We Have to Get Out of the ICSID

"We have to get out of ICSID" proclaims Hugo Chavez Frias during ´Hello, President´ on the 8th of January 2012. To understand why, let´s recap. States are sovereign. A state cannot be judged by other states or organisms, because it has jurisdictional immunity, which is inalienable. To hand that over is to loose sovereignty

By Luis Britto Garcia
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1. "We have to get out of ICSID" proclaims Hugo Chavez Frias during ´Hello, President´ on the 8th of January 2012. To understand why, let´s recap. States are sovereign. A state cannot be judged by other states or organisms, because it has jurisdictional immunity, which is inalienable. To hand that over is to loose sovereignty.

2. "Now they are threatening us with the ICSID," claims the President. Empires and transnationals try to strip states of their sovereignty. The difficult way to do that is to invade and destroy them. The simple way is to convince them to give up their jurisdictional immunity. A state that submits its decisions, laws or sentences to foreign tribunals or arbitrators is no longer sovereign. Sovereignty is inalienable and untransferible.

3. " So they threaten us with seizures of Citgo", complains the President. There is no way to win against the ICSID. Through the ICSID, transnationals can sue governments but governments cannot sue transnationals. The verdicts of the ICSID do not respect national laws or jurisprudence, niether can they be appealed. The ICSID makes decisions on a whim without a unifying system of jurisprudence.The ICSID systematically favours the transnationals: in 2010, it decided 232 times in their favour and only twice in favour of the State. The ICSID prefers to use preventative measures such as ordering confiscations and seizures of goods before making a decision.

4. The President, outraged, added that, "We will not recognise any decisions made by ICSID!" Is it possible to ´not recognise´ the verdicts of this World Bank tribunal? The limits of the arbitral awards of the ICSID, according to the agreement of the United Nations Commission on International Trade Law (UNCITRAL), are "the rules of public policy" of the country where it is to be carried out. In addition, controversies about "pubic interest contracts" cannot be submitted to the ICSID, since it is prohibited by all our constitutions, from the 1993 contitution to the one written in 1999 in article 151. In compliance with this rule, and with UNCITRAL, no public interest contract can be submitted to the ICSID or to any other foreign jurisdictional organ: only national tribunals can decide on matters of public interest.

5. “What moral parameters does this company have?” the president wonders. Companies don’t have morals, just interests. But as they can be lose out by the ruling of an impartial judge, capitalists being a worldwide offensive to privatise the courts.  In the extraordinary documentary Hot Coffee, by Susan Saladoff (2011) you can see how multinationals, as they sell goods or insurance or services, oblige their clients to sign contracts where they renounce the right to take them to court for noncompliance, and agree to submit to arbitration. As Saladoff points out, an arbitrator who decides against the companies won’t be employed by them again. In this way the public judicial system is being gradually replaced by an arbitration system influenced by large capital. The same medicine is applied to states when convincing them to submit to the arbitration board of the World Bank, called the ICSID. That way countries’ sovereign jurisdiction, representing whole peoples, ends up being substituted by privatised arbitration biased to the bankers.

6."The World Bank! What is that?" the president asks himself. The ICSID is the World Bank´s trap. To get caught in it, one only has to believe that Venezuela isn´t sovereign. To get out is more complicated: patriotism is required. The intention to leave has to be announced six months beforehand. The ICSID tries to be hermetic, the lawsuits are filed and concluded there. However, a lawsuit may end badly that should never have been filed in the first place because the constitution of the Bolivarian Republic of Venezuela and the agreement of the UNCITRAL strictly prohibit the submission of controversies over public interest. The public interest is not negociable. I can come to an agreement over a crash; over sovereignty, no.

7."But we are not going to bow down to imperialism and it´s tentacles!" proclaimed the president. There is no other way to leave the ICSID than to believe in national sovereignty. Abolish laws and treaties that promote and protect investments. Review sentences like the one given on the 17th of December 2008, where the Supreme Court of Justice states that for our country "it is impossible to sustain a theory of absolute immunity" because a "system of relative immunity has been utilized". Replace officials and judges who do not believe in Venezuelan immunity. We are either sovereign or we are not. 

Translation by Simon Gall and Venezuelanalysis.com

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