The path to trade justice

Pointing the way out of investor protection

In 2023, we worked to show that a future free of investment protection is both possible and essential. Our work in Colombia produced significant results, setting an example for other countries around the world. Early in the year, we collaborated with Colombian CSOs, trade unions and social movements to urge the government to establish a commission to audit its Bilateral Investment Treaties (BITs), which include Investor-State Dispute Settlement (ISDS). To further this goal, TNI published an analysis, building on previous work on ISDS cases in Colombia. We also co-organised a strategy meeting with Colombian CSOs to share our experience of Ecuador’s audit, which led to Ecuador’s termination of numerous BITs. Our research undergirded a CSO statement, signed by more than 200 Colombian, regional and international organisations, asking the Colombian government to review its investment and free trade agreements.

Our collective advocacy was strengthened by another report, published with Public Services International (PSI) and Friedrich Ebert Stiftung, which delved into the details of Bilateral Investment Treaties and investment protection in Latin America and the Caribbean, where investors have brought – and won – a huge number of claims against countries. Public services in the Crosshairs focused on the profound negative impacts of investment protection on the public sector, including cases related to water and electricity, waste management, pensions, health care and more. It also showed that another path is possible and called on governments in the region to follow the lead of other countries that have already exited the investment protection system.

In May, TNI took part in an international mission to Colombia to build knowledge about the impact of BITs and ISDS and to catalyse action. Activities included public forums at the Universidad Industrial de Santander and University of Bogotá, a workshop attended by some 130 people from more than 30 CSOs, and a public hearing in the Colombian Congress. During the mission, we celebrated the announcement of the Colombian Minister of Trade that the government would renegotiate its trade agreements. The results of the international mission were shared in a report and presented at a webinar attended by 80 people, including the Director of Foreign Investment in Colombia.  

Together with allies, we also turned our attention to the Netherlands. A new report, Dutch Bilateral Investment Treaties: 60 years of protecting multinationals, highlighted the Netherlands’ pivotal role in facilitating ISDS claims as a major conduit country. The report described how Dutch BITs are seen by multinationals as the ‘gold standard’ of investment protection, making the country a prime location from which companies can make ISDS claims. We underscored the importance of ending Dutch BITs in order to create equitable, democratic and environmentally sustainable societies.

Our long-term work on investment protection is paying off. Important actors are picking up our narrative and taking action to end ISDS. We were pleased to share our evidence and analysis about the impacts of ISDS in a meeting with the UN Special Rapporteur on Human Rights and the Environment. His subsequent report to the UN General Assembly carried the potent title: ‘Paying polluters: the catastrophic consequences of investor-State dispute settlement for climate and environment action and human rights’.

Tackling trade barriers to climate action

One treaty in particular is being aggressively used by polluters to block climate action and push the world toward climate catastrophe: the Energy Charter Treaty (ECT). As part of our work toward realising a just and equitable transition, TNI persisted in our vital efforts to rid the world of the ECT. A top priority in 2023 was to raise awareness and prevent ECT expansion in the Global South. Our work with partners in Bangladesh, Nigeria, Tanzania and Uganda helped build momentum against the treaty among civil society actors and policymakers. Together with Ugandan partners, we co-published a paper on the current status of ECT and the risks of accession, and provided clear recommendations for East Africa countries. A webinar on the subject, attended by 50 representatives of civil society organisations in the region, provided in-depth insights into the ECT, its implications for Africa and climate action.

During the workshop, we also discussed lessons from Europe, where the tide is turning away from the ECT, thanks to years of effort by TNI and allies. As part of the European trade justice movement, in 2023 TNI maintained pressure on EU decision-makers to ensure that the EU follows through on a coordinated withdrawal from the Treaty. In July, in a momentous step forward, the European Commission officially declared the ECT and ISDS incompatible with the EU’s energy and climate goals, and the autonomy of EU law, echoing the narrative of TNI. In a proposal to the European Council, the Commission formally called for the EU’s withdrawal from the ECT, describing it as ‘the only available solution.’

Holding the line against free trade and investment agreements

TNI is successfully connecting and strengthening social movements across sectors and geographies to hold the line against harmful free trade and investment agreements. In January, we shared our insights on trade and investment agreements during the Community of Latin American and Caribbean States (CELAC) Social Summit. Organised by trade unions and held in Argentina prior to the CELAC Summit of Heads of State, the Social Summit was attended by over 100 organisations from the region, as well as journalists, academics, and government officials, including the Minister of Foreign Affairs of Venezuela. The Summit concluded in a declaration, prepared and sent to the Presidential Summit of CELAC, with the demand to withdraw from FTAs and BITs.

Later in the year, we joined Members of the European Parliament and more than 50 CSOs from Latin America and the EU in a Counter-Summit in the European Parliament, held in parallel to the EU-CELAC Summit of Heads of State and Government in Brussels. During the half-day conference, we joined representatives of CSOs, social movements, farmers’ organisations, workers’ unions and MEPs, as well as parliamentarians and governmental representatives from Latin American countries to evaluate lessons learned from decades of activism and experience on the topic of trade relations between the EU and Latin America and the Caribbean and to outline a new trade relationship for the 21st century. We used the opportunity to co-organise two speaker tours. Environmental and trade union activists from Latin American helped to raise awareness in the EU among organisations and policymakers about the potential impacts of the EU-Mercosur deal.

A new report, co-published with allies, helped show the gendered impacts of the Mercosur-EU agreement, with a focus on Brazil, Argentina, Paraguay and Uruguay. TNI facilitated further discussion and action on the topic by co-organising a two-day seminar in Rio de Janeiro, Brazil. The seminar, which was attended by 50 CSO delegates and two public officials, advanced understanding of economic violence and trade and investment as feminist issues and widened engagement in the Stop EU-Mercosur campaign. In 2023, more than 1.3 million people demanded a stop to the EU-Mercosur agreement.

In Indonesia, TNI helped build knowledge and hold the line against several agreements under negotiation.  In the context of increasing demand for key minerals used in renewable and digital technology, Indonesia banned the export of critical raw minerals so as to build its industrial base, prompting the EU to file a lawsuit against the country with the World Trade Organization (WTO). A new report, Between a mineral and a hard place, analysed the tensions behind the policy and its implications in relation to the international trade and investment regime in general, and to the Indonesia-EU Comprehensive Economic Partnership Agreement (IEU-CEPA) in particular. We also shared our critique of the US Indo-Pacific Economic Framework through participation in a stakeholder meeting organised by the Office of the United States Trade Representative and a subsequent demonstration involving activists. Finally, we drew the connections between trade and transition minerals in a session at the WTO public forum and in a meeting with the Permanent Mission of Indonesia to the WTO, where we discussed Indonesian civil society concerns regarding the WTO, ongoing trade negotiations and the EU’s WTO lawsuit.