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by Joan Russow
Saturday, Apr. 26, 2008 at 3:31 AM
Bush, Calderon and Harper, in their April 22, 2008 Security and Prosperity Partnership Agreement statement emanating from New Orleans made spurious claims. They claim that “they are committed to democratic government, the rule of law and respect for individual freedoms”.
New Orleans North American Leaders’ Summit: Misrepresentation in SPP Joint Statement– Joan Russow – Global Compliance Research Project
They also claim that they speak for Canada, Mexico and the United States when they state: the three States “have shared interests in keeping North America secure, prosperous, and competitive in today’s global environment”. Their claims are only relevant on behalf of themselves, of their ideological parties, and of their corporate and institute mentors.
The three leaders, have misrepresented their commitment to democratic government, to the rule of law and to the respect for individual freedoms, and they have misrepresented the dominant view of the citizens in their countries.
1.MISREPRESENTED COMMITMENT TO DEMOCRATIC GOVERNMENT
The three current leaders claim their commitment to Democratic government.
Yet, the Security and Prosperity Partnership was extended in Montebello in 2007, and in New Orleans in 2008 by Bush – a president hovering on less than 30% support, by Harper- a Prime Minister with a minority government acting like a majority with no more than 33% support, and by Calderon – a President whose election is still under dispute.
Under the Constitution of the United States, by designating the SPP as an Agreement- a “sole presidential of executive agreement”, Bush is able to usurp democracy by bypassing Congress, and by securing a legally binding agreement. If the SPP Agreement were designated as a Treaty it would have to receive 2/3 Senate approval to become legally binding under article II of the Constitution.
Under the Constitution of Canada, an international treaty or agreement only requires the accession of the Prime Minister and cabinet to be to be deemed legally binding. There is no requirement under the Constitution to take an international instrument to Parliament. With a minority government, Harper is also usurping democracy by making internationally binding decision that most likely reflect less than 33% of the electorate.
In Mexico, under Art 133, international treaties that are in accordance with the Constitution are supreme law of all the Union. Art. 124- no international agreement if not in accordance with existing legislation including state legislation – will not be considered as supreme law of all the Union and thus it will not prevail above local law in case of conflict. Carlos Navarrete, the co-coordinator of the PRD Senators in the Mexican Congress stated that that Calderon could not bind Mexico without going to Congress, and that the SPP, to be binding, would have to be passed by the Mexican Senate (personal Communication, February 24, 2008). It appears, however, that provisions under the SPP are being implemented without being vetted by the democratic process.
2. MISREPRESENTED COMMITMENT TO THE RULE OF LAW
The Three leaders claim “their commitment to the rule of law”.
Yet, the SPP has resulted and will increasingly result in the violation of human rights, including civil and political rights, labour rights, women’s rights, in increased destruction of the environment, in increased militarism, and in increased privatization of the commons.
The question arises to which rule of law, are the leaders committed. The three leaders are prepared to enter into an Agreement, that will lead in many cases to the undermining of not only key statutory laws but also key international norms and legal instruments which have established norms related to the environment, to human rights, to social justice.
Since the Canadian “new” Conservative minority government has been in power, it has consistently joined the United States at international conferences in undermining the rule of law. Although Canada has in the past been criticized for failing to implement international instruments to which it has been a signatory, with the “new” Conservative government, the disregard for the rule of international law has reached a new high.
The US has disregarded international law for years; the US has refused to sign and ratify numerous key international instruments such as the Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination against Women; the Covenant of Social and Economic and Cultural Rights, Convention on Biological Diversity (signed but not ratified); the Kyoto protocol of the Framework Convention on Climate Change; most International Labour Conventions. Etc.
Canada signs and ratifies most international agreements, and then fails to enact the necessary legislation or to amend existing legislation to ensure compliance.
If one examines principles under International human rights agreements, including key covenants on civil and political rights, and social and economic and cultural rights, International labour organization instruments, conventions and declarations related to indigenous rights, right of migrant workers, rights of refugees; If one examines principles related to preventing the scourge of war; If one examines conventions and protocols related to Biodiversity, to climate change etc.
One will find that all three states are derelict in their duty towards implementing principles arising from international obligations and commitments. Citizens of Canada, Mexico and the United States have a legitimate expectation that these three states will abide by international peremptory norms, and respect the “rule of law”.
The SPP Agreement is the culmination of years of measures and provisions, of government/corporate institutional collusion, that violate international peremptory norms, [jus cogens as a body of higher law that take precedent over other laws] jus cogens
Under Article 53 of the Convention on the Law of Treaties – Treaties conflicting with a peremptory norm of general international law (jus cogens) are null and void
"A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of the present convention, a preemptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
To be designated as a “Peremptory norm” the norm must be accepted and recognized as a peremptory norm by the internationally community of states as a whole. Peremptory norms can be extracted from years of international instruments agreed to by a broad group of states, from widely divergent geographical areas, functioning under a range of legal systems,
Peremptory norms can be drawn from Conventions, Covenants and Treaties, which have been signed and ratified, and are in force; from Conference Action plans which have been adopted by Consensus, or from UN General Assembly Resolutions and Declaration adopted at the UNGA.
NOTE: the United States is not a staunch supporter of peremptory norms. During the negotiation of the Vienna Convention on the Law of Treaties, the United States pointed out that “the recognition of a peremptory character of a norm would require as a minimum, the absence of dissent by an important element of the international community” - ie presumably the United States. It should be noted as well that Canada and Mexico have signed and ratified the convention on the law of treaties; the US has not ratified the convention
For over 60 years, through the UN system, member states of the UN have incurred obligations through treaties, conventions and covenants, made commitments through UN Conference Action plans, and created expectations through UNGA declarations and resolutions related to furthering international law and common security.
These instruments have given rise to a body of international law that is being willfully undermined by three leaders in their negotiating the Security and Prosperity Partnership Agreement.
3. MISREPRESENTED “COMMITMENT TO INDIVIDUAL RIGHTS AND FREEDOMS”
The Three leaders claim “their commitment to individual rights and freedoms”.
Increasingly both Canada and the US have demonstrated little commitment to individual rights and freedoms.
The US and Canada have developed no-fly lists which have resulted in targeting activists, and in racial profiling. Also the US requires a Mexican to have a US visa to fly to Canada even if the Mexican is not stopping anywhere in the United States.
Citizens’ individual rights and freedoms are being curtailed at the borders. For example On October 4, 2007, CityNews.ca reported that American peace Activist Medea Benjamin who has been protesting against the invasion of Iraq was prevented entry into Canada. It appears that Medea Benjamin’s name was in an FBI-run database, the National Crime Information Center (NCIC); it also appears that Canada relies on this list to screen visitors…..Derek Mellon, a spokesman with the Canada Border Services Agency, said Canada generally refuses entry to anyone who has been convicted of a criminal offense, regardless of the nature of it”
In preventing the peace activists from entering Canada, Canada and the United States have violated their obligations under the International Covenant of Civil and Political Rights.
Canada and the United States have both signed and ratified the International Covenant of Civil and Political Rights. Under Article 2 of the Covenant there shall not be discrimination on the ground of “political and other opinion” and there is a requirement to enact legislation to prevent such discrimination:
“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
The FBI has an extensive list of what constitutes crime under National Crime Information Center (NCIC). It appears that the Canada Border Services Agency relies on the FBI National Crime Information Center (NCIC). When one examines the FBI list, one wonders which category was used to deny a peace activist’s right to be free from discrimination on the grounds of “political and other opinion”, and one also wonders in what way does Bush and Harper believe that they are advancing “respect for individual rights and freedoms”.
Did they use Section B. 1. and classify peace activism as a serious or significant offence.? Individuals who have been charged with serious and/or significant
1. Individuals who have been fingerprinted and whose criminal history record information has been obtained.
Or did they use section D? “Individuals designated by the U.S. Secret Service as posing a potential danger to the President and/or other authorized protectees.”
Or did they use F? “Members of Terrorist Organizations: Individuals about whom investigations has developed sufficient information to establish membership in a particular terrorist organization”.
Did they use Section O? “Terrorist File: A cooperative Federal-state program for the exchange of information about terrorist organizations and individuals. For the purposes of this file, "terrorism" is defined as activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or any state or would be a criminal violation if committed within the jurisdiction of the United States or any state, which appear to be intended to: 1. Intimidate or coerce a civilian population, 2. Influence the policy of a government by intimidation or coercion, or 3. Affect the conduct of a government by crimes or kidnapping”
It is obvious none of the above sections would apply to a peace activist exercising the right of assembly and “respect for individual freedom”
4. MISREPRESENTED THE DOMINANT VIEW OF THE CITIZENS IN THEIR COUNTRIES.
In the statement from New Orleans, the three leaders claim to speak for Canada, Mexico and United States.
“As continental neighbours and partners committed to democratic government, the rule of law and respect for individual rights and freedoms, Canada, Mexico and the United States have shared interests in keeping North America secure, prosperous, and competitive in today’s global environment.”
For whom do the three leaders speak. Not on behalf of their countries but on behalf of themselves, of their ideological parties, and of their corporate and institute mentors.
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