Witnessing the Catalan referendum firsthand

Below is an account of the visit by an international parliamentary delegation of 33 elected representatives and a number of their advisors to Catalonia, hosted by DiploCat, during the Catalan referendum. While the delegation programme lasted for several days, this account covers only Sunday October 1, polling day. I participated in the visit on behalf of Sinn Féin MEP Matt Carthy, who was unable to attend, and was joined by several Sinn Féin colleagues. This is not a political analysis of the Catalan referendum but my personal account of what we witnessed.

I left my hotel at 7am on Sunday morning to meet up with the international parliamentary group and our DiploCat hosts. It was still completely dark and pouring rain but I knew thousands of people would have been gathered outside polling stations since 5am to defend them from police attempts to shut them down, which had been rumoured the day before to be scheduled to begin at 5am or 6am.

The international visitors were scheduled to leave in 10 small groups from a central meeting point at 7.30am. I was in a group with Sinn Féin Senator Trevor O’Clochartaigh, Swedish Green MEP Bodil Valero, Welsh member of the Westminster Parliament for Plaid Cymru, Hywel Williams, and Magni Arge, a member of the Faroe Islands and Danish Parliaments for the left pro-independence Republic party. We spent the day with our helpful DiploCat host, a young woman called Irina.

The official plan was to visit three or four polling stations in Barcelona and the surrounding towns; meet the mayor of Solsona for lunch at 1pm; then return to Barcelona by 4pm.

Sarrià-Sant Gervasi

Our first stop was a polling station at a school (Col·legi Orlandai) in the Barcelona suburb of Sarrià-Sant Gervasi, close to Gràcia, where two of the international groups, or around 10 observers altogether, arrived at 8am. It was bright by then and the rain stopped temporarily. Hundreds of people were gathered outside the school, whose entrance gates were closed. They cheered when we arrived, seeing our ‘international observer’ lanyards.

Approaching the first school at Sant Gervasi

Approaching the polling station at Sarrià-Sant Gervasi

Two uniformed members of the Mossos d’Esquadra, the Catalan autonomous police, stood at the edge of the crowd and observed.

We started to speak to some of the voters gathered, sometimes in English and sometimes having the conversation translated by Irina or by Bodil from Sweden, who has fluent Catalan. They said the Mossos had earlier informed them they had been instructed to prevent voting, but that they did not intend to, in the interests of protecting public order and public safety.

Trevor suggested we speak to the officers. I hesitated for a second, not being a big fan of police, having both experienced and witnessed police violence at peaceful public gatherings and rallies on several occasions. But we went over to introduce ourselves. Both were polite and friendly, and chatted comfortably with us in English. One of them, finding out Trevor and I were Irish, told us he had lived in Dublin for close to a year. I asked if it was okay if I took a photo of them speaking to Trevor and they replied, “Of course it is”.

mossos-talking-to-trevor.jpg

Sinn Féin Senator Trevor O’Clochartaigh chats with the two Mossos officers at Sarrià-Sant Gervasi

Some of the assembled voters told us the majority of the crowd had been there since 5am, and that the school was one of those that had been occupied since Friday afternoon. The parents of the kids who attended the school had slept inside the school building on the Friday and Saturday nights. There were three or four young women half-asleep on thin mattresses just outside the building, under the shelter of an overhanging roof. People carefully stepped over them, as did we.

Just then, at around 8.15am or so, the parents began to exit the school building into the waiting crowd, carrying their mattresses and sleeping bags, to cheers and applause.

Internet shut down

Some of the organisers then invited us to come inside the school, and we squeezed through the voters to walk through the gate. The front rooms were set up with desks for ballot papers and ballot boxes, and around a dozen volunteers were working intently on computers and laptops. Voting was due to begin at 9am but their electronic electoral system was down and the entire internet seemed to be down too.

I tried to get online on my phone when inside the school and couldn’t – sometimes my phone would say  ‘No service’ but even when it didn’t, I was still unable to use the internet. I couldn’t get online for hours that morning. It was the same for the other visitors, though some of them seemed to be able to get online for two or three minutes at a time. Outside, one of the organisers called on the voters to all switch their phones onto airplane mode in the vain hope that it was a capacity overload problem, a request everyone quickly and willingly cooperated with.

Someone told us the polling station staff were attempting to get online by using a Belgian proxy; it didn’t work though. We heard through text messages that not only the electronic voting system was down, as was expected, but the entire internet was down at a number of other voting stations too. “Do you think it’s the Spanish government that’s responsible?” I asked one of the frazzled volunteers. She looked at me as though I were a moron and said, “Of course it is.” We both had to laugh.

The voters outside were patient and cooperative, occasionally breaking into chants of “Votarem! Votarem!” (“We will vote!). We could see each other through the gates; organisers outside communicated constantly with those inside, and passed phones, coffees and mini-pastries through to the volunteers. Bodil did an interview with a Swedish journalist holding a recorder through one of the gaps in the gate.

waiting-in-the-rain.jpg

Voters wait in the rain

When it rained, the voters shared large umbrellas through the crowd. At one stage an organiser was lifted on top of someone’s shoulders to call on the voters to clear a path for the elderly, people with special needs and people who had to go to work that day to be able to come up to the front and vote first. Two older women were brought into the school building so they could sit down; an elderly, frail man refused the offer of coming inside and continued to stand outside at the front of the queue using his umbrella to help support himself.

It was at that point that texts began to come through saying there had been attacks by riot police on other polling stations in Barcelona, including some that were close-by.

Shortly before 9am, the two Mossos officers entered the school building, with voters clearing a path for them. They asked the volunteers to assemble so they could speak to them all together. The international visitors hung back but within hearing distance, and Irina and Bodil translated for us.

The Mossos informed the workers that the National Police was attempting to close several polling stations in Barcelona. They repeated what they had told us and the voters earlier; that they had been instructed to prevent the vote from proceeding, but that they were not going to, as their intention was to act in the interests of preserving peace, public safety and public order. They added that if the Spanish police arrived, they would not be able to intervene, but that they would try to act as mediators between the Spanish police and organisers.

Mossos talk to organisers inside

The Mossos officers talk to polling station workers

One of the Mossos then approached the seated older women, crouching down to ask if they were feeling okay, and offered them water. Then they left through the gates, to applause.

The first votes

The volunteers resumed working to resolve the internet problem. I remarked to one of them that the voters assembled outside were incredibly patient, waiting for hours in the rain; no-one was acting annoyed or frustrated at the fact that the polling station was still closed at 10.30, an hour and a half after it was scheduled to open. “They have been waiting their whole lives to vote,” she said. “They don’t mind waiting a little longer.” But anxiety about the possibility of a police attack was growing.

The polling station workers thought that if they had computers with older technology they may be able to connect to a wifi system – so people outside ran home to bring in two or three old laptops and an old PC, which they passed through the gates. At around 10.40am a cheer went up inside the building and we all started clapping – it had worked! They were connected.

One man inside excitedly ran to inform the others, through the gate, that they were connected to the internet and voting was about to begin. “I’m going to be the first to vote!” he yelled excitedly, to laughter. The two elderly women and a handful of others inside took up their ballot papers and voted.

Elderly woman casts her vote

One of the women who came inside to sit down casts her vote

Then the gates opened and the first round of people walked through. Everyone was cheering and applauding jubilantly – the voters outside, the workers inside, us international visitors.

 

The faces of those who came through were still calm and resolute but some became tearful after they voted. It was a really moving moment, and it’s hard to accurately put it in words. The best way I can describe it to say there was an overwhelming sense of dignity about both the moment and the people.

As the voting got underway, our DiploCat hosts organised the two groups to start moving to our next location; we had been scheduled to leave shortly after 9am but had decided to stay until the station opened. The voters lined up outside the school cheered us and said “Thank you!” in English as we left.

At Manresa

We started driving to Manresa, an industrial province of around 75,000 people in the centre of Catalonia, about 45 minutes outside of Barcelona. We had already seen a small number of videos on Twitter of police seizing ballot boxes and beating voters with batons in the brief moments where anyone could connect to the internet in the polling station at Sarrià-Sant Gervasi.

Now we spent the journey uploading our own photos, footage and observations from the morning onto social media, and passing around phones between the seats so we could all view the latest footage of the police attacks – gasping, murmuring “Oh my god,” and exclaiming “Jesus Christ!” as the snippets of film from the other polling stations showed increasingly brutal violence and rubber bullets being fired into defenceless and panicking crowds. It was not just the National Police we saw in the footage anymore but also the Guardia Civil. Hywel was uploading live videos in Welsh to Twitter, describing our visit.

When we arrived in Manresa centre around 11.30am we stopped for a coffee for a few minutes and stood at the bar with our eyes glued to the TV which was, of course, broadcasting the footage from the polling stations. The building in the square were adorned with colourful flags saying “Sí!” and “Democràcia!”, like in Barcelona, and it had stopped raining entirely. Then we walked to a polling station, a school, where the people queuing outside again cheered as we approached. There were still large crowds waiting to vote as we entered at around noon, and spoke to the polling station workers. The National Police had not arrived at the station; the queues were orderly and  the mood bright. Two Mossos stood outside.

Voters queue in Manresa

Voters queue up outside one of the polling stations in Manresa

One of the polling station volunteers offered to walk us around to the second voting station open in Manresa centre, which was nearby, and we agreed. During the walk the volunteer said worriedly to our DiploCat guide, Irina, that the route we were taking to the second site wouldn’t show us the best side of Manresa; Irina translated her concerns while laughing kindly. Relaxing, the local volunteer then joked that we were walking down “Las Ramblas” of Manresa.

This station, too, was busy, but calm and orderly, having received no visit from the National Police or Guardia Civil. Each polling station had a ‘president’ – a coordinator or presiding officer. Many of the volunteers were wearing stickers that identified them as both activists of the ANC (National Assembly of Catalonia) and also of ERC (Republican Left of Catalonia). I spoke to the president at this site in English for some time about how the day had unfolded, and he outlined the same difficulties with their voting system and internet access that we had experienced early in the morning.

I asked him if he was a member of any political party as I was curious as to whether the volunteers were all affiliated to political parties or whether there were also unaffiliated community members and activists. Almost apologetically, he said he wasn’t a political activist, but worked in IT – and that his mother, an ANC activist, had called him the night before to say they needed people with technological expertise as they anticipated hacking attacks. “So here I am,” he smiled.

Baby on shoulders Manresa

Voters wait their turn to enter the polling station in Manresa

As we left, the crowd queuing outside applauded and started chanting “Thank you! Thank you!”. By this stage we had asked Irina to teach us how to say “Good luck” in Catalan, so we replied “Bona sort!” as we left. I grinned to hear a man in the queue describe us as “briagdistas internacionales” as we walked past; he and his friends laughed and waved goodbye.

Waiting in dread at Sant Joan de Vilatorrada

Irina told us there were fears of a nearby polling station being attacked so we drove to another school at Sant Joan de Vilatorrada, just a few minutes from Manresa centre. The atmosphere was different here, subdued. People queued outside, but quietly. There was no cheering.

Inside, the volunteers told us that the polling station had been attacked violently by the Spanish police that morning, before it had even opened. Witnesses told us that the National Police had used a battering ram to enter, and smashed a man’s finger in the door four times, crushing the bone and severing the tendons. They took the ballot papers, boxes and began attacking the voters outside.

A teenage girl explained to us that her and some other voters had run up to the two Mossos present and asked them to do something; they said they couldn’t intervene but called their superior officer who arrived and had a heated argument with his counterpart in the National Police, after which the Spanish police withdrew. The injured man had left hours earlier to get medical attention so we couldn’t speak to him.

On the lookout for police at Sant Joan

Voters wait anxiously following rumours the police were planning to return to the school they had attacked that morning

The organisers and locals were anxiously expecting the National Police to return – they had received encrypted WhatsApp messages from organisers and activists at nearby stations and on nearby roads who reported they had seen around 60 Spanish police officers in the area. The locals knew they didn’t have the numbers to resist another entry attempt by police. We walked up to a perimeter fence that voters and activists had gathered by, all of us peering through warily. An enormous cheer went up as a number of uniformed firefighters walked up the hill together to the school.

Firefighters talking to us by Bodil

The firefighters who outlined the situation to us.                   Photo by Bodil Valero.

We spoke to the firefighters and others for around an hour, waiting for the police to arrive, but they never did. One firefighter in particular spoke to us at length, describing his view of the general situation. “I’m not very political,” he said. “But we just want to vote. It’s simple.”

Then we heard through WhatsApp messages that the Guardia Civil had attacked another polling station just a five-minute walk away. The firefighters sprinted off down the road as a handful of teenage boys sprinted off another way, obviously knowing a short-cut. Irina said we should think carefully about whether we wanted to try to catch up with the police, but we all quickly agreed we did.

‘I had my hands up’

Our driver zipped us around to the school that was under attack and we arrived to scenes of lines of around 20 Guardia Civil officers jostling voters who had their arms raised. Several Mossos and firefighters formed a line of their own in between the voters and the Guardia Civil.

The people were peaceful but angrily chanting, “No passaran!”, “Catalunya! Catalunya!” and seemingly most infuriatingly for the Guardia Civil, “Mossos! Mossos!” After a tense and angry standoff of around 15 minutes, the police backed off and left.

We were on the street, and couldn’t see the school building through the crowd, so I misunderstood the situation we had walked into. I thought the Guardia Civil had arrived, realised they were heavily outnumbered, and decided to leave. But that’s not what happened – we had got there too late.

They had already smashed down the glass doors of the polling station, seized the ballot boxes and beat a 70-year-old man over the head with a baton – just because he was in the process of voting. As the Guardia Civil left, he was sitting outside being cared for by other voters.

(Below is footage from @QuicoSalles on Twitter of what happened in the moments before we arrived.)

We had all been separated, but the same teenage girl who had spoken to us at the previous school had come running up to find one of the international observers – my Sinn Féin colleague Trevor – who went and spoke to and filmed the injured man. He had had his head split by the baton. “I had my hands up,” he said. “I was voting, I had my hands up.”

We jumped back in the car based on more WhatsApp messages and tried to get to the next site we believed was going to being targeted before the police did, around five minutes away. People were gathered outside anxiously and some were clearly in shock, having arrived from the same polling station we had just come from.

I spoke in English to a teenage boy wearing a Nirvana T-shirt and told him we had just come from the school. White-faced and shaking, he said he had been inside the polling station with his grandfather when the Guardia Civil had burst in and started hitting people with batons. Every few words he would almost choke, finding it hard to speak. “I need to go home,” he said after telling us what he saw. I patted him on the shoulder in a gesture that felt painfully inadequate.

The firefighter who we had earlier befriended at the first school we had visited in Sant Joan de Vilatorrada came up to us and told us that the organisers had just shut the polling station voluntarily in order to try to prevent an attack. They wanted to protect people from violence and also protect the ballots they had from being seized. It was around 3.30pm. He told us of their standoff with the Guardia Civil and said that like us, the firefighters had arrived too late to do anything to prevent the attack.

“But the fact that you guys and the Mossos got there stopped them from beating the voters on the street after they had taken the ballots,” Magni, the Faroese visitor, said.

The firefighter wasn’t going to be consoled. “Now they are laughing at us,” he said, meaning it both literally – the Guardia Civil had taunted and laughed at them during the stand-off – and figuratively, as in, they had left with people’s votes. He said the words with such a sense of powerlessness and humiliation that, for me, it was the lowest point of all that we observed that day.

As people began to disperse after the closure of the polling station we got back in the car; one of the volunteers had suggested we could drive to the local Spanish police station to see it, perhaps to try to speak with some of the officers. A number of roads were closed, though, so we couldn’t get there.

We saw one of the empty roads closed off by Guardia Civil vehicles and Hywel wanted to go and speak to them and take photos. I told the others that our phones might be confiscated if we tried to take photos because of the (2015) Spanish gag law that, among many other restrictions, banned taking photos of police officers. We all left our phones in the car and walked down to around eight officers who were blocking the road with large vehicles. Bodil translated our questions for them and their responses. She asked why the road was blocked; they replied that it was because someone had been taking photos of the police, which was illegal.

“Because of the gag law,” Bodil replied, provoking protest at the phrase. They said they were “just doing their job”, but then moved one of their vehicles to clear the blockade of the road. We weren’t going that way anyway, so, to the confusion of the Guardia Civil, drove off in the opposite direction.

At Solsona

We had been due to have lunch with the mayor of the town of Solsona at 1pm and were now at least three hours late. Irina insisted that we had to eat something, so we set off further inland to Solsona, another 45 minutes or so away, though I think it’s safe to say all of us had lost our appetites. Back in the car we took turns charging our phones, and passed around the phones in use to see the latest images and footage of attacks at the polling stations. Hywel delightedly informed us that his press officer told him he was trending on Twitter in Wales due to the updates and images he had been sharing all day, which lifted our spirits a little.

festival atmosphere

Voters gather outside in tents and with music playing at Solsona

We arrived at the main polling station in Solsona, a town of around 9,000 people in the province of Lleida, at close to 5pm. The mayor, David Rodríguez, and others came out to welcome us. As well as being the mayor of Solsona, David is also a member of the Catalan Parliament for the ERC, the Republican Left of Catalonia. The polling station was striking for how well organised it was.

Two massive tractors formed the main part of a barricade at the entrance of the centre, and another tractor blocked off a smaller way in on the footpath. You could still enter, but only on foot. There were very large crowds of people gathered on a grassy area outside of the building in a sort of festival atmosphere with some music and tents, and several firefighters, who got an enthusiastic round of applause every time they waked from one place to another.

Tractor barricades

Tractors forming barricades at Solsona

The polling station itself was a large gymnasium-style building. The volunteers inside were on edge and were expecting police to arrive shortly. They were preparing to shut down the station and hide the ballot boxes at the first sign of a raid.

I spoke to one of the volunteers, a young man, at length about their high level of organisation. “We don’t think they will be able to get in,” he said. “We think the doors and walls are strong enough to keep them out, none are made from glass. The only way they could get in is if they use vehicles to smash through the walls.” He paused, realising the absurdity of it, and shook his head, saying, “It’s so strange to talk like this, of vehicles smashing through walls. It’s like a war.”

Trevor with David

Trevor O’Clochartaigh with Solsona Mayor and ERC MP in the Catalan Parliament, David Rodríguez

He explained to me that they believed there were enough hiding places in the building that they could temporarily hide the ballot boxes if the police managed to enter. They had taken the step of stuffing two ballot boxes with empty envelopes and “hiding” them in an easy-to-find spot.

I laughed at the ingenuity. Everywhere we had visited, people were dealing with the problems they faced collectively, with great creativity and even with humour.

David asked us to come and have lunch at a Japanese restaurant, a couple of minutes’ walk away. We were reluctant to leave as people were expecting the arrival of the Guardia Civil, but he assured us we would all return immediately if we heard any reports of their arrival.

He introduced us to the owner of the restaurant, who greeted us warmly and told us he had moved from Japan to Solsona 27 years ago. Then for 30 rather surreal minutes we ate sushi and talked across the table, finishing with more coffee. The owner’s son, around seven years old  and playing outside in an FC Barcelona jersey, kept running up to the window to wave excitedly at us. We grinned and waved back.

David led us back in to the polling station and on the way back I spoke to a young woman who was shortly due to sit examinations to become a judge. She thought there was a good chance that her role in assisting the local referendum process would destroy her chances of becoming a judge, and said that one of her fellow students was too scared to even vote for the same reason. “But it’s worth it,” she said. Having done countless all-nighters for law exams myself I was left in awe.

David told us the organisers were still on stand-by to shut down the polling station. One of our group remarked to him that it must be a difficult decision – to close the polling station early before everyone had had the chance to vote.

“No,” he replied firmly. “There is no question. Our responsibility is to protect these people from violence. If we have to close the voting station early, even if the votes are stolen, the people here will be safe.”

We were scheduled to meet with the rest of the international delegation at 8.30pm to prepare a joint statement about the conditions in which the referendum was held, and both Magni and Bodil needed to get back to Barcelona to do media interviews before that time, so we began the drive back. Irina asked the rest of us if we wanted to take a break or visit another voting site, and Trevor suggested we go to the Josep-Maria Jujol school in central Barcelona – which both of us had visited during the occupation the day earlier. Trevor had also visited it at around 6am that morning and wanted to see how they had survived the day.

Back in Barcelona

There was a huge number of people gathered outside the school, possibly a couple of thousand, and they cheered loudly when we entered. “Gracias, bona sort!” we called back. It was around 7.30pm and they had been undisturbed all day – in my view, because they had the numbers required to deter any police intervention. Excitement was rising that they would manage to make it to 8pm, the end of voting time, without a police attack. Two Mossos walked around the entrance and they too were cheered.

A political scientist who taught at one of the Barcelona universities was the president of the polling station and showed us how they had been dealing with the technological problems in order to ensure the highest electoral standards were maintained.

At Jujol

The polling station president (centre) and other volunteers  speak to the international guests at Escola Josep-Maria Jujol

“We had people changing our IP addresses every 30 minutes to try to stay ahead of the hackers,” he explained. “If the system was down at any particular moment, we would mark people off on the paper electoral roll but put an asterix next to their name. Then when it was up and running again we would enter their names into the electronic system. So there may have been periods of up to 20 minutes at most where the system was down, but it would be virtually impossible for a person to vote twice at different polling stations in that time due to the queues.”

Inside the polling station I ran into a number of Basque friends who were visiting Barcelona in a show of solidarity. I joked darkly to them that they must have felt the same way right then as Irish republicans did when the DUP formed a coalition with the British Conservatives earlier this year – for a brief moment the world’s media attention shone a light on problems and outrageous behaviour that we struggle constantly to draw attention to. Of course this was on an even bigger scale. They laughed in grim agreement.

The author Liz Castro was also at the school, and interviewed Trevol, Hywel and I about what we had observed as we waited for 8pm. She tried to broadcast it live on Twitter’s Periscope feature, but the internet was too patchy, so she filmed it to upload later instead. At about 7.59pm a rumour spread through the building that the police were coming to seize the ballot boxes, causing a brief moment of panic. A minute later we were assured by the tense polling station president that the rumour was false.

Celebrating keeping the polling station open

At 8pm, a huge cry of celebration went up in the crowd outside and they began to sing the Catalan national anthem. They had made it to 8pm without an attack. The school gates were closed as they sang the final bars. (You can watch my video of this here.)

Inside, photographers and media camera crews filmed the two young electoral officers who began the official count of the ballots.

Officials start the count

Electoral officers begin the count at Escola Josep-Maria Jujol

I asked the volunteers if they had heard of any plans for mobilisations in Barcelona that evening, saying we had heard that there would be demonstrations in several cities in the Spanish state against police brutality.

“I’m not a political activist,” the polling station president replied, “so I can’t tell you about the mobilisations outside. My role, and one I take very seriously, is to facilitate the vote of the people here today and to defend those votes. But I can say that as a political scientist, the mobilisation of Catalan society is something that is fascinating to see and something that will not disappear overnight. Of course we can’t keep up this level of mobilisation constantly,” he said as other exhausted volunteers gathered around him nodded in agreement, “but this movement is not going anywhere.”

As we left to get to our meeting with the rest of the international delegation, we walked out behind the electoral workers. The people who had defended the polling station all day – and all weekend in fact, for many – again applauded us. You guys are the ones who deserve the applause, we kept saying as we shook their hands. I don’t think I’ve ever made such an understatement in my life.

@emmaclancy123

 

 

What Spain’s King means when he calls for the Constitution to be upheld

This is a brief outline of some of the key relevant legal issues in the Spanish Constitution and the Treaty on the Functioning of the European Union in relation to the crisis in Catalonia.

The King of Spain made a speech tonight (October 3) which is seriously concerning. The notes below are not intended to address the fascinating political situation in Catalonia right now, but simply aim to outline some of the key legal issues and constitutional articles you may have heard bandied about regarding the Spanish Constitution and the EU Treaty.

Speech by King Felipe

Leaving aside his description of Catalans as being “unacceptably disloyal”, and his failure to condemn the violence on Sunday, King Felipe VI made repeated calls on the Spanish government to act. He stated repeatedly that the duty of the Spanish state is to uphold the Constitution, and to ensure the constitutional basis for Catalonia and its institutions.

The Spanish Constitution (adopted in 1978 during the so-called “Transition” from Francoist fascism) includes several relevant and well-known articles – namely Articles 2, 8 and 155 – which have led Catalans and observers to believe this amounts to a call for the suspension of the Catalan government at the very least; the likely imposition of a state of exception (emergency); or an outright military coup at worst.

Article 2 of the Spanish Constitution affirms the “indissoluble unity” of “the Spanish nation”.

Article 8 states it is the mission of the Armed Forces to “defend the territorial integrity” of Spain. Usually, in the international arena, this means defending the state from external attack, but in the Spanish state is has been interpreted politically and legally to mean defending the state from both invasion and secession.

The United Nation’s Independent Expert on the Promotion of a Democratic and Equitable Social Order, Alfred De Zayas, yesterday tweeted: “The principle of territorial integrity protects States from other States, but cannot prohibit the self-determination of peoples”.

And Article 155, the most important in this case, states that if any of the autonomous communities fail to meet their obligations under the law and Constitution,  or “act in a way seriously prejudicing the general interests of Spain”, the Government can control of the bodies of the autonomous government and impose  the “measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above mentioned general interests” of the Spanish state.

In other words, Article 155 is the Direct Rule provision. Of course, the suspension of the Catalan government in this way would probably have to be backed up by jailing the government representatives, and the likely mass deployment of the Guardia Civil, and possibly troops, given the mass mobilisation of Catalan society.

To me the King’s speech sounded very much like an indication that Art 155 will be triggered. The leader of Ciudadanos has already called for Art 155 to be triggered in order to prevent a declaration of independence by the Catalan government.

The Catalan government has not yet declared independence following the results of Sunday’s vote. Obviously they must be engaged in behind the scenes efforts with the international community in particular, but they run the risk their government will be suspended before the declaration.

Tonight Catalan President Carles Puigdemont told the BBC that the Catalan government will declare independence “at the end of this week or the beginning of next”.

Sanctioning of EU Member State under EU Treaty

The other issue I wanted to reflect on is the possibility to initiate action against Spain under the Treaty on the Functioning of the EU (TFEU) in response to Sunday’s violence, or in response to the possible future triggering of Art 155 of the Spanish constitution/a state of exception/martial law being imposed in Catalonia.

Some Catalan representatives and international supporters have called for the triggering of Article 7 of the TFEU against Spain in response to the violence in Catalonia.

This is definitely something European progressives should call for in relation to both their own governments and the European Parliament.

However, the EU procedure is designed to be so difficult and to require such a strong majority that it makes it virtually meaningless (surprise).

It has never yet been invoked, despite the possibility of it being raised in relation to Hungary and Poland recently.

Article 7 can be invoked in order to defend the “EU values” specified in Article 2 of the TFEU.

These are: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

Article 7 has three stages of procedure ending in sanctions:

1) A procedure to declare the existence of a clear risk of a “serious breach” of Article 2 values. The procedure must be invoked by a “reasoned proposal” by either: one-third of Member States/the European Parliament/the Commission.

So a call for the European Parliament to make a reasoned proposal is definitely an option; as is a call for the Irish government or other EU governments to make such a reasoned proposal to the Council and seek the support for at least one third of Member States.

Then the Council, acting by a majority of 4/5 of its members, and after getting European Parliament consent, “may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”.

Before making such a determination, the Council will allow the relevant Member State to respond, and may propose recommendations to the State.

2) The second phase is a procedure to determine whether a “serious and persistent breach” of Article 2 values has occurred. This requires the Commission or one-third of Member States to call on the Council to declare unanimously that a breach has occurred, with the European Parliament’s consent.

This is where the process goes from unlikely to virtually impossible given the strong backing of the Spanish position by both conservative and social-democratic forces in power across the EU.

3) The third step is sanctions. If the conditions of (1) and (2) are met, the Council can suspend rights of the relevant Member State with a qualified majority, which includes suspending the Member State’s voting rights in Council.

Let me finish by reiterating the point above – that despite the legal obstacles, progressives should absolutely attempt to invoke Article 7 of the TFEU.

But the limitations on progressive actions imposed by the EU’s architecture, treaties and procedures are similar to the limitations of achieving progressive change under the Spanish Constitution.

We certainly can’t rely in the slightest on the legal or procedural mechanisms of the EU in order to effectively display solidarity with the Catalan struggle for self-determination.

We need to do this with the tried and tested methods of old – pressuring our governments and EU leaders to support the Catalan people by all available means, including by exerting maximum pressure on the streets, and in local, state, EU and international political institutions; and by pressuring national governments to summon Spanish ambassadors and to suspend diplomatic ties with Madrid.

***********************************************************************************************************

SPANISH CONSTITUTION

Article 2

The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards; it recognises and guarantees the right to autonomy of the nationalities and regions of which it is composed, and the solidarity amongst them all

Article 8

1. The mission of the Armed Forces, comprising the Army, the Navy and the Air Force, is to guarantee the sovereignty and independence of Spain and to defend its territorial integrity and the constitutional order.

Article 155

1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take the measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests.

TREATY ON THE FUNCTIONING OF THE EU

Article 2

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7

1.   On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.

Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2.   The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3.   Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4.   The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

The (grim) state of the Union

Juncker’s vision is for full EU control over members’ economies

Some quick first impressions of the economic aspects of today’s State of the EU address by European Commission President Jean-Claude Juncker.

Jean-Claude Juncker’s State of the Union address was remarkable for its strident, defensive and utterly oblivious tone, but for little else.

On deepening the Economic and Monetary Union, he outlined several proposals that have already been floated several times by the Commission in recent years. The most significant of these are to introduce a euro-area budget line within the EU budget, and to create a European Monetary Fund and a European Finance Minister to take over responsibility for administering the EU’s debt and deficit criteria – the austerity agenda currently administered by the Commission.

There are two main goals evident in the Commission’s proposal. The first is to ensure that the current informal economic governance structure that exists in the Eurozone – outside of the Treaties and beyond democratic oversight – is extended across the EU as a whole in order to pressure the non-euro member states to join the common currency as soon as possible, and to give the Eurogroup the veneer of legitimacy.

The second is to implant Germany’s failed and ideologically-driven deficit fetishism ever more firmly in the structure of the EU by creating a Ministry to surveil and structurally reform the economies of Member States, and to surveil and control their spending, taxation and borrowing through budgetary control.

After the election of President Macron in France this year, Germany and France set up a working group to discuss the creation of a European Monetary Fund, or EMF, to deal with future crises. The states who may require the aid of the European Monetary Fund are those of us in the periphery of the EU – the Irish state, Greece, Spain, Portugal – who are suffering debt crises largely as a result of Germany’s massive and damaging current account surplus.

Yesterday, El País reported that Germany is proposing that a German-dominated EMF take fiscal oversight away from the Commission – but that it is attempting to win the support of France and Italy for the move by including the promise that Germany, France, and Italy can each have a veto over its decisions. This will essentially give Germany strict control over the oversight of budgets of all the EU states who require the assistance of the fund, with only France and Italy having the right to reject the EMF’s conditions.

The French side has been pushing for the EMF to also require more risk-sharing and debt-sharing, which would benefit the peripheral states more. The Commission’s final proposal regarding turning the current crisis fund, the European Stability Mechanism, into an EMF, will be published in December. It is unclear from Juncker’s speech and its accompanying documents which aspects of the German and French proposals will form the basis of the detail of the EMF proposal – but if Juncker’s other proposals are an indication of the general balance of power, it’s safe to bet on the German proposal winning the day.

For several decades now, France’s demand for a European monetary union was always met with the German response that it must be accompanied by fiscal union, or German-led surveillance and control over national budgets. The same argument continues today, based on the same failed ideology.

Juncker’s speech was as significant in what it didn’t propose as what it did propose – it looks like the Commission is already walking back from, or at least stalling on, ideas it had previously floated in its ‘reflection paper’ on deepening the Economic and Monetary Union released earlier this year. These included ideas of creating a European unemployment insurance scheme and an investment protection scheme, both of which would go some way towards meeting longstanding French calls for some form of financial transfers from the core (Germany) to the small and mid-sized economies in the EU, albeit with destructive conditions attached.

There was no mention of these proposals today, and Juncker firmly told the periphery states that their hope for a common bank deposit insurance scheme (which would amount to one form of financial transfer from the core to periphery) is on ice until they start following Germany’s orders on risk-reduction. His exact words were: “To get access to a common deposit insurance scheme you first need to do your homework.”

Over decades of core vs periphery fights over debt and investment, the outcome is always the same – the so-called peripheral states surrender more and power over their spending, borrowing and taxation to German-dominated institutions in exchange for the promise of aid or financial transfers that simply never come.

So, no big surprises here: just confirmation that the brief talk of fundamental change of the structure of the EU that followed Macron’s election was just that – talk.

 

 

Gernika: The beginning of aerial terror

Gernika Belfast

A mural of Pablo Picasso’s Guernica in Belfast

The following excerpt on the 1937 attack on the Basque village of Gernika is taken from an incomplete history piece on the Basque Country, from a chapter on the Second Republic and civil war. Tomorrow (April 26) is the 80th anniversary of the bombardment.

In early 1937, with Madrid still putting up a stiff resistance, Franco set his sights upon Bilbo with the aim of capturing the city’s iron ore and heavy industry to support his war effort. The Francoists quickly planned a northern offensive to be led by General Emilio Mola, who issued an ultimatum on 31 March in broadcast and printed leaflets dropped on Bizkaian towns saying: “If submission is not immediate, I will raze Vizcaya to the ground, beginning with the industries of war. I have the means to do so.” Most of the infantry on Franco’s side were raised from Nafarroa. The 50,000 heavily armed troops in four Nafarroan brigades were backed up by two Italian divisions, the Spanish Air Force, the Italian Aviazione Legionaria and the Condor Legion of the German Luftwaffe. Mola had 120 aircraft and 45 pieces of artillery at his disposal. The Republican Army in the North had almost as many troops but far less firepower, half the artillery and just 25 ineffective aircraft. The offensive began with an act of brutality when the village of Durango – not on the front line and undefended – was bombarded for four days by the Luftwaffe, with 248 civilians killed. Republican positions were falling fast and on 20 April 1937 a new Francoist offensive began in Bizkaia.

Gernika has long had a sacred status among Basques as the site of the ancient Basque parliament of Bizkaia, the Casa de Juntas, and of the legendary Gernikako Arbola (Tree of Gernika), an oak tree that has been a symbol of Basque sovereignty and the rights of the Basque people for close to a thousand years. In 1937 the town had a population of around 7,000 people, and Monday 26 April was a busy market day in the town centre. At 4.40pm the Luftwaffe’s Condor Legion and the Italian Aviazione Legionaria launched an aerial bombardment of the town that lasted for three hours, with waves of planes hitting the town centre every 20 minutes with high explosives and incendiary bombs of up to 1000lbs. each. Those who tried to run from the town or hide in the fields were machine-gunned. At 7.45pm, after the last planes had dropped their bombs, the centre of the town was destroyed. The assault killed 1,654 of the town’s 7,000 inhabitants. Gernika was 30 kilometres from the front. The Casa de Juntas and the Tree of Gernika had incredibly survived untouched.

A report by British journalist George Steer, war correspondent for the London Times, was published in the Times and the New York Times on 28 April. Steer had rushed to the town the evening of the attack to interview survivors and witness the devastation firsthand, and reported: “The most ancient town of the Basques and the centre of their cultural tradition, was completely destroyed yesterday afternoon by insurgent air raiders.”  His report from Gernika was all the more significant because Franco’s forces claimed the Basques had burned the town themselves as a propaganda stunt; then they claimed the Communists had bombed it. Franco denied that German forces were even participating in Spain’s Civil War. In response to the Nationalist propaganda, Basque lehendakari (president) José Antonio Aguirre made a public declaration : “I maintain firmly before God and History, who will judge us, that during three and a half hours German planes have bombarded the defenceless civilian population of the historic town of Gernika, pursuing women and children with machine-guns, and reducing the town itself to ashes. I ask the civilized world whether it can permit the extermination of a people who have always deemed it their duty to defend their liberty as well as the ideal of self-government which Gernika, with its thousand-year-old Tree, has symbolized throughout the centuries.” Franco replied: “Aguirre lies. We have respected Gernika, just as we respect all that is Spanish.” Mola was more forthright, saying: “It is necessary to destroy the capital of a perverted people who dare to oppose the irresistible cause of the national idea.”

Basque priest Father Alberto Onaindia witnessed the carnage in Gernika and wrote in desperation to the Primate of Spain, Cardinal Gomá: “I have just arrived from Bilbao with my soul destroyed after having witnessed the horrific crime that has been perpetrated against the peaceful town of Guernica… Senor Cardinal, for dignity, for the honour of the gospel, for Christ’s infinite pity, such a horrendous, unprecedented, apocalyptic, Dantesque crime cannot be committed.” He begged the Cardinal to intervene to sure the Francoists’ threat – that Bilbo was next – was not implemented. Gomá responded by insisting that Bilbo must surrender. Referring to the Basque Nationalist Party’s (PNV) loyalty to the Republic, he added: “Peoples pay for their pacts with evil and for their perverse wickedness in sticking to them.” Francoist forces viewed the scene a few days later, and a Carlist soldier reportedly asked a senior officer in Mola’s staff: “Was it necessary to do this?” The lieutenant colonel replied that it had to be done in all of Bizkaia and Catalunya. In 1970  PNV member Joseba Elosegi, one of the Basque soldiers from the Battalion Saseta which had withdrawn to Gernika for a period of recuperation and was present on the day of the bombing, carried out an act of self-immolation in a protest against Franco in Donostia, shouting “Gora Euskadi Askatuta!” (Long live the free Basque country!). Elosegi was badly burned but survived and described his protest as the desperate act of a man who had “obsessively remembered” for more than three decades the scenes he witnessed at Gernika.

Steer immediately understood the significance of the attack on Gernika, and in his Times article he wrote:  “In the form of its execution and the scale of the destruction it wrought, no less than in the selection of its objective, the raid on Guernica is unparalleled in military history. Guernica was not a military objective. A factory producing war material lay outside the town and was untouched. So were two barracks some distance from the town. The town lay far behind the lines. The object of the bombardment was seemingly the demoralization of the civil population and the destruction of the cradle of the Basque race.” His report was reprinted in the French communist newspaper L’Humanité on 29 April, where Pablo Picasso read it. The artist captured the international outrage over the attack in his world-renowned painting. He had been commissioned earlier that year by the Spanish Republican government to paint a mural for the Spanish government building at the World Fair in Paris. On 1 May 1937, he dropped his original plan and produced his most famous work, Guernica, instead.

Ongi etorri, Arnaldo Otegi!

Sinn Féin welcomes release of Basque pro-independence leader

Otegi

Arnaldo Otegi leaving prison this morning, 01/03/16

Sinn Féin representatives have warmly welcomed the release of Basque pro-independence leader Arnaldo Otegi from prison in Logroño this morning after six and a half years.

Otegi’s release has also been welcomed by Spanish left parties Podemos and Izquierda Unida, as well as Catalan pro-independence forces Popular Unity Candidacy (CUP) and Esquerra Republicana de Catalunya (ERC).

Pat Sheehan, Sinn Féin MLA, said that the release of Otegi is an opportunity to advance the peace process in the Basque country.

“Arnaldo Otegi was one of the main architects of the peace strategy developed by the Basque pro-independence movement and should never have been imprisoned,” he said.

MEP Martina Anderson added her congratulations, saying: “I am delighted that today Arnaldo Otegi is being welcomed home by his family and community, and I send warm congratulations to him from Sinn Féin.

“We also welcome the news that Arnaldo Otegi has confirmed he will take part in internal party elections later this month seeking to stand as a candidate for EH Bildu.

“But I’m appalled that he received this sentence in the first place. The fact that Otegi was jailed for more than six years solely for his ideas and political activism is an indictment of the Spanish authorities.”

Since the 1990s, Arnaldo Otegi has been acknowledged as the leader of the Basque pro-independence political movement – and he has also faced unrelenting political persecution by Spanish authorities. Already the Spanish authorities have sought to restrict rallies welcoming Otegi’s release from prison.

Among the political charges that have been brought against him include being sentenced to jail in 2006 for participating in a commemoration marking the murder of an ETA leader by a Spanish death squad in 1978, and being jailed again in 2010 for comparing a long-term ETA prisoner to Nelson Mandela.

In 2005 Otegi was sentenced for ‘insulting the king’ after he commented at a press conference held on the torture of Basque journalists that the King bore ultimate responsibility for this torture as the official head of the armed forces. In March 2011, the European Court of Human Rights ruled that Spain had infringed Otegi’s right to freedom of expression in this case.

In October 2009, 10 central leaders of the Basque pro-independence movement including Otegi were arrested as they met to discuss a new peace initiative, and five of them were jailed. Despite such provocation, this peace initiative has led to the permanent ETA ceasefire of 2011 and its move in 2014 to begin the process of disarmament. It has also led to the legal registration of new pro-independence party Sortu in 2013, which has rejected violence and reached unprecedented levels of popular support in the Basque Country.

Martina Anderson spoke at the launch last March of the international campaign to free Otegi, which was endorsed by several former Latin American presidents, and Nobel Prize winner Nobel Peace Prize winners Desmond Tutu, Adolfo Pérez Esquivel, among many others.

“As well as being acknowledged as the leader of the Basque pro-independence movement, Otegi is also indisputably the leader of the Basque peace process, and that is why he was jailed in 2011,” she said.

“I warmly welcome the release of Arnaldo Otegi and offer him our full support in his efforts to develop the Basque peace process. The Spanish government should finally engage with this process. It should release all seriously ill prisoners and those who have been jailed for purely political work, and immediately repatriate all Basque prisoners to prisons within the Basque Country as the first step towards an early-release programme.”

Sheehan added: “Sinn Féin are convinced the release of Arnaldo Otegi will invigorate efforts to create a lasting peace and self-determination for the Basque people, and we will continue to provide assistance in bringing that about.”

Background: https://emmaclancy.com/2015/03/28/global-campaign-demands-free-otegi-bring-basque-prisoners-home/

Erdoğan views Kurds as stepping stone to total power

A PKK checkpoint in Silvan, southeast Turkey, on August 19. (Reuters)

A PKK checkpoint in Silvan, southeast Turkey, on August 19. (Reuters)

Kurdish pro-independence activists have erected barricades, and elected representatives have declared self-government in several towns and villages across northern Kurdistan (southeast Turkey) since August 10. The declarations come in response to renewed attacks on Kurdish militants and civilians by Turkish security forces.

According to Kurdish media outlets, the towns, villages and districts that have declared self-government include Silopi, Cizre, Lice, Varto, Bağlar in Batman, Sur and Silvan in Diyarbakir, Bulanik, Yüksekova, Şemdinli, Edremit and Doğubeyazit, among others. Significantly, the Gazi neighbourhood in Istanbul declared self-government on August 18.

Mayors and elected representatives of the People’s Democratic Party (HDP) and the Democratic Regions Party (DBP), together with neighbourhood assemblies, have supported the declarations of self-government, saying the Turkish regime “did not represent them”. Four mayors in Diyarbakir were arrested on August 18.

The Turkish government, led by President Recep Tayyip Erdoğan’s Justice and Development Party (AKP), has given unlimited powers to the security forces and declared a state of emergency in the areas of resistance over the past week.

The Turkish army has backed up Special Forces and police in carrying out attacks, which have included aerial bombardment, the burning of homes, raids, and the shooting of combatants and civilians. Military curfews have been declared, and the affected districts are besieged by the army.

Kurdish protesters hold placards with Ekin Wan's face on August 19.

Kurdish protesters hold placards with Ekin Wan’s face on August 19.

One of the first towns to declare self-government on August 13 was Varto in Muş province, where Kurdish combatant Kevser Eltürk (with the nom de guerre Ekin Wan) was killed in a gun battle with Turkish Special Forces on August 10. Ekin Wan was a fighter in YJA-STAR (Free Women’s Units), the women’s military wing of the Kurdistan Workers Party (PKK).

After her death, Ekin Wan’s bloodied corpse was stripped naked and dragged through the streets by Special Forces who photographed the desecration and uploaded it onto the internet, sparking protests across Turkey.

Kurdish media reports that in the days following the declaration of self-government, Varto was attacked by tanks, helicopters and Special Forces soldiers. A PKK graveyard was bombed while military helicopters opened fire on villagers in Varto and several surrounding villages. Special Forces entered to conduct house raids and make arrests, while soldiers are reported to have set fire to houses and forests. The operations in Varto have been replicated in Kurdish towns and villages across southeast Turkey.

Turkish author and former war correspondent Cengiz Çandar described the developments of the past week as a “mass youth uprising by the PKK” that surpasses the scale of similar urban uprisings during the 1990s.

Kurdish activists too have said the security forces’ aggression is reminiscent of attacks on Kurdish communities during the 1990s, in which around three millions Kurds were displaced and thousands were killed. Since the PKK-led Kurdish insurgency began in 1984, an estimated 40,000 people have been killed in the conflict – the majority Kurdish civilians.

Erdoğan ended a two-year ceasefire on July 24 when his government resumed attacks on Kurdish communities in Turkey, as well as launching airstrikes against PKK bases across the border in southern Kurdistan (in Iraq).

By August 19, Turkish officials claimed that more than 50 security force members, around 400 PKK members and “at least seven” civilians have been killed in the recent violence. The PKK have rejected the claim regarding their casualties and say they have lost 30 members. The official figure for civilian deaths appears to be patently false, given that Amnesty International has verified that eight Kurdish civilians were killed in one Turkish airstrike alone in the village of Zergele in the Qandil mountains in Iraq on August 1.

After Suruç

The July 20 attack by an Islamic State supporter on a group of socialist youth activists in the Kurdish town of Suruç inside Turkey, near the Syrian border, was the spark for the collapse of the two-year ceasefire and peace talks between the Turkish government and the PKK.

Activists on the bus to Suruç before the bombing. (Victim Hatice Ezgi Sadet's Instagram)

Activists on the bus to Suruç before the bombing. (Victim Hatice Ezgi Sadet’s Instagram)

The activists who were killed were members of the Federation of Socialist Youth Associations (SGDF), the youth wing of the of Socialist Party of the Oppressed – a founding member of the People’s Democratic Party (HDP) coalition. The leftist, pro-Kurdish HDP won 13 per cent of the vote in general elections in Turkey in June; its co-leader, Figen Yüksekdağ, is a former chairperson of the Socialist Party of the Oppressed.

The youth activists were preparing to travel to Kobanê, the Kurdish city across the border in Syria, to build a library and playground, and assist in the general rebuilding of the town after the siege and conflict between the Kurdish People’s Protection Units (YPG) and Islamic State. In a crowd of around 300 people who had gathered for a public declaration to farewell the delegation in Amara Cultural Centre, a young Islamic State supporter blew himself up, killing 32 people; another later died from injuries.

The Islamist suicide bombing against the pro-Kurdish left has somehow been used by the Turkish government as a pretext to launch an all-out attack – against the pro-Kurdish left.

As international leaders sent their condolences to Erdoğan’s AKP government over what they referred to as “Islamic State’s attack on Turkey”, Kurds accused the government of collusion in the bombing. Specifically, they believe the Turkish National Intelligence Organisation (MIT) was directly involved.

Survivors asked the question: how was the bomber able to freely walk into the Amara Cultural Centre when there was a strong security presence surrounding it, and the activists had all been searched on their way in? Later, the funeral processions of almost all of the victims were attacked by Turkish security forces. The rapid pace of political developments in the days following the bombing appear to confirm the Kurds’ belief of government involvement.

Kurdish militants from the Patriotic Revolutionary Youth Movement (YDG-H), an armed youth movement associated with the PKK, claimed responsibility for the killings of two Turkish police officers on 22 July, who they said had collaborated with Islamic State.

Ankara-Washington deal

Three days later the bombing – after providing both tacit and practical support to various Islamist forces fighting against the Syrian regime of Bashar al-Assad during the civil war since 2011 – Erdoğan struck an agreement with the US on July 23. Under the deal the US can use Turkish air bases to launch airstrikes across the border against Syria, and Turkey has agreed to contribute directly to the war on Islamic State in Syria by carrying out its own strikes.

A “safety zone” along part of Syria’s border with Turkey is to be made free of both Islamic State and Kurdish militants, according to the terms of the agreement. This is the most significant element of the agreement as far as Erdoğan is concerned. There are three cantons in Rojava, the Kurdish area in Syria that runs along a large part of the border with Turkey. Following the recent victory of the Kurdish People’s Protection Units (YPG) over Islamic State in Tal Abyad, two of the three cantons, Kobanê and Cizere, were joined contiguously for the first time.

The precise area the “safety zone” is proposed to cover will ensure the YPG cannot join the two Kurdish cantons with the third, Afrin, as the US-Turkish joint “clear and hold” operation aims to rid the area of both Islamic State and Kurdish fighters. The absurdity of the US agreeing to limit the operations of the most effective military force fighting Islamic State in Syria in this way has been pointed out by many.

Announcing the agreement domestically, Erdoğan said his government would carry out a “synchronised war against terror” that would target both Islamic State and the PKK.

As of August 19, Turkey had launched airstrikes against just three Islamic State targets, and more than 300 against PKK bases in Iraqi Kurdistan. In the first three weeks of the campaign of repression, 1,300 “terrorism suspects” were arrested – 137 alleged to be linked to Islamic State, and 847 were accused of PKK membership. The Islamist suspects were quickly released; the Kurds were not. The total number of alleged activists now detained since July stands at more than 2,600, almost all of them Kurds.

‘Your silence is killing Kurds’

Yet most of the Western mainstream media has parroted the lines that Erdoğan has joined the war against Islamic State and the PKK are a secondary target in a broader crackdown, and the PKK has initiated the latest round of violence and caused the breakdown in peace talks.

A PKK member collects pieces of metal at a crater caused by Turkish air strikes on July 29 in the Qandil mountains, northern Iraq. (AFP)

A PKK member collects pieces of metal at a crater caused by Turkish air strikes on July 29 in the Qandil mountains, northern Iraq. (AFP)

The report by the New York Times on August 18 was typical of this coverage: “Mr Erdogan’s government decided to move more forcefully against the Islamic State last month after a suicide bombing in the southeastern district of Suruc that killed at least 34 people.”

The Wall Street Journal reported on August 3: “In parallel with its new military strikes against Islamic State, Turkey has targeted bases in northern Iraq used by the outlawed Kurdish separatist group PKK. The deadly airstrikes came in response to increased attacks by the PKK against Turkish security forces that are threatening a fragile peace process.”

The Huffington Post, however, reported on August 19 that Turkey pays US lobbyists and public relations firms around $5 million a year to win public and political favour. Among the lobbyists on the payroll is Porter Goss, who was CIA director from 2004-2006. Within days of renewing attacks on Kurds, Turkey hired the Squire Patton Boggs lobby group, which includes retired senators and White House officials, to propagate its version of the conflict.

There has been an almost-total media blackout in relation to the attacks on Kurds within Turkey and the urban warfare that has engulfed a major part of the country, prompting social media campaigns to target Western media with the hashtag, #YourSilenceIsKillingKurds.

In Turkey, where for decades the media has been prevented from reporting on PKK attacks and casualties among security forces, the media is now beaming a constant stream of “stories of those who were killed, kidnapped policemen, attacked government buildings and assets, along with bomb threats,” according to Pinar Tremblay, writing in Al-Monitor. “Turkish audiences have not seen this many funerals since the early days of the conflict in the late 1980s.”

Putting power before peace

The Turkish president has invested a significant amount of political capital in achieving a lasting peace settlement with the Kurds of Turkey, who number 15 million, around one-fifth of the total population. Before becoming president, Erdoğan served as the prime minister from 2003-2014. In 2005, he admitted the existence of a “Kurdish problem” in Turkey, and under his government secret peace talks were held between the PKK and the Turkish National Intelligence Organisation in Oslo.

The process eventually led to the declaration from jail of a ceasefire on Newroz day (Kurdish New Year) in March 2013 by PKK leader Abdullah Öcalan, imprisoned since 1999. The ceasefire proved durable, and in February this year a more comprehensive agreement was announced by HDP and AKP representatives, including the Interior Minister and the deputy prime minister. The 10-point Dolmabahçe Agreement dealt with conflict resolution issues including disarmament, human rights and constitutional reform.

Turkish President Recep Tayyip Erdoğan

Turkish President Recep Tayyip Erdoğan

On July 17 Erdoğan said: “I do not recognise the phrase ‘Dolmabahçe Agreement’… There cannot be an agreement with a political party that is being supported by a terrorist organisation.”

What changed? In general elections in June, the AKP lost its parliamentary majority for the first time in 13 years. The pro-Kurdish left-wing HDP won 13 per cent of the vote, meaning it met the 10 per cent threshold a political party must reach in order to sit in the Turkish parliament. This threshold was imposed with the aim of silencing voices of political opposition by the constitution adopted in 1982 following the 1980 military coup. It has meant Kurds have been largely excluded from the democratic process ever since, making the result in June historic.

The party, its candidates and campaign workers were harassed and physically attacked, sometimes lethally, throughout the election campaign. On June 5, its major pre-election rally in Diyarbakir was bombed. Four people were killed and dozens more were injured. Other HDP election rallies were attacked by fascists; its offices were shot at and bombed; and campaign worker Hamdullah Öğe was assassinated while driving a HDP vehicle.

Despite the violence and intimidation, voters turned out in large numbers to support the HDP – which also attracted votes from non-Kurdish communities on the basis of its secular, feminist and left-wing positions.

One the HDP's mass election rallies (Piczard)

One of the HDP’s mass election rallies. (Piczard)

The AKP required 276 seats to form a majority government in the 550-seat parliament; it won 258, dropping from around 50 per cent of the vote to just above 40 per cent. The social-democratic Republican People’s Party (CHP) won 132 seats, while the HDP and the fascist Nationalist Movement Party (MHP) each won 80 seats. Of the 80 HDP candidates elected, 32 were women, bringing the number of female MPs in the Turkish parliament to a record high of 98. All leadership positions in the HDP are co-chaired by a woman and a man.

The current government is an interim government; if no coalition is formed by August 23, Prime Minister Davutoglu must dissolve the cabinet. If this happens, an all-party ‘election government’ will be formed until the new elections – which must be within 90 days.

The HDP rejected the AKP’s overtures for a coalition government from the beginning, and AKP talks with the CHP, then the MHP, have broken down. But it’s highly likely that Erdoğan had no intention of forming a coalition government, and would prefer to hold snap elections in November in which he believes the AKP can regain its majority.

Erdoğan wants an executive presidency

The election results also blocked plans Erdoğan had made for constitutional reform that could only be made through the parliament if the AKP won a two-thirds majority, or 367 seats. After ruling as prime minister for 11 years, he is clearly dissatisfied with what he calls the “ceremonial” role of the president, and he intended after the election to create an “executive presidency” that would dramatically extend his personal power.

The president had formerly been appointed by the parliament, but a 2010 referendum allowed for direct election of the president, and the first such election was won by Erdoğan last August.

Immediately after his election, Erdoğan opened an opulent new 1,000-room presidential palace that cost Turkish taxpayers well over $600 million to construct. In May this year, the AKP-majority parliament granted Erdoğan a “discretionary fund” for “discreet intelligence and defence services” not subject to any form of judicial, administrative or parliamentary oversight – in other words, his own private army.

HDP co-leader Selahattin Demirtaş responded to the establishment of the discretionary fund by calling it a “civil coup”.

“The palace has its own special army authorised to collect intelligence, its own discretionary budget. That is, it has created a one-man, separate state,” he said.

On August 13, AKP leader and Prime Minister Ahmet Davutoğlu said he had failed to reach a coalition deal with the CHP. The following day, Erdoğan indicated that he will attempt to achieve an ‘executive presidency’ without the required two-thirds majority if the AKP wins a simple majority in snap elections – or perhaps even before then.

“There is a president with de facto power in the country, not a symbolic one,” he said. “Whether one accepts it or not, Turkey’s administrative system has changed. Now, what should be done is to update this de facto situation in the legal framework of the constitution.”

Demirtaş called for a referendum to be held on the proposed change, which the HDP opposes, saying: “The state regime cannot be changed with a fait accompli.”

CHP leader Kemal Kılıçdaroğlu described the statement as the “acknowledgement of a coup”.

New elections

The general election was held on June 7; from June 8 the AKP has been planning a new snap election and a way to rapidly diminish the HDP’s support base. If the HDP were to drop below the 10 per cent threshold and be excluded from parliament, then in all seats where a HDP candidate topped the poll the seat would go to the runner-up – in most cases, an AKP candidate.

In anticipation of a new election, Erdoğan and the AKP are making a concerted effort to link the HDP with the PKK, and to alienate conservative Kurdish voters from supporting the HDP, in the belief that this will result in the party failing to meet the 10 per cent threshold. At the same time the AKP is appealing to right-wing nationalists to reward its hardline position.

Many analysts have predicted that the move may backfire and drive the entire Kurdish population in Turkey to vote for the HDP. The head of polling company Metropoll, Özer Sencar, said on CNNTurk on August 18 that the HDP is likely to become the third-largest party in Turkey if fresh elections are held in November, and could win up to 17-18 per cent of the vote – an outcome he was at pains to explain he believed would be “extremely wrong” for Turkey.

HDP co-chairs Selahettin Demirtaş and Figen Yüksekdağ

HDP co-chairs Selahattin Demirtaş and Figen Yüksekdağ (AP)

Of course, the caretaker government led by the AKP may attempt to outlaw the HDP and prevent it from participating in fresh elections. On July 31, Turkish media reported that a criminal investigation has been opened into both HDP co-chairs, Demirtaş and Figen Yüksekdağ, for “inciting violence” and “propagandising for terrorist organisations” respectively, over speeches they have given in support of Kurds in Kobanê and the rest of Rojava. In Demirtaş’s case, if the case is prosecuted and he is found guilty, he faces up to 24 years in prison.

Eight opposition MPs from the CHP and HDP have also had an ‘investigation authorisation report’ sent to the parliament by the deputy prime minister, which provides legal authority to open an investigation into an MP’s activities.

The current indications are that the government will continue to target individuals and not attempt to outlaw the HDP itself – but this could change in response to the declarations of self-government across Kurdish districts.

Erdoğan’s renewed aggression against the PKK should not only be understood in domestic terms. It is also shaped significantly by the major advances made by Kurdish forces in Syria and Iraq. The dismal repercussions of attacking the most effective resistance to Islamic State in the region have yet to fully play out. But his decision to walk away from an historic opportunity to end decades of conflict, in a cynical and transparent grab for personal power, may have unleashed a rebellion by Kurdish youth in Turkey that he will not be able to contain.

Kurdish pro-independence forces are stronger now – better organised, with more territory and more international support – than they were in the 1990s.

A second article examining the Kurdish struggle against Islamic State in Rojava, and the impact of the US-Turkey deal to establish a safety zonealong the Turkey-Syria border, will follow shortly.

When free trade isn’t enough: A corporate grab for policy power

US workers protest against 'Fast Track', or the Trade Promotion Authority. Photo from AFL-CIO.

US workers protest against ‘Fast Track’, or the Trade Promotion Authority. Photo from AFL-CIO.

The new generation of free trade agreements such as the Trans-Pacific Partnership and Trans-Atlantic Trade and Investment Partnership are less about reducing already-low tariffs, and more about providing multi-national corporations with the power to determine public policy. This is the first part in a two-part article on the politics and likely impact of this new generation of trade deals.

As the US Congress resumes sitting after the Easter break, the Obama administration’s number one priority is to convince sceptical House Democrats to approve his Trade Promotion Authority (TPA), or so-called ‘Fast-Track’ legislation. The TPA would allow for the Trans-Pacific Partnership (TPP) free trade agreement currently under negotiation to be signed and entered into by the President without Congressional approval. Implementation legislation would then be fast-tracked through Congress without amendments in a filibuster-free yes-or-no vote within 90 days.

Political commentators estimate that Obama still needs to convince between 40 and 50 members of his Democratic party to support Fast-Track in the Republican-controlled 435-seat House of Representatives. The TPA is already supported by the vast majority of House Republicans, with the exception of a group of Tea-Party types who appear to be opposing it for the sheer joy of blocking any further delegation of power to Obama.

If agreement is not reached and a TPA bill tabled before Congress goes into recess in August, it is all but certain that the US will not be able to seal the deal on TPP before 2017 – after the presidential election primaries, and the election itself in 2016. It’s also highly unlikely that TPP could get through Congress without Fast-Track.

It’s a sorry spectacle: Obama trying to drum up support from his base to implement the agenda of the massive corporations that did their utmost to prevent his election and re-election – an agenda that, if successful, will unpick his key achievements in progressive domestic policy reforms, from affordable healthcare to increased regulation of the financial sector.

Environmental groups and progressive economists and academics are backing the Congressional opposition to Fast-Track led by Massachusetts Senator Elizabeth Warren. The AFL-CIO is campaigning for Democrats to maintain their stance against TPA, and it is continuing to withhold contributions to Democratic congressional campaigns to maximise the pressure. A letter to all House representatives and Senators asking them to oppose Fast-Track was jointly signed by the leaders of every union in the country in March, representing more than 20 million workers.

The total undermining of congressional oversight in Fast-Track, though alarming, is not the chief concern of those who oppose it. It’s the content of the trans-Pacific trade deal that the TPA would fast-track that is fuelling the opposition, and with good cause.

The TPP is part of a ‘new generation’ of free trade agreements that move far beyond the lowering of tariffs and aim primarily to remove ‘non-tariff barriers to trade’ by reaching regulatory coherence or harmonisation between parties. Without a doubt, this will result in a trans-Pacific race to the bottom on labour standards and environmental protections, as well as the offshoring of jobs from industrialised countries; the prising open of access to the state-owned enterprises of poor nations for multi-national corporations; and the imposition of stricter intellectual property demands on these nations. If signed, TPP will cover 800 million people and 40 per cent of the global economy. Next on the agenda is the Trans-Atlantic Trade and Investment Partnership (TTIP) under negotiation between the US and EU.

Negotiations for the TPP began in 2010 and it now includes 12 Pacific rim countries – the US, Canada, Japan, Australia, New Zealand, Singapore, Malaysia, Vietnam, Brunei, Mexico, Chile and Peru. It is to be a ‘living agreement’ – which means other countries can join further down the track, and that the content of the TPP can be altered with agreement from the parties. The text of the proposed agreement and the negotiations have been kept secret, but key chapters have leaked.

The negotiations are reportedly nearing conclusion, with the remaining sticking points being a dispute between the US and Japan over tariffs in the US agriculture sector and in Japan’s car industry. The chief negotiators for the 12 countries met for a week in Hawaii in March and will meet again at the APEC summit in the Philippines in May. Negotiators for several countries have made it clear they are not willing to sign up to an agreement unless Obama secures Fast-Track.

The secrecy that has shrouded the talks has contributed to the hostility to the TPP among the public in the US and other countries. Then US Trade Representative Ron Kirk said in an interview with Reuters in May 2012: “There’s a practical reason, for our ability both to preserve negotiating strength and to encourage our partners to be willing to put issues on the table they may not otherwise, that we have to preserve some measure of discretion and confidentiality.”

Reuters went on to say that Kirk noted during the interview “that about a decade ago negotiators released the draft text of the proposed Free Trade Area of the Americas and were subsequently unable to reach a final agreement”. When the Bush administration released the draft text of the FTAA in 2001, an expansion of the North American Free Trade Agreement (NAFTA), the resulting public outcry across the Americas was the beginning of the end for the proposed deal.

The US has existing free trade agreements with 20 states. The bitter experience of previous agreements, particularly NAFTA, signed in 1994, has made the US labour movement deeply wary of TPP, which would cover 40 per cent of the world’s GDP. During the NAFTA negotiations between the US, Canada and Mexico, then US President Bill Clinton promised the agreement would create 20 million new export-based jobs in the US. It didn’t – instead, it led to a net loss of almost one million US jobs, according to the Economic Policy Institute. Industrial investment was off-shored to to Mexico resulting in job losses and a steady downward pressure on US wages.

The impact of NAFTA on Mexico was, of course, much harsher. More than two million small farmers and rural labourers were ruined and dislocated. The minimum wage in Mexico in 2013 was 24 per cent lower in real terms than in 1993. Growth has slowed to less than one per cent annually since 1994 and the poverty rate in 2012 was 52 percent of the population.

According to US NGO Public Citizen, of the 29 chapters of the the draft TPP agreement, only five are actually related to trade issues – the rest focus on the so-called non-tariff barriers. In November 2013, Wikileaks released the draft chapter on Intellectual Property Rights, followed by the draft Environment chapter in January 2014. Observers have gleaned further information from the few public statements made by negotiators regarding the content of the agreement.

Opponents of TPP expect many aspects of the NAFTA experience to be replicated in the trans-Pacific region. One of the most objectionable elements of TPP to the US labour movement is the chapter on government procurement, which will outlaw the ‘Buy American’ laws (some in place since 1934) that favour domestic producers in government contracts as being discriminatory to foreign firms. The major discrepancy in labour conditions and wages across the 12 TPP countries will mean further offshoring of jobs – for example, to Vietnam, where the average monthly wage is US$145.

The large proportion of services delivered in Vietnam by significant state-owned enterprises are also in the sights of the US corporations backing the trade deal, with the US Trade Representative’s office claiming that “levelling the playing field” between private firms and state-owned enterprises is a central goal of the pact.

Among the most vicious proposals in TPP is the plan pushed by major pharmaceutical companies to force impoverished Pacific countries to sign up to the US model of intellectual property rights, which go beyond the World Trade Organisation (WTO)-administered agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) made in 1994.

A map of TPP countries. Image from New York Times.

A map of TPP countries. Image from New York Times.

The leaked intellectual property chapter of TPP confirmed that the warnings of public health experts and the World Health Organisation were well-founded – that the US is pushing for stricter rules in TPP countries on medicine patents, which will restrict the availability of affordable medicines. Flexibilities within the TRIPS agreement exempt ‘least developed countries’ from having to grant pharmaceutical patents up until 2016. But so-called TRIPS-plus provisions in TPP will uniformly delay the production of generic drugs for cancer and other life-threatening illnesses, by including an “automatic monopoly period” of up to 12 years for patented drugs before generic versions can be manufactured – putting treatment out of reach for potentially millions of patients across the Pacific for a decade or more.

A May 2012 briefing paper on the impact of free trade agreements on public health by the UN Development Programme and UNAIDS said: “TRIPS flexibilities were implemented and endorsed by the global community as methods to mitigate the impact of WTO Agreements on access to affordable, quality pharmaceuticals.” The report cites a study on the impact of the US-Colombia Trade Promotion Agreement that estimates an increase of almost $1 billion being spent on medicines in Colombia by 2020, or alternatively a 40 per cent decrease in medicine consumption.

The UN paper adds that in order to keep the benefits of the TRIPS flexibilities, “countries, at minimum should avoid entering into FTAs that contain TRIPS-plus obligations that can impact on pharmaceuticals price or availability”. Economist Joeseph Stiglitz has written: “In the poorest countries, this is not just about moving money into corporate coffers: thousands would die unnecessarily.”

The intellectual property chapter has also alarmed internet freedom activists, who believe the proponents of the failed US Stop Online Piracy Act (SOPA) and the Senate’s Protect IP Act (PIPA), which were scuttled due to public opposition in 2012, are aiming to implement a similar regime under the cover of the TPP. SOPA and PIPA proposed empowering the government to block internet service providers of infringing websites and to penalise individuals who accessed copyrighted content with jail terms. The leaked chapter includes text that would expand copyright periods significantly beyond TRIPS.

Digital rights group the Electronic Frontier Foundation says the leaked proposals restrict innovation and freedom of expression online, and that provisions on trade secrets mean countries will be able to “enact harsh criminal punishments against anyone who reveals or even accesses information through a ‘computer system’ that is allegedly confidential”.

And internet privacy advocates are equally concerned by the leaked detail on data flow provisions that they believe will allow privacy protections to be challenged on the basis that they act as an unfair barrier to trade. The text includes prohibitions on countries deciding where private data is stored – ie, in onshore or offshore data centres.

The protection of investors’ rights is the most controversial of all aspects of the TPP, and it is this aspect of the pact that environmentalists are most concerned about. Regardless of domestic policies that may exist or be introduced to combat climate change and reduce carbon emissions, investment in the fossil fuel industry, including in shale, will be locked in and unassailable. The leaked Environment chapter of TPP contains soft and aspirational language in comparison to the other leaked chapters. University  of Auckland Professor Jane Kelsey, who provides an analysis of the leaked text, writes of the Environment chapter: “The obligations are weak and compliance with them is unenforceable.”

Corporate justice and socialised risk

The TPP proposes to ease restrictions on investment and boost protection for investors. The centrepiece of this protection is the ISDS or investor-to-state dispute settlement mechanism. The ISDS mechanism will allow private companies to sue national governments for compensation for loss of “expected future profits” in response to government actions that impact on the company’s activities in private offshore tribunals that comprise three lawyers with the power to award damages.

The critical Investment chapter of the TPP leaked and surfaced on Wikileaks on March 25, and was dated January 20, 2015. Activists universally responded to the leak by describing the ISDS provisions as even worse than feared. Footnote 29 of the leaked chapter states that Australia is exempt from the ISDS provisions but adds: “deletion of footnote is subject to certain conditions”.

Coordinator of the Australian Fair Trade and Investment Network Dr Patricia Ranald said that the Australian government “is using ISDS as a bargaining chip in the hope of improved access to US agricultural markets” and appears to be “about to agree to ISDS” under certain conditions. Australia has existing agreements with 28 countries that include ISDS provisions.

The former Labor government in Australia banned the inclusion of ISDS mechanisms in future trade deals. But this policy has been overturned by the conservative Abbott government, which says it will assess each trade deal on a case-by-case basis. It has already signed up to a major free trade agreement with South Korea, released in February 2014, which includes an ISDS provision.

The action by tobacco giant Philip Morris against the Australian government over its introduction of plain packaging for cigarettes in 2010 has become the most infamous and emblematic example of ISDS in action. There are three main reasons why the case, which was launched in 2011 and is ongoing, has generated a deep suspicion towards ISDS among the public internationally.

First and foremost is the fact that a major corporation peddling a deadly project is entitled to sue a national government for implementing an important and effective public health measure. Secondly, there is the fact that Philip Morris exhausted its legal avenues in Australia’s national courts, having its claim rejected in the High Court before it decided to invoke ISDS – when Australian citizens and companies are not entitled to any further recourse beyond the High Court.

Finally, there is the blatant cynicism in Philip Morris’s manoeuvring, known as ‘treaty shopping’, that allowed it to launch the ISDS action over the supposed appropriation of its trademark by the Australian government. In February 2011 Philip Morris Australia, which was then owned entirely by a Swiss company, was bought by Hong Kong-based Philip Morris Asia. Australia did not have an ISDS trade agreement with Switzerland, but it did have a 1993 trade deal with Hong Kong that included ISDS provisions.

Most commentators believe Philip Morris will lose the case, but that hasn’t prevented it from threatening other countries that have expressed their intention to introduce cigarette plain packaging legislation. It had already brought a case against Uruguay in 2010 for introducing health warnings on packaging.

In March this year, Ireland became the second state in the world to introduce plain packaging. Comedian John Oliver covered the story on his Last Week Tonight programme, quoting from a June 2013 letter to the Irish government from a subsidiary of Philip Morris International threatening legal action that included the line, “As a dance is only meaningful when danced, so a trademark is only meaningful when used”. “And you know you have a pretty weak legal argument,” Oliver commented, “if it sounds like a rejected fucking Jewel lyric”.

The investor-state dispute settlement mechanism was first introduced into trade agreements and treaties in the 1950s, ostensibly to protect investors from outright government expropriation of their land or factories in countries that lacked a robust legal system. It was rarely used until the 1990s when the US-led surge in free trade agreements made it a more readily accessible option for multi-national corporations. According to the UN Conference on Trade and Development (UNCTAD), there has been a ten-fold rise in reported cases 2000.

Obama at TPP meeting in Hawaii 2011

US president Barack Obama at the TPP Leaders meeting at the APEC summit in 2011. Photo: Reuters

An ISDS mechanism is now included in more than 3,000 trade agreements around the world, around 2,700 of which are bilateral investment agreements and the remainder of which are trade treaties. According to UNCTAD, by the end of 2014 there have been a total of 608 known ISDS cases brought against more than 100 national governments that have resulted in the payout to multi-nationals of an unknown amount that totals billions of dollars.

In 2014 alone, 42 ISDS decisions were handed down, and the awards in just three of these totalled an unprecedented $50 billion. Corporations from the US and the European Union combined have initiated 64 per cent of claims that are publicly known. But because ISDS arbitration can be kept totally private, there may be many other cases the public is unaware of.

Canada, which entered into an ISDS agreement with the US through NAFTA, expected that its investors would be enabled to sue the Mexican government but was unprepared for the series of cases brought against it by US corporations, which have led it to pay out at least $158 million in compensation or settlements. Outstanding cases against Canada include damages claims of $6 billion. The US government has never yet lost an ISDS case. Just wait until it enters an ISDS agreement with Japan under TPP, observers warn.

The mechanism has repeatedly been used to directly challenge legislation by democratic governments made in the public interest. After NAFTA, the Canadian government banned a fuel additive, MMT, due to it having been found to be a risk to human health and the environment. It was sued by US MMT manufacturer Ethyl for a loss of expected future profits and settled the case for $13 million. The settlement included not only a payout but an obligation on the Canadian government to rescind the ban and publicly declare that MMT was safe.

Argentina was sued by more than 40 corporations after it took action to devalue its currency and freeze energy and water bills in the wake of its 2001 financial crisis. Compensation orders against Argentina for these actions reached $1.15 billion by 2008. In Ecuador, after the government cancelled Occidental Petroleum contracts for illegally breaching contractual terms, the US oil company was awarded $1.77 billion. Ecuador, Bolivia and Venezuela have now withdrawn from the World Bank’s investor dispute mechanism and withdrawn from many bilateral investment treaties that contain an ISDS mechanism.

In response to the Arab Spring in 2011, the then Egyptian government conceded an increase in the minimum monthly wage from $56 to $99 – only to be sued in June 2012 for almost $100 million by French corporation Veolia, which objected to having to pay its Alexandria bus station workers more.

In an intellectual property case, US drug corporation Eli Lilly is suing Canada under NAFTA over its laws that require the patentability of a medicine to be proved before a patent is granted – a law with the public policy goal of ensuring accessibility to affordable medicines.

In another case under NAFTA, Canada is being sued by US company Lone Pine Resources for $230 million for the declaration by the Quebec government of a moratorium on oil and gas exploration in 2011. The moratorium resulted in the revocation of Lone Pine’s permit to frack gas from underneath the St Lawrence River, which was an essential source of drinking water in Quebec.

In 2011, Swedish energy corporation Vattenfall claimed €1.4 billion in damages from Germany for placing environmental restrictions on a coal-fired power plant the company was building in Hamburg. The government settled – lifting the restrictions. After the Fukishima nuclear disaster, the German government made a decision to phase out nuclear energy. The same Swedish company, Vattenfall, sued under ISDS again in 2012 – this time for €3.7 billion for the loss of profits in its two nuclear power plants.

The examples go on.

If successful, the US-led drive to include ISDS provisions in TPP and TTIP – which combined, cover more than 60 per cent of global GDP – will result in an exponential rise in ISDS claims, where taxpayers are forced to shoulder the cost of the risks associated with foreign direct investment.

In response to the Europe-wide outcry against the proposed inclusion of ISDS in TTIP, the European Commission issued a ‘fact-sheet’ on October 13, 2013 that claims US investors may not want to bring an action against an EU member state in that state’s national courts, “because it might think they are biased or lack independence”.

An Australian ISDS lawyer, Sam Luttrell, offered a similarly lame justification for why investors would be reluctant to sign trade deals with Australia without an ISDS mechanism on ABC radio in September 2014 – arguing that foreign investors would be wary because Australia has a legal system based on case law, because it’s a federation, and because there’s a “perception” that investors will be discriminated against in Australian courts on the grounds of their nationality. But Australia’s Productivity Commission, hardly a beacon of protectionism, found in a 2010 report that there is no evidence that ISDS has any significant impact on foreign direct investment into a country.

Regulatory ‘chill’

As objectionable as the socialisation of risk taken by powerful multinational corporations is, the direct power these corporations are seizing over public policy is far more disturbing.

The European Commission’s fact-sheet declares: “Including an ISDS mechanism in an investment agreement will not make it more difficult for the EU or its Member States to pass laws or regulations.” It said the EU is working to ensure that “genuine regulations and laws are consistent with investment agreements”, a statement that begs the question – what exactly is a genuine regulation or law? Does the European Commission get to decide on behalf of member states which laws passed by democratic governments can be maintained and which can be discarded in the interests of multinational investors?

In an attempt to convince EU citizens that member states will retain the right to regulate under TTIP, the fact sheet continues: “A country cannot be compelled to repeal a measure: it always has the option of paying compensation instead.”

Well – that’s reassuring.

Discussing the impact of NAFTA, a former Canadian government official was quoted in The Nation as saying: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years.” These included pharmaceuticals, chemicals, patents and pesticides. “Virtually all of the new initiatives were targeted and most of them never saw the light of day.”

World-leading ISDS lawyer and Essex Court Chambers barrister Toby Landau QC said that this so-called regulatory chill exists “without doubt”, adding that in his role as counsel, “on a number of occasions now I’ve actually been instructed by governments to advise on possible adverse implications or consequences of a particular policy in terms of investor-state cases”.

As to achieving ‘regulatory coherence’ in the new generation of free trade agreements, business associations believe it would save everyone time if they were allowed to just write regulations for governments. In the lead-up to the opening of TTIP negotiations in 2013, the US Chamber of Commerce and BusinessEurope demanded a seat at the table with regulators “to essentially co-write regulation” in an October 2012 joint statement.

The ISDS provisions that offer the highest success rate for multinationals are the “fair and equitable treatment” commitment and the “minimum standard treatment” guarantee. According to Public Citizen, in 74 per cent of cases where US investors were successful, the fair and equitable treatment provision was used. Both provisions would be extended in TPP according to the Investment chapter that Wikileaks released in March. The chapter shows that under the minimum standard of treatment provisions, a case could be taken against government action that consists of a higher degree of regulation or scrutiny than an investor expected based on its dealing with a previous government.

UNCTAD has calculated that of all known investor-state disputes, 42 per cent were won by the state, 31 per cent were won by the investor, and 27 per cent were settled – typically regarded as a win by the investor in terms of a financial or legislative reward. There is no limit on the amount that can be awarded to a corporation, and the average cost of running a case is $8 million.

So how do these tribunals actually work?

They are ad-hoc tribunals convened by the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) or the United Nations Commission on International Trade Law (UNCITRAL) dispute mechanism. Three private lawyers are selected from a roster to arbitrate – one appointed by the investor, one by the state, and one that is agreed by both parties.

They meet in hotels or conference centres for a few days or a week, according to leading US ISDS lawyer – and fierce critic of the system – George Kahale. The proceedings are often kept secret and there are no public disclosure requirements.

Many lawyers alternate between representing major corporations in cases against governments and being ‘judges’ in ISDS tribunals. They do not earn a flat salary, as judges do in most countries, but rather earn more money the more tribunals they sit on. Incredibly, there is no requirement to follow precedent – the findings and the sum awarded are entirely at the discretion of the panel of corporate lawyers.

In its analysis of the leaked Investment chapter of TPP, Public Citizen outlines this extreme conflict of interest: “Since only foreign investors can launch cases and also select one of the three tribunalists, ISDS tribunalists have a structural incentive to concoct fanciful interpretations of foreign investors’ rights and order that they be compensated for breaches of obligations to which signatory governments never agreed.” An investor-friendly tribunalist clearly has a higher chance of being selected by corporations to sit on future tribunals.

Despite the wave of opposition to an ISDS being included in TTIP in Europe, demonstrated in the 150,000 responses received by the public consultation the European Commission was forced to undertake in 2014, the Commission appears determined to include it in the final agreement – with token added “safeguards”, no doubt.

The “safeguards” that were included in the Central America Free Trade Agreement in 2005 have been replicated in the TPP Investment chapter – but these safeguards have been ignored in practice by the tribunals, which have no appeal mechanism.

Regarded as the economic arm of his administration’s ‘Pivot to Asia’ aimed at containing the power of China, signing off on TPP is an urgent priority for Obama in the coming months, but it won’t happen unless Fast Track is approved by Congress. Enormous pressure by multinational corporations is being exerted on Democrats to delegate this authority to the President.

The Trans-Pacific Partnership will be followed by TTIP and the US-led Trade in Services Agreement. TISA is an even more secretive agreement aimed at the deregulation and ‘regulatory coherence’ of financial and other services that has been under negotiation between more than 50 countries since 2013.

The three agreements collectively, if signed, will result in a historic and unprecedented transfer of political and policy-making power to multinational corporations. This makes the stakes dizzyingly high for the fate of Fast Track, not only for the populations of TPP countries but for the vast majority of the world’s population that will be affected by this new generation of corporate trade deals.