Eduardo Barcesat at CAF 2015 annual Forum – 3rd Session

Eduardo Barcesat at CAF 2015 annual Forum – 3rd Session

October 24, 2019 1 By Stanley Isaacs


We are going to continue on the topic
of universal jurisdiction and we’re going to do so… …with the interventions of our next speakers, particularly, our next one… Eduardo Barcesat, an Argentinian lawyer, Legum Doctor, human rights advocate… …professor at the department of General Theory and Philosophy of Law at the University of Buenos Aires. Barcesat is also an external legal consultant for Argentina’s Attorney’s Office for the National Treasury… …legal advisor for the presidency
of the Chamber of Deputies… …associate justice of the Federal Court
of Criminal Cassation… …and associate justice of the National Court of Appeals in federal contentious-administrative proceedings. When reviewing such a long résumé, professor Barcesat jokingly says that some of these positions need… …the prefix “ex” as a consequence
of the recent elections in Argentina. However, knowing the career path, the brilliance
and the experience of professor Barcesat… I am positive there are also other positions to add
to his résumé. Go ahead, professor. Good morning and thank you very much. Indeed, I am leaving some of these positions
in a few days. In any case, we’ll see how this story unfolds. It is said, in legal dogmatics, that addressing an issue like this, characterizing financial crimes… …or crimes against the environment, requires the definition of which is the protected legal asset… …who are the victims and who the perpetrators. And what must be done so the victims are no longer victims and the perpetrators stop being victims. And this is what my presentation is about. The first draft I am going to provide,
which has been little explored by the way… …is the issue of the relationship
between sovereignty and public property. Sovereignty is always understood
within a territory, a nation… …but it is never mentioned the question of over
what this sovereignty is exercised. Which are the natural resources
and wealth that form sovereignty? And what is the legal protection regime
of this sovereignty? Note the tremendous contrast with private property. From the formulations of the rights of man,
of the citizen… …you can tell that the only right that is preceded
by the expression ‘sacred’ is private property. Life, freedom, beliefs, equality
these are rights. Private property is sacred. If we take a look at all the legal systems, we will see
that there is a regulatory arsenal from constitutions… …from the norms, from procedural rules
that protect proprietary transit or private property. But there are very little regulations referring to public property, to that which is common to all. However, this should deserve
more concern and more protection. Historical constitutionalism
has little to say about public property. Social constitutionalism has indeed opened
significant chapters we ought to examine… …for which we ought to plead so they are widened
and become effective, protected… ..chapters on nature, on natural resources and wealth,
on that good that is common to us all which… …however, despite belonging to all of us,
has little protection from the legal system. This is also accompanied, and this is the regrettable part, by the fact that emerging or developing states… nations and countries,
or however we want to call them… …have rejected and lost their legislative
and jurisdictional sovereignty. We, lawyers, know that the principle is the one
of territoriality of Law, of the Law and of the jurisdiction. In other words, wherever a legal event takes place,
that is the applicable law… …and that is the jurisdiction
in case of a conflict. But our legislative and jurisdictional
sovereignties have been run over… …by the advance of international financial capital,
generating supranational courts… …that have the particularity of exclusively protecting investors while rendering national states powerless… Those national states that provide the natural resources and wealth that generate the wealth. I could relate, which I won’t due to lack of time of course, many experiences… …about how these international courts of arbitration distort the totality of legal regulations and dogmatics. They destroy the Law, the demandable rationality
of the legal discourse and of jurisdictional practices… … in order to protect the privilege of the investment. I think we are talking about globalization but,
to globalize, we first need to be legal subjects.. …we first need to recover our being
as regards our sovereign being, as a nation… …and to take possession of our legislative
and jurisdictional sovereignty. This is, to me, as important as territorial sovereignty. Argentina is suffering from the presence of a usurper
on their Islas Malvinas (Falkland Islands)… …but, at least, it was
the deed of an external colonialist force. However, we have willingly handed our legislative
and jurisdictional sovereignty… …as regards the most important economic issues. This is something that, in my opinion,
we all ought to review… …to think about which are the mechanisms to constitute ourselves as sovereign again… …in legislative and jurisdictional terms. And the whole of the natural resources
and wealth is included in this. I always highlight the fact that the clauses from the United Nations international covenants… …they are symmetric in the whole of civil and political rights and economic, social and cultural rights… …besides affirming the right to self-determination… …establish the people’s ownership
over their natural resources and wealth. It doesn’t belong to the states nor to governments.
It does belong to the people. However, this regulatory statement, which has the highest rank in international human rights law… …has little or zero protection in daily activity. Yes, we are the owners. But it turns out these rights are subject to the companies that carry out the exploitation… …the extraction, the destruction of nature’s balance,
the companies that seize this wealth… …that take it over to their countries
or to worse destinations like tax havens. Meanwhile, the nation legal owners have no way,
no action, no operative system at all… …that can prevent this plundering and destruction. Well, this is, precisely, what concerns us,
what we are trying to revert. Latin America is particularly rich
due to its biodiversity of natural resources and wealth. We have already lost the gold
and the silver during the conquest. I think that has already expired. But now they are coming for the lithium,
the quartz and the tungsten. Without these, there is no IT development.
We must protect these. We can no longer allow
this unlimited extractive behavior… …to take from us the possibility
to employ these strategic minerals. We are also rich in terms of drinking water:
40% of all drinking water on Earth is in Latin America. Argentina, particularly, with the Guarani Aquifer, which it shares with Brazil and Paraguay, and its glaciers… …which are a huge drinking water reservoir. A law for rural land protection had to be enacted because we were seeing they were being taken from us. I mean, there were just a few of us already
who could have rural land in Argentina… …due to this abusive endeavour,
I would say, on the part of financial capital. Future wars will not only take place
around hydrocarbons. They are also going to take place around drinking water, strategic minerals, rural land and, of course, food. So this ought to awake interest
and concern among social scientists… …in order to create a fair distribution of wealth
so nations are not deprived of this legal ownership. I think little is considered
as regards the nature of public property. There are barely a few formulations
about the social role of property… …or the social interest of private property
it must fulfill, it must not collide with. There is some reference to the fact that expropriation criteria do not have an accurate, mathematical balance… …between the expropriated asset
and the sum it compensates… …that other variables ought to be introduced… …like, for instance,
how much utility has the expropriated asset had… …in order to amortize the expropriation value. There are some estimates, but not many. They are not many and, in addition,
these have given way to coup d’états. I must recall the Argentinian Constitution of 1941
with three historical clauses… …that established the inalienable ownership
of the Argentinian State over subsoil resources. They also established unlimited expropriation criteria and the social role of property. A coup d’état led by a usurper
put an end to this Constitution. Chile’s Constitution, the one from 1949,
has helped somehow. Now we are witnessing, in my opinion,
an exemplary constitutional process in Latin America. The constitutions of Ecuador and Bolivia
and, to a lesser extent, Venezuela’s one… …constitute a light which shows
the recovery of nature as a legal subject… …which shows the concept of “good living” from our native peoples meaning to live in harmony with nature… …to move from anthropocentrism
to biocentrism. In other words, not to think of Man as the centre of all but that Man’s existence is nature… This must guide law-making activity. This indeed finds, in these Latin American constitutions, an axis that is some sort of illuminating lighthouse. But we already have accumulated exactions. The wealth produced in our countries is lost
and headed towards tax havens. Argentina has a sad record on this. According to the data from Tax Justice Network,
FATF also provides these data… …though not much information is supplied… It is estimated that Argentina has 400 billion dollars sheltered in these tax havens. We’re eighth in the world ranking for robbery, but third
if the population number is calculated in proportion. We’ve started up actions to address this
but we run into the fact that no petition… …or request is ever responded. Those who impose the rules of financial capitalism
and talk about transparency, ethics… …the truth in all transactions… …on the other hand, when the existence of such deposits and the regulations that apply to these… …whether they are declared or not
and who are the holders… …we aren’t informed about any of this. We run into an absolute lack of effectivity
on the part of functional jurisdiction. We must admit this is not new. Power, throughout history, has always declared itself unpunishable, unjudgeable. It is there to judge subjects
but not to be taken before power itself. A sentence comes to my mind from Morrison,
Louis XVI’s defense attorney, when he said… “A King cannot be judged.
He must die or live but never be judged”. This is now translated into the non-justiciability
of the economic power. Economic power is there to be exercised
and to control the states but never to be judged. So I think that the humankind movement
and the progress of the universal legal conscience… …on which Baltasar Garzón has developed… …must go towards the justiciability
of this economic power… …so we, the people, can recover the wealth
that has been taken from us. This is the protected legal asset. To make sure the wealth produced in a country
brings benefits to its people. To make sure these resources
and wealth lead to a rational productive activity… …instead of extractive activities
that destroy nature’s balance and recovery. This must be our aim. This must be taken to our constitutional texts
and to the conventions. Argentina has established, in its 1994 reform,
which is maybe its biggest accomplishment… …that international human rights treaties be, along with the constitutional text, the highest law in the nation. This is important but I think that, in addition to this,
such protection ought to be taken to lower regulations. Why? Because judges are not too skillful when it comes to applying the Constitution or international conventions. They can deal with usual codes
and laws and precedents. But they see the Constitution and international treaties as matters that only concern the Supreme Court. This is absolutely iniquitous and inefficient. We need judges that fully exercise
the role of knowing and deciding… …which does not only entail
the knowledge of laws and precedents… …but, fundamentally, the knowledge
of their constitutions and ratified international treaties. For the sake of contribution, we, at one of the last events of the Fundación Baltasar Garzón… …we provided a development
that I am going to read, which says… “It shall be defined as a financial crime any violation
of what is established by clauses I and II… …from the United Nations International Covenants,
the deposits, transfers… …or any other form of imposition of funds coming from natural or legal persons with residence in the countries… …where commercial, industrial
or financial activities are developed… …institutions located in national
or local governments forming tax havens… …which preserve the secrecy as to the constitution
and operations of such deposits and transfers. Criminal and proprietary liability
from such conduct shall fall on… “1. Those who have the power of decision to operate the transfers or deposits coming from the country… …where the natural or legal person develops their commercial, industrial or financial activities; 2. Those with power of decision who receive the deposits, transfer or any other form of imposition… …at the banking or financial institutions located
in national or local governments forming tax havens. 3. The authorities or civil servants from the national or local government forming a tax haven… …who have power of decision over the secrecy
of the constitution… …and operations of such deposits and transfers. For all these cases, the punitive, proprietary or compensatory liability shall fall, jointly and solitarily… …on all those criminally sanctioned
and the persons of public or private law… …to whom these belong or whom they represent”. I know it would be much better if the respect and the protection of the natural resources and wealth… …owned by our nations were conceived
as socially mandatory. However, sometimes, this summon,
this call, is thwarted… …or the motivation for profit prevails
over the social value of such profit. Hence the punitive and compensatory intention. However, I think what is going to really matter
is the moment when we internalize the fact… …that these natural resources and wealth
are, indeed, our nations… …and that the wealth therein generated
must remain therein… …since their purpose is satisfying the needs
of the people in those nations. I hope one day the progress of universal jurisdiction succeeds in protecting these values… …so we can move on to a more solidary society. In short, to move on to what Article 28 of the universal declaration of human rights means when it says… “Every person has the right to enjoy the establishment
of a social and international order… …where the rights and liberties proclaimed
in this declaration become fully effective”. I’ll finish my intervention pointing out that, though
it’s said that the whole of civil and political rights… …is not possible without the whole of the economic, social and cultural rights… …that these form an indivisible unit… It is indeed true that, when additional protocols
for civil and political rights are appointed… …there is an international or regional jurisdiction. However, economic, social and cultural rights
only have controls, reports and recommendations… …but not a jurisdiction. This, when we talk about an indivisible unit,
when we talk about equal rights… …when we use the words of a Pope
“Thou shalt not kill with weapons or hunger”… …we must take jurisdiction over economic,
social and cultural rights… …since these also contain the life of nations
and the conditions of dignity of their social existence.