North American Environment and Its Linkages to Trade
THE NORTH AMERICAN ENVIRONMENT LINKAGES TO TRADE AND ITS
Nicole A. Kleman 0
0 Williams School of Law
1 North American Free Trade Agreement , Dec. 17, 1992, U.S.-Can.-Mex., 32 I.L.M. 289
The augmenting concern for the environment over the past twenty-five years is reflected in the amplification of environmental laws and international environmental agreements. This growth has occurred in the context of an increasingly integrated world economy and a rapidly expanding flow of international trade and investment. The potential for conflict between environmental and trade policy objectives was vividly realized in the debate over the North American Free Trade Agreement in the early 1990s. 31 Although the NAFTA's provisions failed to appease political views in the United States, they connote, however, a small piece of a large environmental puzzle which was ultimately completed upon the consummation of a separate side agreement on the environment, the North American Agreement on Environmental Cooperation. 32 The NAAEC's implementation reflects a heightened desire to enforce international environmental cooperation and a rising concern that the NAFTA failed to adequately protect against the adverse effects of increased trade on the environment.
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viability in ensuring that member nations dutifully enforce their
environmental laws is examined, as well as each component's efficiency in
monitoring the efforts made by the Parties to reach the NAAEC's goals.
Part III will consider the mandate and operations of the NAAEC and its
relevant elements, the Parties and the CEC, while defining the flaws and
virtues of the NAAEC. Finally, Part IV will suggest revisions to particular
sections of the NAFTA and NAAEC in light of the North American
experience regarding environmental protection and trade since 1994.
PART I: THE NAFTA
When the NAFTA took effect on January 1, 1994, it created the largest
free trade zone in the world.34 The United States, Canada, and Mexico
entered into this agreement in order to remove restrictions on imports and
exports among the three Parties and to increase the opportunity for
investment in each member nation.35 By removing these trade barriers, the
countries anticipated economic growth through a rise in the availability of
consume36r goods and stronger positions for each nation in the global
market.
Although the NAFTA is primarily a trade agreement, it contains
environmental provisions that exceed the boundaries of previous trade
agreements. This article, in part, focuses on these environmental
provisions and their association with trade. While the NAFTA's purpose is
to promote free trade between the Parties, its preamble lists environmental
protection and conservation, sustainable development, and the
enforcement of environmental la3w7s and regulations as factors meriting
support within a trade agreement.
In Article 104 (Relation to Environmental and Conservation
Agreements), the NAFTA acknowledges various environmental
commitments, as well as the relationship between trade and the
environment. 38 Simultaneously, however, it provides wide boundaries for
exceptions and a permissive understanding of its environmental
provisions.39 The NAFTA's primary and most detrimental flaw is that it
34 See NAFTA, supranote 1.
35 See id. at 287; LESLIE ANN GLICK, UNDERSTANDING THE NORTH AMERICAN FREE
TRADE AGREEMENT 3 (2d ed. 1994).
36 See NAFTA, supranote 1, at 297.
37 See id. at 297 (outlining the six trade related objectives in the NAFTA). The NAAEC
refers to member nations as "Parties."
38 See NAFTA, supra note 1, at 298. In an attempt to protect the integrity of the
traderestrictive enforcement provisions in multilaterally negotiated environmental treaties, the
NAFTA's Article 104 exempts from challenge certain multilateral agreements including
the Convention on the International Trade of Endangered Species and the Montreal
Protocol. Id.
39 See id., art 104, at 298 (providing that in the event of an inconsistency between the
NAFTA and certain trade obligations provided in certain international environmental
fails to set any environmental standards or a particular level of
environmental quality. 40 Instead, the Agreement balks at standard
coofndvoemrseisotnic aenndvicroonnmfoermntaaltiorengualnadtioenms.b4r1aces each Party's unparalleled set
The majority of the NAFTA's environmental provisions are included
in Chapter 7 on Agriculture and Sanitary and Phytosanitary Measures
("SPS") 42 and in Chapter 9 on Standard Related Measures ("SRM"). In
these chapters, the NAFTA establishes "zones" that are impervious to
forbidden trade barriers and nontariff trade barriers ("NTBs"). Although
they are usually ambivalent, NTBs are national standards that were
constructed to obscure trade.43 The NAFTA specifically condones NTBs
in Chapter 9, permitting Parties to embrace any SRM but particularly
those that44would help define the Parties' levels of environmental
protection.
Moreover, any SPS "necessary for the protecti (...truncated)