interests to demarcation decisions will compromise the already slow process of establishing additional indigenous reserves and may call into question the legitimacy of existing ones.
"Decree 1775 is more than a setback; it's a death sentence for many indigenous groups," said the Brazil-based Coordination of Indigenous Organizations of the Brazilian Amazon.
Alarmed by the serious situation facing indigenous groups in Brazil, the Organization of American States (OAS) is already compiling a report to President Cardoso's government that directs the state to respect human rights. And the international groups that form the Amazon Coalition have mounted a campaign to urge President Cardoso to revoke the Genocide Decree.
In 1988, the Brazilian Congress took a decisive step away from Brazil's shameful history of abuse of indigenous people and incorporated Article 231 into the constitution. This legislation recognized the inalienable right of indigenous people to their ancestral lands and natural resources and guaranteed their right to exist as distinct cultures. Decree 22, adopted in 1991, strengthened the constitutional primacy of indigenous rights over competing interests. The decree established that title to indigenous land would be based on aboriginal habitation alone, and that parties who possessed secondary, written title to these lands would be compensated for their losses.
As part of this legislation, the government adopted a timetable for demarcation of indigenous land, with a planned completion date of October 5, 1993. To date, however, Brazil has granted only 210 indigenous land titles out of 554 acknowledged claims. Decree 1775 will derail this process, already more than two years behind schedule.
Responding to monied interests, Brazilian Minister of Justice Nelson Jobim has been working to revoke Decree 22 since its enactment. Jobim successfully argued that the law violates Brazilian constitutional guarantees of a right to an adversarial process because it does not allow non-indigenous claimants to land to challenge government decisions. The Genocide Decree gives private commercial interests "the right to contest," and effectively annuls Decree 22.
Jobim denies that Decree 1775 will harm indigenous people. "Contrary to what has been charged, Decree 1775 will expedite strict compliance with demarcation of lands traditionally occupied by the Indians," he wrote in Jornal do Brasil in February 1996. The thrust of Jobim's argument is that the new law will enable commercial interests to challenge indigenous land rights quickly, which in turn will lead to rapid resolution of land conflicts.
It is at least true that the new law will intensify the pace of commercial challenges to indigenous title. Already, ranchers, loggers, and miners are filing injunctions to reverse indigenous land titles. The commercial farming conglomerate Agropecuaria Sattin, for example, is contesting the Guarani-Kaiowa territory of Sete Cerros, in the state of Mato Grosso. Area groups fear that escalating tensions in the region will lead to violence between indigenous peoples and settlers, and that feelings of hopelessness will boost the already-high suicide rate in Guarani villages.
In addition, pirate loggers and gold miners have taken the Genocide Decree as a signal of government sanction, and have already moved their operations onto Indian lands. The Indigenist Missionary Council (CIMI), a Christian missionary human rights monitoring group, reports that eight indigenous areas were invaded in just the first few weeks after the Genocide Decree became law.
In another devious twist, Decree 1775 opens previously demarcated areas to revision, including the gold-rich lands of the Yanomami people. In response to the signing of the decree, the Yanomami held an assembly to organize resistance to the new law. The Yanomami are particularly concerned about the horrifying effects of continued invasion by gold miners who pollute the rivers and forests and introduce disease. Since 1987, nearly 25 percent of the Yanomami population has been wiped out by contagions carried by the unwanted colonists.
The Genocide Decree feeds the fire of commercialization currently underway in the Brazilian Amazon. By rewriting the law, the Brazilian government is making it possible for industry to invade indigenous territories for cattle ranching, mahogany logging and oil and mineral extraction. These types of unsustainable forest practices demand roads and infrastructure developments, and historically have brought an onslaught of settlers to remote and pristine areas that have long been the sacred homeland of indigenous peoples.
"It's the Wild West all over again," says Beto Borges, Amazon campaign coordinator for the San Francisco-based Rainforest Action Network, "only this time it's in the rainforests of Brazil. We must do all we can to overturn this dangerous decree before we lose whole indigenous cultures."
-- Sheryl Barbic
THREE YEARS AGO, the Clinton administration threw organized labor a bone so it
would stop complaining about the North American Free Trade Agreement (NAFTA):
the inclusion of a side agreement created to expose Mexican labor violations
and give exploited campaneros a legal basis to challenge the multinationals. At
that time, not too many people imagined that an obscure Mexican union would one
day use the treaty to fight worker abuses north of border.
But that is exactly what has happened. The Sindicato de Telefonistas de la
Republica Mexicana is accusing the United States of failing to enforce its own
labor laws in a case involving Sprint Corp.'s now-defunct San Francisco
subsidiary, La Conexion Familar. La Conexion provided long-distance services to
Spanish-speaking U.S. residents.
The case first came to light in July 1994, when the Communication Workers of
America complained to the National Labor Relations Board (NLRB) that Sprint had
unlawfully closed its long-distance facility because its predominantly female
Hispanic telemarketing employees were trying to organize. After conducting an
investigation, the NLRB sued Sprint in 1994; five months later, the Mexican
union filed its own petition under NAFTA.
Sprint maintains that it folded the subsidiary for economic reasons only -- a
claim backed by administrative judge Gerald Wacknov, who ruled last August that
the shutdown was lawfully motivated under U.S. labor laws.
"La Conexion Familar was closed down more than a year ago," says Bill White,
Sprint's assistant vice president for corporate communications. "It was losing
on average $4 million a year, and saw its customer base drop from over 200,000
to 75,000 because new competing services were being introduced by MCI and
AT&T. La Conexion, with its single product line, was unable to compete."
Yet Wacknov found that Sprint had in fact violated an important provision of
the National Labor Relations Act by "threatening employees with plant closure,
by interrogating employees regarding their union activities and by other
similar conduct."
White, who says the subsidiary's 235 workers were paid an average of $8 an
hour, concedes "there were some supervisors who broke NLRB rules in the way
they spoke to employees and what was said to employees. They did this contrary
to any training they received from Sprint. This is not the way we do
business."
Despite finding that Sprint committed more than 50 violations of U.S. labor
law, Wacknov only ordered Sprint to send letters to the laid off workers
promising not to commit the abuses again.
Under terms of the North American Agreement on Labor Cooperation (NAALC), a
parallel accord to NAFTA negotiated by the Clinton administration to curry
favor with U.S. unions opposed to the trade deal, the United States, Canada and
Mexico each have National Administrative Offices (NAOs) to study labor laws and
investigate charges of unequal competition and violations of workers' rights.
If sustained by investigatory panels, the Dallas-based NAALC Secretariat can
order trade sanctions against the offending nation.
"The use of the side agreement to allege that the United States doesn't
enforce its labor laws is ironic," comments Jerome Levinson, a labor attorney
and visiting professor at the American University Law School.
Following a series of ministerial consultations over the La Conexion Familar
case, Mexico, the United States and Canada agreed on December 17, 1995 to
jointly "study the effects of sudden plant closings on the principle of freedom
of association and the right of workers to organize in all three countries." In
addition, U.S. Labor Secretary Robert Reich and his Mexican counterpart, Javier
Bonilla, agreed to hold a public hearing on the Sprint dispute in San
Francisco.
"This agreement with Secretary Bonilla is the result of hours of study and
discussion that allowed both of us to learn a great deal about labor laws in
each other's country," said Reich in a prepared statement. "It is another
demonstration of the value and effectiveness of open communication and free
trade between Mexico and the United States."
Empty talk, charges Levinson.
"Under the side agreement, the potential remedy of trade sanctions doesn't
apply to industrial relations. You can only invoke sanctions for violations of
child labor laws, minimum wage laws and health and safety provisions. So even
if the Mexicans found that the United States had failed to enforce its own laws
in the Sprint case, there is no effective remedy. This reveals how hollow the
side agreements really are."
The public hearing was held in late February; former La Conexion Familar
workers and union officials used the forum to denounce Sprint and management
aggression against workers in the United States.
Until the Sprint controversy broke, only three cases had been brought before
the NAO board -- and all three involved U.S. unions charging the Mexican
government with standing by as Mexican labor laws were flagrantly violated. In
the first case, the United Electrical Workers accused Compania Armadoa S.A., a
General Electric subsidiary in Ciudad Juarez, of firing an employee who
complained about working conditions to the press. In the second, the Teamsters
accused Minneapolis-based Honeywell of firing 22 women for alleged union
activities at the company's Chihuahua thermostat plant. In October 1994, Labor
Secretary Reich found in favor of both Honeywell and GE, stating that neither
had illegally dismissed any of its workers.
To back up his "hollowness" theory, Levinson points to the third case, which
he says "is the only one that had gone completely through the process." In that
petition, originally filed by four non-governmental organizations, the state
government of Tamaulipas was accused of violently suppressing a protest by
female workers at Sony's Magneticos de Mexico factory in Nuevo Laredo. Even
though the NAO eventually determined that, unlike in the two earlier cases, the
Mexican government had failed to uphold its own labor laws, no sanctions were
ever applied against Sony, and the case received little publicity.
Levinson, who represented the Sony workers in their efforts to form an
independent union, says the Sony controversy reinforces his belief that NAFTA
does not protect workers on either side of the border -- whether they are in
San Francisco or San Luis Potosi.
"Clearly and categorically, there's no remedy under the NAFTA side agreement
[in the Sprint case], though there is a remedy under the National Labor
Relations Act," he says. "They can order that an election be held and the
workers reinstated if they find that the shutting of the company was a dodge to
avoid organization. The problem is making the finding that the claim of
bankruptcy was bogus, and I think that is going to be very difficult."
For its part, Sprint claims it is not worried about how the case will be
resolved under NAFTA-related mechanisms, because it believes U.S. labor laws
which were enforced -- and enforcement of domestic labor law is all that the
labor side agreement addresses.
"The only thing we can do is focus on the debate," says White. "It is our
belief that labor laws have been followed and enforced by the U.S. Department
of Labor." He adds that of the 235 workers laid off when La Conexion closed
down, 150 took part in Sprint-sponsored outplacement services, of which 135
have since found other jobs.
Asked if the controversy has caused Sprint to regret its initial enthusiasm
over NAFTA, White responds, "Not at all. We are very supportive of NAFTA
because it makes good economic sense for all the countries involved, and also
because it knocks down barriers to telecommunications." -- Larry Luxner is
editor-in-chief of South America Report, a monthly business newsletter
published in Bethesda, Maryland.
A RECENT ACTION of the executive branch in Mexico waiving environmental impact
statement (EIS) requirements for many new Mexican investments has incensed
environmentalists in all three member countries of the North American Free
Trade Agreement (NAFTA). Environmentalists say that if Mexican courts do not
resolve this EIS waiver problem, they expect to challenge the Mexican decree
before the North American Commission on Environmental Cooperation (CEC), one of
the institutions created by the NAFTA environmental side agreement [See
"NAFTA's Environmental Side Show," Multinational Monitor,
January/February 1996].
On October 23, 1995, Mexico's Secretary of the Environment, Natural Resources
and Fishing (SEMARNAP), Julia Carabias, published in the official government
organ, El Diario Official, an "Agreement to Simplify Regulation of
Environmental Impact Statements." The "Agreement" is really a decree, which
took effect the day after publication. The preamble to the agreement says
SEMARNAP studies show that some activities of micro, small or medium-sized
industries "will not put environmental quality at risk." It then goes on to say
that selected big industries will be exempted from the requirement to file a
detailed statement describing expected environmental impacts of their
investment. The exemption applies to qualifying big industries that build or
expand in industrial parks or zones that have already had an EIS approved for
the complex, or within zones with city or state environmental plans that have
been approved by the federal government.
The agreement only affects selected industries, but the list is long and
includes many that are environmentally hazardous: paper production, basic
petrochemicals, basic inorganic and organic chemicals, including acids, bases,
organic salts, chlorine, fertilizers, insecticides, fungicides, plastic resins,
paints, explosives and iron and steel foundries.
Instead of filing an EIS, these and other select industries would submit an
environmental "preventative statement." If SEMARNAP does not raise objections
within 30 days, the project is approved by default.
An analysis of the "Agreement" by Gustavo Alanis Ortega, president of the
Mexican Center for Environmental Law in Mexico City, describes the "Agreement"
as "the elimination of the EIS requirement for certain" industrial
activities.
The exclusion of the petrochemical industry -- long the exclusive domain of
the state oil company, Pemex -- from the EIS requirement particularly galls
environmentalists. At about the same time as the EIS decree was published, the
Mexican government was preparing parts of the state petrochemical monopoly for
auction to foreign investors -- who could then look forward to investing in
this highly polluting sector with diminished prospects of having to file an
EIS. The EIS decree appears to have been issued, says Betty Ferber of the
Mexico-based Group of 100, an organization of environmentally minded artists
and scientists from throughout the Americas, "in order to pave the way for
foreign bidding on the petrochemical plants."
The EIS issue is particularly sensitive in Mexico because disputes over the
adequacy of EIS's have been at the heart of some of the fiercest environmental
battles in Mexico today. These include the plans of the California-based
Metalclad Corporation to build a toxic waste dump in San Luis Potosi against
the wishes of the local population and of the Salt Exporting Company (jointly
owned by Mitsubishi and the Mexican government) to build a sea salt extraction
facility in the federally protected Vizcaino Reserve in Baja California, where
gray whales from all over North America mate.
After efforts to attain administrative review of the EIS decree failed, the
Group of 100 filed an injunction against the decree with an administrative law
judge in Mexico City on November 17, alleging that the decree violates several
Mexican planning and environmental laws, as well as NAFTA's side agreement.
Alanis of the Mexican Center for Environmental Law believes the "Agreement"
should be found illegal for a couple of reasons. The "Agreement" is "null," he
argues, because Secretary Carabias lacks legal authority for such a decree.
Alanis also says the decree may violate a provision of NAFTA which prohibits
signatories from lowering environmental standards to attract investments.
If this issue is not resolved in Mexico, the Group of 100 intends to file an
Article 14 petition with the CEC, charging the Mexican government with a
failure to enforce national environmental laws.
Such a petition would likely argue that Mexico's executive branch failed to
enforce its environmental laws in an attempt to attract foreign investment in
environmentally sensitive industries such as petrochemicals. The decree
"clearly was an administrative move to not enforce environmental law," says
Texas Center for Policy Studies' Mary Kelly, who heads an official U.S. NAFTA
environmental advisory committee. Although the decree was issued by SEMARNAP,
Kelly says she suspects it originated with the trade and finance ministries "to
promote investment and streamline the regulatory environment."
The case could be an important test of the CEC's ability to resolve collisions
between trade interests and the environment. "If we come to bringing this
environmental impact business before the CEC, then we'll have an opportunity to
see whether they are really serious about the side agreements or whether it's
just going to be an ornamental body that commissions studies and sets up
databases," says Betty Ferber.
-- Andrew Wheat
Sprint Hangs Up on Workers
Mexico Test Brewing?