NAFTA and the Shangri-La of the Rule of Law

Mexamérica / dossier / Mayo de 2018

Claudio Lomnitz

Traducción de: Lacey Pipkin


I once listened to a lecture in which one of the Mexican architects of the North American Free Trade Agreement defended the project, claiming that in a country where the rule of law did not previously exist, NAFTA had created zones that were strongly regulated by the economy and monitored by the United States and Canada—thus, these zones operated in strict observance of the terms of the Agreement and, as such, of the law. Seen from this interesting angle, NAFTA becomes a mechanism for installing the rule of law in Mexico, and to abolish it would mean returning to an economy governed by the arbitrariness that characterized the corruptible authoritarian regimes that dominated Mexico from the time of Porfirio Díaz. This argument is worth consideration, because today Mexico is disillusioned with the very ideal of the rule of law. A critical exploration of the hypothesis that NAFTA has spearheaded the rule of law in Mexico may offer clues to understand the crisis of that ideal, even when its costs have been so high for wide segments of the population. The vision of NAFTA as a mechanism to transform the Mexican state is an example of an older idea, derived in part from lack of confidence in the internal forces of Mexican society and politics to self-regulate according to the law, and in part from a certain amount of hope or faith that we could perhaps arrive at the Shangri-La of the rule of law by subscribing to a series of international treaties. One symptom of this syndrome (characterized by this blend of deficient internal confidence and hope for reform stemming from the country’s belonging to the Concert of Nations) is that Mexico gladly signs any international treaty set before it, without worrying whether or not it is in condition to comply. The website of the country’s Supreme Court lists no fewer than 210 international treaties signed by Mexico, but if we look at the articles of these treaties, we detect that in many cases—possibly too many—Mexico signs agreements with which is in no condition to comply. To cite a few examples: Article 6 of the International Covenant on Economic, Social and Cultural Rights (signed in 1981) establishes the “right to work,” as well as that said work should be “freely chosen.” Does the Mexican state possess the resources to guarantee this right? Did it have them in 1981, when it signed the treaty, or was it a pledge like the line from a Chava Flores 1 song: “Oh sure, I’ll give it to you mañana.” If a Mexican citizen doesn’t have a job, where should she go to demand her right to work? If Mexican citizens are coerced to continue working as members of gangs, for example, or as prostitutes, where is the government agency dedicated to removing them from those situations and redeeming their rights to freely choose their employment? In 2001 Mexico announced its adherence to the International Convention for the Protection of All Persons from Enforced Disappearance. Article 1 of that treaty stipulates that “No one shall be subjected to enforced disappearance,” and Article 2 states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.” Mexico signed this in the middle of its war with the drug cartels—the very war that was also supported by the country’s participation in international treaties such as the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Did the Mexican state have the resources to conduct a war against drugs with legal methods that would prevent enforced disappearances? The data shows that it did not (nor does it now). What can all this mean? It seems to me a provisional conclusion would be that the construction of the rule of law cannot occur merely through a country’s participation in all the international treaties within reach, no matter how they may serve, in theory, to reinforce the law. There are several reasons for this. One is the economy. In this regard, NAFTA established terms to “level the playing field” for free competition among Canada, the United States and Mexico. This meant, among other things, eliminating a series of subsidies and price guarantees for agriculture, which led many rural farming communities to ruin. Could the disruption of this ruin be absorbed by NAFTA itself? Legally, no. This is why the great migration of destitute farmers to the United States occurred outside of the framework of the rule of law, and these rural citizens became “undocumented workers,” an event whose asymmetrical political costs we continue to pay for today. This is also why strict conformity with the Agreement’s terms resulted in the recruitment of many other impoverished rural citizens to the production and distribution of illegal drugs. This conclusion does not imply that it would be good for Mexico to leave NAFTA; there have been too many sacrifices made, and the new United States economy has already forged transnational chains of production that are very complex and difficult to dismantle. To leave NAFTA today could wind up being as traumatic as it was, at the time, to enter into it—though I do not know this for certain. What is clear is that the consolidation of the rule of law was not one of the ramifications of NAFTA. This is due to the fact that each international commitment has its cost, which the Mexican state, most of the time, has not been able to pay. This generates illegality. Sometimes, these pacts create conflicts among themselves; for example, to fight the drug trade can be at odds with protecting human rights, and the promise to “level the playing field” for free competition can contradict the government’s commitment to guarantee freely chosen, legal work. Of the more than 200 international accords in which Mexico participates, NAFTA has had the most profound consequences; this is precisely why it is also the international treaty that most clearly reveals that the rule of law in Mexico will have to be established with the material and political resources that the State truly possesses. International order may offer support for the rights of Mexicans, but it has not been able to guarantee them in any way.

Abel Quezada, General de república bananera, 1967. Courtesy of Museo del Estanquillo/Carlos Monsiváis’ collection

Cover Image: Abel Quezada, General con esposa e hijo condecorados, 1961. Courtesy of Museo del Estanquillo/Carlos Monsiváis’ collection.

  1. Chava Flores (1920-1987) was a Mexican folk singer and songwriter known for his comedic and satirical descriptions of the daily lives and interactions of ordinary people in Mexico City. The lyric Pero eso sí, mañana te lo doy comes from his song “A Qué Le Tiras Cuando Sueñas, Mexicano?”