I have been asked to share some thoughts and considerations related to the work undertaken by the Permanent Peoples’ Tribunal and Enlazando Alternativas, that peaked with a specific session on the responsibilities of European Transnational Corporations in Latin America, held in Lima in May 2008 in conjunction with the Cumbre de los Pueblos and with the EU-Latin American Summit of the Heads of States and Governments.  Much of the specific information on the PPT and the session can be found on the websites www.enlazandoalternativas.org and on www.internazionaleleliobasso.org,  therefore I would not dwelve into those details but rather, in the spirit of this workshop, try to propose some hints for further analysis and action.

I would start my presentation by  saying that I am not going to talk about Transnational Companies (TNCs) here, but rather propose that we  change our approach, focusing on the issue that seems to be  more relevant in this WSF, notably how to reclaim, reconstruct, give meaning to,  a new public space.

In this sense, the point should be stressed that the Permanent Peoples’ Tribunal  (PPT) work is a process, an event and a tool for further action. The PPT, notably in its most recent articulations (Capítulo Colombia and TNCs),  has - in fact - been an important tool to visualize struggles, protect communities and to explore and identify  shortcomings and challenges within the current international legal regime related to obligations for Status and non-state actors. The May 2008 Lima sentence,  in fact, resulted in the articulation  of a two-pronged approach, one related to the behavior of TNCs and the other on the ways and means to rebuild a role for the State, and more specifically of a new public space.

Capitalizing on the PPT process would hence mean tackling the issue under discussion in this workshop, notably  Transnational Companies, in an innovative way.

In order to do so, the first question we should be asking ourselves is  whether we are really interested in making sure that TNCs operate well,  within a specific context dictated by neoliberal assumptions and rules,  or rather whether our work on TNCs is - by default - a political action aimed at articulating a new concept of public politics, by somehow “reclaiming the commons”.

Hence the three further queries that should guide our analysis are:

a. how do we reclaim the centrality of rights in the broader sense of the term (including new generation human rights)? How do we assess what we have lost in terms of rights in the  neoliberal decades,  and what can we  salvage to reconstruct a rights-based system?

b. what are the gaps and opportunities in the current debate on global crises? Would we define an exit strategy from the crisis that in a way replicates the same assumptions,  or would we rather invent a new model, or better a new conceptual and value-based reference framework within which alternatives can be identified and implemented?

c. how to reclaim public space? What is a public space and how do we keep TNCs out of this?

These three assumptions would also provide guidance to critically assess the current mainstream solutions proposed to the crisis, be them a new role for the State, or what has been  described by many observers as the “New New Deal”, whereas public resources are increasingly used to rescue and bail out financial institutions with no ensuing public benefit, but rather an exacerbation of the crisis itself. The case of the bailout of UK banks and the restriction to access to credit is a case in point.

In a way we can notice that also in tackling the current crisis,  the State’s original attributions have substantially changed and transformed themselves . Rather than reclaiming a true public space, governments still  consider the private interest of the few as equal to the common public interest, thereby revitalizing an exit strategy to the crisis that is based on a new version of corporate welfare.

In this sense, public space is meant as an opportunity to spread and socialize risks, through the use of public funds for bailouts.  Furthermore, the urgency to reactivate economy and consumption, in line with the dominant growth, GNP-based paradygm will result in further support to the private sector and TNCs through tax breaks, subsidies and support for neokeynesian-style public expenditure in infrastructures, etc.

In this context, strictly dealing with  TNCs might lead us away from the current point of discussion, notable the urgency to address systemic issues related to the market, resource extraction and use and the intersection between the activities of the private sector and  solutions currently proposed to the global crises.

This would mean that it might be worthwhile exploring the possibility of taking advantage of the current discussion on the new financial order, with a view to address some systemic issues,  while keeping the space open for more targeted work directly confronting TNCs operations.

For instance, linking up with CSOs and social movements working on the financial crisis, we could  challenge the role of the World Bank and ICSID within the broader discussion leading to the announced UN Conference on the Reform of IFIs and within the UN Task Force on Financial Crisis.. At the same time some of the PPT Lima recommendations can well fit in this context, for instance those related to the establishment of a Tribunal on Ecological and Economic Crimes and/or the call for the appointment of a UN Special Rapporteur on Illegitimate and Ecological Debt.  The latter can also provide a useful opportunity for alliances with the Ecological Debt networks that are currently advocating for a UN protocol on Ecological Debt.

Parallel to that we could articulate work in support of communities affected by specific TNC activities. This means that the strategy could entail - on the one hand -use of legal instruments and litigation,  and on the other the development of a more “political” platform. Litigation can be an important tool to reclaim community rights, seek justice and restitution of the ecological and social debt. The follow-up to the TPP Capitulo Colombia offers an interesting example of this two-pronged strategy.

As far as a possible political platform is concerned, this would aim at creating the pillars and conceptual framework for “reclaiming” a new public space. There is no blueprint for this exercise,  but rather some concepts that require going much beyond the traditional pattern of liberal State.  In order to do so, we can resort to the concept of “commons”, a concept that cannot be defined per se,  but rather by exclusion (i.e. the commons are inalienable and not subject to market regimes, hence unavailable to the private sector) and by process (i.e. the commons cannot be managed by State alone, but rather by a new combination of citizen control and participation that hybridates the traditional State structure).

A final element of discussion is related to the other global crisis, notably the climate crisis. As a matter of fact, the risk exists that the neoliberal paradygm would be revamped as a win-win solution to the climate crisis, shifting the discussion on a relatively intact field. As a matter of fact, neoliberalism has proven its failures in terms of development and financial crisis prevention,  but could still be appealing to many as a provider of win-win (even win-win-win ) market-based solutions to climate change. Some observers have already described the Climate Change debate as a new “Washington Consensus”.  In this context we can already notice how the private sector (oil, mining, infrastructure, forestry, carbon traders) is already playing a key role.

The new frontier of privatization and TNC expansion, therefore, seems to be that of atmospheric rights, through carbon trading, that in a way provides an indirect subsidy to TNCs to continue operating in their business as usual, plundering resources and accumulating a huge ecological and social debt for the rest of Humankind.

As far as Latin America is concerned, the link between TNC investments in biofuel, or in Clean Development Mechanisms or in large scale hydro, shows that clean energy can be a good Trojan horse for resource privatization and compression of fundamental rights.

Climate Justice therefore provides new lymph to the discussion on a new public space, on how to reclaim the commons, restitute ecological and social debt, while at the same time providing the opportunity to build new and innovative alliances with a broader segment of social movements in the Global North and Global South.

Notes from presentation on the Permanent Peoples’ Tribunal and strategies to dismantle TNCs held at the World Social Forum, Belem, January 2009

- Francesco Martone:   Permanent Peoples’ Tribunal