Respecting Rights in the USMCA Corn Dispute

By Karen Hansen-Kuhn

The trade dispute over Mexico’s restrictions on genetically engineered (GE) corn and glyphosate, a pesticide that GE corn is designed to resist, recently entered a new phase. The dispute is turning from the governments’ submissions and rebuttals to a dialogue with the panelists who will ultimately decide the case. One issue up for debate is whether the Mexican government can assert its rights to honor commitments to Indigenous people and protect the environment and biodiversity under the terms of the U.S.-Mexico-Canada Agreement (USMCA). 

Public hearings were held in Mexico City on June 26-27 and broadcast online. Much of the discussion focused on the process. The U.S. asserted that Mexico had failed to conduct a risk assessment carried out according to international standards. Mexico countered that its plans to gradually phase out imports of GE corn are still aspirational, one element of the bigger plans to increase self-sufficiency of corn and other basic foods that began under President Andrés Manuel López Obrador’s administration and will continue under the incoming administration of President-elect Claudia Sheinbaum. According to Mexican officials, when and if they consider restrictions on GE imports, Mexico will conduct a full risk assessment of GE corn in Mexico’s specific situation (where corn is a central part of the diet) and invite the U.S. to participate. In the meantime, they explained, the end use restrictions on white corn for human consumption don’t restrict imports, as white corn continues to be imported for other uses such as animal feed. In fact, both yellow and white corn exports to Mexico have increased substantially over the last few years. 

The trade dispute is about both the scientific studies cited in risk assessments and the process for determining restrictions on imports. The whole idea behind a trade agreement, or really any international agreement, is that decisions are based on a set of rules. There is little doubt that the USMCA set in place rules that explicitly favor the free flow of goods and services and exacerbate corporate power. It’s also clear that we should choose entirely different rules, but in the meantime, this agreement formally establishes that governments have legitimate reasons to take actions to protect their peoples and environments, even when those actions affect trade. The text and context of the agreements matter.

One such provision, which is new in the USMCA, is Article 32.5, on Indigenous Peoples Rights. This article allows USMCA parties (member governments) to adopt or maintain measures “necessary to fulfill its legal obligations to Indigenous peoples,” provided the measures are not unjustified discrimination or disguised restrictions on trade. It builds on similar, but vaguer, language in other recent trade agreements. The language of the USMCA general exception is bolstered in the Environment chapter, which elaborates on the links between Indigenous rights and biodiversity protection and conservation. These provisions were the direct result of pressure by First Nations communities on the Canadian government, which at the time hailed the inclusion of the Indigenous rights exception as historic. 

IATP, the Rural Coalition and the Alianza Nacional de Campesinas submitted joint comments to the official USMCA dispute resolution process. Our analysis established that Mexico’s policies regarding glyphosate and GE corn are necessary to fulfill its legal obligations to Indigenous peoples, including protecting biodiversity and ensuring access to safe, healthy and culturally appropriate food. Mexico’s Constitution includes multiple provisions recognizing Indigenous peoples and rights specific to them. Indigenous rights are also protected through national legislation, executive decree and international treaties to which Mexico is a signatory, including International Labor Convention 169 on Indigenous and Tribal Peoples, the Convention on Biological Diversity and other United Nations conventions ensuring Indigenous peoples’ rights. Unlike in the U.S., in Mexico the ratification of such treaties is at the level of the Constitution and automatically made part of Mexico’s laws.