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Bilateral Trade and Investment Deals: BITs a serious challenge for global justice movements
We cannot afford to bask in the movement successes at the World Trade Organization (WTO) talks at Cancun. With echoes of Bushs either with us or against us dualism, U.S. Trade Representative Robert Zoellick announced that the U.S. would push ahead with free trade and investment agreements with can-do countries on a subregional or bilateral basis. Thisand the European Unions (EU) post-Cancun statements that it may restart a program of bilateral trade negotiationsshould highlight the urgent need to oppose the bewildering web of bilateral trade and investment agreements.
Expanding the liberalization agenda through bilateral agreements is a stealthy step-by-step approach that could prepare a multiple launch pad for more comprehensive regional or multilateral agreements. It is a divide and rule approach, to break up the kinds of alliances formed between Southern governments in multilateral forums like the WTO to resist U.S., Japanese, and EU demands. Bilateral agreements can serve as templates for broader negotiations. Once countries are locked into bilateral investment agreements, it will be harder to resist an MAI-type agreement at the WTO or FTAA. Governments of smaller, poorer countries are struggling to find the necessary resources to simultaneously negotiate several complex deals.
Many bilateral free trade and investment agreements contain similar provisions as well as national treatment clauses, which state that foreign companies and investors must be treated no less favorably than local companies and investors. Alongside the proliferation of bilateral investment treaties (BITs), many bilateral free trade agreements (FTAs) also contain similar investment provisions, besides expansive coverage of sectors like services, intellectual property, government procurement, and agriculture. Many of these provisions go well beyond WTO commitments.
With fast track Trade Promotion Authority under its belt, the Bush administration is aggressively pursuing bilateral trade and investment agreements. It wants to stitch up bilateral and regional deals, just as the EU has been doing, to secure greater access and control for U.S. companies. Dangling the carrot of preferential access to a multi-billion dollar market, the U.S. is also using them as a sharp stick to target, dismantle, or reshape policies to suit U.S. economic and geopolitical interests.
Besides using Octobers Asia Pacific Economic Cooperation (APEC) summit in Bangkok to demand support for his war on terror, George Bush formally announced that negotiations on an FTA with Thailand would start in 2004. Meanwhile, a Thai-Australia Closer Economic Relations Free Trade Agreement is scheduled to take effect on January 1, 2005. The U.S. and Australia are also in negotiations for an FTA, while both countries have concluded bilateral trade and investment agreements with Singapore.
11, NAFTAs powerful investment chapter, provides corporations
with the right to sue governments for enacting any public policy
or law that they do not like. Meanwhile, the MAI, drawing from NAFTA,
was dubbed a charter or rights and freedoms for transnational
corporations. It would have prevented governments from limiting
what foreign investors could own or from imposing performance requirements
on them to use a set amount of local content or hire local managers
or staff, or to share technological know-how. It would have facilitated
easier access for investors to be able to move assetsfinancial
instruments or production facilitiesacross borders, regardless
of social or ecological considerations. It would have guaranteed
free transfer of all payments relating to an investment in and out
of a country.
The MAI is far from dead. Many bilateral free trade/investment agreements already contain similar provisions. The U.S. insists that they are part of any new negotiations.
In many BITs, where a dispute cannot be settled amicably and procedures for settlement have not been agreed on within a specified period, they can be referred to the International Centre for Settlement of Investment Disputes (ICSID) or the UN Commission on International Trade Law (UNCITRAL). NAFTA lets unhappy investors choose between the two. Either way, they represent the privatization of commercial justice.
Founded in 1966, over half of ICSIDs cases were filed in the past six years, mainly under investment treaties. Today, there are some 2,000 BITs. UNCTAD describes them as the most important protection of international foreign investment to date. Many disputes relate to contracts arising from the privatization of public services.
In a speech to the Inter-American Development Bank in October 2000, William D. Rogers, of the Washington, DC law firm Arnold and Potter, argues that investment treaties are an open invitation to unhappy investors, tempted to complain that a financial or business failure was due to improper regulation, misguided macroeconomic policy, or discriminatory treatment by the host government and delighted by the opportunity to threaten the national government with a tedious expensive arbitration.
Even before such a powerful tool can be expanded and applied to 34 countries throughout the Americas under the FTAA, countries like Bolivia and Argentina have already been sued under obscure BITs. The popular struggle against the privatized water system in Bolivias third largest city, Cochabamba, is a symbol of the fight back against neoliberalism and privatization. This followed Aguas del Tunari, an affiliate of the U.S. corporation Bechtel, sharply increasing prices. After the privatization was reversed, the water system was handed back to the public. Aguas del Tunari/Bechtel lodged a request for arbitration against Bolivia at ICSID. It is seeking $25 million, claiming as expropriated investment the millions of dollars in potential profits it had hoped to make. The company used a 1992 BIT between Holland and Bolivia. While it was establishing its operations in Cochabamba, Bechtel was craftily filing papers to shift its subsidiarys corporate registration to Holland from the Cayman Islands.
a former subsidiary of Enron, won a bid to run the privatized water
and sewage system for 2.5 million people in parts of Buenos Aires
province, Argentina in May 1999. Bahia Blanca residents complained
that their water smelled and looked brown, while regulators considered
sanctions against Azurix for low water pressure. After the water
supply was found to be contaminated, health authorities warned people
not to drink or bathe in the water. The local regulating agency
forced the company to deliver free bottled water to all those affected,
not to charge for a period when the water was of poor quality, and
also fined Azurix for breach of contract. In October 2001, Azurix
said that it would withdraw from the contract, complaining that
the province would not let it charge rates according to the tariff
specified in the contract and would not deliver infrastructure.
The province rejected the termination notice. Then, under a 1991
U.S.-Argentina bilateral investment treaty, Azurix sued Argentinas
bankrupt government for $550 million. Azurix says that the authorities
actions amount to interference with its investment.
In July, the French utility corporation Suez launched three cases against Argentina for alleged breaches of a France-Argentina BIT arising from three separate water concessions in Cordoba, Buenos Aires, and Santa Fe. The Spanish company Telefonica has also brought a claim against Argentina, and CMS Gas Transmission Co. is suing Argentina under the U.S.-Argentina BIT.
Pakistan currently faces three investor-state dispute claims pending at ICSID totaling around $1 billion. The Swiss company SGS, whose board of directors includes former WTO Director-General Mike Moore, is claiming $120 million from Pakistan for premature termination of a contract to provide pre-shipment inspection services, an alleged breach of a 1996 Switzerland-Pakistan BIT. An ICSID panel met in Paris in February to consider the case but reserved its judgment.
The Italian construction firm Impregilo, which headed the consortium to build the controversial Ghazi Barotha dam, part of a major hydroelectric project, wants $450 million. Using a Pakistan-Italy BIT, Impregilo claims Pakistans Water and Power Development Authority (WAPDA) breached its contractual commitments. Turkish company Bayinder filed a similar-sized claim over termination of its motorway construction contract. Like many other BITs, the definitions of investment and other terms in the agreements, which Pakistan signed, are very broad and afford investors ample opportunity to claim against a frighteningly wide range of actions or omissions by the government and its agencies.
Domestic courts can be sidestepped by investors recourse to international arbitration panels. ICSID and UNCITRAL only allow for the investor and government parties to the dispute to have legal standing. The public has no right to listen to proceedings or view evidence or submissions. Both bodies require only minimal disclosure of the names of the parties and a brief indication of the subject matter. That makes such disputes very difficult to track, let alone mobilize around. There is little incentive for investors to settle disputes amicably given the highly favorable outcomes for corporations, which have initiated proceedings under such agreements.
business law firms that specialize in such cases are laughing all
the way to the bank. However ICSID rules, these cases will cost
millions of dollars to the targeted country. Citizens will shoulder
these costs which will increase their indebtedness to international
financial institutions, while compliance will be linked to future
foreign aid commitments and loans.
With presidential elections looming, the Bush administration will be careful to use its bilateral strategy to advance the economic interests of U.S. service and pharmaceutical sectors while trying not to alienate domestic corporate agricultural lobbies. U.S. farm lobbies have been urging Washington not to improve market access to Australian exports of sugar, dairy, and beef by reducing tariffs through its FTA negotiations and have objected to the idea of a future U.S.-New Zealand Free Trade Agreement for similar reasons.
The U.S. explicitly links support for the war on terror with willingness to negotiate trade and investment deals. While a planned FTA with a moderate Muslim country like Morocco offers much political capital for the U.S., U.S. corporations are open about their own capitalistic interests. The U.S.-Morocco FTA Coalition, comprising U.S. corporations and pro-free trade organizations, wants to lock in Moroccos economic reforms and get access to Moroccos markets, including its telecommunications, tourism, energy, entertainment, transport, financial services, and insurance sectors. It wants a tighter Moroccan intellectual property regime and better market access for U.S. agribusiness.
In FTA negotiations with Australia, the U.S. seeks the removal of all restrictions on investment like Australias Foreign Investment Review Board and limits on foreign investment in airlines, media, and telecommunications. U.S. negotiators, urged on by U.S. pharmaceutical industries, want to get rid of Canberras Pharmaceutical Benefits Scheme, which sets price controls for many prescription medicines. U.S. drug companies want more profits from higher pricing and full market access for their products. These are some of the rewards for Australias loyal support for the U.S. war on Iraq.
The U.S.-Chile FTA aims to add momentum to FTAA negotiations and counter growing opposition from a number of governments and social movements to the proposed hemispheric agreement.
The Chile and Singapore FTAs with the U.S. have NAFTA-plus broad definitions of investment, which throw the door wide open for disgruntled investors to take a case to a dispute tribunal. Intellectual property provisions go even further than the WTOs TRIPS (Trade-Related aspects of Intellectual Property rights) agreement, severely limiting the grounds for allowing use of compulsory licensing of medicines and effectively extending the 20-year term of drug company patent monopolies by an additional five years, threatening access to affordable medicines, not least HIV/AIDS drugs.
Both agreements impose alarming new limits on the use of capital controls. In an April 2003 article, Indian policy analyst and researcher Kavaljit Singh argues that Chiles controls on capital inflows have helped insulate it against financial crises. He says it stands to reason that the probability of occurrence of a financial crisis in Chile and Singapore would increase manifold with the removal of capital controls as envisaged in the bilateral trade agreements with the U.S.
Even free traders have slammed this aspect of these FTAs. In a March 2003 Financial Times article, Jagdish Bhagwati and Daniel Tarullo wrote, The intention of the Bush administration to use these two agreements as templates for other trade agreements, possibly including the Doha round, means that acceptance of the capital control provisions could engender a trade policy that causes far-reaching damage. The prohibition on capital controls has the makings of a U.S. foreign policy debacle. Imagine that a government imposes short-term capital controls in order to manage financial problems. Compensation will ensue, but only for American investors. The citizens of the developing country will then see a rich U.S. corporation or individual being indemnified while everyone else in the country suffers from the crisis. One would be hard-pressed to think of a better prescription for anti-American outrage.
Many of us were saddened and inspired by the suicide of South Korean farmer Lee Kyung Hae at Cancun, protesting the effects of the WTO on farmers. Perhaps we can also learn from the way that Korean social movements have mobilized against bilateral trade and investment agreements. They quickly identified proposed BITs with the U.S. and Japan as MAI clones. Recent negotiations on an FTA with Chile met strong opposition led by Korean farmers, including nationwide demonstrations and a protest camp outside the National Assembly.
To overlook the global explosion of bilateral trade and investment agreements is to risk creating an achilles heel for movements against neoliberal globalization. In tandem with our struggles against the WTO and FTAA, we need to rapidly develop strategies that confront the growing web of bilateral agreements.
Aziz Choudry is an activist and writer with New Zealand-based GATT Watchdog.
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AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: firstname.lastname@example.org; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
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MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: email@example.com; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
Contact: WisCon, ? SF3, PO Box 1624, Madison, WI 53701; firstname.lastname@example.org; http://www.wiscon.info/.
ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
Contact: SWCHRS, 3200 Marshall Avenue, Suite 290, Norman, OK 73072; 405-325-3694; email@example.com; www.ncore.ou.edu.
MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
RADIO - The 38th Annual Community Radio Conference is schedule for May 29-June 1, in San Francisco, CA, with discussions and workshops.
Contact: 1101 Pennsylvania Ave. NW, Suite 600, Washington, DC 20004; 202-756-2268; firstname.lastname@example.org; http://www.nfcb.org/.
BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
Contact: Bikes Not Bombs, 284 Amory St., Jamaica Plain, MA 02130; 617-522-0222; email@example.com; www.bikesnotbombs.org.
LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
Contact: 365 Fifth Avenue, CUNY Graduated Center, ? Sociology Dept., New York, NY 10016; http://www.leftforum.org/.
VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
Contact: 122 State Street, Suite 405 B, Madison, WI 53701; firstname.lastname@example.org; http://veganfest.org/.
ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; email@example.com http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
Contact: firstname.lastname@example.org; http://www.globaljusticecenter.org/.
NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
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MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
Contact: firstname.lastname@example.org; http://www.socialismconference.org.
LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; email@example.com; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
Contact: firstname.lastname@example.org; http://www.childrensdefense.org.
ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
Contact: email@example.com; http://yeacamp.org/.
LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
Contact: NCLR Headquarters Office, Raul Yzaguirre Building, 1126 16th Street, NW, Washington, DC 20036; 202-785-1670; www.nclr.org.
LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
Contact: firstname.lastname@example.org; http://east.usworker.coop/.
WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
Contact: 747 Polk Street, San Francisco, CA 94109; 415-864-1278; RadicalWomenUS@gmail.com; http://lynnestewart.org/; http://www.radicalwomen.org/.
HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
Contact: 121 West 27th Street, #301, New York, NY 10001; 212-627-0444; email@example.com; http://www.madre.org.
SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
Contact: http://www.falconridgefolk.com/; firstname.lastname@example.org.
WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
Contact: 339 Lafayette Street, New York, NY 10012; 212-228-0450; email@example.com; http://www.warresisters.org.
POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
Contact: Center for Popular Economics, PO Box 785 Amherst, MA 01004; 413-545-0743; firstname.lastname@example.org; www.populareconomics.org.
VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: email@example.com; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
Contact: firstname.lastname@example.org; http://occupynationalgathering.net/.
COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; email@example.com; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.