Declaraciones

Cartas Laterales no resuelven problemas integrales y progresivos del TPP11

Confiar en estas cartas laterales (side letters)  sería pedirnos  promover una falacia que es a la vez una estafa política orientada a cubrir las espaldas de quienes hoy están en el gobierno,  y buscan quizás zafar de la responsabilidad de lo que ocurra en el futuro. Reiteramos que la única vía coherente es que el Presidente Boric retire el TPP11 del Senado.

No hay cartas laterales que modifiquen la esencia del TPP11. El tratado es integral, como lo dice su nombre, y sus problemas son progresivos como dice también su mal traducido nombre (no es un tratado progresista sino progresivo), y se verán a futuro si se aprueba. El gobierno, incapaz de mostrar informes que avalen beneficios, reconoce sólo ventajas marginales. Ya hay acceso a todos esos mercados, vía  tratados de libre comercio. El libre comercio continuará.

Las cartas adjuntas son una práctica que usan los Estados dado que los tratados “de segunda generación”, incorporan áreas más allá del simple “comercio” y acceso a mercados y eso hace que vean necesario pedir  ciertas salvaguardas para algunas temáticas.

Una de las más controvertidas disposiciones del TPP es la relativa al Sistema Internacional de Resolución de Controversias, que permite a los inversores extranjeros demandar a Estados en foros arbitrales internacionales si comprenden que una política pública afecta de cualquier modo su propiedad o su ganancia. Dicho mecanismo está incluido en el Anexo B del Capítulo 9 sobre Inversiones del TPP11, y se ha usado contra países latinoamericanos en 327 ocasiones, según un reciente informe de TNI.

La prensa ha filtrado que el gobierno mira el caso de Nueva Zelanda. Pero el texto de las cartas que Chile quiere firmar permanece secreto.  Sabemos que Nueva Zelanda, firmó cinco cartas adjuntas con Perú, Australia, Brunei, Malasia y Vietnam para limitar el acceso de los inversores provenientes de estos países a la aplicación del ISDS contra ese país. Lo hizo respecto de países con los que NO TENIA tratados que incluyeran ese mecanismo.  Pero, de potencia a potencia, no lo logró  con Canadá ni Japón.

La  efectividad práctica de las cartas laterales es relativa. Nueva Zelanda tiene otros tratados bilaterales de libre comercio que otorgan a los inversores ese mecanismo ISDS, y también otros bilaterales de inversión TBI. Y los inversores pueden saltar este tipo de restricciones haciendo “shopping de tratados”, es decir elegir cuál usar para demandar a un Estado. Además, nuevos países que accedan al TPP-11 en el futuro, como Gran Bretaña, podrán hacerlo igualmente.

Y el caso de Chile es más llamativo. Si Chile lograra cartas laterales con varios, para no aplicar el  ISDS  del CTPTPP, eso NO modifica los TLC que Chile YA TIENE con todos los países del TPP, y en los que ya otorgó ISDS a los inversores. Lo hizo  en el TLC con Japón que incluye ISDS (en vigencia desde 2007). Luego en el  TLC con Vietnam que incluye ISDS (en vigencia desde 2014) Asimismo en el  TLC con Brunei, Singapur y Nueva Zelanda incluyen ISDS (en vigencia desde 2006) – TLC con Malasia, incluye ISDS (desde 2012) – TLC con Australia, incluye ISDS (en vigencia desde 2009)- TLC con Canadá, que incluye ISDS (en vigencia desde 1997) – TLC con México, que incluye ISDS (en vigencia desde 1999) – TLC con Perú, que incluye ISDS (en vigencia desde 2009). Así que las cartas laterales sobre ISDS ni siquiera pueden asegurar eficacia respecto de lo que buscan pues tendrían que modificar al mismo tiempo los tratados de libre comercio con 10 países!!!

Pero además, afirmar que las Cartas Laterales resuelven los puntos críticos del tratado es un profundo error. Por eso nuestra crítica como organizaciones sociales, ambientales, campesinas, de trabajadores no se ha centrado tanto en este sistema y abarca muchos otros puntos críticos como se ve en el volante con nuestras “9 razones” y nuestra consigna “Salud, Semillas y Soberanía”.  El TPP 11 está compuesto por 30 capítulos. De estos, sólo 7  se refieren a temas específicos de comercio (comercio de bienes, reglas de origen, medidas sanitarias y fitosanitarias, bienes agrícolas, entre otros). Un capítulo específico sobre Inversiones incluye también el mecanismo ISDS mencionado. Entonces, ¿qué incluyen los otros 22 capítulos? Incluyen compromisos en materia de compras públicas, servicios, comercio electrónico, telecomunicaciones, propiedad intelectual, servicios financieros, coherencia regulatoria, medio ambiente, asuntos laborales.  prima, y restringiendo la acción de la política pública en todos los  sectores mencionados

.

La cantidad de temáticas abarcadas convierten al acuerdo en una suerte de pulpo que atrapa todo aquello del espacio público que pueda ser privatizado, dando libre acción a las empresas,  fortaleciendo el modelo exportador de materia

Las suspensiones existentes a algunos artículos tampoco modifican la esencia del tratado, como se puede desprender del análisis de esos artículos: en materia de propiedad intelectual, por ejemplo, se mantiene el UPOV 91 y la extensión de las patentes farmacéuticas. En materia de inversión, no se modifica el ISDS, ni la prohibición de condicionarla a la transferencia de tecnología, ni las restricciones a empresas nacionales.

Finalmente recordamos que antes de asumir el gobierno, los actuales funcionarios sostenían que  no hay forma alguna que el tratado vaya en la dirección de otro modelo de desarrollo diferente para Chile, y avance en materia de  industrialización respetando los  derechos humanos, laborales y de la naturaleza. Los gobiernos de Piñera y Bachelet, desde la  DIRECON, cantaron siempre loas al TPP11.  Eso no lo hace el programa del actual gobierno. Por ello, reiteramos que lo único realmente coherente es que el Presidente Boric retire el TPP del  Senado en vez de capitular y lavarse las manos con el resultado de esa eventual votación.

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