Campaigners Pia Eberhardt and Arthur Stamoulis discuss what has been learned so far about challenging investor-state dispute settlement (ISDS), as the European Commission consults on its use in the Trans-Atlantic Trade and Investment Partnership
By Thomas Mc Donagh and Aldo Orellana López
The European Commission’s public consultation on the inclusion of the investor-state dispute settlement (ISDS) mechanism in the investment chapter of the Trans-Atlantic Trade and Investment Partnership (TTIP) is clearly a result of growing citizen concern and civil society pressure.
Even though the scope of the Commission’s consultation has come in for severe criticism from civil society groups, the high profile that this issue has garnered in Europe in recent months represents a unique opportunity for campaigners.
In order to facilitate a strategy conversation among activists and civil society groups on ISDS in the TTIP campaign, the Network for Justice in Global Investment – a core Democracy Center project – recently interviewed two people at the center of campaigns on both sides of the Atlantic: Pia Eberhardt from the Corporate Europe Observatory and Arthur Stamoulis from the Citizen’s Trade Campaign in the United States. (The complete interview transcripts can be found here and here.)
We began by asking them what strategic opportunities and challenges they see for campaigners given the current high profile of investment rules and ISDS in Europe.
Opportunities and Challenges
Both agreed that the current moment in Europe was an important window of opportunity. For Eberhardt the present consultation by the Commission “provides little space for people to articulate general oppositions and concerns about the system… so we have to open that space”. She adds that, “it is really important for us to offer people an opportunity or a way to articulate themselves when they have already learned about ISDS and oppose it,” and she foresees “many more online campaigns and e-actions” as a means of doing so.
Translating this complex issue for non-technical audiences remains a big challenge for Eberhardt. She sees one of the key tasks for campaigners as offering people “simple and accessible analysis of this whole system…in video form for example”, especially in the many European countries in which it is still a non-issue.
For Stamoulis, it will be important to use the current moment in Europe as “a hook to do more outreach, education and base-building with different constituencies in the United States around ISDS. It’s an opportunity to generate more in the media on the issue and also directly educate our members.”
In terms of the challenges represented by the TTIP campaign in general, Stamoulis highlighted the difficulty of “organizing without the political argument about the domestic economic impacts”. He said that this is forcing US campaigners to “focus on other threats in trade agreements and ISDS is clearly one of the big ones in the European pact.” He went on: “There is a lot of analysis building and coalition building and re-education to do.”
For Eberhardt one of the major challenges in Europe will come after the European Parliament elections in May. She told us that it will be crucial to “make sure that people don’t lose the energy and keep up the pressure on this issue” after the elections.
Lessons from Germany
We went on to ask Eberhardt about the lessons that can be learned from Germany, where public opinion has turned so intensely against ISDS. “The German government is swinging with public opinion – it would just be too costly for the government to support this system in public,” she said. When asked about the specific tactics used in Germany by campaigners she told us that “what you see in Germany is what you see in many countries around the world: that the investment regime becomes an issue when a country gets sued…That has happened in Germany with the two Vattenfall cases…and you have the negotiations with the United States about similar investor rights, and a slowly trickling awareness about what this could mean that created this explosion of public opinion. ISDS really has become a public issue where it’s even being discussed on comedy shows.”
When asked about the hypocrisy of the German government’s position, given its many investment agreements with other countries around the world, Eberhardt agreed that “the German position is definitely hypocritical” and added: “We know that Germany, for example in the negotiations with Canada, was one of the most aggressive countries fighting for hard-core investor rights; and Germany’s own bilateral investment treaties with over one hundred countries grant investors extremely broad rights and that position has not changed.”
Communicating the Message
When asked about messaging and communication strategies in the campaign, Eberhardt told us that the most important thing so far was “that the issue has been picked up by the media; journalists have different ways of talking about these issues than we have.” She went on: “Images have also been important, the fact that you have investor-state disputes being covered by mainstream television stations. They managed to tell simple stories about concrete cases, and of course awareness only comes with concrete cases, whether it’s Vattenfall or the Philip Morris cases. The Lone Pine case against Canada is also important because we have a strong anti-fracking movement in Europe.”
Also in terms of messaging in Europe, Eberhardt insisted that “we must again and again and again repeat that the so-called reform agenda of the (EU) Commission does nothing to tackle the basic flaws of the system and will not protect people, the environment and democracy.”
Stamoulis also spoke about the importance of individual investor-state cases in terms of explaining the system. “Educating people about specific cases will make it clear that this isn’t just a hypothetical concern, this is a very real threat. Being able to point to cases has really woken up some people, it has helped people to see that this is a real threat to the environmental justice movement.” He added that, “the fact that the US has never lost an ISDS case has been a powerful talking point by the other side. As the environmental movement in the U.S. becomes better connected to global movements through the lens of climate justice, I think there is more opportunity for global solidarity. If there was a major loss by the US, I think you’d see a lot more campaigning against ISDS. The Lone Pine case in particular has made it easier for some issue-based groups to connect dots. It’s against a fracking moratorium and a lot of US campaigners are very actively fighting fracking. And it’s happening in Canada, a country that’s right next door to the U.S.”
Stamoulis also spoke about the importance of broadening the critique of the system. “I think one of the arguments that we need to get away from is that ISDS is inappropriate for an EU-US trade deal because they are both first world countries with highly developed justice systems. If our organizing is going to support movements against ISDS in other countries, such as Indonesia or India or elsewhere, then the critique of ISDS that we put out needs to be much broader.”
Eberhardt shared this concern. For her it’s important that we “make sure our critique is not just about the EU-US trade deal. We must attack the EU and its investors, and what they do with rest of the world.” She added that we must also “mainstream our critique so that it is not just social movements, activists and left-wing politicians that oppose ISDS, but also more conservative circles, like constitutional lawyers for example.”
Alliances – Key audiences
In the US context Stamoulis highlighted the importance of continuing to work with state and local elected officials to draw attention to the ISDS system and he spoke of being pleasantly surprised to see “a growing awareness among the climate justice movement – activists focused on fracking and energy exports etc.”
When asked about alliances in the European campaign, Eberhardt told us that “at this stage we do have most organized civil society groups on board with a solid position against ISDS. Trade unions – including the big mainstream trade unions – environmental groups, public health organizations and the internet community that was fighting against ACTA (the Anti-Counterfeiting Trade Agreement) are all on board. So opposition in civil society is pretty solid. Party-wise, there is solid opposition in the Greens and the Left Party and in a growing part of the Social Democrats.” In terms of possible future targets for campaigners, she identified some unexpected potential allies: “We have gaps and that is, party-wise, clearly the Liberal and the Conservative parties. Many of them are a lost cause but you do have parliamentarians in these parties that I think would be very open to parts of the criticism that has been voiced on ISDS and the same goes for academics and legal scholars.” She went on: “At the moment, we lack that engagement from academics and legal scholars in Europe. But it will be important for the months and years to come……we, as civil society groups, can rebut many of their arguments but the rebuttal is more powerful if it is done by someone who is from the same field, from their camp, from academia. So we still have to bring more academics on board and get them a bit organized.”
Both interviewees spoke of the importance of trans-Atlantic civil society cooperation, with Eberhardt highlighting that “the US groups have been very helpful in finding more details about the cases in order to have additional arguments against the [European] Commission’s propaganda.”
Harvesting wisdom from past campaigns
When we asked Stamoulis what lessons could be learned from the Trans-Pacific Partnership (TPP) campaign in the US so far, he commented that “it takes a lot of work- steady organizing efforts for years just to get an issue to reach a basic level of consciousness. There is a need to be very strategic and go congressional district by congressional district.” He went on: “Our arguments are not gong to be what wins any trade fight. It’s our organizing and the power we build.”
When we asked him about his reflections from past NAFTA campaigns, he told us that “most people have approached trade agreements through the lens of how it affects jobs, wages and public services. This is a good opportunity to expand people’s analysis. More organizations are already involved in the context of the European agreement because of the threat of ISDS and other deregulatory pieces.”
In terms of overall lessons learned from the campaign so far, Eberhardt highlighted good analysis as well as “accessible tools – from videos to simple information sheets that are understandable for people, a good media strategy, constantly trying to bring this issue into the media. But also expert arguments that you do need to rebut false claims that come out of governments once your campaign is successful and awareness is spreading and people are raising their concerns. You need to be constantly ready to rebut these false arguments and propaganda.”
She feels that these ingredients have “just come together at the right moment in time in Europe”, and emphasizes the importance of the campaign there to the global struggle against the current investment rules regime in general: “It would send a very strong signal to the world and to civil society in other countries fighting this system if we managed to get the Commission to back off and to drop these corporate super rights.”
Pia Eberhardt does research and campaigning on EU trade and investment policy with the Brussels-based Corporate Europe Observatory, a group working to expose and challenge the privileged access and influence enjoyed by corporations and their lobby groups in EU policy making.
Arthur Stamoulis is Executive Director of Citizens Trade Campaign, a national coalition of labor, environmental, family farm, consumer and human rights organizations working together for trade policies that promote a just and sustainable global economy.
New from the Corporate Europe Observatory on the struggle against ISDS in the TTIP:
- Still not loving ISDS: 10 reasons to oppose investors’ super-rights in EU trade deals
- Suing the state: hidden rules within the EU-US trade deal
From the Democracy Center: