Macquarie Journal of International and Comparative Environmental Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Macquarie Journal of International and Comparative Environmental Law |
|
CLAIRE VINES[*]
NAFTA’s ten year anniversary will undoubtedly be marked by a dense cluster of conferences and retrospectives featuring a PowerPoint parade of eye-popping statistics, pie charts, and steeply ascending trend lines; trade offices will issue a torrent of self-congratulatory press releases extolling the benefits of free trade; Public Citizen, Sierra Club, and others will offer a darker version of events; academics will quietly confess it’s too early to tell; and some of the self-identified “ losers” of free trade will stage a protest or two … .[1]
During the final negotiations of the North American Free Trade Agreement (NAFTA) then President Bill Clinton declared that the agreement would contain the ‘most sweeping environmental protection ever to be part of a trade agreement’. Treasury Secretary Bentsen called the NAFTA the ‘greenest trade agreement ever negotiated’. Not to be outdone, the Deputy US Trade representative Rutus Yerza referred to the NAFTA as the most ‘environmentally conscious trade agreement in history’.[2] By these accounts, the NAFTA is almost phosphorescent in its ‘greenness’. However, while the NAFTA may have burst triumphantly onto the free trade scene, trumpeting it’s own great greenness, it has become abundantly clear that the NAFTA is not as environmentally conscious or revolutionary as it was originally made out to be.[3] After all, as Kermit the Frog so concisely said − ‘it’s not easy being green’.
Much of what was hailed as revolutionary and original in the agreement in relation to the environment has begun to crack and show that many of the ‘environmental’ provisions within the agreement were, at least in the majority, politically expedient add-ins designed to satisfy the ever-growing voice of the environmentally conscious. As the US debate over the NAFTA demonstrated, environmentalists are becoming an increasingly powerful political force with regards to trade. After all, ‘the Bush administration had to stress the NAFTA’s “greenness” to sell the pact to the public’.[4] Indeed, the NAFTA promised more than to simply increase trade and investment within the region and concerns about the impact of trade liberalisation on the environment ‘led to the negotiation of several provisions addressing environmental issues in the text of the NAFTA, as well as the execution of a parallel environmental accord devoted entirely to this concern’, the North American Agreement on Environmental Cooperation (NAAEC).[5]
This paper reviews the specific clauses within the NAFTA, (and to a lesser extent the operations of its attachments), whilst seeking to explore the relationship between the rhetoric of ‘greenness’ and the reality of ‘greenness’ within the agreement itself.[6] The preamble of the NAFTA clearly sets out resolutions that reflect environmental concerns. The provisions within the body of the agreement that reflect these environmental concerns, and which will be explored in this essay, are those which clarify the relationship between the NAFTA and multilateral environmental agreements (MEAs); the provision of Article 1114 which seeks to disallow parties from deliberately lowering their domestic health, safety, or environmental measures so as to attract or encourage investment; and the NAFTA chapters which establish sanitary and phytosanitary standards (SPS). This essay will also discuss the NAFTA’s Chapter 11. This chapter establishes rules pertaining to investments and investors, including the highly contentious dispute settlement mechanism, which allows private investors to challenge the NAFTA governments directly for breach of the investment provisions under Chapter 11. Without question, ‘both the procedural and substantive provisions of Chapter 11 have proven to be the most controversial provisions of the NAFTA to date, eliciting a raft of unanticipated environmental concerns’.[7]
There is no denying that the preamble to the NAFTA espouses many laudable resolutions. These proclamations, among other things, resolve to:
These are noble aims to be sure, and though it may be disputable whether the NAFTA is the greenest trade agreement ever, it certainly does have the greenest preamble of any trade agreement.[9] With such a promise of ‘greenness’, it does seem a shame to point out that unfortunately, a preamble is not normally viewed as an operational part of an agreement, nor did any one the parties involved explicitly commit to any of these resolutions. As it stands, the preamble is a carrot to the environmental donkey- nothing more than a promise of reward. If the governments involved had really wanted to make the NAFTA green, ‘they had 1034 pages following the preamble to do so’.[10]
Perhaps the most important starting point to demonstrate the NAFTA’s commitment to the environment would be its inclusion in one of the six specific objectives of the agreement. However, Article 102, which sets out these six specific objectives, fails to mention the environment. As Charnovitz points out, if environment concerns were a central component of the NAFTA, surely one would expect it to appear here, in the objectives of the agreement.[11] Even so, let us not lose faith quite this early in the piece, for it must be acknowledged that the NAFTA is after all a trade agreement, and it is not necessary for the environment to be mentioned in its trade-related objectives.
Article 103 of the agreement defines the relationship of the NAFTA to other international agreements of which the three countries are parties. This article also affirms
existing rights and obligations under both bilateral and multilateral agreements, including the General Agreement on Tariffs and Trade (GATT), and provides that the NAFTA prevails in the event of any inconsistency between it and other such international agreements, except as otherwise provided.[12]
As ‘otherwise provided’ refers to, in part, Article 104 which states that in the event of any inconsistency between the NAFTA and specific trade obligations set out in the Montreal Protocol; The Basel Convention (on its entry into force); Convention on International Trade in Endangered Species (CITES); and the bilateral treaties between Canada-United States and the United States-Mexico on the transport of hazardous waste[13] the latter will prevail.[14]
At first glance, Article 104 certainly seems to provide an environmental trump card to trade-related environmental disputes. However, before anyone dons their green feathers and starts an environmental victory dance, a closer inspection reveals that, notwithstanding its green appearance, there are significant cracks within this article. Article 104 states that in the event of any inconsistency between the NAFTA and the listed treaties, the latter will prevail. That is, ‘provided that where a party has a choice among equally effective or reasonably available means of complying with such obligations, the Party chooses the alternative that is least inconsistent’[15] with the other provisions of the NAFTA. A potentially significant problem is that all three of the international environmental treaties require specific import and export prohibitions, and while there may be an equally effective or reasonably available means to accomplish the same purposes of treaties, none of treaties grant parties the right to substitute a different approach to that required in the treaty. Thus, ‘a party wishing to comply with the treaty may have no choice as to the means used’.[16]
Consequently, if the NAFTA dispute panel suspends an import or export ban on the grounds that there is an ‘equally effective’ or ‘reasonably available’ means of complying with the NAFTA, it will effectively undermine a party’s ability to carry out its environmental treaty obligations. But what exactly is an ‘equally effective’ or ‘reasonably available’ means of complying? Under GATT, the US Alcoholic Beverages panel interpreted ‘reasonably available’ to mean any action that was ‘permitted by the US Constitution’ and ‘was reasonably available for use by the US government in enforcing the GATT’s rules among the states’.[17] However, since neither the term ‘equally effective’ nor ‘reasonably available’ is defined under the NAFTA, it suggests that the terms may be easily manipulated to suit the purposes of the agreement, rather than to suggest or allow the proliferation of alternate forums for decision, such as MEAs.
This suggestion, that the vagueness of definition may allow Article 104 to be easily manipulated, was vindicated when the NAFTA dispute panel suspended an export ban introduced by Canada under the Basel Convention in 2000. The NAFTA tribunal ruled that the Canadian government must pay compensation of up to $US50 million to S D Myers Inc; an Ohio based toxic waste disposal company. The reasoning in the decision was that by introducing a ban on the export of hazardous polychlorinated biphenyls (PCBs) waste, Canada had apparently denied the Ohio-based company’s right to import hazardous waste from Canada into the USA.[18] The Canadian government argued (and justifiably so) that as a member party of the Basel Convention, they were obligated to reduce their exports of hazardous wastes to a minimum and ‘instead provide adequate technical capacity for dealing with the wastes at home’.[19]
Article of 4.9 of the Basel Convention clearly sets limits to transboundary movement of hazardous waste and provides only three exceptions to these limits:
when the state of export lacks the adequate technical capacity to process the hazardous material;
when the wastes in question are required as a raw material for recycling or recovery industries in the State of import or;
according to any criteria decided by the Parties as long as such criteria does not depart from the objectives of the convention. [20]
Accordingly, Canada banned the export of PCBs under the Basel Convention and as it possessed the adequate technical capacity to deal with PCBs, there was no reason for Canada to export this hazardous waste. Yet the NAFTA chose to force the import of the hazardous waste, because according to the tribunal’s interpretation, the Basel Convention does not obligate countries to avoid transboundary movement of hazardous waste. In accordance with argument, under Article 104 where a ‘party has a choice among “equally effective” and “reasonably available” alternatives of complying’, the party is to choose the alternative that is least inconsistent with the NAFTA.
This interpretation is certainly true to the wording of the article, but whether ‘least inconsistent’ could (or should) be interpreted as permitting environmental treaties to be thwarted for the sole purpose of stopping a loss of profit is dubious. This questionable interpretation has undermined claims made by supporters of free trade, who have ‘been telling environmentalists for a long time now that they would refrain from undermining environmental treaties convened on a multilateral basis’.[21] As Jim Puckett of the Basel Action Network (BAN) pointed out, the tribunal’s decision against Canada represented the action of a trade agreement that while only consisting of 3 nations had ‘the arrogance to shoot down a treaty with over 130 member parties’.[22]
The search for a balance between ‘greenness’ and a multitude of trade considerations was never going easy. If the NAFTA cannot prove its ‘greenness’ by allowing environmental treaties to take precedence over its own provisions in relation to trade law, then perhaps ‘greenness’ can be established by creating or promoting higher environmental standards in conjunction with the agreement. When President Bush (Snr) announced the completion of the NAFTA, he stated that the ‘agreement encourages all three countries to seek the highest possible standards’.[23] This aim for the highest possible environmental standards was to be achieved through both economic and legislative means.
The economics of free trade, in theory, provide the means for upward harmonisation. Upward harmonisation is the belief that increased trade and investment will lead to increased society-wide prosperity and as people become richer, there will be a greater availability of funds to address a plethora of social problems, including environmental degradation. Accordingly, the NAFTA in time would allow the governments of the United States, Canada and Mexico to strengthen their laws for protecting the environment and public health simply because they would have the means to do so. And indeed this was one of the most oft repeated predictions during the formulation of the NAFTA.[24] Free trade may one day deliver many of the economic benefits promised by its supporters, including the additional resources necessary to strengthen institutional capacity to protect the environment. However, the stark reality of this situation is that thus far, the NAFTA has failed to generate the increased prosperity that would, in theory, lead to the highest possible environmental standards.[25] During the formulation of the NAFTA, the argument was that while Mexico had severe environmental problems, it did have good laws. All that Mexico needed was greater effort in and commitment to enforcement. Its efforts ‘were currently hampered by a general lack of resources, which would be provided when the NAFTA’s impact on the Mexican economy was felt’.[26]
On the contrary, environmental standards are being weakened in the name of ‘economic crisis in Mexico, the need to maintain a healthy business climate in the USA and attracting foreign investment in Canada’.[27] In all three countries, environmental laws have been widely subordinated to commercial and financial interests and the result has been, in some circumstances, that the law is not enforced. For instance Alberta, Canada has started a ‘new program called “Alberta Advantage”, which touts the lack of regulation as a desirable factor to be considered by potential investors’, even though such an action is contrary to Article 1114 (discussed below).[28] Likewise, the Mexican government has issued a decree ‘exempting major industries from the Environmental Impact Assessment (EIA) requirements’, which during the formulation of the NAFTA, were widely touted as proof of the Mexican commitment to the environment.[29]
The assumption that ‘greenness’ would somehow roll along unassisted through all three countries is a fundamental flaw in the design of the NAFTA. Perhaps the biggest mistake made in regards to environmental issues was the relatively feeble effort made to study and understand the effects of trade liberalisation on the environment and environmental standards of developing countries, and in fact the impact of trade on the environment in general. The lack of meaningful integration between environmental, trade and economic policies ‘has led to the unmitigated depletion of environmental, social and human resources’.[30]
Free trade may create additional resources, but the idea that these additional resources will eventually provide the means for greater environmental protection, is a trade-induced chimaera. Free trade has had the opposite effect in all three NAFTA countries, particularly in Mexico. In Mexico, the process of trade liberalisation has outstripped the ability of communities and the government to deal with the environmental impacts of trade. In truth, the increased trade and investment generated by the NAFTA has significantly exacerbated the existing environmental problems, as well as creating a myriad of new ones. NAFTA is not pulling Mexico’s environmental standards up, it is dragging them down.
This idea that trade would generate additional resources that in turn would lead to greater environmental protection is recognised by the encouraging of ‘upward harmonisation’ under the Articles 713, 714, 905 and 906. However, the agreement itself offers no incentive for this apparently ‘natural’ upward harmonisation of standards. Nor do any of the provisions provide for ‘technical and financial resource transfers to promote or facilitate harmonisation’.[31] The connection between the lack of financial resources and the attainability of upward harmonisation was recognised before the inception of the NAFTA. The US government acknowledged that more than $US20 billion would need to be invested in the border region between Mexico and the USA to improve the critical environmental problems in the area. However, to date no significant amount has been specifically invested in the border region to tackle the ever-increasing production of pollution and hazardous wastes and ‘alarming conditions continue to exist in the border region’.[32] In fact, the Mexican/USA Toxic Hazardous Waste Monitoring System (Haztraks) has not even been implemented, in part because ‘it is estimated that fewer than 30% of the regions industries comply with applicable regulations’.[33]
Such low levels of compliance are not surprising and the practical question is who will complain? Since an estimated 80-90 percent of the
maquiladora firms are US owned, the United States is unlikely to object-other than on grounds of principle- to the Mexican authorities about such violations unless the maquiladoras industry objects. As long as most maquiladora production is exported, objections are likely to be rare or non-existent.[34]
Such a downward slide is not surprising, when one considers the strength of the NAFTA’s environmental tools in the region. The North American Development Bank (NADBank) and the Border Environmental Cooperation Commission (BECC) are so weak ‘and so far from the realities of the border communities that, after three years of existence they have not been able to build’ any meaningful environmental infrastructure.[35] Construction has yet to begin on any of the 12 BECC-certified environmental infrastructure projects.[36]
Perhaps a more significant reason for the shift towards deregulation is that Article 1114, which is supposedly in place to discourage the competitive weakening of health, safety or environmental measures to attract investment, fails to do much more than provide lip service to environmental concerns. Article 1114 has two provisions, the first holding that nothing in Chapter 11 prevents a country from adopting or maintaining a measure that is otherwise consistent with the chapter. This statement is not particularly useful ‘when it is unscrambled [because] it simply means that there is nothing in the chapter that prevent you from doing what the chapter does not prohibit you from doing’.[37]
The second part of the article establishes that it is ‘inappropriate to’, and government ‘should not’ ‘relax’ their environmental standards to attract investment or boost trade. The words ‘inappropriate’ and ‘should not’ are so sad and limp, one almost feels anthropomorphically sorry for the article. Such language is unlikely to make a two-year old child put down toy, let alone force a government to drag their environmental legislation up to a higher standard. To be realistic, these three governments will have to be dragged, kicking and screaming, towards upward harmonisation and Article 1114 is nigh on useless in this respect.
Article 1114 has been described as ‘meaningless from a legal standpoint’,[38] mere ‘puffery for the benefit of the environmental lobby’.[39] These views may be a little too harsh, but Article 1114 certainly fails to provide any form of adequate enforcement and does not deal with already differing laws that might give one jurisdiction an unfair advantage over another. The problem is that the mechanisms of ‘enforcement’ such as the North American Commission on Environmental Cooperation (CEC) have turned out to ‘be virtually useless in addressing the widespread environmental deregulation’[40] occurring across all three NAFTA countries. Not that the CEC didn’t get off to a good start, it is just that its own mandate does not allow it to ‘take any action against legislative efforts to prohibit or weaken enforcement of environmental laws in any of the countries’.[41] The only recourse for breach is consultation, not dispute settlement.
Article 1114 is certainly one of the ‘greenest’ provisions of the NAFTA; it is just that it lacks teeth − it is a true paper tiger. If parties had sincerely wished to ‘renounce such “race to the bottom” behaviour, then Article 1114 would have been written as mandatory, rather than precatory’.[42] In addition, the meaning of ‘relaxing’ is not clear and as Charnovitz points out it is unclear whether ‘relaxing’ refers to a legislation action of lowering legal standards or just to administrative action.[43] Either way, there seems little doubt that ‘parties are free to relax their laws for purposes other than attracting or retaining investment’.[44]
Thus far, this article has addressed the issue of ‘greenness’ in the NAFTA as representing an environmental consciousness, however this is not the only ‘greenness’ represented in the agreement. There also exists a different kind of green in the agreement, the green of hundreds of millions of gleaming green dollar notes. This green is continuously swirling around the agreement like a snowstorm, obscuring any meaningful environmental interpretation of the provision contained within it. Even if the intrepid environmentalist managed to find their way through this snowstorm of green, the profit driven laws under the NAFTA are powerful creatures and unlike their environmental counterparts, their teeth are sharp and readily visible. Perhaps the fiercest of these profit driven creatures is the investment provision of Chapter 11, which (when considering the attention paid to other clauses and their potential to harm the environment) was ‘virtually ignored in congressional deliberations on the agreement’.[45]
Dan Seligman, director of the Sierra Club’s Trade Program, argues that Chapter 11 may lead to a ‘fundamentally different world in the degree of power that corporations hold on democratic governments’.[46] The stated purpose of Chapter 11 was to ensure that USA, Canadian and Mexican investors abroad received the same type of protection that foreign investors received in all three countries with or without a treaty. Under Chapter 11, the ‘signatory nations are prevented from directly or indirectly nationali[sing] investment or from taking measures tantamount to nationalisation or expropriation’.[47] However, under international law, there is no compensation due where a government regulates in the public interest for the protection of health or the environment.
This seemingly small difference between directly or indirectly nationalising investment and taking measures that amount to nationalisation or expropriation is the distinction upon which Chapter 11 has been expanded to allow foreign corporations doing business in the NAFTA countries to ‘seek reimbursement for any government law, rule, or regulation that impinges on the company’s profits’.[48] An illustration of the consequences of this ambiguous language is the highly publicised feud between the Methanex Corporation and the state of California. The substantive basis of this disagreement is that California introduced a ban on MTBE,[49] a petrol additive. Methanex (a Canadian-based company) sued the State of California and is seeking almost one billion dollars in compensation for loss of future profits.[50] Methanex claimed it was entitled to this compensation because the ban violated the NAFTA’s Chapter 11 prohibition against expropriation. Why did California introduce the ban and perhaps more importantly did they have the right to do so? Or was Methanex correct in their assertion that the ban was disguised trade restriction designed to force a Canadian company out of the US market?
The ban itself seems logical, for if a chemical is dangerous why not ban it? According to a brochure about the NAFTA distributed by the Clinton administration,
no existing Federal or state regulation to protect health and safety will be jeopardised by the NAFTA. In fact, the NAFTA rules will allow the participating countries (and their states and provinces) to enact tougher environmental standards.[51]
MTBE is a gasoline additive intended to make the gasoline burn faster and cleaner. The problem was that MTBE rarely stayed in gasoline and easily contaminated soil, water and other natural resources. Once MTBE enters groundwater, it is almost impossible to remove and renders the water unfit for human consumption. A University of California report estimated that at least 10,000 sites in California had been contaminated with MTBE.[52] Moreover, the US Environmental Protection Agency (EPA) acknowledged MTBE as a potential carcinogen.[53] In 1996, out of concern for public health and safety, the Californian legislature authorised the governor to ban MTBE, ‘if further testing of substance confirmed its deleterious health effects’.[54] In 1999, after additional laboratory testing, the governor authorised the phasing out of the chemical.
In actuality, the NAFTA does not have any explicit provisions allowing or disallowing state or local governments to maintain or strengthen their environmental standards. Rather, the NAFTA declares ‘that the three parties are to ensure that all necessary measures are taken to give effect to the NAFTA’s provisions, including their observance, by state or provincial governments’.[55] California is giving effect to the NAFTA’s provision, in particular Article 712(2). The article states,
not withstanding any other provision in this Section, each party may, in protecting human, animal or plant life or health, establish its appropriate levels of protection in accordance with Article 715(risk assessment and appropriate levels of protection).[56]
In theory, it would seem that the state of California has both the right and obligation to protect the health of citizens. But it is not the issue of public health or safety that Methanex is debating. Their argument is that California’s ban was intended to favour mid-western USA producers of ethanol, a potential substitute for MTBE.[57] Methanex was not deterred by California’s claim that they did not intend to add ethanol and in fact had ‘sought permission from the federal government not to replace MTBE with an additive’.[58] Nonetheless, in August 2002, the NAFTA tribunal dismissed most of Methanex’s claims on the grounds that its investment in methanol production was not tied closely enough to the Californian ban on MTBE. The tribunal was concerned, however, ‘about Methanex’s allegations of discrimination’[59] and allowed the case to go forward on the basis that the NAFTA requires foreign investors to receive treatment ‘no less favourable’ than domestic investors. Thus Methanex, faced with ‘prospect of losing a significant market for one of its products’ decided to seek a remedy to ‘replace the revenue lost to the Californian ban and it found its answer in Chapter 11’.[60]
As it is currently administered, Chapter 11 diminishes the sovereignty of states and indeed nations, to have the right to set workplace, safety, health and environmental safeguards at the level they deem appropriate. This is not likely to change given the NAFTA’s provisions in relation to investor-state disputes. Such disputes are confidential, closed door proceedings that are not judged by judge or jury, which shifts ‘decision-making from elected officials to unelected trade officials’.[61] The outcomes of Chapter 11 cases also indicate a trend towards the payout of large amounts in damages. If this trend continues and significantly large ‘monetary damages are awarded in Chapter 11 cases or if corporations simply threaten to bring Chapter 11 suits’,[62] governments confronting potential damage awards of anything up to $1billion will be forced to yield to the financial pressure. The threat of such a huge financial burden may hinder any government’s implementation or maintenance of environmental statutes or regulations, simply because the threat of Chapter 11’s teeth is too great a financial risk to take.
The NAFTA certainly started out looking green, but in the ten years or so since its inception, it is becoming increasingly clear that the appearance of environmental consciousness was merely a greenwash. The true colour of the NAFTA agreement is still green but it is the green of money, profit and trade and not of the environment. Vague language, ineffective prohibitions and lacklustre enforcement have defined the few environmental provisions that were included in the agreement. The NAFTA was first and foremost a trade agreement and thus in itself the exclusion or the watering down of environmental provisions is not the true problem. Rather it is the fact that the NAFTA was trumpeted as the most ‘environmentally conscious trade agreement in history’,[63] and yet failed to achieve even the most basic environmental protection. The NAFTA has failed to deliver on its promise and in the current economic climate it is unlikely that environmental aims and standards will ever form a comprehensive part of the agreement. The appeal to environmentalists, in part, allowed the agreement to be formulated − but it is profit that will keep it going.
[*] BCom/LLB student at Macquarie University.
[1] Greg Block, ‘Trade and Environment in the Western Hemisphere; expanding the North American Agreement on Environmental Cooperation into the Americas’ (2003) 33(3) Environmental Law 501.
[2] Steve Charnovitz, ‘The North American Free Trade Agreement: Green Law or Green Spin?’ (1994) 26(1) Law and Policy in International Business 55-6. [Hereinafter ‘Charnovitz, Article 1’].
[3] Ibid.
[4] Steve Charnovitz, ‘Regional Trade Agreements and the Environment’ (1995) 37(6) Environment 14 [Hereinafter ‘Charnovitz, Article 2’].
[5] Block, above n 1, 506.
[6] ‘Greeness’ is defined by the author as willingness to increase or maintain environmental operations, standards and policies while maintaining an adequate balance with other concerns such as trade, public policy and other governmental areas.
[7] Block, above n 1, 506.
[8] North American Free Trade Agreement [hereinafter ‘NAFTA’]. Preamble, taken from www.worldtradelaw.net/nafta/preamble.pdf.
[9] Charnovitz, above n 2, 45 Article 1.
[10] Charnovitz, above n 2, 56 Article 1.
[11] Charnovitz, above n 2, 45 Article 1.
[12] NAFTA Overview as cited from www.west.asu.edu/iim/Mexico-trip/NAFTA. Own Emphasis.
[13] Montreal Protocol on Substances that Deplete the Ozone Layer; Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal; agreements between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste 1986; the Agreement between the United States of America and the United Mexican States on Co-operation for the Protection and Improvement of the Environment in the Border Area, 1983.
[14] NAFTA, Chapter One: Objectives as cited from www.agp.org.
[15] NAFTA, Capter One, Article 104: Relation to Environmental and Conservation Agreement as cited from www.agp.org.
[16] Charnovitz, above n 2, 36 Article 1.
[17] General Agreement of Tariffs and Trade, Dispute Settlement Panel Report on United States Measures Affecting Alcoholic and Malt Beverages, [paragraph] 5.42-5.44, 39 Supp BISD 283-84 (1993). As cited from Charnovitz, above n 2, Article 1.
[18] Jim Puckett, ‘ NAFTA Flouts Global Toxic Waste Dumping Treaty’ BAN Press Release 15th November 2000, as cited from http:www.mindfully.org/WTO/NAFTA-Flouts-Dumping-Treaty.htm.
[19] Ibid.
[20] Basel Convention Official Website, as cited from http://www.basel.int/about.html.
[21] Puckett, above n 18, 1.
[22] Pluckett, above n 18.
[23] President’s Statement on the Completion of Negotiations on the North American Free Trade Agreement, 28 Weekly Comp Pres Doc 1421, 1423 (12 August 1992).
[24] Mary Kelly, ‘NAFTA’S Downward Harmony’ (1995) 3(11) BorderLines 19 1 as cited from http://www.americaspolicy.org/borderlines/1995/bl19/bl19kell_body.html.
[25] Ibid.
[26] Mark J Spalding, ‘Lessons of NAFTA for APEC’ (1997) 6(3) Journal of Environment & Development 252.
[27] Kelly, above n 24, 1.
[28] Kelly, above n 24.
[29] Kelly, above n 24.
[30] Red Mexicana De Accion Frente Al Libre Commercio (RMALC), ‘NAFTA and the Mexican Environment as cited from http://www.developmentgap.org/rmalenvi.html.
[31] Spalding, above n 26, 260.
[32] Red Mexicana De Accion Frente Al Libre Commercio, above n 30, 1.
[33] Red Mexicana De Accion Frente Al Libre Commercio, above n 30, 2.
[34] David A Gantz, ‘New Challenges for the Maquiladoras: legal and policy implications of the NAFTA Article 303 for the United States-Mexico trade’ (2001) 30(1) Denver Journal of International Law and Policy 13; Maquiladoras refers to the predominantly exported dominated border industries on the USA/Mexico border
[35] Red Mexicana De Accion Frente Al Libre Commercio, above n 30, 3.
[36] NAD Bank recently announced that funding had been arranged for 4 of these infrastructure projects; Spalding, above n 26, 270.
[37] ‘Private Rights, Public Problems − A Guide to NAFTA’s Controversial Chapter on Investor Rights’ International Institute for Sustainable Development and the World Wide Wildlife Fund’ (2001) 12.
[38] Sierra Club, ‘Analysis of the North American Free Trade Agreement and the North American Agreement on Environmental Cooperation’ (1993) 9.
[39] Jerry Taylor, ‘Baseless Fears of Accords’, Wash Times (city), 9 September 1993, G3.
[40] Kelly, above n 24,.2.
[41] Kelly, above n 24, 2.
[42] Charnovitz, above n 2, 52 Article 1.
[43] Charnovitz, above n 2, 52 Article 1.
[44] Charnovitz, above n 2, 52 Article 1.
[45] Justin Gerdes, ‘NAFTA’s Chapter 11 threatens the environment and democracy’ Environmental News Network as cited from http://www.enn.com/news/enn-stories/2002/.
[46] Ibid
[47] Ibid
[48] Iibid
[49] MTBE: methyl tertiary butyl ether
[50] Methanex v United States, Decision of the Tribunal on Petitions for Third Persons to Intervene as ‘Amici Curiae’ 15 January 2001, http://www.naftalaw.org. A copy of the complete case may also be found US Department of State Official Website, http://www.state.gov/s/l/
c5818.htm.
[51] Office of the US Trade Representative, The NAFTA: Expanding US Exports, Jobs, and Growth (1993) 8.
[52] Groups Defend California’s Right to Protect Public Health: Canadian Corporation’s NAFTA Suit Threatens State Sovereignty http://www.ciel.org/Tae/Methanex_30Mar04.html.
[53] A carcinogen is any substance, synthesised or chemical, that can have a harmful effect on biological health. In particular, it usually refers to substances that cause cancer. (Author’s own definition)
[54] Gerdes, above n 46.
[55] NAFTA, above n 1, article 105, 32 ILM 298 as cited from Charnovitz, above n 2, 26 Article 1.
[56] NAFTA, Chapter Seven: ‘Agriculture and Sanitary and Phytosanitary Measures, Section B − Sanitary and Phytosanitary Measures.’ As cited from http://usinfo.org/law/nafta/chap-073.stm.html
.
[57] Groups Defend California’s Right to Protect Public Health, above n.52.
[58] Groups Defend California’s Right to Protect Public Health, above n 52.
[59] Groups Defend California’s Right to Protect Public Health, above n 52.
[60] Gerdes, above n 46.
[61] Gerdes, above n 46.
[62] Gerdes, above n 46.
[63] Charnovitz, above n 2, 55-6 Article 1.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MqJlICEnvLaw/2004/11.html