The Power and the Money

International law and national constitutions

Many judicial conservatives decry the use of international law, treaties, and precedent to make decisions. They fear that allowing such inputs into decisions will weaken American constitutional norms.

I think they are almost certainly wrong, at least in the case of the United States. But the fear is not crazy.

Consider Bolivia, where Evo Morales is running for re-election in explicit contravention of the national constitution. How did that happen?

Well, in 2017 the SCOPNOB (Supreme Court Of the Pluri-National State Of Bolivia) declared that the constitutional article limiting president re-election is against the constitution. How did that happen? Well, the court decided that term limits contradicted article 23,24  and 29 of the Convención Americana sobre Derechos Humanos.

Relevant portions of the Convención:

Article 23:  Every citizen shall enjoy the following rights and opportunities:

a. to take part in the conduct of public affairs, directly or through freely chosen representatives;

b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

c. to have access, under general conditions of equality, to the public service of his country.

The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

Article 29:  Restrictions Regarding Interpretation

No provision of this Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.

In short, the Bolivian court ruled that term limits restricted President Evo Morales’s right to “to have access, under general conditions of equality, to the public service of his country.”

Now, the court also referred to Articles 26 and 28 of the Bolivian constitution, but those are pretty clearly written to allow for term limits. The real kickers were articles 23 and 29 of the American Convention, with article 24 (which parallels the equal protection clause of the 14th Amendment to the U.S. constitution) as a sweetener. 

Realistically, the Bolivian court probably would have ruled the way that it did regardless of the convention. The decision was a political one in a country with weak rule of law. 

But. But. There is a logic behind interpreting the clauses of the American Convention to obviate term limits. It helps that Article 13 of the Bolivian constitution explicitly say that “the rights and duties consecrated in this Constitution shall be interpreted in accordance with the International Human Rights Treaties ratified by Bolivia.” 

And that logic has resulted in the perfectly ridiculous spectacle of a Supreme Court declaring a procedural part of the constitution to be unconstitutional because everyone has a human right to become President. 

Another senate

  One rather strange thing, when you think about it, is the incredible influence that the United States Constitution has had over political structures in Latin America.  None of those polities developed under similar circumstances — the Argentine Republic comes closest, and it's not very close — and none of them had similar political traditions.  So its rather strange when you realize both how universal the American presidential-bicameral model has become and how durable it's proved.

It turns out that Bolivia also has a U.S.-style senate. Before the recent constitutional reform, each province enjoyed three senators. Now each one has four. Not much of a change there, unless the system for electing those senators (still undetermined) has the result of dividing the delegations from the other provinces while united the Media Luna ones, or vice versa. That's remotely possible: the old system worked like Argentina, giving the election winner two senators and the runner-up one, while the new system is proportional. Depending on the election rule chosen, the effect would be to strengthen parties with overwhelming support within their province and split delegations from provinces with more divided electorates. But we'll need to see both what proportional rules is chosen (the constitution seems unclear on whether the provinces or the legislature will set the rules) in order to know the actual effect.

In short, in terms of the Bolivian legislature, the new and awfully-named “Plurinational Legislative Assembly” doesn't change much. Not only is equal representation preserved in the Senate; the new reserved “indigenous” seats in the lower house are designed to insure that the Media Luna's current representation will not change. 

My opinion of the Bolivian senate, however, is very different from my opinion of the Argentine, American, and Brazilian senates.  Those are undemocratic travesties that need to be reformed. (Here's a much more democratic way of apportioning the U.S. senate among the states.) Inertia and the power of special interests are the only reasons to keep them. 

The Bolivian senate, on the other hand, is a necessary compromise to hold a deeply-divided country together. President Morales's original proposal for a single-house FTFP legislature with a block of reserved “indigenous” seats would most likely have served only to keep fueling the political violence that wracked Bolivia last year. Given that it's hard to see anyone benefitting from a breakup of the nation, the undemocracy of a senate is a price worth paying. 

Going south?

Cooler heads may not have prevailed in Bolivia.  I'm not sure what to make of this report from Pronto, but is sounds doubleplusungood:

From email from my parents (who live in Santa Cruz): Evo has just announced an alleged a coup plot between Goldberg (the US ambassador expelled a few days ago), Costas (the Santa Cruz prefect), and a number of high-ranking military officers. Meanwhile, reports from Pando suggest that five of the bodies were Venezuelan soldiers, who are being repatriated. Costas has also asked Evo to call of the MAS protests who are still marching towards the city of Santa Cruz; he’s also called for a suspension of labor & a public assembly in the main plaza for a cabildo (a “popular assembly”) to decide what to do. (FYI: The last Santa Cruz cabildo proclaimed Costas “governor” & demanded regional autonomy.) Also, as of now, the 24 de Septiembre celebrations are cancelled — the first time that has happened in more than 50 years. This doesn’t look good at all.

The part about “Venezuelan soldiers” is particularly perplexing.

   

The good news is that it seems as though Evo agreed with Costas and got the marchers to stop.  So sanity still might prevail.      

Old news from Santa Cruz

So Hugo declared on September 12th that he was prepared to intervene militarily if Bolivia's constitutional government came under threat.  The reaction in Santa Cruz?

As a patriotic American, I can't tell you how much it warms my heart to see demonstrators burn somebody else's flag.

UPDATE:  It gets better!  When the commander of the Bolivan troops sent to Pando arrived at the Cobija airport, he had to insist to an angry mob that he was not heading a Venezuelan invasion force.

No, it gets much better.  Chile's foreign minister, Alejando Foxley, publicly complained that President Chávez's antics nearly wrecked the Unasur summit.

Thankfully, Evo realized that Caracas wasn't helping him, albeit belatedly, and told his defense minister to reject Venezuelan overtures.  (It obviously would have been a bad idea for Evo to have done it himself.)  So far, negotiations with the Media Luna provinces seem to be going well.  Here's hoping. 

Cooler heads prevail

  An agreement has been reached to settle the conflict in Bolivia, at least for the time being.  The “Great National Agreement” is, IMHO, a thing of great beauty.  Basically, everyone involved realized that they were all going to lose if the violence escalated and decided to take a deep breath and calm down. 

Judge for yourself.  

The Great National Agreement:

1. Basis for a national dialogue:

(a) The dialogue will cover the following agenda:

•IDH - royalties:  The national government, in accordance with current law, recognizes the right of the provinces to share in the Direct Hydrocarbon Tax.  The national government, while guaranteeing the payment of the Dignity Pension, repeats its decision to respect the current distribution of royalties to the provinces. 
•Provincial autonomy: The national government expresses its respect for the autonomy of the provinces of Pando, Beni, Tarija y Santa Cruz.
•The new constitution.
•Institutional pact: congressional vacancies, electoral rolls, voter ID distribution, and the election process.

(b) The objects of the dialogue's agenda will be detailed in three working roundtables and one central session that will approve all agreements.

(c) Unasur, the Catholic Church, the European Union, the OAS, and the United Nations are invited to facilitate.

2. Reestablishing social peace under the rule of law:

(a) All public offices and petroleum installations that have occupied due to the conflict by non-authorized personnel will be turned back.  Discussions about the new territorial administration of such office and institutions will be undertaken. 

(b) All road blockades will be lifted. 

(c) The national government will suspend the Congressional vote on a referendum for a new constitution for one month, which may be lengthened in accordance with the results of the national dialogue.

(d) In order to shed light on the tragic events in Pando, investigators from impartial national and international organizations and a Congressional committee will be dispatched to the place when the events took place.

(e) No judicial actions that might have political connotations will be taken.

(f) The Governor of Tarija, representing the five mobilized provinces, asks that the state of emergency in Pando be lifted. 

3. The national dialogue will officially begin on Thursday, September 18, 2008, in the city of Cochabamba, and conclude in the city of Tarija.

Things could still go very wrong, of course.  The devil is in the constitutional details.  But so far, so sensible. 

I am very curious as to how all this looks from elsewhere in the world.  Is this sort of mutual stand-down, where everyone throws stuff under the bus, easier or harder in the Balkans and Caucasus?   

Full moon rising?

Cooler heads may be prevailing in Bolivia.  The Army has taken control of Cobija, the capital of Pando province.  Governor Leopoldo Fernández has fled, accused of masterminding a massacre of government supporters.  Meanwhile, the National Democratic Council, which consists of the five governors of the Media Luna provinces (including Chuquisaca), announced that it will call off the roadblocks, although their supporters still occupy government offices outside Pando. 

Council representatives met throughout last night with Vice-President Álvaro García and the Vice-minister for Decentralization, Fabián Yaksic.  They seem to have arrived at an accord, which while not a resolution of the dispute, is at least an agreement to sit down and talk about it. 

Hugo Chávez, unfortunately, is being his own typically helpful self.  He's declared that Venezuela will intervene if Morales falls.  He's hurled accusations of treason at the head of the Bolivian armed forces, General Luis Trigo.  “I am willing to die for Bolivia,” said the President of the Bolivarian Republic. 

The president of Uruguay, Luis Alberto Lacalle, had an interesting response.  “Careful.  We've got Chávez, who suffers from verbal incontinence.  It could occur to him tomorrow to send a soldier to Bolivia, and that could cause a horrible conflict in the region.” 

Half moon at bay

The consequences of persistent inequality are with us today. They appear to be pushing Bolivia towards civil war in slow motion. Today there was a brief flutter of news about the situation because Evo expelled the American ambassador, and the U.S. followed suit, but in general you've got media silence in America. The split is between the central government and “autonomists” in the “Media Luna,” which is marked off in dark green in this map taken from Mark Weisbrot: 

Things are bad. How bad? American Airlines just stopped flying to the country. Autonomists in Santa Cruz have seized control of most federal offices in the province. Tarija — which produces 60% of Bolivia's natural gas — experienced bloody riots yesterday, where autonomists seized the customshouses and airport and federalistas (my term, not a Bolivian one) blew up the governor's parking garage. Meanwhile, the nightmare that my Brazilian and Bolivian colleagues discussed in Venezuela? Well, it came true for about 12 hours. 

Brasilia is reacting in a manner that could best be described as confused, but understandably so. On Tuesday, the Brazilian foreign minister committed a Kinsley, when he stated that if Morales can't secure the pipeline, then his government will be forced to open relations with the Media Luna. Today, however, the Brazilian national security advisor reiterated Brazil's position that Bolivia has but one government and intimated that his government might send troops to support Evo. 

So what's it all about?  I'm sure you all can guess, but a rough overview is below the fold. 

Bolivia versus Brazil

  On May Day, 2006, Bolivian troops occupied the country's natural gas facilities.   

Petrobras, Brazil's national oil company, owned the largest stake in the fields and Brazilian industries depended on Bolivian gas.  Yet Brasilia reacted quite calmly.  Why?

Simply because Bolivia had no leverage.  The “nationalization” raised taxes on the gas companies (Petrobras, Repsol, British Gas, and Total), but changed nothing else.  Brazil wasn't happy about losing the profits, of course (the Federal Republic of Brazil owns a 55.7% stake in Petrobras), but all Brasilia really cared about was retaining access to the gas at a reasonable price.  And that's what they got:  the red line shows the date of the nationalization:  the big run-up in price preceeded it.

Petrobras and Bolivia had a “take-or-pay” contract, in which Petrobras promised to purchase no less than 65% of Bolivia's daily capacity, even if they couldn't use it, at rates based on this (get ready for it):

The price per million BTUs, PGt = 0.475 × [0.5 × (FO1t-1/FO10) + 0.25 × (FO2t-1/FO20) + 0.25 × (FO3t-1/FO30)] + 0.5 × PGt-1, where FO1 is the price in $/ton of fuel oil with a 3.5% sulphur content (aka, “Cargoes FOB Med Basin Italy”), and FO2 and FO3 are the price of fuel oil with a 1.0% sulphur context (aka, “U.S. Gulf Coast Waterborne” and “Cargoes FOB NEW.”

Another way of putting it is that the contract stipulated that if oil prices doubled, it would take two years for Bolivian gas prices to increase 97 percent.  Which doesn't quite seem to have been what happened, since crude oil prices don't quite track fuel oil and Brazil sometimes needed to overpay when it couldn't use all the gas on offer, but close enough.

In other words, the revolution turned out to be something of a dud.  Petrobras kept its assets and its contract.  Bolivia did get more revenues but a tax hike didn't require troops.  Political theater, it was.

Of course, whether it was good theater depends on your seat.  Investment in the gas industry has collapsed, and Petrobras now prefers to access higher-cost gas deposits at home ... not because of the taxes, but because of the uncertainty.  Similarly, the dramatic way in which the tax hikes were guised as a nationalization meant tossing out the old revenue-sharing agreements with the provinces, and thus the current autonomy crisis.

It's not clear where the country goes from here.  I had lunch with a Bolivian and a Brazilian who joked about civil war.  The Brazilian was sanguine until the Bolivian suggested that eastern rebels might cut off the taps.

“No, you can't have a war,” joked the Brazilian, “until we get the other gas projects going. Then we will happily sell you weapons.”